IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Civil Suit No.16 of 2002 Judgment Reserved on: 05.12.2007 Date of decision: 01.01.2008 Ramesh Kumar Sharma ….Plaintiff Versus Smt.Akash Sharma & Another ….Defendants Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 For the Plaintiff: Mr.K.D. Sood, Advocate. For the Defendants: Mr.Bimal Gupta, Advocate. Dev Darshan Sud,J. This suit has been instituted by the plaintiff against the defendants claiming a decree in the sum of Rs.10,01,000/- on account of damages suffered by him for defamation by the defendants. The case as pleaded by the plaintiff is that he is presently working as Additional Assistant Engineer with the Himachal Pradesh State Electricity Board. Defendant No.1 is his wife and defendant No.2 is his father-in-law. Plaintiff alleges that the defendants made defamatory statements in writing in the written statement filed to the petitions instituted by the plaintiff under Section 13 of the Hindu Marriage Act 1 Whether the reporters of Local Papers may be allowed to see the judgement? 2 for grant of divorce and the same statement was repeatedly disseminated by word of mouth to a number of individuals including his colleagues and superiors who were well known to the plaintiff. The plaintiff pleads that the defendants jointly allege, both in writing and verbally, that the plaintiff had illicit relations with his `Bhabhi’, who, he says, treats him like her son. These allegations were made in divorce Petition No.32-N/2000, titled: Ramesh Kumar vs. Smt.Akash Sharma, which at the relevant point of time, when this suit was filed, was pending adjudication before the learned District Judge, Kangra at Dharamshala. There is no dispute before me that the first petition for divorce with similar allegations and other grounds, instituted by the plaintiff, was allowed by the District Judge, which judgment was set aside in appeal by this Court (reported in Smt.Akash Sharma vs. Ramesh Sharma, (1991)1 Sim.L.C.198) holding that the plaintiff had condoned the allegations of cruelty alleging that the plaintiff inter alia had illicit relations with his brother’s wife `Bhabhi’ (sister-in-law). A Letters Patent Appeal, which was preferred by the plaintiff, was dismissed and a Special Leave Petition to the Hon’ble Supreme Court was also dismissed as being time barred. The evidence and pleadings in those proceedings clearly show that the reason for the withdrawal of the plaintiff from 3 the company of defendant No.1, was that he was falsely accused by his wife of sexual involvement with his sister-in-law and for this gratification he had transferred his entire ancestral property in the name of his brother, as consideration. The plaintiff has extracted in his pleadings the exact allegations which have been made. The plaintiff further states that the defendants are persistent in their behaviour making these allegations on every possible occasion even by creating an opportune moment only with the objective to defame and harass him. The defendants have filed their written statement taking a number of objections on the maintainability of the suit; namely, that the allegations in this suit are similar to those which have been made by him in his petition under Section 13 of the Hindu Marriage Act, which, as noticed, at that time was pending adjudication in the Court of the learned District Judge at Dharamshala. The defendants plead non-maintainability of the suit for multifarious-ness of cause of action, limitation, estoppel and malafides. On merits, the written statement filed by defendant No.1 is evasive except for a bald denial and a stand adopted by the defendant No.1 that she has every right to pursue her defence in judicial proceedings which would not furnish any cause of action to the plaintiff and that no slanderous, 4 defamatory or scandalous allegations have been made by her in the Court at Dharamshala or at any other place and the suit is not maintainable. In replication, the plaintiff has reiterated his stand as taken in the suit. On the pleadings of the parties, the following issues were framed by this Court:- 1. Whether the suit, as framed, is not maintainable ? OPD. 2. Whether the suit is premature, as alleged? OPD. 3. Whether the suit is bad for multifariousness of causes of action and is malafide, as alleged? OPD. 4. Whether the suit is barred by the period of limitation, as alleged ? OPD. 5. Whether the plaintiff is estopped from filing the present suit, on account of his own acts and conduct? OPD. 6. Whether the statements of the defendants, as reproduced in para-3 of the plaint, are false, defamatory and slanderous? OPP. 7. If issue No.6 is found in affirmative, whether the plaintiff is entitled to damages, if so, of what amount and from which of the defendants? OPP. 8. Relief. It must be noticed that prior to framing of issues, an attempt was made by this Court to reconcile the dispute between the parties, but on 6.6.2003 the defendant declined any settlement. 