IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 5TH FEBRUARY 2009 / 16TH MAGHA 1930 WP(C).No. 3785 of 2009(A) ------------------------------------------ OS.203/2003 of I ADDL.SUB COURT, TRIVANDRUM .................... PETITIONER: K.S.ALPHONS, S/O LATE K.V.JOSEPH, 412, PTP NAGAR, THIRUVANANTHAPURAM. BY ADV. SRI.NOBLE MATHEW SRI.JOMY GEORGE SRI.LITHIN THOMAS RESPONDENTS: 1. V.N.VENUGOPAL, CHAIRMAN, STANDING COMMITTEE DOR DEVELOPMENT, VELLAVOOR GRAMA PANCHAYAT, KOTTAYM DISTRICT RESIDING AT VAKATHANATH THAZHE HOUSE, KADAYANICHADU P.O., MANIMALA. 2. VINOD SHANKAR, DO. DO. RESIDING AT PALATH HOUSE, AERATHY VADAKARA P.O., MANIMALA. 3. R.A.JOSEPH, VICE PRESIDENT CONGRESS (I), VELLAVOOR MANDALAM COMMITTEE RESIDING AT AREEKUZHIYIL HOUSE, THAZHATHU VADAKARA P.O., MANIMALA. 4. JOSEPH VARGHESE, SECRETARY, INTUC, DO. RESIDING AT PULICHUMAKKAL HOUSE, KADAYANICKADU P.O., MANIMALA. 5. VINOD.G., PRESIDENT, YOUTH CONGRESS, DO. RESIDING AT CHATTUKAKULAM HOUSE, DO. DO. 6. JAYALAL.P.M. SECRETARY, DO. RESIDING AT PADINJATTAYIL HOUSE, DO. DO. 7. MALAYALA MANORAMA DAILY REP. BY THE CHIEF EDITOR, K.P.KESAVAMENON ROAD, CALICUT-1. 8. MATHRUBHOOMI DAILY REP. BY THE CHIEF EDITOR, S.H.MOUNT, KOTTAYAM. 9. MANGALAM DAILY REP. BY THE CHIEF EDITOR, S.H.MOUNT, KOTTAYAM. 10. MADHYAMAM DAILY REP. BY THE CHIEF EDITOR, SILVER HILL, CALICUT-12. 11. ASIANET COMMUNICATIONS LTD. REP. BY ITS MANAGING DIRECTOR, GORGI BHAVAN, VANROSE JUNCTION, BAKERY, THIRUVANANTHAPURAM. 12. KAIRALI T.V. (MALAYALAM COMMUNICATIONS LTD.) REP. BY ITS MANAGING DIRECTOR, FORT, THIRUVANANTHAPURAM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. -------------------------- W.P.(C)No.3785 of 2009 A -------------------------- JUDGMENT Petitioner is the plaintiff in a suit for damages for defamation alleging that certain publications made in various news papers and in a press release signed by respondents 1 to 3 contain imputations that are defamatory as against him in his acts while he was functioning as the District Collector at Kottayam and thereafter as Secretary to Higher Education and that having been an IAS Officer of integrity, who had held several responsible posts and a public figure as member of Legislative Assembly, the defamatory imputations have damnified him and the allegations so made against him being highly defamatory, require to be compensated by way of damages. This writ petition has been filed by the petitioner assailing Exhibit P9 order passed by the court below refusing to mark certain documents, which the petitioner/plaintiff wanted to get marked in the affidavit filed by him WPC 3785/09 2 in lieu of chief examination. 2. It is submitted that the court below also has directed the petitioner to file fresh affidavit deleting the portions wherein such documents are marked, upholding the objections raised by the defendants to the effect that those are not documents which the petitioner/plaintiff is competent to prove and get marked in his examination. 3. It is one thing to say that a document cannot be marked and it is another thing to say that the document lacks proof. The case of the petitioner/plaintiff is that the statements appearing in the documents sought to be got marked, which are certain news papers and a press release, are defamatory to him. When he produced those documents and desires them to be got marked, the defendants have no right to object to the marking of those documents, as necessarily, it is part of his pleadings. Furnishing proof of the publications WPC 3785/09 3 having so appeared and proving as to who are all responsible for the said publications are matters to be established on evidence. It goes without saying that the documents which the petitioner/ plaintiff sought to be got marked, if marked, are not proof of those documents and proof of those documents, its publications, etc. are to be furnished by examining those persons, who are competent to swear to its publication and as to who all are the persons responsible for such publications. It is for the petitioner/plaintiff, if so advised, to examine such of the witnesses, who are competent to prove those marked documents and establish its publication, the probative value thereof and also to establish as to who are responsible for those publications. The marking of those documents cannot wait till such competent witnesses, to prove those documents, are summoned, as the petitioner/plaintiff will have to give evidence with reference to the publications, which WPC 3785/09 4 he has produced as part of his pleadings. 4. The suit being in the list and with a view to see that trial of the suit is not protracted, I dispense with notice to the respondents and direct the court below to allow marking of the documents which are so produced by the petitioner/plaintiff as part of his pleadings to say that he has been defamed thereby, leaving it open to the petitioner/ plaintiff to establish the authenticity of the publications and the persons responsible and liable for such publications. The order of the court below inasmuch as it has disallowed marking of those documents is set aside. The court below shall proceed with trial of the case, marking the alleged defamatory publications produced by the petitioner/plaintiff through him. Petitioner may produce a copy of this judgment in the court below forthwith so as to enable the court below to abide by the above directions. WPC 3785/09 5 This writ petition is, thus, disposed of with the above directions. Issue copy of this judgment to the counsel for the petitioner urgently. 5th February, 2009 (K.P.Balachandran, Judge) tkv