IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Tarlok Singh Chauhan, J. Surinder Mohan Katwal - Appellant/Plaintiff Versus Virbhadra Singh - Respondent/Defendant R.S.A. No. 85 of 2014 Decided on : 31.3.2014 Advocates appeared : For the Appellant : Mr. A.K.Bansal, Advocate. For the Respondent : Nemo Judgment : Tarlok Singh Chauhan, Judge (Oral) This is plaintiff’s second appeal whereby his suit for recovery of Rs.9,99,999/- as damages for defamation against the defendant has been dismissed by the learned Courts below. 2. The plaintiff filed the aforesaid suit and claimed himself to be a respectable senior citizen of India having retired as an IAS officer in the year 1996. After retirement, he was firstly appointed as member of Himachal Pradesh Subordinate Service Selection Board, Hamirpur (hereinafter to be called ‘Board’) in October, 1998 and thereafter as Chairman on 14.8.2003 having an unblemished record of service of over 40 years. According to the plaintiff, the defendant was nursing grudge against him as he did not pay heed to his dictates. As a result whereof, he had been unleashing a vicious and false propaganda against the plaintiff in order to lower his reputation in the public and to defame him by making false allegations at all given occasions. One such occasion was when defendant made a statement in a function amongst the general public on 3.12.2003 at Primary School, Rohara, District Kangra that the Board had become a den of corruption and the jobs were being sold to non-Himachalies under the chairmanship of the plaintiff. It was stated that the defamatory statement was widely reported in various vernacular dailies of Himachal Pradesh on 4.12.2003 thereby causing loss of reputation of the plaintiff and lowering his image in the public esteem. Hence the suit. 3. The defendant resisted and contested the suit on the ground of maintainability, want of notice under Section 80 CPC, non-joinder of necessary parties and want of cause of action. On merits, it was admitted that the plaintiff had retired as an IAS officer and had been appointed as member and thereafter Chairman of the Board. However, it was submitted that the plaintiff was arrayed as an accused in criminal case investigated by CBI Economic Offences Branch in which the plaintiff had obtained anticipatory bail. The police investigated the cases registered vide FIR Nos. However, it was submitted that the plaintiff was arrayed as an accused in criminal case investigated by CBI Economic Offences Branch in which the plaintiff had obtained anticipatory bail. The police investigated the cases registered vide FIR Nos. 3/2003 dated 8.4.2003, 4/2003 dated 16.5.2003, 15/2003 dated 21.11.2003, 1/2004 dated 21.1.2004 and 2/2004 dated 17.3.2004 registered at Police Station, Enforcement North Zone, Dharamshala. In fact, the Enforcement Department had registered seven criminal cases for different offences out of which the plaintiff was an accused in five cases due to his various acts of omission and commission as Chairman of the H.P. Subordinate Service Selection Board. These cases had been registered after a thorough investigation. The defendant became Chief Minister of the State and inquiry was ordered. The defendant was not nursing any grudge against the plaintiff and had ordered the inquiry in order to find the truth about the allegation of corruption made by the public and the name of the plaintiff figured in five cases relating to the acts of plaintiff as Chairman of the Board. There was no ulterior motive in ordering the inquiry and, therefore, the defendant prayed for dismissal of the suit. 4. The plaintiff filed replication and the averments made in the plaint were reiterated and those of the written statement were denied. 5. On the pleadings of the parties, the learned trial Court on 14.3.2006 framed the following issues: 1. Whether the defendant allegedly made a statement at a public function on dated 3.12.2003 and thereby damaged the reputation of plaintiff, as alleged and the same was duly published in various vernacular dailies of Himachal Pradesh on 4.12.2003, if so, its effect? OPP 2. If issue No.1 is proved in affirmative, whether the reputation of the plaintiff as such was lowered in the public esteem and thereby had caused irreparable damage to his reputation, as alleged? OPP 3. Whether the plaintiff is entitled for damages to the tune of Rs.9,99,999/- as claimed against the defendant, as alleged? OPP 4. Whether the suit is not maintainable in the present form? OPD 5. Whether the suit is bad for notice as envisaged under Section 80 CPC, if so, its effect? OPD 6. Whether the suit is bad for non-joinder of necessary parties? OPD 7. Whether the plaintiff has no cause of action against the defendant? OPD 8. Relief. 6. OPP 4. Whether the suit is not maintainable in the present form? OPD 5. Whether the suit is bad for notice as envisaged under Section 80 CPC, if so, its effect? OPD 6. Whether the suit is bad for non-joinder of necessary parties? OPD 7. Whether the plaintiff has no cause of action against the defendant? OPD 8. Relief. 6. Insofar as the oral evidence is concerned, the learned trial Court analyzed the evidence threadbare and observed that the plaintiff had examined PW-1 Shafi Mohammad and PW-2 Dharam Singh, who filed their respective affidavits stating that they were present in the public meeting addressed by the defendant on 3.12.2003 and they had heard the speech of defendant whereby he had made the statement that the Board has become den of corruption, though there were lacs unemployed in the State but despite that jobs are being auctioned to the persons belonging to Punjab, Utter Pradesh and Bihar States. But during the cross-examination of PW-1 Shafi Mohammad had stated that the plaintiff was not known to him and he was not aware as to which post was held by the plaintiff. He was called by the plaintiff to give evidence and prior to this, he was not known to the plaintiff. He further stated that he heard the speeches of Kuldeep Kumar and the defendant. PW-2 Dharam Singh had also admitted that the plaintiff was not personally known to him and he had only seen his photograph in the newspaper. 