5 ISSUE NO.1: Whether the suit, as framed, is not maintainable ? OPD. The onus of this issue is on the defendants. Learned counsel for the defendants submits that the suit is not maintainable on a bare reading as it is a means of instituting parallel litigation not to vindicate any right but to pressurize defendant No.1 into giving up her legitimate right and to coerce her to agree for grant of divorce. From the evidence on record, namely, that of the plaintiff and the defendant who has appeared as her sole witness, I do not find any fact proved which indicates or establishes that the plaintiff has been pressurizing the defendants in any manner or that he is abusing the process of law. Every person is free to pursue any legal remedy available under law to establish his/her right. In case a particular act is amenable to more than one action, a person is free to approach a Court of law for the vindication of his/her rights. This issue is, therefore, decided in favour of the plaintiff and against the defendants. ISSUES No.2 and 4: 2. Whether the suit is premature, as alleged? OPD. 4. Whether the suit is barred by the period of limitation, as alleged ? OPD. On these issues, the learned counsel for the defendants submits that the suit is pre-mature because 6 divorce proceedings were pending at the time when the suit was filed. It was only after the petition had been decided that cause of action if any, would accrue, to the plaintiff. Issue No.4 deals with limitation and according to the learned counsel for the defendants the suit is barred by time. These two stands are contradictory. The suit is either pre- mature or barred by time. Both state of affairs cannot co-exist. The divorce petition has since been decided against the plaintiff and an appeal is pending. Articles 75 and 76 of the Limitation Act, 1963, provide for limitation for institution of suit for recovery of damages for libel, defamation and slander. The relevant provisions are:- “Sec. Description of suit Period of limitation Time from which period begins to run 75. For compensation for libel. One year When the libel is published 76 For compensation for slander One year When the words are spoken, or if the words are not actionable in themselves, when the special damage complained of results.” According to the plaintiff, the allegations regarding his sexual involvement with his sister-in- law for consideration, are being made by defendant No.1 continuously. The starting point of these allegations both in writing and spreading the same by 7 word of mouth started in 1988 when the plaintiff instituted HMA Petition No.45/1987. No doubt, this Court in Smt.Akash Sharma vs. Ramesh Sharma, (1991)1 Sim.L.C.198, set aside the judgment granting divorce to the plaintiff holding that:- “10. ... … … … … … … The so called allegation of adultery cannot be taken into consideration seriously in this case, since the respondent has just adopted a cool posture towards it. He has not felt upset on this account since he has not even tried to repudiate it in his pleadings and the evidence.” Thereafter, according to the plaintiff, the defendant persisted with this course of conduct that is to say even after the appeal filed by defendant No.1 had been accepted by this Court and the Letter Patent Appeal preferred by the plaintiff rejected as also the Special Leave Petition dismissed as being time barred. The case of the plaintiff as pleaded is that even though this course of conduct of the defendant was held to have been condoned by him so as not to furnish a cause for divorce, yet it could not be taken as having being a condonation for all times to come and a license granted to the defendant to repeat these allegations persistently. Condonation, according to the learned counsel for the plaintiff, is an act which forgives things which have occurred in 8 the past. It is not a blanket approval for forgiveness of a particular course of conduct for all times to come. Learned counsel submits that the petition for divorce was filed on 30.6.2000 and reply, repeated these allegations, was filed on 25.4.2001 repeating these allegations. PW-1, Record Keeper in the Court of the District Judge, Dharamshala, who produced the record of pending marriage case bearing No.HMA-32-N/III/2K, titled: Ramesh Kumar vs. Akash Sharma, has stated in evidence that the matter was fixed for evidence on 3.9.2003. It is not disputed before me that the defendant repeated the allegations against the plaintiff on oath in the witness box in this case. Learned counsel for the plaintiff has also urged that the evidence