IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. RFA No. 278 of 2004 Date of Decision : April 2, 2009 Sunder Lal Verma …Appellant-plaintiff. Versus: Bimla Devi & others …Respondents-defendants. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant-plaintiff : Mr. Suneet Goel, Advocate. For the respondents-defs. : Mr. Romesh Verma, Advocate. Sanjay Karol, J. Shri Sunder Lal Verma as plaintiff filed Civil Suit No. 27-S/1 of 2002 before the District Judge, Solan against Smt. Bimla Devi (defendant No.1), Shri Puran Singh (defendant No.2), Shri Dharam Singh (defendant No.3) and Shri Jeet Singh (defendant No.4). Defendant No.2 is the husband of defendant No.1 and brother of defendants No.3 & 4. Plaintiff claimed Rs.5 lacs as damages for the defamatory and slanderous statements allegedly made by the defendants. Plaintiff contested the election for the post of Ward Member and defeated defendant No.1. Plaintiff and the defendants reside in the same village Nandoh, Distt. Solan, 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 where the defendants No. 1 & 2 have constructed a temple of goddess Durga adjacent to their house. They perform puja and arrange special gathering every Sunday. Defendant No.1 claims herself to be worshipper of goddess Durga and answers the queries of the people/worshippers of the goddess while pretending to be in trans and her answers are taken by the people to be revelations of the goddess. On 2.6.2002, defendant No.1 is alleged to have declared in the congregation that the plaintiff is the root cause of all the disputes and problems in the village as he practices witch craft, worships Narsing (controller of evil spirits), invokes evil spirits and releases them at others. Plaintiff is a respectable person of the area and having learnt about the said utterances, he called for a meeting of the people of the village at his house on 11.6.2002. Defendants No.1 & 2 did not attend the same but, however, defendants No.3 & 4 not only attended the meeting but also repeated the said defamatory and slanderous statements. Defendants filed their written statement denying the allegations. Based on the pleadings of the parties, the Court below framed the following issues:- 1. Whether the plaintiff was defamed as alleged, if so, its effect? ……..OPP 2. Whether the plaintiff is entitled for compensation as alleged, if so, to what amount and from whom? ……..OPP 3 3. Whether the suit is not maintainable as alleged? ……..OPD 4. Whether the plaintiff has no cause of action? ……..OPD In terms of the impugned judgment and decree dated 1.5.2004 passed by the District Judge, Solan, the plaintiff’s suit was dismissed, as the plaintiff failed to prove that any of the defendants had made the alleged utterances. It found the statements of the witnesses to be contradictory and unreasonable. I have heard the learned counsel for the parties and also perused the record. Mr. Suneet Goel, learned counsel for the appellant- plaintiff has assailed the judgment on the ground that the Court below has not only misread and mis-appreciated the material on record but has rendered findings which are perverse and contrary to the record. According to him, the utterances being defamatory, the plaintiff’s suit ought to have been decreed. Mr. Romesh Verma, learned counsel for the respondents-defendants has supported the judgment for the reasons set out therein. The alleged defamatory and slanderous utterances made by defendant No.1 are; that the plaintiff was responsible for all the ills prevailing in the village as he practiced witchcraft and worshipped Narsing and released evil spirits at others. 4 In order to prove his case, plaintiff examined himself as PW-1, Shri Jagdish Kumar (PW-2), Shri Parkash Chand (PW- 3), Shri Dhani Ram (PW-4) & Shri Pardeep Kumar (PW-5). It is the plaintiff’s own case that the alleged utterances were made by defendants No.1 & 2 in the congregation on 2.6.2002 and defendants No. 3 & 4 on 11.6.2002 in the meeting called in the house of the plaintiff. From the statements of the aforesaid witnesses, it is also noticeable that all of them are closely related to each other. The alleged utterances were made in a public congregation and yet no independent witness was examined to prove the fact that the alleged utterances were actually made or in what manner it has affected the plaintiff. It