Civil Revision No. 1350 of 2007 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 1350 of 2007 Date of Decision: April 28, 2009 M/s Frankfinn Aviation Services Pvt. Ltd ......... Petitioner versus Surinder Bhardwaj .......... Respondent 1.Whether Reporters of local papers may be allowed to see the judgment ? 2. Whether to be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? Present:- Shri M.L. Sarin, Senior Advocate with Ms. Alka Sarin, Advocate for the petitioner. None for the respondent HEMANT GUPTA, J. The challenge in the present revision petition is to the orders passed by the Courts below on an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908 (hereinafter to be referred as “the Code”) along with a suit for permanent injunction filed by the petitioner- plaintiff. The plaintiff asserts to be engaged in highly specialized vocational training in aviation, hospitality and travel industry. It also provides job assistance to the students after such a training. The training covers A to Z duties of Airlines Cabin Crew and stated to be offering internationally acclaimed and highly rated Business and Technology Civil Revision No. 1350 of 2007 [2] Council Higher National Certificate. Such certificate is level 5 qualification of UK education system in Aviation, Hospitality and Travel Management in India, a qualification awarded by Edexcel UK recognized in over 110 countries. The plaintiff is stated to be an International Standard Organization 9001-2000 certified institute and stated to be running its one of the institute / centres under the name and style of “Frankfinn Institute of Air-Hostess Training, Chandigarh Centre”. The plaintiff institute invites candidates after 12th standard for the course in Aviation Hospitality and Travel Management. The plaintiff claims to be the only institute having real Air Bus A-300 (fuselage) for training. The plaintiff asserts to be a reputed organization which has always upheld the student's interest and has toiled hard for what it represent to the students in the advertisement / broucher/ prospectus and all such marketing material. The advertisement of the plaintiff institute is informative, genuine and in no way takes away the right of the student to make his / her independent decision. The plaintiff did not indulge in false, objectionable and misleading claims in the advertisement. More than 100 students have got the distinction of becoming Air hostesses/ Flight Stewards by now but has not received any complaint from any quarter with respect to its advertisement and functioning etc. A large number of candidates have been selected in reputed international and domestic airlines and also in reputed hotels. The defendant claiming himself to be the President of the Chandigarh Territorial Janta Dal (United) with an absolutely ulterior motive to gain public attention and also acting at the behest of certain vested interests, in order to lower down the image of the plaintiff's institute in the eyes of the candidates who are aspiring to join the institute and also in the Civil Revision No. 1350 of 2007 [3] eyes of the public at large issued a press release in a press conference which he got held at his instance on 17.10.2006. He circulated a letter dated 16.10.2006 making absolutely false and reckless allegations against the petitioner institute. The defendant has no direct interest in any manner but to defame the institute in order to gain public attention and popularity called a press conference and issued a press release. On 19/20.10.2006, the faculty and the students of the petitioner institute made a complaint to the Senior Superintendent of Police and Station House Officer against the mischievous and malicious act of the defendant in defaming, misleading and spreading rumors of incorrect facts of immoral activities with respect to the plaintiff institute. But the defendant did not show any remorse / repentance and got issued another press release on 13.11.2006 allegedly along with the parents of some old students of the plaintiff institute but there was no complaint from any of the students or parents with regard to the working of the plaintiff institute. In view of the said facts, the plaintiff institute filed an application for ad interim injunction to restrain the defendant to make any defamatory, scandalous and libelous allegation against the plaintiff institute in any manner by issuing press release or any other similar manner. In the written statement, defendant asserted that letter dated 16.10.2006 contained correct facts and that the defendant has not done any act of defamation. Fair criticism is not defamation according to well settled proposition of law. It was also alleged that the suit for injunction is not maintainable and that the functioning of the plaintiff institute is not upto the mark and in order to highlight the activities of the plaintiff institute so that the public in general may not suffer, the acts of the plaintiff company were highlighted in the press conference where letter dated 16.10.2006 was Civil Revision No. 1350 of 2007 [4] circulated. The said letter does not contain any defamatory or scandalous allegation. The learned trial Court dismissed the application holding that no one can be restrained from making any statement or issuing any press release etc. If such press release or statement is