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2018 DIGILAW 1248 (GAU)

PRABIR MOHAN DASTIDAR v. SADIN PRINTERS

2018-08-24

KALYAN RAI SURANA

body2018
JUDGMENT : KALYAN RAI SURANA, J. 1. Heard Mr. U. Dutta, the learned advocate for the appellant as well as Mr. M.P. Sarma, the learned advocate, who has appeared on instructions from the learned advocates for the respondents on record. 2. At the very outset, the learned advocates for both the sides submit that similar set of facts and common issues of law arise for consideration of this Court in both the appeals, which are between the same parties. Hence, both the appeals are heard together. 3. By RFA No. 12/2010, filed under section 96 CPC, the appellant has challenged the judgment and decree dated 26.10.2009 passed by the learned Civil Judge (Senior Division) No.3, Kamrup, Guwahati in Money Suit No. 193/2003, by which the suit filed by the appellant seeking a sum of Rs. 5.00 Crore as damages from the respondents for publishing defamatory news in Asomiya Pratidin, an Assamese language daily newspaper dated 27.06.2003, was dismissed. 4. By RFA No. 15/2010, filed under section 96 CPC, the appellant has challenged the judgment and decree dated 26.10.2009 passed by the learned Civil Judge (Senior Division) No.3, Kamrup, Guwahati in Money Suit No. 88/2003, by which the suit filed by the appellant seeking a sum of Rs. 5.00 Crore as damages from the respondents for publishing defamatory news in Asomiya Pratidin, an Assamese language daily dated 05.05.2003, was dismissed 5. The case of the appellant in the plaint was that at the relevant time, the appellant was posted as Inspector General of Police (Communication), Assam and Director of Police (Communication), Assam. Bereft of details, inter-alia, it was pleaded that he is highly educated and a highly decorated Assam Police personnel, having received various awards and appreciation to his credit. He has designed many educational courses and is associated with many Committees and Institutions including Assam Police Radio Organisation, Tezpur University, etc., and that he comes from a nationalist family background. It was stated that because of his many faceted qualities including high level of integrity, he is loved and respected and has earned an impeccable reputation. He has designed many educational courses and is associated with many Committees and Institutions including Assam Police Radio Organisation, Tezpur University, etc., and that he comes from a nationalist family background. It was stated that because of his many faceted qualities including high level of integrity, he is loved and respected and has earned an impeccable reputation. However, his prestige, good name, image, reputation and respect in the society had considerably suffered loss because of false, fabricated, malicious and defamatory news article, which was prominently published in the 27.06.2003 in Asomiya Pratidin, which was stated to be published with malafide intention to defame the appellant and to tarnish his image before the fellow officers, superiors, employees and trainees in the Police Department in particular and before the public in general. Therefore, claiming that the cause of action for the suit arose on the various dates as mentioned in the two suits, the appellant had prayed for a decree of Rs. 5.00 Crore in both the suits as damages and compensation for defamation and for decree of permanent injunction to restrain the respondents from publishing defamatory news, views, articles and editorials against the appellant in future, for costs, etc. 6. The respondents contested the suit by filing their joint written statement, thereby denying the claim and by justifying their news article, further claiming that the appellant, being a public servant, was answerable to the public. It was stated that certain actions on his part, as mentioned therein, were illegal. Hence, the respondents had prayed for dismissal of the suit with cost. 7. Upon pleadings, the learned trial Court had framed the following issues for trial in MS 193/2003:- 1. Whether the suit is maintainable in its present form? 2. Whether the plaintiff has right to filed suit for defamation? 3. Whether the alleged news items were published with intention to defame the plaintiff and damage his reputation in the esteem of the society? 4. Whether the plaintiff is entitled to get damage and compensation as prayed for? 5. To what other relief/reliefs the parties are entitled to? 8. In connection with trial in MS 88/2003, the learned trial Court had framed the following issues:- 1. Whether the suit is maintainable in its present form? 2. Whether there is cause of action of the suit? 3. Whether the alleged news item published by the defendants against the plaintiff are defamatory? 4. 