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2017 DIGILAW 1332 (GAU)

Partha Pratim Roy v. Amal Kanti Raha

2017-10-16

AJIT BORTHAKUR

body2017
JUDGMENT : Ajit Borthakur, J. 1. This long pending appeal of 2010 is directed against the judgment, dated 15th July, 2010, passed by the learned Civil Judge No. 3, Kamrup, Guwahati in Money Suit No. 102 of 2007, whereby the suit was dismissed. I have heard Mr. N.N. Karmakar, learned counsel appearing for the plaintiff/appellant and Mr. R. Sarma, learned counsel appearing for the defendant/respondent. Perused the suit record. 2. The brief facts of the case, is that, the plaintiff/appellant and the defendant/respondent are the disciples of Sri Sri Paramananda Saraswati Maharaj and they are familiar with the administrative affairs of Sri Sri Bijoykrishna Sadhan Ashram Religious and Charitable Trust. In the year 2002, the plaintiff/appellant received a script from the President of the newly constituted Trust Board of Sri Sri Bijoykrishna Sadhan Ashram Religious and Charitable Trust, whereby, the defendant/respondent brought up allegations against the plaintiff/appellant and another disciple that they have committed mischievous acts causing harm to the prestige, security and sanctity of the Ashram. An FIR, dated 15.04.2003, was lodged by the defendant/respondent at Jalukbari Police Station against the plaintiff appellant bringing an accusation against him that he committed theft of receipt books of Ashram. The defendant/respondent did not stop there and he communicated to the employer of the plaintiff/appellant i.e. the Divisional Railway Manager, N.F. Railway, Lumding, vide letter, dated 10.04.2007, imputing serious allegations and informed him that a police case against the plaintiff/appellant was under investigation. The plaintiff/appellant contended that by the aforesaid malicious complaint, he has injured greatly to his character, conduct and reputation and has brought into public scandal, hatred, ridicule and contempt which compelled the plaintiff/appellant to file the aforesaid money suit, praying for a decree of Rs. 15,00,000/- (Rupees Fifteen Lakhs Only) with interest @ 6% per annum till payment of the amount. 3. The defendant/respondent contested the suit by filing a written statement stating, inter alia, that the plaintiff/appellant along with 02 (two) other disciples of Sri Sri Paramananda Saraswati Maharaj were debarred for 03 (three) years from taking part, directly or indirectly, in any sort of activity of Sri Sri Bijoykrishna Sadhan Ashram, vide resolution No. 8, in the Annual General Meeting, dated 6.10.2003, held at Kamakhya Dham Ashram, Guwahati. The defendant sought for dismissal of the said suit. 4. The defendant sought for dismissal of the said suit. 4. The learned trial Court upon hearing the pleadings of the parties, framed as many as, 6 (six) issues which are as follows: "1. Whether the suit is maintainable? 2. Whether there is a cause of action for the suit? 3. Whether the suit is barred by limitation? 4. Whether the suit is bad for non joinder of necessary parties? 5. Whether the defendant/respondent, by his letter, dated 26.12.2002, 15.4.2003, 10.10.2003 and 10.04.2007 has harmed any reputation of the plaintiff? 6. Whether the defendant has caused to the plaintiff/appellant any pecuniary loss, mental pain and agony by his letter, dated 20.12.2002, 15.04.2003, 10.01.2003 and 10.04.2007? 7. Whether the plaintiff/appellant is entitled to the decree as prayed for? 8. What other relief/reliefs the parties are entitled to get?" 5. In course of trial, the plaintiff/appellant examined 03(three) witnesses including himself, on his behalf, whereas, the defendant/respondent examined himself and 01 (one) more witness on his behalf. Both the sides exhibited a number of documents in support of their respective case. 6. The learned Court below answered the issues No. 1, 2 & 3 in the positive and in favour of the plaintiff/appellant and issues No. 4 & 5 were decided against the plaintiff/appellant. The learned trial Court after meticulous examination of the letters and plaintiffs witnesses and the defendant's witnesses, has come to a definite finding that there is no scope of defamation against the plaintiff/appellant by the action of the defendant/respondent. As regards the issue No. 6, as eluded earlier, the learned Court further held that when the plaintiff/appellant could not prove the act of defamation by the defendant/respondent, the question of pecuniary loss, mental pain etc. does not arise and hence, this issue goes against the plaintiff/appellant. 