1 IN THE HIGH COURT OF BOMBAY AT GOA CIVIL REVISION APPLICATION NO. 18 OF 2007. Dr. Brahma Chellaney A-14/10 Vasant Vihar New Delhi 110057. .... Applicant. Versus Mr. Vishwanath A.Pai Panandiker, Flat No.8450, Pocket 8, Sector C, Vasant Kunj, New Delhi, 110070, Also resident of : Panandiker Chambers, M.L.Furtado Road, Margao, Goa. ..... Respondent. Mr. Sudin M. S. Usgaonkar, Advocate for the applicant. Mr. V. R.Tamba, Advocate for the respondent. CORAM :- C. L. PANGARKAR, J. DATE OF RESERVING THE ORDER : 13 TH JANUARY, 2009. DATE OF PRONOUNCING THE ORDER : 20 TH JANUARY, 2009 . ORDER : 1. This revision application is filed by the defendant since his application for rejection of the plaint under Order VII, Rule 11 of C.P.C., was rejected by the Civil Judge, Senior Division, Margao. 2 2. The facts may be narrated as follows : The plaintiff instituted a suit for declaration and damages for defamation. The plaintiff submits that the plaintiff is a highly educated and respected individual and known internationally for his work in the area of policy research and is behind establishment and running of many institutions which have gained international eminence and credibility. The plaintiff is M.A., LL.B. from Bombay University and has obtained Ph.D. Degree from Michigan University U.S.A. The plaintiff is native of Goa and since his retirement, he has been living in Goa. The plaintiff submits that he has founded an establishment centre for policy research in New Delhi in 1973 and he has been working in the said Centre until his retirement. The plaintiff belongs to illustrious and industrious family of Goa. The plaintiff has many business establishments such as Marpol Private Ltd, Panandiker Plantations, Panandiker Real Estates and Developers and Salcete Electricity Company. While the plaintiff was working as a Director of the Centre for Policy Research, the defendant was inducted at the centre as a professor. The plaintiff submits that the defendant could not 3 fulfill his assignment and was unable to contribute effectively to research in the centre. The plaintiff further submits that the defendant describes himself as a prominent scholar and columnist. The defendant is self-centered man with no respect for human values. It is alleged that the defendant was accused of sedition by the government of India and was even arrested. This has been poignantly recorded by Mr. Brar, Lt. Gen (Retd.) at the time of operation blue star. It is contended that the defendant never, in fact, contributed towards policy research, but in fact, was trying and plotting to gain total control over the centre for policy research. The plaintiff contends that the defendant published an article titled “Rise of the Robber intellectual” in Hindustan Times on 26.07.2000”. It is contended that the contents of that article, are false and imaginary and malicious and have been published with sole intention of damaging the reputation of the plaintiff. It is further contended that the defendant instituted the writ petition No.5928/2000 and along with that writ petition, filed the copies of the articles, published in the Hindustan Times and thus, distributed and circulated those articles. It is contended that the article contains an allegation that while building of the personal commercial enterprises Marpol Pvt. Ltd, the plaintiff was frequently 4 absenting himself from his duties and the plaintiff has diverted the funds from the centre for his commercial enterprises and has derived unfair advantage for himself and his family. Further, the defendant got published another article in express news magazine on February 11, 2001. The readers were informed under that article that the plaintiff had established his family enterprise from ill-gotten wealth from public institute. The defendant had even written a letter to the former Chief Justice to create prejudice and wrong impression in the mind the Court. Further the plaintiff contended that the defendant instituted criminal proceedings against the plaintiff and got the news item published in the newspaper in order to defame the plaintiff. The plaintiff had instituted another writ petition wherein, he made some kinds of scurrilous allegations. The plaintiff, therefore, submits that he has been defamed and has been lowered down in the esteem of the people. The plaintiff, therefore, prayed for declaration that the defendant got published the articles in Hindustan Times and Express Magazine and he did so with the intention to malign image and character of the plaintiff. The plaintiff sought damages of Rs.1 lac and the plaintiff also prayed for mandatory injunction directing the defendant to tender an unconditional apology and publish it in the 5 newspaper and magazine. 3. The defendant filed an application under Order VII, Rule 11 of C.P.C. for rejection of the plaint. There are many grounds in the said application for rejection of the plaint, but the learned Counsel for the defendant/ applicant, restricted his arguments to three grounds namely (i) the plaint does not disclose the cause of action (ii) the suit is barred by limitation and (iii) the Court at Goa, does not have territorial jurisdiction to entertain the suit. 4. I have heard Counsel for the both the parties. 