8. In connection with trial in MS 88/2003, the learned trial Court had framed the following issues:- 1. Whether the suit is maintainable in its present form? 2. Whether there is cause of action of the suit? 3. Whether the alleged news item published by the defendants against the plaintiff are defamatory? 4. Whether the plaintiff has suffered loss of fame, reputation, mental pain and agony, because of the defamatory news item? 5. Whether the defendants are liable to pay damages/compensation to the plaintiff, if so to what extent? 6. To what other relief/reliefs the parties are entitled to? 9. In support of his case in MS No. 193/2003, the appellant had examined the following witnesses, viz., himself (PW-1), Sri Aswini Narzary (PW-2), Sri Nalini Sarma (PW-3) and Sri Abisoy Sangame (PW-4), and had exhibited various documents. None of the respondents appeared in the witness box as witnesses, but they examined Sri Sanjay Kumar Das (DW-1) and Sri Nomal Chandra Das (DW-2) and had exhibited various documents. In MS 88/2003, the appellant had examined the following witnesses, viz., himself (PW-1), Sri Aswini Narzary (PW-2), Sri Nalini Sarma (PW-3), Sri Sadhan Seal (PW-4), Sri Pinky Hazarika (PW-5), Sri Arup Banerjee (PW-6), Sri Mukut Medhi (PW-7), Sri Dambarudhar Sarma (PW-8) and had exhibited various documents. None of the respondent appeared in the witness box as witnesses, but they examined Sri Sanjay Kumar Das (DW-1), Sri Aswini Narzary (DW-2), and Sri Durga Mohan Baishya (DW-3) and had exhibited various documents. 10. In respect of issue No.1 in both the suits, the learned trial Court had held that the suit was not barred by any provisions of law and, as such, the issue was decided in the affirmative. In respect of issue No. 2 in MS 88/2003, it was held that there was cause of action for the suit. In respect of issue No.2 and 3 in MS 193/2003 and in respect of issues No. 3 and 4 in MS 88/2003, upon discussing the evidence on record, the learned trial Court had arrived at a finding that not a single witness had stated that after going through the news item, the dignity, status and reputation of the appellant had been lowered down and it was also held that the appellant had failed to establish that the said news item is false. Hence, both the said issues were decided against the appellant. Hence, both the said issues were decided against the appellant. In view of the finding given in respect of issues No. 2 and 3 in MS 193/2003, the issues No. 4 and 5 were also decided against the appellant by holding that the respondents were not liable to pay any compensation. In view of the finding given in respect of issues No. 3 and 4 in MS 88/2003, the issues No. 5 and 6 were also decided against the appellant by holding that the respondents were not liable to pay any compensation. Hence, the suit was dismissed. 11. Assailing both the judgment and decree passed by the learned trial Court, the learned Counsel for the appellant has meticulously read out the defamatory news article, pleadings as well as the evidence on record. By pressing all the grounds of appeal, it is submitted that the news items were published with malicious intention to defame the appellant, knowing the said news items to be false. It is submitted that the respondents had failed to prove that the offending news items were published in good faith. It is submitted that the press had no special privilege and immunity for publishing false, baseless, fabricated and concocted story against the appellant. It is submitted that by the dint of the scholastic and professional accolades as well by virtue of his well decorated service career, in respect of which evidence was led, the appellant had earned impeccable goodwill and prestige in the society, which was totally lost by the publication of the offending news item, which contained false allegations, which could not be justified by the respondents. It is submitted that because of the false news items, the respondents did not enter the witness box out of fear of being exposed for publishing false news to defame the appellant. It is submitted that the learned trial Court had misread and misconstrued the evidence and had arrived at a wrong and erroneous finding, which had vitiated the judgment passed by the learned trial Court and prayed for reversal of the decision by the learned trial Court and had prayed for the suit being decreed. It is submitted that the learned trial Court had misread and misconstrued the evidence and had arrived at a wrong and erroneous finding, which had vitiated the judgment passed by the learned trial Court and prayed for reversal of the decision by the learned trial Court and had prayed for the suit being decreed. It is submitted that under the law for defamation, the presumption that the news items were false was already there and, as such, it was the burden of the respondent to dispel the doubt by leading evidence, but the learned trial Court had wrongly shifted the burden of proof on the appellant and, as such, there was a miscarriage of justice. In support of his submissions, the learned advocate for the appellant had placed reliance on the following case citations:- a. W. B. Shanthi Vs. Arunachalam, (2015) 1 LW 555 ; b. Dabur India Ltd. Vs. Colortek Meghalaya Pvt. Ltd., (2010) 1 AD(Del) 14; c. SNM Abdi Vs. Prafulla Kumar Mahanta & Ors., (2002) AIR Gauhati 75 ; d. Pandey Surendra Nath Sinha & Anr. Vs. Bageshwari Pd., (1961) AIR Patna 164. 