1 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. R.S.A NO. 631 of 2000. Date of decision 30.12.2010 D.R. Goswami ....Appellant. Versus M.R. Dhiman ....Respondent. Coram Hon'ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?No ___________________________________________________ For the appellant: Mr. Y. Paul, Advocate. For the respondent: Mr. Ajay Kumar, Advocate. ---------------------------------------------------------------------------------------------------- - Kuldip Singh, J(Oral) The appellant has come in appeal against judgment, decree dated 1.9.2000 passed by learned District Judge, Shimla in Civil Appeal No. 47-S/13 of 2000, reversing judgment, decree dated 23.3.2000 passed by learned Sub Judge, 1st Class Court No.1, Shimla in Case No. 110/1 of 97/93. 2. The facts in brief are that appellants had filed a suit for damages of `1,00,000/- against Amrit Lal, Ram Saran Sharma and M.R. Dhiman on account of defamation. It was pleaded that the appellant had retired as Assistant Engineer on 31.12.1991 and enjoys good reputation. The defendants had filed a suit for permanent injunction in which appellant was ___________________________________________________________________ Whether the reporters of the local papers may be allowed to see the Judgment?Yes 2 also impleaded as proforma defendant. In the suit the appellant had filed written statement and reply to the application under Order 39 Rules 1 and 2 CPC. The defendants had filed replication to the written statement and rejoinder to the reply for interim injunction in that suit. 3. The defendants in para-4 of the replication pleaded that plea taken by appellant is a product of mischievous mind and has been taken dishonestly in order to grab the land. The appellant is dishonest person and in order to grab the properties of plaintiff in that suit he tried to get the revenue record changed by putting pressure over the revenue staff. He has been using unfair means. In the rejoinder to the reply it was alleged that appellant is mischievous. He had been putting pressure on the revenue authorities. It has been alleged that on account of those defamatory allegations the reputation of the appellant has been injured. He has been brought to public contempt. He has suffered pain and humiliation. 4. The appellant had also filed an application in the said suit under Order 6 Rule 16 CPC to strike off the defamatory allegations made in the replication and rejoinder but the said suit was withdrawn. In these circumstances, the suit was filed. 5. The defendant Ram Saran Sharma died during the pendency of the suit, his name was deleted, but the other defendants contested the suit and took several preliminary objections as lack of cause of action, locus standi, maintainability, estoppel and valuation. The replication and rejoinder are not 3 defamatory. It has been denied that reputation of the appellant has been lowered down. The claim of the appellant was denied and prayer for dismissal of the suit was made. The replication was filed by the appellant. 6. On the pleadings of the parties, the following issues were framed: 1. Whether the defendants have defamed the plaintiff and therefore caused harm to his reputation and brought into public odium? OPP 2. If issue No.1 is proved in affirmative whether the plaintiff is entitled to the amount claimed? OPP 3. Whether the plaintiff has no cause of action and locus standi ? OPD 4. Whether the suit is not maintainable OPD 5. Whether the plaintiff is estopped from filing the suit, as alleged? OPD 6. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD 7. Relief. The issues No.1,2 were answered in affirmative, issues No.3 to 6 in negative and suit was decreed by learned Sub Judge Ist Class on 23.3.2000. The decision dated 23.3.2000 was assailed by way of Civil Appeal, judgment and decree dated 23.3.2000 were set aside and the suit was dismissed by the learned District Judge on 1.9.2000, hence second appeal which has been admitted on following substantial questions of law:- 4 1. Whether defamatory allegations made in replication and rejoinder by the respondent/plaintiff in respect of written statement and reply to application under Order 39 Rules 1 & 2 CPC filed by the proforma defendant are absolutely privileged? 2. What is the effect of withdrawing the suit before the decision of the application under Order 6 Rule 16 CPC for expunging the defamatory allegations made in the replication and rejoinder? 3. Whether a party can make defamatory statements in the pleadings and absolve himself from liability for damages by withdrawing the suit after achieving his object (to defame)? 4. Whether the Appellate court has correctly appreciated the law relating to privilege being claimed qua defamatory statements in the pleadings? 5. Whether the defamatory allegations made in the pleadings against the plaintiff were necessary for determining the matter in controversy? If not, whether the absolute privilege could be claimed qua pleading by the respondents? 7. I have heard the learned counsel for the parties and have also gone through the records. It has been submitted on behalf of the appellant that the learned District Judge has erred in returning the findings that allegations made in the replication and rejoinder are ‘privileged’ and therefore, it cannot be said that appellant has been defamed on account of averments made in the replication and rejoinder. The reputation of the appellant was 5 lowered by defamatory imputations in replication and rejoinder. The learned Sub Judge has rightly appreciated the material on record and decreed the suit. The learned District Judge has erred in reversing the well reasoned judgment of learned Sub Judge. 