7. PW-3 Navdeep Kashyap had also filed his affidavit stating that he had read the newspaper wherein it was reported that the defendant on 3.12.2003 during his speech had stated that the Board at Hamirpur had become den of corruption and despite the fact that lacs in Himachal Pradesh are unemployed, the jobs are being sold to residents of Punjab, Utter Pradesh and Bihar States and this statement had lowered the reputation of the plaintiff. In his cross-examination, he had admitted that he was an active member of Bhartiya Janta Party. 8. At the same time, the plaintiff appeared as PW-5 placed on record his affidavit reiterating the averments made in the plaint. During the cross-examination, the plaintiff had stated that he had remained Chairman of the Board from April 2002 to 14.8.2003. In his cross-examination, he had admitted that he was an active member of Bhartiya Janta Party. 8. At the same time, the plaintiff appeared as PW-5 placed on record his affidavit reiterating the averments made in the plaint. During the cross-examination, the plaintiff had stated that he had remained Chairman of the Board from April 2002 to 14.8.2003. He had also admitted that two FIRs had been registered against him in the capacity of Chairman of the Board and in these FIRs other persons were also arrayed as co-accused. He also admitted that he had been convicted in one of the case but the appeal was pending. He has also admitted that he was not present in the meeting in which the alleged statements were given by the defendant. 9. To rebut the evidence of the plaintiff, the defendant placed on record his affidavit wherein he has stated that being Chief Minister of Himachal Pradesh, he was answerable to the general public of the State regarding the working of the State Government and the statement made by the Chief Minister are in his official capacity and issued in public interest. He stated that he was not having any enmity or personal grudge with the plaintiff. When Prem Kumar Dhumal was the Chief Minister of the State, the general public had raised objections regarding working of the Board and several complaints had been made to him while he was then the leader of opposition. After general elections when the Congress Party won the election and he became the Chief Minister of the State, the State Government ordered the inquiry about the functioning of the Board which was conducted by the officials of the Enforcement Department of the State. It was on the basis of said inquiry that criminal cases were registered and the plaintiff was also one of the accused in some of the cases. He addressed the official meeting at village Rohara on 3.12.2003 and informed the public regarding misdeeds of the previous government. However, he had not stated any word regarding the conduct of the plaintiff nor made any statement lowering his reputation in the eyes of general public and the words which are alleged to have been reported in the newspaper were in fact not the words spoken by him. 10. This is the entire evidence led on behalf of both the parties. 10. This is the entire evidence led on behalf of both the parties. The learned trial Court after evaluating the evidence arrived at the following conclusions: “14. Thus, to succeed in an action for defamation, the plaintiff has firstly to prove that the words spoken or published are defamatory and referred to him, secondly to prove publication thereof which is an essential element of civil law of defamation. In the instant case, the plaintiff has not exhibited on record the said news item alleged to have been published in various vernacular dailies of Himachal Pradesh on 4.12.2003 whereas, the defendant has taken a specific stand that he had not uttered any word regarding conduct of the plaintiff and words stated to have been reported in the news item are of not the words spoken by him. Therefore, the onus was on the plaintiff to have proved on record that defendant had made statement which was duly published in the daily newspaper on 4.12.2003 and the said statement was defamatory and it referred to him. To prove publication, the plaintiff examined PW-4 Brejesh Kaushik who has stated that in the year 2003, he was correspondent of Punjab Kesri and incharge of Jawala Mukhi area. On 3.12.2003, Chief Minister Virbhadra Singh firstly inaugurated Ranta bridge and then addressed public meeting at village, Rohara and gave statement wherein, he leveled allegations of corruption against Dhumal Government. He had sent reporting of the said statement to the main office which was published on 4.12.2003 as per the statement given by defendant on 3.12.2003 which is mark A. During cross-examination, he has admitted that speech of the Chief Minister was not recorded by him and he simply noted it down. However, he cannot produce the said noting. He had not recorded statement of Chief Minister in verbatim. The news is not published in verbatim but is edited. He could not say whether news on 4.12.2003 was published in verbatim or it was edited. However, he has admitted that the defendant did not mention name of any person in his speech nor he mentioned name of the plaintiff. He had not recorded statement of Chief Minister in verbatim. The news is not published in verbatim but is edited. He could not say whether news on 4.12.2003 was published in verbatim or it was edited. However, he has admitted that the defendant did not mention name of any person in his speech nor he mentioned name of the plaintiff. Thus, statement of this witness makes it clear that he had not recorded speech of the Chief Minister but had just noted it down and could not produce noting in the Court nor the newspaper dated 4.12.2003 has been exhibited on record by the plaintiff in which the said news alleged to have been published. This witness has also admitted that he cannot say whether statement was published in verbatim or it was edited, but admitted that the defendant did not disclose name of any person nor he mentioned name of the plaintiff.” 