7. Mr. Karmakar, learned counsel appearing for the plaintiff/appellant submitted that the learned Court below has not appreciated the pleading of the plaintiff/appellant in its proper perspective and has gone mechanically through the same, as the FIR, dated 15.4.03, lodged by the defendant/respondent had definitely maligned the reputation of the plaintiff/appellant. It is also submitted that due to the letter dated 10.04.2007, addressed to the Divisional Railway Manager, N.F. Railway, Lumding, a departmental enquiry was held and the plaintiff/appellant had to face the aforesaid departmental enquiry for the above complaint. 8. It is further contended by Mr. It is also submitted that due to the letter dated 10.04.2007, addressed to the Divisional Railway Manager, N.F. Railway, Lumding, a departmental enquiry was held and the plaintiff/appellant had to face the aforesaid departmental enquiry for the above complaint. 8. It is further contended by Mr. Karmakar, learned counsel, appearing for the plaintiff/appellant that due to the above communication of the defendant/respondent, without any basis, the plaintiff/appellant had to suffer a lot and has injured his character, conduct and reputation for no fault of him and for this reason, he is entitled to a sum of Rs. 15,00,000/- (Rupees Fifteen Lakhs Only) with interest, but, the learned Court below whimsically dismissed the claim without proper appreciation of evidence. 9. Mr. R. Sarma, learned counsel appearing for the defendant/respondent submitted that the learned Court below has proved the guilt of the plaintiff/appellant by exhibiting the copy of books of account of Sri Sri Bijoykrisha Sadhan Asharam. The defendant/respondent also exhibited Ext-'A', resolution, dated 05.10.1984, regarding appointment of the defendant/respondent as Shebayat of Kamakhya Dham Ashram. Ext 'B' is the Minutes of Annual General meeting of Sri Sri Bijoykrishna Sadhan Ashram, Board of Trustees, held at Kamakhya on 02.10.1998. The copy of the said resolution was certified to be true copy by the President of Sri Sri Bijoykrishna Sadhan Ashram, Board of Trustees. Ext. 'C' contains the Minutes of the Annual General Meeting of Sri Sri Bijoykrishna Sadhan Ashram, Board of Trustees, held on 21.10.1991 at 10 am at Kamakhya Dham Ashram. Ext. 'D' is the extract of the proceedings of the Trust Board Meeting, dated 11.07.2002 and the plaintiff/appellant's side never challenged the correctness of the copies of these documents. The entire evidence of DW-2 remained unchallenged and unrebutted. 10. In the instant appeal, the plaintiff/appellant's basic grounds of assailing the impugned judgment and order rest on the rules of pleadings, such as, Rules 3, 4 & 5 of Order 8; Rules 3, 4, 6 & 7 of Order 13; Rules 1(2), 1(5), 1(6) of Order 14; Rule 1(2) of Order 15 and Section 107 of the C.P. Code, which the learned trial Court has not complied with. It is pertinent to be mentioned that as a general rule, a party to a suit can only succeed on the strength of his own case, as made out expressly or impliedly in the pleading as well as on the basis of unambiguous admission of his adversary. A party is, therefore, expected and is bound to prove the case as alleged by him. In other words, a party can only succeed, on what is alleged and proved, not on the basis of any mistake committed by the adverse party. 11. With regard to the issues No. 5 & 6, which are considered to be the core issues in the suit, the plaintiff/appellant averred that by reasons contained in the letter, dated 26.12.2002, vide Ext. 1', written allegedly by the defendant/respondent addressed to the President, Sri Sri Bijoykrishna Sadhan Ashram Trust, Narendrapur, 24, Parganas, West Bengal; Ext. 2', the First Information Report, dated 15.04.2003, allegedly lodged by the defendant/respondent with the Officer-in-Charge, Jalukbari P.S., Guwahati, another FIR, dated 10.10.2003, vide Ext. 3'. the Secretary of Sri Sri Bijoy Krishna Sadhan Ashram, Board of Trustees, allegedly written under instruction of the defendant/respondent lodged with the same Police Station and writing a complaint addressed to the Divisional Railway Manager, N.F. Railway, dated 10.4.2007, vide Ext. 4, against him, the defendant/respondent tended to lower the plaintiff/appellant in the estimation of the right thinking members of the society in general. Therefore, in order to establish an action for libel, it is the burden of the plaintiff/appellant to prove that the aforesaid written complaints allegedly made by the defendant/respondent herein, were false, defamatory and published. 12. A publication is defamatory, when the words contained therein in their natural, obvious and in primary sense defamatory against the plaintiff/appellant, which words should be communicated to some person other than him. The defendant/respondent in his written statement denied the allegations specifically and by necessary implication, terming the same as out and out false and hence, not admitted. The defendant/respondent exhibited 12 (twelve) number of documents vide Ext. 