8. Mr. Ajay Kumar, Advocate appearing on behalf of respondent M.R. Dhiman has supported the impugned judgment, decree. He has submitted that allegations on the basis of averments made in replication and rejoinder in judicial proceedings are misconceived. He has submitted that averments made in replication and rejoinder in previous suit are ‘privileged’ and appellant is not entitled to sue for damages on the basis of averments made in replication and rejoinder in previous suit. He has submitted that no personal allegations were levelled against the appellant in the replication and rejoinder. The pleas taken by appellant were refuted in the replication and rejoinder. He has submitted that substantial questions of law No.2 and 3 do not emerge from the material on record. He has prayed for dismissal of the suit. 9. It has come on record that during the pendency of the appeal respondent Amrit Lal had died and his name was ordered to be deleted vide order dated 7.10.2010. Now only M.R. Dhiman respondent is left on record who is contesting the case of the appellant. The suit of the appellant is based upon alleged defamatory imputations levelled by respondent by way of replication and rejoinder in their earlier litigation between the parties. It has been submitted that an application under Order 6 6 Rule 16 CPC was filed by appellant for expunction of defamatory allegations in the replication and rejoinder. But before consideration of that application the previous suit was withdrawn in which the allegations were made. The present suit of the appellant is based upon defamatory allegations made by respondent in the previous litigation. The filing of application under Order 6 Rule 16 CPC for expunction of defamatory allegations in the replication and rejoinder and ultimately withdrawal of the suit without considering application under Order 6 Rule 16 CPC has nothing to do with the foundation on the basis of which present suit has been filed. The withdrawal of the suit has not changed the situation. The question before the Court is whether appellant is entitled to damages in view of allegations levelled in replication and rejoinder in the previous litigation. In these circumstances the substantial questions of law No.2 and 3 do not emerge from the material on record, hence substantial questions of law No.2 and 3 are decided accordingly. 10. The substantial questions of law No.1,4 and 5 are interconnected and therefore, all of them are taken up collectively for determination. The learned counsel for the appellant has drawn my attention to the replication Ex.PW-1/E and rejoinder Ex.PW-1/N and has submitted that defamatory allegations have been made in Ex.PW-1/E and Ex.PW-1/N. In the context of written statement and reply in the previous suit, replication Ex.PW-1/E and rejoinder Ex.PW-1./N were filed wherein it was pleaded that appellant was dishonest and mischievous person and to get revenue entry changed he has put pressure on the 7 revenue authorities. The learned District Judge has noticed several judgments of the High Courts in the impugned judgment and has recorded a finding that pleas taken in replication Ex.PW-1/E and rejoinder Ex.PW-1/N are ‘privileged’. 11 The learned counsel for the appellant has relied Sukra Mahto v. Basudeo Kumar Mahto and another AIR 1971 SC 1567 in support of his submission that in order to get the benefit of 9th exception to Section 499 IPC, two things have to be shown firstly that the imputation was made in good faith and secondly the imputation was for protection of the interest of the person making it or any other person or for the public good. It has been submitted that the replication Ex.PW-1/E and rejoinder Ex.PW-1/N do not satisfy the conditions laid down in Sukra Mahto case (supra). Sukra Mahto (supra) is not applicable in the fact and circumstances of the case. Sukra Mahto is on the interpretation of Section 499 IPC, whereas appellant in the present case is claiming damages, in civil suit on the basis of allegations made in the replication Ex.PW-1/E and rejoinder Ex.PW-1/N. 12. The learned counsel for the appellant has also relied Jiwan Mal vs. Lachman Das 1926 PLR 351 on the point where a party to a suit makes a gratuitous and irrelevant statement which has nothing to do with the matter of inquiry and uncalled for by any question to Counsel or Court. This statement is not privileged and a civil suit for damages is maintainable. The replication Ex.PW-1/E and rejoinder Ex.PW-1/N were filed in response to written statement and reply in the earlier litigation 8 and it cannot be said that the case pleaded in replication and rejoinder in question was absolutely uncalled for and not at all related to the controversy. Thus, Jiwan Mal (supra) case is not applicable in the facts and circumstances of the case. The learned District Judge after noticing several judgments of the High Courts mentioned in the impugned judgment has recorded a finding that allegations on the basis of which present suit has been filed by the appellant is privileged. The view taken by the learned District Judge on this point has not been shown to be wrong by the appellant. The findings recorded by learned District Judge emerges from the evidence on record. The re- appreciation of the evidence is not permissible in second appeal. It has not been shown that the impugned judgment, decree are perverse. There is no merit in the appeal. The substantial questions of law No.1,4 and 5 are decided against the appellant. 13. No other point was urged. 14. The result of the above discussion, appeal fails and is accordingly dismissed with no order as to costs. (Kuldip Singh) Judge. December 30, 2010. (sks )