defamatory or derogatory, the plaintiff has equally efficacious remedy for damages available to him. No temporary injunction can be granted when equally efficacious remedy is available in view of section 41(h) of the Specific Relief Act, 1963. The learned trial Court also found that there is no prima facie case or balance of convenience in favour of the plaintiff. It was held that newspapers cannot be restrained from reporting the happenings as this could tantamount to curtailing the constitutional right of freedom of speech and expression. The press release issued by the defendant also does not reveal any scandalous or defamatory statement and there is nothing to show that the same was issued with mala fide intention just to defame the plaintiff institute. The appeal against the said order was dismissed holding that the plaintiff institute has efficacious remedy as (i) the plaintiff can file a complaint under section 500 of the Indian Penal Code against the defendant; (ii) the plaint and the application does not disclose any prima facie case in its favour along with the balance of convenience; (iii) the plaintiff could take action against the defendant under the provisions of the criminal law; (iv) whether the statements made by the defendant are defamatory and scandalous will be determined after evaluating the evidence which would be adduced by the parties during the trial; and (v) media cannot be restrained from reporting the happenings as this would tantamount to curtailing the constitutional right of freedom of speech and expression. Civil Revision No. 1350 of 2007 [5] Learned counsel for the petitioner relied upon Kuldip Singh vs. Subhash Chander Jain and others, AIR 2000 SC 1410, wherein applying the principle of quia timet action, it was held that an action preventive in nature is permissible. It was held to the following effect:- “6. A quia timet action is a bill in equity. It is an action preventive in nature and a specie of precautionary justice intended to prevent apprehended wrong or anticipated mischief and not to undo a wrong or mischief when it has already been done. In such an action the Court, if convinced, may interfere by appointment of receiver or by directing security to be furnished or by issuing an injunction or any other remedial process. In Fletcher v. Bealey (1885(28) Ch D 688), Mr. Justice Pearson explained the law as to actions quia timet as follows:- “ There are at least two necessary ingredients for a Quia timet action. There must, if no actual damage is proved, be proof of imminent danger and there must also be proof that the apprehended damage will, if it comes, be very substantial. I should almost say it must be proved that it will be irreparable, because, if the danger is not proved to be so imminent that no one can doubt that, if the remedy is delayed the damage will be suffered. I think it must be shown that, if the damage does occur at any time, it will come in such a way and under such circumstances that it will be impossible for the plaintiff to protect himself against it if relief is denied to him in a Quia timet action”. “7. Kerr on injunctions (Sixth Edition, 1999) states that the law on 'threatened injury' as under:- “ The Court will not in general interfere until an actual nuisance has been committed; but it may, by virtue of its jurisdiction to restrain acts which, when completed, will result in a ground of action, interfere before any actual nuisance has been committed, where it is satisfied that the act complained of will inevitably result in a nuisance. The plaintiff, however, must show a strong case of probability that the apprehended Civil Revision No. 1350 of 2007 [6] mischief will in fact arise in order to induce the Court to interfere. If there is no reason for supposing that there is any danger of mischief of a serious character being done before the interference of the Court can be invoked, an injunction will not be granted”. Reliance has also been placed on Shree Maheshwar Hydel Power Corporation Limited vs. Chitroopa Patil and another, AIR 2004 Bombay 143, wherein the principle of law in England and India with regard to grant of interlocutory reliefs in a civil action for Libel have been discussed. It was found that the principles of law in England are different wherein a mere plea of justification of the defendant would be sufficient to deny the plaintiff any relief but in India, the mere plea of justification would not be sufficient for denial of interim relief. The defendant will have to show that the statements were made bona fide and were in public interest. The defendants are also to shows that reasonable precaution had been taken to ascertain the truth and that the statements were based on sufficient material which could be tested for its veracity. Therefore, in India, the Court is very much entitled to scrutinise the material tendered by the defendants so as to test its veracity. It was held to the following effect: - “49. After having heard the learned counsel for both the parties at length and after perusal of the impugned judgment and order and also the various judgments cited by both the parties, it is clear that in any event, the principles of law in England and in India with regard to grant of interlocutory reliefs in a civil action for Libel are different. In England, the principle of law is that in case