5. I shall take up the last ground first. The plaint can be rejected in the following circumstances as detailed in Order VII, Rule 11 of C.P.C. Order VII, Rule 11 : - The plaint shall be rejected in the following cases : - (a) where it does not disclose a cause of action ; (b) where the relief claimed is under-valued, and the plaintiff, on being required by the Court to so correct the valuation within a time to be fixed by the Court, fails to do so; (c) where the relief claimed is properly valued, 6 but the plaint is written upon paper insufficiently stamped,and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law; (e) where it is not filed in duplicate; (f) where the plaintiff fails to comply with the provisions of rule 9: Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff. 6. Even if these grounds are read, it is apparent that want of territorial or pecuniary jurisdiction, is not and could not be a ground for rejection of the plaint. This is because of the fact that Civil Procedure Code deals with such cases under Rule 10, 10A of Order VII. When an objection is raised by the defendant that no part of cause action, has arisen within the territorial jurisdiction of the Court, the Court has to decide that question and then direct that the plaint to be 7 returned for presentation to proper Court. In the instant case, what is urged is that the alleged defamatory articles were published at New Delhi in newspaper and circulated in the writ petition in New Delhi Courts. Thus, it is sought to be contended that no part of cause of action, arose at Goa and, therefore, the Goa Court does not have jurisdiction. The learned Judge of the Trial Court, has rightly said that this issue can be decided on merits alone. Further, it would not be proper to deal with these arguments since the application is one under Order VII, Rule 11 of C.P.C. The question as to whether the Court has territorial jurisdiction or not, has to be decided by the trial Court whenever such an objection is raised in the written statement and issue is framed and such issue would be required to be answered. In the circumstances, the plaint cannot be rejected on the ground of want of jurisdiction. The Trial Court does not rightly deal with this question while deciding the application under Order VII, Rule 11 of C.P.C. 7. This takes me to the next arguments of Shri Usgaonkar, Counsel for the petitioner. Shri Usgaonkar submits that the plaint does not at all disclose the cause of action. According to him, the plaintiff's allegations are 8 absolutely vague and it is difficult to make out as to which facts actually constitute the cause of action. He particularly submits that the plaintiff does not say that publication of column in the newspaper, is a cause of action or circulation of those articles along with writ petition before the Court, is the cause of action. He also submits that if the plaint is read, it does not say which of the part of the column or article is defamatory. He submits further that as far as the second article in Express Magazine is concerned, it is neither written by the defendant nor published by the defendant, but is written by one Ajitkumar Jha. After having gone through the said second article in Indian Express, it is apparent that this article is written by Ajitkumar Jha. Prima facie, therefore, the defendant is not the author of this second article. If he is not the author and somebody else has written it, the publication of such article by somebody in the newspaper, cannot, prima facie, give rise to the cause of action against the defendant. 8. As far as the first article is concerned, let us see if there are facts averred in the plaint constituting the cause of action. It would be necessary to look into the entire plaint since it would be bundle of facts which may constitute the cause of action. What is required to be averred is that the 9 contents of article, are false. They are in writing, they are defamatory and they are published. Now if the plaint as a whole is read, it seems that all these averments are made. In para 4 of the plaint, the plaintiff has urged that in order to defame and tarnish the image and social standing of the plaintiff, the defendant got published various articles in the newspaper. It is also alleged that these articles were not only published, but were even annexed to the writ petition to gain more publicity. In para 10 of the plaint, it is alleged that as first step towards nefarious end, the defendant got published the article titled “Rise of Robber intellectual” in Hindustan Times dated 26.7.2000. The plaintiff submits that the contents of the article are false, imaginary and malicious and published solely with a intention to damage the reputation of the plaintiff so that the defendant can have the control of the institution. In fact, it would be more appropriate here, to reproduce paras 10 and 11 of the plaint. 10. The plaintiff states that the defendant as a first step towards achieving his nefarious ends got published in the issue of Hindustan Times dated 26.07.2000 an article titled 'RISE OF THE ROBBER INTELLECTUAL'. The Defendant has emphasized therein that a new class of foreign funded academic entrepreneur adept at political 10 staring pulling in emerging. Plaintiff states that the Defendant re-produced his aforesaid article published on the Edit page of the Hindustan Times as annexure on page 46 of his Writ Petition No.5928 of 2000. The contents of said article are false imaginary and malicious and published with the sole intention of damaging the reputation of the Plaintiff so that the Defendant could instead gain control of the Institution. The copies of Writ Petition and all the annexures thereto were filed by the Defendant in the High Court of Delhi and copies of the Writ Petition as also annexures thereof were furnished to all the 17 Respondents by the Defendants who was the Petitioner in the said Writ Petition. Plaintiff states that all the Respondents in the said Writ Petition received copies of the said Writ Petition and annexures thereof. There was thus publicity of the defamatory averments and assertions made by the Plaintiff that Dr. Pai Panandikar has served as a full time employee of the said Centre for Policy Research Society while building up his personal commercial enterprise Marpol Pvt.Ltd. in Goa and frequently absenting himself from his duties at CPR. Plaintiff states that serious aspersions are contained in this defamatory statement that Marpol Pvt.Ltd.is a personal commercial enterprise of Plaintiff and that it has been built up by Plaintiff as one of his personal commercial enterprise while serving as a full time employee of the Centre for Policy Research by diverting funds 11 from Centre for Policy Research and using the CPR position to derive unfair advantage for himself and his family enterprises. 