is also the plaintiff’s case that a complaint was lodged with the police who investigated the matter. Except for merely exhibiting the said complaint plaintiff has not proved the result of the investigation or examined the person who investigated the complaint. It is also the admitted case of the plaintiff that he had fought election against the defendants and apparently there is rivalry against the two parties. It is in this background that the statements made by the plaintiff’s witnesses need to be examined. According to the plaintiff, on 2.6.2002 defendants No.1 & 2 in a public congregation made the alleged utterances. This was conveyed to him by Shri Jagdish Kumar (PW-2) but in the meeting held at his 5 place on 11.6.2002, defendants No.3 & 4 made the alleged utterances in his presence. One thing is certain that he neither saw nor heard defendants No.1 & 2 make the alleged utterances. PW-2 has simply stated that it was defendant No.2, who told him about the alleged utterances made by defendant No.1 and there was none present except for both of them. His version is, therefore, only hearsay. He does not say that he was present in the congregation of 2.6.2002 when defendant No.1 made the alleged utterances. His testimony, therefore, does not advance the plaintiff’s case. In fact it falsifies the version of PW- 1, as according to him Shri Jagdish Kumar was present in the temple. Shri Parkash Chand (PW-3) has deposed that he was present in the meeting of 11.6.2002. Shri Jeet Singh, def. No.4 came and told him that he worships Narsing and leaves evil spirits on people. Importantly, even he does not state that Shri Jeet Singh had told him that it was plaintiff Shri Sunder Lal Verma who indulged in such activity. The suit has been filed by Shri Sunder Lal Verma and not Shri Parkash Chand. His testimony in fact contradicts the version given by the plaintiff, according to whom, it was both S/Shri Jeet Singh and Dharam Singh, who made the alleged utterances in the congregation of 11.6.2002. Had it been so, Shri Parkash Chand who admittedly was present ought to have stated this fact. He belies the plaintiff’s version. 6 Shri Dhani Ram (PW-4) has only deposed that Shri Sunder Lal Verma had made a complaint with the police and in connection thereof plaintiff had summoned Shri Jeet Singh, when he accepted that Shri Sunder Lal worships Narsing and leaves evil spirits at others harming innocent people. It is not the plaintiff’s case that the utterances were made before the police. Even in his deposition, plaintiff Shri Sunder Lal Verma, does not refer to the version disclosed by Shri Dhani Ram who incidentally is his uncle. He admitted that he reported the matter of noise pollution against the defendants with the police. Complaint made to the police (Ext.PW-6/A) only reveals that there is no reference of the congregation of 2.6.2002. In fact reference only with regard to the alleged utterances made on 11.6.2002. In fact it falsifies the version of PW-1. In the complaint, plaintiff has categorically mentioned that all the defendants made alleged defamatory utterances, whereas in the plaint (para-4) as also in his deposition, it is his case that on 11.6.2002, defendants No.1 & 2 did not attend the meeting and there, the alleged utterances were made only by defendants No.3 & 4. Deposition of PW-5 does not advance the plaintiff’s case as he was not witness to the occurrence of the incident. In any event, he is the son-in-law of the plaintiff. Plaintiff has admitted that the police did not take action and they advised him to approach the Civil Court. This only strengthens the defendants’ plea that the plaintiff had filed 7 a false case against them and even the police did not find any merit in the complaint. The Court below has considered the entire material and correctly appreciated the evidence while returning its findings. Plaintiff has failed to prove that the alleged defamatory and slanderous statements were made by the defendants, hence, the question of any loss of reputation and awarding of damages does not arise at all. Since the plaintiff has not been able to prove his case through his witnesses, I do not consider it necessary to discuss the evidence led by the defendants. For the aforesaid reasons, the present appeal being devoid of merit is dismissed. ( Sanjay Karol ), Judge. April 2, 2009 (rana)