12. Per contra, the learned advocate for the respondent has made his submissions to justify the publication of the news item found offending by the appellant. By referring to the news items, it is submitted that each and every statement made in the news items stood proved by the PWs. It is submitted that the appellant was the head of the office, but despite being served with a notice to produce, the relevant official records were not produced and, as such, adverse presumptions against the appellant could be taken for withholding material fact under Section 114 Illustration (g) of the Evidence Act, which if produced would have gone against the appellant. It is submitted that once malice is alleged against the respondents, the burden of proving malice would be on the appellant, but the appellant did not discharge his burden. It is lastly submitted that reputation is something which one cannot perceive for himself, but it must he considered as to how the other members of the public value the reputation of the appellant and in this connection, it is submitted that as per the evidence of the plaintiff's witnesses, none of them had stated that the prestige and reputation of the appellant was lowered before their esteem. Hence, the learned counsel for the respondent, by relying on the case of R. Rajagopal alias R.R. Gopal Anr. Vs. J. Jayalalitha & Anr., (2006) AIR Madras 312, has prayed for dismissal of the appeal. 13. From the above, the following points of determination arise for consideration in this appeal:- I. Whether the appellant has been able to establish that he has been defamed? II. Whether the impugned judgment and decree passed by the learned trial Court by dismissing the suit is sustainable on facts and in law? 14. The point of determination is taken up first. At the outset, the word "defamation" is required to be analyzed. According to The Law Lexicon, by P. Ramanatha Aiyer, 2002 Reprint Edition, Defamation is defined as - "The taking from another's reputation; a false publication calculated to bring one in disrepute. Defamation, is when a person speaks scandalous words of others, whereby they are injured in their reputation. (Tomlins Law Dictionary)." "An intentional false communication, either published or publicly spoken, that injures another's reputation or good name, holding up of a person to ridicule, scorn or contempt in a respectable and considerable part of the community; may be criminal as well as civil. Includes both libel and slander." "Defamation is that which tends to injure reputation; to diminish the esteem, respect, goodwill or confidence in which the plaintiff is held, or to excite adverse, derogatory or unpleasant feelings or opinion against him. Statement which exposes a person to contempt, hatred, ridicule or obloquy." In Blacks Law Dictionary Seventh Edition, the word defamation is defined as follows:- 1. The act of harming the reputation of another by making false statement to a third person. . If the alleged defamation involves a matter of public concern, the plaintiff is required to prove both the statement's falsity and the defendant's fault. 2. A false oral or written statement that damages another's reputation. 15. The learned advocate for the appellant, had referred to the case of W.B. Shanthi . . If the alleged defamation involves a matter of public concern, the plaintiff is required to prove both the statement's falsity and the defendant's fault. 2. A false oral or written statement that damages another's reputation. 15. The learned advocate for the appellant, had referred to the case of W.B. Shanthi . It is seen that in paragraph 20 thereof (printout from IndiaLawLib), the Hon'ble Madras High Court by referring to "The Law of Torts" by Ratanlal Dhirajlal (2006 Edition) had observed that "The falsity of charge is presumed in plaintiff's favour." However, on a perusal of "The Law of Torts", it appears that the said passage in the book is based on laws prevailing in England, as there is a reference to the case of Belt Vs. Lawes,1882 51 LJQB 359. It appears that in England, Defamation Act, 1952 (now substituted by Defamation Act, 2013) was enacted. Under Sec.2 thereof, in slander affecting official, professional or business reputation, it shall not be necessary to prove special damages. The provisions of Section 5 thereof provided for justification as a defence, which provides that in an action for libel or slander in respect of words containing two