11. Plaintiff states that the aforesaid defamatory statement has created an impression that the Marpol Pvt. Ltd. has been built up the siphoning the funds of CPR and that the Plaintiff has availed the funds of CPR to establish and run his family enterprises. The Defendant also managed to have other material published in the national newspapers such as Indian Express and news magazines such as Indian Today etc. informing the readers thereof that Plaintiff has squandered the funds of Centre for Policy Research. One such article was got published in the issue of the Express Magazine as Sunday story dated February 11, 2001. The readers were also informed of the Defendant having instituted Writ Petition in High Court of Delhi. Thus the Defendant made efforts to create prejudice and wrong impressions in the mind of the Court against Plaintiff by consciously supplying false information regarding Plaintiff and his family and their business enterprises. Thus the clear impression was created that the Plaintiff had established his family enterprise by ill-gotten wealth from a public institute of National importance such as Centre for Policy research. Plaintiff states that the defamatory statement made by Defendant in the letter addressed to the 12 former Chief Justice of India as the Chairman of CPR Governing Board were meant to create prejudice and wrong impression in the mind of the Court against Plaintiff by consciously supplying false information regarding the family enterprise of the Plaintiff as also the journalists and readers of various newspapers and journals. Plaintiff states that the aforesaid statement of the Defendant and the manner in which he has placed it on the judicial records and got it distributed to all the Respondents therein has affected the name and social standing of the Plaintiff. 9. It seems from paras 10 and 11 of the plaint as well as from the other contents of the plaint that the plaintiff not only claims that he has been defamed by the articles in Hindustan Times, but by what is averred in the writ petition also. After having gone through the copy of the writ petition No.5928/2000, it is apparent that the above allegations are made in the writ petition. There are as many as 17 respondents in the writ petition. Notices were issued to all the respondents and the writ petition is decided. There is no doubt that there was circulation. Publication of these allegations,is made in the writ petition when copies of the same, were served on the respondents. The allegations as made above, can certainly be said to be per se defamatory. 13 10. From the contents of para (ix) of the writ petition No.5928/2000, it is clear that the article in Hindustan Times does make a grievance about the plaintiff. Those averments are reproduced here for convenience. “(ix) An article titled “The Rise of the Robber Intellectual” written by the Petitioner was published in the 26th July, 2000 edition of the daily “Hindustan Times”. The said article discussed issues of concern among policy makers in India, viz. the falling standards of institutions which seek to influence policy making in the country and the vested interests of persons who run these institutions. The petitioner forwarded a copy of the said article to the Chairman of the Board who responded vide his letter dated 3rd August, 2000 that the article raises pertinent issues. The said letter also records that the Chairman had informed Dr. Panandiker that the issue regarding his having crossed the age of superannuation had been raised by several persons. A true copy of the article dated 26th July, 2000 and the letter of Respondent No.6 dated 3rd August, 2000 are annexed herewith and marked as ANNEXURE P- 7 & ANNEXURE P-8.” 11. Thus, the defendant, prima facie, does not dispute 14 that article indirectly makes a reference to the plaintiff. Thus, to my mind, all these averments do constitute a cause of action. Thus, the plaint does disclose the cause of action. 12. Shri Usgaonkar, learned Counsel for the petitioner, submits that the suit is apparently barred by limitation and, therefore, the plaint is liable to be rejected under Order VII, Rule 11(d). He laid stress on the fact that two articles were published on 26.7.2000 and 11.2.2001 and the suit is filed on 21.8.2003. He submits that even assuming that the second article was written by the defendant still, the suit should have been filed within one year, as limitation provided under Article 75 of the Limitation Act, is for only one year from the date of publication. Now, it is apparent that the suit has been filed certainly beyond the period of one year from the date of publication of these two articles. It appears, however, after reading the plaint as a whole that the defendant has made defamatory and scurrilous allegations against him in both the writ petition Nos.5928/2000 and 4542/2002. It would be proper to reproduce here, paragraph 44(m)(n)(o)(p) of the plaint. “44(m) Because it came to the knowledge of the Plaintiff in September 2002 that the 15 Defendant has filed against the Centre for Policy Research and other Respondents being Writ Petition No.4542 of 2002 in which Defendant has made defamatory and scurrilous averments