of the plaintiff, PW-2, also shows that defendant No.1 had followed a consistent course of conduct in leveling these slanderous, defamatory and scandalous allegations against him. He states that these allegations were made before the Panchayat. PW- 3, who remained Pradhan of Gram Panchayat, Jakhara from 1995 to 2000, also states that defendant No.1 accused the plaintiff of having illicit relations with his `Bhabhi’ before the entire Panchayat. According to him, at that time Krishan Chand, Numberdar, Ward Member Sona Devi and other persons were present. PW- 4, Smt.Sona Devi, deposes that when defendant No.1 made the allegations, as alleged, the entire villagers 9 present there started laughing at the plaintiff. To similar effect is the evidence of Shri Krishan Chand, Member of the Panchayat. Of-course, these witnesses cannot state with certainly about the time when the defendant made the statement as they appeared in Court in the year 2003 and it is not possible to recollect the exact date after a long lapse of time. One thing is certain that the defendant had continued with this course of conduct. Learned counsel appearing for the defendants places reliance in the judgment of the Punjab and Haryana High Court in Des Raj vs. The State of Punjab and Others, AIR 1974 Punjab and Haryana 214, and submits that the plaintiff having failed to establish that the defendants were accusing him of having illicit sexual relations within one year of the filing of the suit, the suit was barred by limitation. This submission cannot be accepted. The evidence of the witnesses of the plaintiff does show that the defendant No.1 had followed a consistent course of conduct in leveling allegations against the plaintiff and that the allegations made by her individually to these witnesses as also to the Panchayat and the villagers would bring it within a period of one year from the filing of the suit. The exact date on which the words were uttered cannot be stated with precision and rightly so since the witnesses are deposing in court after a period of 10 3/4 years of the suit having been instituted. It is only an approximation of the time which can be considered. In the circumstances, it cannot be said that the suit of the plaintiff is barred by time. Moreover, defendant No.1 was pursuing this course of action without reservation both in the pending judicial proceedings for divorce and was also spreading these allegations against him at every given opportunity. The defendant of-course has denied these allegations when she appeared as DW-1. She has gone to the extent of saying that she never made these statements in Court. This obviously cannot be believed for the reasons that in the appeal i.e Smt.Akash Sharma vs. Shri Ramesh Kumar Sharma, (1991)1 Sim.L.C.198 this Court had been called upon to adjudicate the statement made by her to consider as to whether it constituted an act of cruelty or her claim is to be rejected outright. In case this statement was not made, the Court would not hold condonation by the plaintiff. She has no respect for the sanctity of the Court or the legal process. These issues are decided against the defendants. It is held that the suit of the plaintiff is within time. ISSUE No.5: 5. Whether the plaintiff is estopped from filing the present suit, on account of his own acts and conduct? OPD. Learned counsel for the defendants submits that the consistent and continuous conduct of the 11 plaintiff shows that he is estopped from filing the suit as he was the person responsible for pushing out the defendant from matrimonial house and forcing her to live separately. This plea of the defendant, cannot be accepted. The evidence on record of this case does not suggest the conduct of the plaintiff to be of a nature which would disentitle him for instituting the present suit and attract the principles of estoppel, having accepted the allegations made by the defendant. Of-course, in the previous proceedings under the Hindu Marriage Act this Court has held that the plaintiff had condoned her conduct and for this reason he was not entitled to a decree for divorce. In these circumstances, the acts, deeds and things constituting the cause of action for the previous petition for divorce between the parties being case HMA No.45/87, which was ultimately decided in favour of defendant No.1 cannot form the basis of this suit. Having once condoned the acts of cruelty including the allegations that the plaintiff was having illicit relations with his sister-in-law (Bhabhi), the plaintiff’s cannot turn around or allege that he has been hurt, defamed or slanderous allegations have been levelled against him. However, subsequently the defendant continued with accusations and allegations against the plaintiff of his sexual involvement