11. The learned trial Court thereafter came to a categorical conclusion that the statement published in the Hindi Punjab Kesri newspaper on 4.12.2003 in fact did not name the plaintiff and rather the statement only referred to the rampant corruption in the State. It also took notice of the fact that merely because the plaintiff may have happened to be the Chairman of the Board, therefore, it could not be said that it was he and none else who was defamed because the Board not only constituted of the Chairman but members, employees and other functionaries. 12. The learned trial Court also came to the conclusion that since the statement was made by the defendant in his official capacity as a Government servant and not individual capacity, therefore, notice under Section 80 CPC was required to be served upon the defendant before filing the suit as the service of notice under Section 80 CPC was a condition precedent for institution of the suit against the government or public servant and, therefore, suit was held bad for want of notice under Section 80 CPC. On this basis also the learned trial Court dismissed the suit. 13. Against the judgment and decree passed by the learned trial Court, the plaintiff filed appeal before the learned lower Appellate Court, who vide his judgment and decree dated 30.9.2013 has been pleased to dismiss the appeal. It is this judgment and decree which has been challenged before this Court. 14. 13. Against the judgment and decree passed by the learned trial Court, the plaintiff filed appeal before the learned lower Appellate Court, who vide his judgment and decree dated 30.9.2013 has been pleased to dismiss the appeal. It is this judgment and decree which has been challenged before this Court. 14. The learned lower Appellate Court after complete analysis of the pleadings and the evidence led by the parties came to a definitive conclusion that the actual words as contained in the news item were in fact not defamatory as the same did not relate to the plaintiff or could not be read in context with his duties as Chairman of the Board. It further concluded that news item in fact hit the former Chief Minister by alleging that he was selling jobs to outsiders. The learned lower Appellate Court held that the words in the news item could not even be construed as ‘innuendo’ as understood in legal parlance. 15. The learned lower Appellate Court while agreeing with the view of the trial Court though was not required to re-state the effect of the evidence or reiterate the reasons given by the learned trial Court; and could have by expression of general agreement with reasons given by the Court, the decision of which is under appeal, would have ordinarily sufficed. However, the learned lower Appellate Court has by painstaking effort taken into consideration the pleadings, evidence and the law on the subject. 16. The learned lower Appellate Court while deciding the appeal kept in mind the guiding principles as laid by the Hon’ble Supreme Court in Santosh Hazari vs. Purushottam Tiwari (deceased) by LRS (2001) 3 SCC 179 as under:- “15. A perusal of the judgment of the trial Court shows that it has extensively dealt with the oral and documentary evidence adduced by the parties for deciding the issues on which the parties went to trial. It also found that in support of his plea of adverse possession on the disputed land, the defendant did not produce any documentary evidence while the oral evidence adduced by the defendant was conflicting in nature and hence unworthy of reliance. The first appellate court has, in a very cryptic manner, reversed the finding on question of possession and dispossession as alleged by the plaintiff as also on the question of adverse possession as pleaded by the defendant. The first appellate court has, in a very cryptic manner, reversed the finding on question of possession and dispossession as alleged by the plaintiff as also on the question of adverse possession as pleaded by the defendant. The appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate Court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions putforth, and pressed by the parties for decision of the appellate Court. The task of an appellate court affirming the findings of the trial Court is an easier one. The appellate court agreeing with the view of the trial court need not restate the effect of the evidence or reiterate the reasons given by the trial court; expression of general agreement with reasons given by the court, decision of which is under appeal, would ordinarily suffice (See Girijanandini Devi v. Bijendra Narain Choudhary, AIR 1967 SC 1124 . We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate court for shirking the duty cast on it. While writing a judgment of reversal the appellate court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial court must weigh with the appellate court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate court is entitled to interfere with the finding of fact. (See Madhusudan Das v. Narayanibai (1983) 1 SCC 35 ). As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate court is entitled to interfere with the finding of fact. (See Madhusudan Das v. Narayanibai (1983) 1 SCC 35 ). The rule is – and it is nothing more than a rule of practice – that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge’s notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lie, the appellate court should not interfere with the finding of the trial Judge on a question of