or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved to be true do not materially injure the plaintiff's reputation having regard to the truth of the remaining charges. Therefore, it is under the law prevailing in England that there is a presumption of falsity of charges is titled in favour of the plaintiff. However, that is not the situation under the laws in force in India. In this context, it would be of some profit to refer to the case of Mohini Gohain Baruah & Anr. Vs. Putali Gohain Baruah & Anr, 2018 2 GauLT 993 , wherein this Court, by referring to the provisions of Section 2 of the Evidence Act, 1872, which was repealed by Repealing Act of 1938 (Act 1 of 1938), had observed that the effect of the repeal of Section 2 was that the Evidence Act, 1872 has become a complete code self- contained Code in itself. Thereafter, this Court by referring to the case of Hira H. Advani Vs. Thereafter, this Court by referring to the case of Hira H. Advani Vs. State of Maharashtra, (1969) 2 SCC 662 , had observed that the Hon'ble Apex Court had also held that "In our view the maxim of the English Common Law can have no application here. Our law of evidence which is a complete code does not permit the importation of any principle of English Common Law relating to evidence in the criminal cases to the contrary." In this present case in hand, the opinion of this Court would be that the said observation by the Hon'ble Supreme Court would hold good also for a civil suit for defamation. Accordingly, in view of the discussions above, this Court cannot subscribe to the view of the book- "The Law of Torts" by Ratanlal Dhirajlal (2006 Edition) wherein the authors are of the view that "The falsity of charge is presumed in plaintiff's favour". The said view of the respectable authors is not found to be prescribed under the Evidence Act, 1872 or any Rules relating to pleading. Therefore, this Court construes such view to be merely the opinion of the authors of the book, based on Defamation Act, 1952 of England, which is not based on the correct interpretation of the provisions of the Evidence Act, 1872. 16. Therefore, according to this Court, the allegation made in the plaint in respect of defamation must be assessed and/or evaluated by the touchstone of Evidence Act, 1872. In this context, one may take note of the fact that in England, by repeal of Defamation Act, 1952 by the enactment of Defamation Act, 2013, the Common Law defences of justification as well as defence known as Reynolds defence have been abolished. Therefore, it is not necessary for Courts to follow the age old concept of the law of defamation. Hence, for the reasons discussed herein before, this Court is not inclined to accept the observation made by the Hon'ble Madras High Court in the case of W.B. Shanthi to the effect that "The falsity of charge is presumed in plaintiff's favour". The said remark is taken to be a passing remark, which does not amount to be the ratio decidendi and, as such, the said remark would have no persuasive value on this Court. The said remark is taken to be a passing remark, which does not amount to be the ratio decidendi and, as such, the said remark would have no persuasive value on this Court. Hence, this Court is of the opinion that there is no material on record to presume that the charges leveled by the respondent against the appellant are false and, as such, the burden of proving the allegations and/or charges would remain on the appellant. 17. Now by examining the evidence of the PW-1, no doubt, he has deposed in his examination- in- chief that the offending news item had defamed him before the public at large and before his officers, superiors and employees in the police force and also before his friends, relatives and well-wishers. However, no other witness examined by him had made any statement in their respective examination- in- chief from which it can be inferred that the prestige, goodwill, respect, etc. of the appellant has been lowered in their eyes and esteem. In MS 193/2003, while the PW-2 has not made any statement in his examination in chief that he does not hold the appellant in high esteem, in his cross examination, he had categorically stated that "I have great respect for him. I know that the appointment has been made as per procedure prescribed for appointment/ selection of a candidate. No departmental action has been initiated against the plaintiff after publishing of the news item under challenge." Similarly, while the PW-3 and PW-4 in MS 193/2003 did not make any insinuation whatsoever against the appellant, in his cross examination, both the PW-3 and PW-4 had categorically stated that "I have great respect for the plaintiff." 