with his `Bhabhi’. There is nothing on the record to suggest that she has ceased from this 12 activity at any point of time, rather the evidence discloses a consistency in her conduct in leveling these allegations against the plaintiff. This issue is, therefore, decided against the defendants. The plaintiff is not estopped from claiming damages from the defendants. ISSUE No.3: 3. Whether the suit is bad for multifariousness of causes of action and is malafide, as alleged? OPD. Learned counsel appearing for the defendants submits that the suit deserves dismissal as the plaintiff has sued on acts alleged to have been committed in the year 1988 and decided against him by this Court as also the pending divorce proceedings in the year 2000. He says that all the facts have been jumbled up and put up for trial in the present suit which seriously prejudices the defence which could be taken by defendant No.1. This submission made by the defendants cannot be accepted. Obviously, leveling slanderous allegations repeatedly with consistency would provide a continuing cause of action and would not debar the plaintiff from instituting the present suit. The pleadings and the evidence which have been brought on the record does not disclose multifariousness of causes of action as alleged. There is no evidence on record establishing malice in instituting the present proceedings. This issue is, 13 therefore, decided in favour of the plaintiff and against the defendants. ISSUE No.6: 6. Whether the statements of the defendants, as reproduced in para-3 of the plaint, are false, defamatory and slanderous? OPP. This is the crucial issue for determination. The crux of the allegations made against the plaintiff are that he has illicit relations with his `Bhabhi’ (sister-in-law) and in consideration of this relationship he has transferred his entire ancestral land to his brother. Learned counsel appearing for the defendants submits that the pleadings and statements made in a Court of law do not and cannot constitute an actionable cause. He relies upon the decision of the Full Bench of the Kerala High Court in Thekkittil Gopalankutty Nair vs. Melepurath Sankunni Ezhuthaseah, AIR 1971 Kerala 280, holding that:- “2. The principle is that absolute immunity is not confined to statements made coram judice but extends to statements made in the course of proceedings so closely related to a judicial proceeding as to constitute a step in or towards such a proceeding and, therefore, proceedings forming part of the administration of justice. The true position is thus stated in Halsbury:2 “The privilege attaches not merely to proceedings at the trial, but to proceedings which are essentially steps in judicial proceedings, 2 Third Edition, Vol.24, pages 51 and 52, Second Edition, Vol.20, pages 465 and 466. 14 including statements in pleadings and communications passing between a solicitor and his client on the subject on which the client has retained the solicitor and which are relevant to the matter.”3 The connection between the proceeding in which the offending statement is made and the judicial proceeding must be so close that the former can be regarded as essentially or, in essence or substance, a step in the latter. But the closeness does not depend exclusively on the former being indispensable for the latter or on being taken pursuant to a direction given in the latter … … … … … … …” “4. The statements made by the defendant in the petition he presented to the magistrate and in the copy thereof which he presented to the Sub- Inspector of Police are both absolutely privileged. His plea of absolute privilege was, in my view, rightly accepted and the plaintiff’s suit for damages for defamation rightly dismissed by the trial Court. It was wrongly rejected and the suit wrongly decreed by the lower appellate court.” 3 By Some mistake, in deciding Gangappagouda v. Basayya, AIR 1943 Bom 167 Beaumont, C.J. seems to have read, “essential” for “essentially” in this statement thus appreciably altering its sense. For, unlike “essential”, “essentially” imports no element of indispensability. 