'A' copy of resolution of Trust Board meeting, dated 05.10.1984; Ext. 'B' & 'C', Minutes of Annual General Meeting of the Trust Board; Ext 'D' extract of the proceeding of the Trust Board meeting, Ext. 'E', 'F', 'G' & 'H', the letters; Ext. 1, FIR, dated 07.09.2003; Ext. 'J', charge-sheet No. 138/2003 of Jalukbari P.S., Guwahati; Ext. 'A' copy of resolution of Trust Board meeting, dated 05.10.1984; Ext. 'B' & 'C', Minutes of Annual General Meeting of the Trust Board; Ext 'D' extract of the proceeding of the Trust Board meeting, Ext. 'E', 'F', 'G' & 'H', the letters; Ext. 1, FIR, dated 07.09.2003; Ext. 'J', charge-sheet No. 138/2003 of Jalukbari P.S., Guwahati; Ext. 'K', the representation, dated 07.09.2003, submitted by some disciples of the said Ashram; Ext 'L', letter, dated 08.09.2003, addressed to the Divisional Railway Manager, N.F. Railway, Lumding against the plaintiff/appellant; Ext. 'M', an open undated letter allegedly published by the plaintiff/appellant; Ext. 'N', the representation, dated 07.09.2003, submitted by 16(sixteen) disciples of the Ashram to the President, Sri Sri Bijoy Krishna Sadhan Ashram, Trust Board, Narendrapur, Kolkata; Ext. 'O', the copy of the proceedings of the Annual General Meeting of the Ashram and Ext. 'P', letter, dated 09.10.2003, written by the Secretary of the Trust Board to the plaintiff/appellant herein. 13. Sections 62 and 63 of the Evidence Act prohibit admission of photocopy of documents in evidence, as the same is neither primary nor secondary evidence. In the present suit, the plaintiff/appellant has exhibited photocopy of the documents vide Exts. 1, 2, 3, 4 and have neither produced the originals nor called the addressees, thereof, to prove receipt of the same, which are, therefore, not admissible in evidence. The consequence of exhibition of photocopy of documents is that as those are inadmissible evidence, the same cannot be worthy of judicial consideration and also the veracity of the various allegations contained in Ext. 5, the legal notice, dated 10.8.07, issued by the plaintiff/appellant addressed to the defendant/respondent No. 1. 14. Even Ext. 6, the certified copy of the judgment and order, dated 01.07.2009, passed by the learned Judicial Magistrate, Guwahati in GR. Case No. 4163/2003, under Sections 448, 352, 294, 506, 34 of the IPC, whereby, the plaintiff/appellant and another were acquitted of the aforesaid offences does not reveal any clear and specific observation of the learned trial Court that the allegations were false and fabricated. On the other hand, on scrutiny of the evidence of the defendant/respondent, both oral and documentary, reflect the sorry state of internal mismanagement of the Ashram afflicting the faithful disciples to a great extent. 15. On the other hand, on scrutiny of the evidence of the defendant/respondent, both oral and documentary, reflect the sorry state of internal mismanagement of the Ashram afflicting the faithful disciples to a great extent. 15. Therefore, this Court sees no justiciable reason to interfere in the well reasoned impugned findings on law and facts, recorded in the issues No. 5 and 6 and accordingly, affirmed, holding that the alleged acts of the defendant/respondent were not prompted by personal malice with a calculated design to lower the reputation of the plaintiff/appellant in the estimation of the disciples of the Ashram and the public in general. 16. So far the issue No. 4, regarding non-joinder of necessary parties is concerned, the learned trial Court rightly observed, inter alia, that the defendant/respondent was the Shebayat of Kamakhya Dham Ashram of Sri Sri Bijoykrishna Sadhan Ashram Religious and Charitable Trust and he made the correspondence, vide the exhibited documents on behalf of the said Ashram. Therefore, the learned trial Court held that Sri Sri Bijoykrishna Sadhan Ashram Religious and Charitable Trust, Kamakhya Dham Ashram is a necessary party and further, the Secretary of the Board of Trustees of the said Ashram, namely, Pannalal Kanjilal, who lodged the FIR, vide Ext. 3 is also a necessary party, in absence of whom, the suit cannot be decided effectively. This Court does not find any legal reason to interfere in the aforesaid findings of the learned trial Court and accordingly affirmed. 17. Considered thus, this Court is of the view that when the aforesaid principal issues No. 4, 5 and 6 have failed, the other issues are redundant. For the above stated reasons, the appeal fails and accordingly stands dismissed. No cost. Send back the LCRs along with a copy of this judgment and order.