IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 29TH OCTOBER 2010 / 7TH KARTHIKA 1932 AS.No. 477 of 1995() ----------------------------- OS.114/1991 of SUB COURT, KASARAGOD .................... APPELLANT-DEFENDANT: --------------------------------------- ARAVINDAN MANIKOTH, AGED 44 YEARS, EDITOR AND PUBLISHER OF LATEST EVENING DAILY NEWSPAPER, KANGANGAD P.O. KASARAGOD DT. BY ADV. SRI.JOHNSON MANAYANI RESPONDENT-PLAINTIFF: --------------------------------------- S.A. WAHAB, S/O.SHAIK YOUSUF SAHIB, MUSLIM, MANAGING PARTNER, MEHABOOB THEATRES, KASARAGOD VILLAGE, KASARAGOD TALUK, KASARAGOD P.O. BY ADV. SRI.P.V.BABY, SRI.A.N.SANTHOSH. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 29/10/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs AS.No. 477 of 1995 ORDER ON C.M.P. NO.3781/1995 IN A.S. NO.477/1995 DISMISSED 29/10/2010. SD/- M.N.KRISHNAN, JUDGE //TRUE COPY// P.S. TO JUDGE rs M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 477 OF 1995 = = = = = = = = = = = = = = = Dated this the 29th day of October, 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Kasaragod in O.S.114/91. The suit is one for damages on the ground of defamation. The plaintiff is the managing partner of one theatre called 'Mehboob theater'. The defendant is the printer and publisher of a daily called “Latest”. The news item appeared on 12th December, 1990 in the “Latest” was to the effect that there had been attempts to evade tax and as the Municipal Commissioner Sri.Basheer is attempting to take strong action, the owners of the theatres are generally aggrieved and it is also reported about the exhibition of some blue A.S. 477 OF 1995 -2- films in certain theatres. Then it is stated “............................................... ............................................... ................................It is also stated that the the said person has contacted Muslim leaders and councilors and when it did not materialize he had gone to Thiruvananthapuram and he is there in Thiruvananthapuram and he was very particular that the said Commissioner should be changed. So the insinuation in the publication is that when an attempt is made by an honest person to stall the evasion of tax or exhibition of blue films it is stated that the owner of the cinema theatre wants to throw him out by adoption of any methods. When this news item was published a lawyer notice was sent calling upon him to tender open unconditional apology. The defendant A.S. 477 OF 1995 -3- did not do it and subsequently the suit is instituted for damages of Rs.50,000/-. 2. In the written statement the defendant had admitted about the publication and according to him the publication is not done with any motive to malign anybody or any particular individual and the statement made therein is justified by truth and therefore the plaintiff is not entitled to get any relief. 3. In the trial court PWs.1 and 2 and DWs.1 and 2 were examined and Exts.A1 to A6 were marked. On an analysis of the materials the trial court granted a decree for Rs.10,000/- as damages and it is against that decision the present appeal is preferred. 4. Heard the learned counsel for both the sides. According to Winfield, “Defamation is the publication of a statement which tends to lower A.S. 477 OF 1995 -4- a person in the estimation of right-thinking members of society generally; or which tends to make them shun or avoid that person.” 5. Now a complete reading of the publication in the paper would reveal that the cinema operators in Kasaragod town are resorting to illegal means to evade tax and exhibiting blue films and when the Municipal Commissioner who is an honest person wants to take action an attempt is made to the effect by an owner of a two storied cinema theatre to transfer him by some methodology. So the factual report is really damaging and the end result is that a particular person is doing it and therefore if it is established that this is that particular person then unless it is justified by truth it amounts to defamation. A.S. 477 OF 1995 -5- 6. Now, let me first consider whether there is evidence which would establish that it relates to the plaintiff. The word used in the publication is “.............................. ..................”The defendants would contend “..........................” means only a theatre with balcony. If it is relating to two cinema theatres in the same building the word should have been '.....................' and not '.............................' Nobody in common parlance says that a cinema theatre is a two storied building or not. They only refer to only as cinema theatre. When the specific word '............................' is used and further amplified that it is the owner of that two storied building, unless and until it is proved that there are some other two storied cinema theatres, one cannot accept the A.S. 477 OF 1995 -6- contention of the defendant regarding the same. PW1 and PW2 had spoken about the fact that the plaintiff's cinema theatre alone is a two storied cinema theatre in the town. So the belated attempt to get over cannot be accepted especially in the back drop that the defendant specifically submits that he knows the person against whom it is published but refuses to disclose the same. 7. Therefore the sum and substance of all these things would reveal that the plaintiff is the person who is the owner of the double storied cinema theatre and the materials makes it very clear that the allegations are levelled against him and him alone. 8. Then as stated by me earlier a reading of the entire report would reveal and it will cause suspicion on the person for the reason A.S. 477 OF 1995 -7- that when an honest man is attempting to do something, this man wants to prevent it and throw him away thereby creating an impression that he is one who has been doing dishonest deeds. There cannot be any doubt that in Ext.A1 (a) publication there is defamatory statements. 9. Now the next question is only whether there is any justification by truth. Except the statement the defendant has no not taken any adequate steps to see that the publication is made after due enquiry. DW2 who is said to have sent the report had not verified the records. There is nothing to show that any action has been initiated against this plaintiff for evasion of tax or exhibiting blue films in the cinema theatre. So a mere statement to this effect without verifying the same has to be stated that there is no justification in making A.S. 477 OF 1995 -8- that publication and therefore it is not a statement by justification by truth. 10. Learned counsel for the appellant had cited before me a decision of this Court reported in Raman Namboodiri v. Govindan (1962 KLT 538). In that decision this Court had made it clear unless one is able to relate the person against whom it is made, one cannot held a person responsible against a particular individual. But in the very same decision this Court made it clear that, “It is sufficient if on the evidence it can be shown that the imputation was directed towards a particular person or persons who can be identified.” 11. By my discussion of the words in “.....................................” I have made it very clear that the evidence available A.S. 477 OF 1995 -9- only relates to the plaintiff and therefore identity of the person is established and hence this decision will not come to the rescue of the defendant. The learned Subordinate Judge has only awarded a very reasonable amount as damages and it also cannot be interfered with. Therefore, from these discussions, I hold that the appeal lacks merits and the same is dismissed but under the circumstances without any order as to costs. M.N. KRISHNAN, JUDGE. ul/- A.S. 477 OF 1995 -10- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No.477 OF 1995 = = = = = = = = = = = J U D G M E N T 29th October, 2010.