15 In his dissenting judgment Mathew, J. concurred that any step which is essential step in judicial or quasi judicial proceedings, is immune from liability of defamation and enjoys absolute privilege. On the facts of the case, he dissented holding that the petition presented by the defendant in the suit, did not qualify for this privilege. Gopalan Nambiyar, J. concurred with the opinion of Chief Justice holding: “25. I concur in the judgment of the learned Chief Justice. The principles of law have been so clearly and succinctly stated and the relevant judicial decisions have been so tersely and concisely analysed that I should think it beyond me to improve the statement of principles or to supply an annotation or paraphrase of the dissertation on judicial decisions. Yet I would, having regard to the important and interesting question raised, and to the elaborateness and thoroughness of the arguments of Counsel, and giving rein perhaps, to my lawyer-like instinct, dwell on some at least of the decisions cited.” In K.Daniel vs. T.Hymavathy Amma, AIR 1985 Kerala 233, it has been held: “8. We are now concerned only with the liability in a civil action for defamation as a tort. An examination 16 of the common law of England would show that English Courts have accepted that statements made by Judges, Juries, counsel, parties and witnesses in the course of trial in the course of any judicial proceeding are statements made on privileged occasions and the maker of the statements is saved from civil action by the rule of absolute privilege and no action will lie for damages.” “9. For over four hundred years English courts have reiterated this view. See Damport v. Sympson (1596) 78 ER 769, Eyres v. Sedgewicks (1620) 79 ER 513, Astly v.Younge (1759)2 Burr 507 = 97 ER 572, Kennedy v.Hilliard (1859) 10 Ir., C.L.R. NS195, Henderson v. Broomhead (1859) 4 H & N 569 = 157 ER 964, Scott v. Stansfield (1868) LR 3 Ex 220, Dawkins v. Lord Rokely (1875) LR 7 HL 744 (affirming (1873)2 CPD 53, Munster v. Lamb (1883) 11 QBD 588, Royal Aquarian and Summer and Winter Garden Society v. Parkinson (1892)1 QB 431 and Anderson v. Gorrie (1895) 1 QB 668. These decisions have accepted the view that statements made by Judges, Juries, counsel, parties and witnesses in the course of judicial proceedings are not actionable in civil law for slander as the occasion is absolutely privileged. Astely’s case deals specifically with statements made by a party in the case.” 17 “10. These decisions have been followed by courts in England after the turn of the twentieth century also. See Watson v.Jones (1905) AC 480, Lincoln v. Danials (1962) 1 QB 237, Marrinan v. Vibart (1963) 1 QB 538. I may also notice two decisions of the High Court of Australia where this rule is approved. See: Cabassi v. Vila (1940) 64 CLR 130 and Clyne v. The New South Wales Bar Association (1960) 104 CLR 186.” “11. It is imperative that Judges, counsel, parties and witnesses participating in a judicial proceeding must be able to conduct themselves without any apprehension of being called upon to answer a claim for damages for defamation. They must be able to act uninfluenced by any such fear. Freedom of speech on such occasions has to be totally safeguarded. Hence, it is necessary to protect the maker of statements on such occasions. The privilege arises on account of privilege attached to the occasion and not to the individual. It is possible that sometimes counsel or the parties or witnesses may taken advantage of the occasion and indulge in false or malicious statement which has the effect of bringing down the reputation of some other person; that would certainly be mischievous. But to say that statement would be privileged only in the absence of malice would put 18 these persons in considerable strain and apprehension on such occasions. Basis of privilege is not absence of malice or the truth of statement or the intention of the maker but public policy. Any restriction on privilege during the occasion would create constraints in the process of administration of justice.” To similar effect is a decision of the High Court of Madras in Sedimbi Hanumantharow and others vs. Nidumolu Seetharamayya, AIR 1942 Madras 343. The Court held: “No action of libel or slander lies, whether against Judges, counsel, witnesses, or parties, for words written or spoken in the course of any proceeding before any Court recognized by law, even though the words written or spoken were written or spoken maliciously without any justification or excuse, and from personal ill will and anger against the person defamed. Whether a statement in writing filed into Court is privileged or not depends entirely on the nature of the statements in writing that are filed and the purpose for which they are filed. If they are documents considered by a party as being essential for his defence, they are covered by the doctrine of privilege” 19 The judgments in Ali Mohammad v. Manna Lal, AIR 1929 Allahabad 972, Ma Mya Shwe and others v. Maung Maung, 1925 Rangoon 15 and Ma Hla Khin v. U Khin Maung, AIR 1935 Rangoon 30 also lay down and uphold the same principle of law as discussed above. This proposition of law is now established. A litigant cannot be restrained from prosecuting his case in a Court of law and has free uninhibited access to justice to present his case in the best possible manner. I may hasten to add that the privilege cannot be extended for providing an unfettered licence to a