18. In MS 88/2003, the PW-2 had not stated that he did not hold the appellant in high esteem, but rather, he had admitted in his cross examination that he had respect for the appellant. The PW-3 in his cross examination had stated that "Today also we have great respect to the plaintiff." The PW-4, had stated in his evidence- on- affidavit that he knows the appellant and he bears a good moral character. The PW-3 in his cross examination had stated that "Today also we have great respect to the plaintiff." The PW-4, had stated in his evidence- on- affidavit that he knows the appellant and he bears a good moral character. The PW-5 had stated in her evidence- on-affidavit that “I have not heard any allegation against the plaintiff from any source or from any person whatsoever." In his cross examination, PW-5 had stated that "In my estimation, today also, plaintiff is having a good reputation." PW-6 had admitted in his cross- examination that "Today also we have great respect to Mr. Dastidar, the plaintiff of this suit." The evidence of PW-7 had been expunged by order dated 23.04.2007. The PW-8 had admitted as follows - "Each and every person of our department has the same respect to the plaintiff till today also." 19. Although there is no doubt that in both the offending news articles, which are the subject matter of MS 193/2003 and MS 88/2003, the appellant was projected in not a good light, but it appears that at least before the various PWs produced by the appellant, his prestige and good-name was not lost. Therefore, the only effect would be to hold that the appellant had not been defamed at least before his said witnesses. Coming to the evidence of the PW-1, he is the appellant- plaintiff, and he had described the extent of his suffering because of being defamed. However, in the opinion of this Court, the opinion of oneself that what others might be thinking of him, is of no consequence to succeed in a case where damages is being sought for being defamed because for the appellant to succeed in this case for defamation, at least one of his witnesses must have formed an adverse opinion of the appellant on the basis of the news items, which is alleged to be defamatory. In respect of issues No.2 and 3 in MS 193/2003 and Issues No. 3 and 4 in MS 88/2003, the learned trial Court has held that "We know that a man's reputation is his property and if possible of more value than his other property. But a man's opinion of himself cannot be called his reputation. In respect of issues No.2 and 3 in MS 193/2003 and Issues No. 3 and 4 in MS 88/2003, the learned trial Court has held that "We know that a man's reputation is his property and if possible of more value than his other property. But a man's opinion of himself cannot be called his reputation. A man has no 'reputation' to himself." "The said decision of the learned trial Court on issues No. 2 and 3 in MS 193/2003 and on issues No. 3 and 4 in MS No. 88/2003, cannot be faulted with. 20. In respect of the other cases cited by the learned advocate for the appellant, it is seen that the subject matter of the case of Dabur India Ltd. was a disparaging statements made in the advertisement of a product, which targets the product marketed by the plaintiff and the case related to an application under Order XXXIX Rules 1 and 2 CPC for grant of ad-interim injunction and, as such, the Hon'ble Delhi High Court was examining whether the advertisement in question prima facie fell within the tort of "malicious falsehood" and whether injunction can be granted or not. In this regard, it was held that in an action for malicious falsehood the plaintiff must necessarily plead and prove the ingredients of malicious falsehood and on the said touchstone, as the plaint contains a statement to the effect that the insinuations were malicious, the burden of proving malice would be on the appellant. Thus, this case does not appear to help the appellant. The case of Pandey Surendra Nath Sinha, and SNM Abdi also do not appear to help the appellant as none the witnesses examined by him doubted the character and integrity of the appellant, as such, the appellant was not defamed before his witnesses. 21. Therefore, in view of the discussions above, the point of determination No. I is answered in the negative by holding that the appellant has not been able to establish that he has been defamed. In view of the said finding, this Court did not deem it necessary to burden this order with the English translation of the defamatory news item. 22. In view of the said finding, this Court did not deem it necessary to burden this order with the English translation of the defamatory news item. 22. Consequently, as a natural corollary, in view of the decision of this Court on point of determination No.1, the point of determination No. II is answered in the affirmative the impugned judgment and decree passed by the learned trial Court by dismissing both the suits are found to be sustainable on facts and in law. 23. Therefore, both these two appeal stand dismissed by leaving the parties to bear their own cost. 24. The LCR may be returned back.