fact. (See Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh, AIR 1951 SC 120 ). Secondly, while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate Court had discharged the duty expected of it. We need only remind the first appellate courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. The first appellate Court continues, as before, to be a final court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate court is also a final court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate court even on questions of law unless such question of law be a substantial one.” 17. I have heard Mr. A.K.Bansal, learned counsel for the appellant. He has contended that the judgment and decree passed by the learned Courts below is wrong, illegal and against the facts brought on the record and, therefore, liable to be set-aside. I have heard Mr. A.K.Bansal, learned counsel for the appellant. He has contended that the judgment and decree passed by the learned Courts below is wrong, illegal and against the facts brought on the record and, therefore, liable to be set-aside. He further contended that the learned Courts below has not considered the evidence on record and had come to erroneous findings, which are liable to be set-aside. It was stated that the learned Courts below ignored the fact that the defendant had deliberately and intentionally delivered a speech which was clearly aimed to harm the reputation of the plaintiff. He further contended that the words spoken by the defendant were defamatory and were related to the plaintiff. He further contended that making of a defamatory statement and imputation had no relation with performance of official duties and these claims can only be pretended and fanciful. 18. It is settled law that this Court in second appeal should not disturb the concurrent findings of fact unless it is shown that the findings recorded by the learned Courts below are perverse being based on no evidence or that on basis of evidence on record, no reasonable person could have come to that conclusion. It is otherwise also fairly well settled that solely because another view is possible on the basis of the evidence, the High Court is not entitled to exercise its jurisdiction under Section 100 CPC. 19. In view of the settled legal position, I find that the plaintiff/appellant has not even alleged that the findings recorded by the learned Courts below are perverse being based on no evidence or that on the basis of the evidence on record no reasonable person could have come to that conclusion. The learned counsel only argued that the impugned judgments and decrees were result of mis-appreciation, misinterpretation and misreading of the record oral as well as documentary evidence. He, however, could not substantiate this plea. 20. The Court would be over zealous to protect the reputation of an individual. Since the personal rights of human being include the right of reputation as held by the Hon’ble Supreme Court in Umesh Kumar vs. State of Andhra Pradesh and another (2013) 10 SCC 591 as under: “18. Allegations against any person if found to be false or made forging someone else’s signature may affect his reputation. Since the personal rights of human being include the right of reputation as held by the Hon’ble Supreme Court in Umesh Kumar vs. State of Andhra Pradesh and another (2013) 10 SCC 591 as under: “18. Allegations against any person if found to be false or made forging someone else’s signature may affect his reputation. Reputation is a sort of right to enjoy the good opinion of others and it is a personal right and an enquiry to reputation is a personal injury. Thus, scandal and defamation are injurious to reputation. Reputation has been defined in dictionary as “to have a good name; the credit, honour, or character which is derived from a favourable public opinion or esteem and character by report”. Personal rights of a human being include the right of reputation. A good reputation is an element of personal security and is protected by the Constitution equally with the right to the enjoyment of life, liberty and property. Therefore, it has been held to be a necessary element in regard to right to life of a citizen under Article 21 of the Constitution. The International Covenant on Civil and Political Rights, 1966 recognises the right to have opinions and the right to freedom of expression under Article 19 is subject to the right of reputation of others. Reputation is “not only a salt of life but the purest treasure and the most precious perfume of life”. (Vide Kiran Bedi v. Committee of Inquiry (1989) 1 SCC 494 : AIR 1989 SC 714 , Port of Bombay v. Dilipkumar Reghavendranath Nadkarni (1983) 1 SCC 124 : AIR 1983 SC 109 , Nilgiris Bar Assn. v. T.K. Mahalingam, (1998) 1 SCC 550 , Mehmood Nayyar Azam v. State of Chhattisgarh, (2012) 8 SCC 1 , Vishwanath Agrawal v. Sarla Vishwanath Agrawal, (2012) 7 SCC 288 and Kishore Samrite v. State of U.P. (2013) 2 SCC 398 )”. However, the reputation here does not only mean the reputation of the plaintiff alone but also means and include the reputation of the defendant. It was incumbent upon the plaintiff to prove that his reputation has been soiled or else by filing such cases, he would run the risk of injuring the reputation of the opposite party. 21. However, the reputation here does not only mean the reputation of the plaintiff alone but also means and include the reputation of the defendant. It was incumbent upon the plaintiff to prove that his reputation has been soiled or else by filing such cases, he would run the risk of injuring the reputation of the opposite party. 21. Therefore, taking into consideration the entire facts and circumstances of the case, no question of law much less substantial questions of law arises for consideration in the present appeal and accordingly the same is dismissed in limine. The parties are left to bear their own costs.