of an action for defamation, once the defendants raise the plea of justification of the interim stage, the plaintiff will not be entitled to an interlocutory injunction. To put in other words, in England, a mere plea of justification by the defendant would be sufficient to deny the Civil Revision No. 1350 of 2007 [7] plaintiff any interim relief. As far as India is concerned, as has been clearly held by this Court in the judgments referred to hereinabove, specially the judgment of this Court in the case of Dr. Yashwant Trivedi vs. Indian Express Newspapers (Bombay) Private Ltd dated 21st March, 1989 and the judgment of Appellate Bench dated 29th June, 1989 with regard to the same matter in appeal, the judgment of this Court in Purshottam Odhnvji Solanki v. Sheela Bhatta dated 3rd December, 1990, judgment of this Court in the case of Mrs. Betty Kapadia v. Magna Publishing Co. Ltd., dated 22nd July, 1991 and the judgment in the case of Indian Express Newspapers (Bombay) Ltd. v. M/s Magna Publishing Co. Ltd., dated 21st July, 1995, it is clear that in India, a mere plea of justification would not be sufficient for denial of interim relief. The defendants, apart from taking a plea of justification will have to show that the statements were made bona fide and were in public interest, and that the defendants had taken reasonable precaution to ascertain the truth, and that the statements were based on sufficient material which could be tested for its veracity. Therefore, in India, the Court is very much entitled to scrutinise the material tendered by the defendants so as to test its veracity and to find out whether the said statements were made bona fide and that whether they were in public interest. Therefore, in India, even at the interlocutory stage, the Court is very much entitled to look into the material produced by the defendants for the plea of justification, so as to test its veracity with regard to the allegations, alleged to be defamatory”. Apart from the aforesaid judgments, reference has been made to Selvi J. Jayalalithaa and another vs. R. Rajagopal @ R.R. Gopal @ Nakkheerangopal and another, AIR 2006 Madras 197 and Prameela Ravindran vs. P. Lakshmikutty Amma and another, AIR 2001 Madra 225. Civil Revision No. 1350 of 2007 [8] On 30.03.2007, learned counsel for the respondent made a statement that the respondent is not publishing any defamatory article or circulating any brochure nor intend to do so. Thereafter, the case was taken up on 06.08.2007 when the revision petition was admitted and the respondent was restrained from publishing any defamatory article or circulating brochure against the plaintiff institute. Thereafter, none has put in appearance on behalf of the respondent to contest the claim of the petitioner. Though right of speech and expression granted to the citizens of this country is one of the basic fundamental rights and such right can be curtailed only in terms of Article 19(2) of the Constitution but such freedom is coupled with responsibility to act fairly and in a bona fide manner. Levelling of reckless, false and scandalous allegations without any factual basis may cause irreparable damage to the reputation of an individual more so when the allegations pertain to commercial activities. It is not a case of levelling allegation against each other by personalities engaged in public life so as to build public opinion on one or the other issue. Though the respondent is a politician and is entitled to build public opinion on the matters of public issue but the allegations levelled by the respondent are in respect of working of a commercial venture. The respondent has not shown any source of information to justify the allegations levelled. In commercial activities, there are professional rivals. Professional rivalry cannot have piggy ride on the back of the politician. In terms of the judgment of the Hon'ble Supreme Court, a preventive injunction can be granted against the intended damage to the reputation. The finding recorded by the learned Appellate Court that the Civil Revision No. 1350 of 2007 [9] plaintiff can take recourse to the criminal action or complaint under section 500 of the Indian Penal Code is not an answer in the civil wrong. Though section 41(h) of the Specific Relief Act, 1963, prohibits grant of injunction where efficacious remedy is available but in the present case, the allegations levelled pertained to the reputation and working of the institute. If reckless allegations are made without any reasonable proof of correctness of such allegations, it will cause irreparable damage to the working of the plaintiff institute which damage cannot be compensated in terms of money. Therefore, the plea that other efficacious remedy is available to the plaintiff institute is not acceptable. As held by the Hon'ble Supreme Court in Kuldip Singh's case (supra) an injunction to prevent a wrong can be granted. Therefore, in the facts of the present case, I am satisfied that the plaintiff-institute has made out a case for grant of ad-interim injunction restraining the defendant from publishing any defamatory article or distribute brochure. Consequently, the present revision petition is disposed off in the above terms. Nothing said herein shall be taken into consideration while deciding the suit on merits. April 28, 2009 ( HEMANT GUPTA ) ks JUDGE