and remarks against the character and conduct of the Plaintiff behind his back thereby depicting him in negative light and harming his reputation and social standing. The said Writ Petition has been circulated to 17 respondents and deliberately the Plaintiff has not been impleaded by the Defendant. (n) Because the Writ Petition No.4542 of 2002 apart from being instituted by the Defendant ward off scrutiny of his performance by his employer, i.e. CPR, he allegedly challenges in public interest capture of the Centre for Policy Research (of which the Defendant alone claims to be worthy of directorship) by few individuals who had turned it into very exclusive private preserve. In the said Writ Petition the Defendant has made allegations that the Plaintiff is the architect behind such capture of CPR and continues to wield power and influence over the institution.” (o) Because the Defendant has further falsely stated that the Plaintiff had back dated the complaint sent by him to Enforcement Directorate and Income Tax Department against the Defendant and as such accused him of fabrication and dishonesty of conduct. It is stated that nowhere in the previous Writ Petition No.5928 of 2000 the Defendant had alleged that the 16 complaints were back dated by the Plaintiff. The Defendant has for the first time concocted the false allegation of back dating against the Plaintiff in order to make out a false criminal complaint. (p) Because the Defendant has falsely claimed in the Writ Petition No.4542/2002 that the complaint sent by the Plaintiff against the Defendant to the Income Tax and Enforcement Authorities were found to be false and baseless by misinterpreting the communications of the Income Tax authorities and Enforcement Directorates which merely convey that the explanations given by the Defendant had been accepted and no further proceedings were continued against him. The defendant further claimed in the Writ Petition with the CPR continues to pay for the legal defense of the Plaintiff which is far from the truth. It is stated that the Plaintiff is taking appropriate steps to have himself impleaded in the said Writ Petition pending before the Hon'ble High Court of Delhi. 13. The first Writ Petition No.5928/2000 is filed in the year 2000. The publication of the allegations in this writ petition, took place in 2000 itself. The suit is filed in 2003, which is apparently beyond 3 years. 14. The second writ petition is of the year 2002. The plaintiff claims that along with this writ petition also, the 17 copies of the articles were sent and this writ petition also contains scurrilous allegations. Thus, on the basis of the contents of the second writ petition also, the plaintiff claims that he has been defamed and lowered down in the esteem of others. The truth in the allegations made in this writ petition, cannot be gone into, but the fact is that the plaintiff claims that the writ petition contains defamatory allegations and the copies of the defamatory allegations, are attached to the plaint. But, the suit is filed in the year 2003 i.e. on 21.8.2003 and the writ petition No.4542/2002, which could be said to be latest, is filed on 27.7.2002. Therefore, it is once again apparent that the suit is filed beyond the period of one year after the writ petition was filed. 15. Shri. Tamba submitted that the defendant had filed criminal complaint case before the Magistrate in Delhi in the year 2003 and article with regard to that, was published in the newspaper 'Pioneer' on 19.2.2003. In para 15 of the plaint, it is averred as follows : “15. The plaintiff states that however, in the month of February 2003 he received the copies of the summons issued by the Court of Metropolitan Magistrate, New Delhi in Criminal Complaint case 18 instituted by the Defendant under Sections211 and 500 of I.P.C. against the Plaintiff and some other individuals. When the Plaintiff came to Delhi he also came across a newspaper report the Defendant got published in newspapers 'Pioneer' dated February19, 2003. titled “Court summons present and former CPR Directors.” The said news report planted by the Defendant, is reproduced below : “A Delhi Court has summoned the present and former directors of the Centre for Policy Research (CPR) to stand trial on criminal charges arising from the filing of a false complaint to the Enforcement Directorate and Income Tax Department against a fellow professor. Metropolitan magistrate Bimla Kumari, in her order released on Monday, stated that a prima facie case exists against Mr.Vishwanath Pai Panandiker and Mr.Charan Wadhva,the former and present directors of CPR, and a third accused, Mr.P. S. Dhotrekar. “After going through the material on record, I am of the view that there are sufficient grounds to proceed against all the accused under Sections 211 and 500 of the Indian Penal Code.” The magistrate rules Section 211 relates to the making of a false charge with the intent to injure a person, while Section 500 is concerned with criminal defamation Each offense is punishable under the Indian Penal Code with imprisonment of up to two years, or with fine, or with both. The 19 magistrate's order stated that Panandikar be summoned on both addressed at Delhi and Goa. CPR be summoned through Mr. Charan Wadhva, Chief Executive – cum – President, Centre for Policy Research.” The complaint was sent against professor Brahma Chellancy after he instituted Writ and contempt proceedings against Mr. Panandiker and CPR in the Delhi High Court in late 2000. After investigating the complaint, the Enforcement Directorate and Income Tax authorities separately recorded that it was false.” 16. The learned Counsel for the respondent / plaintiff, submits that this publication is also defamatory. The contention cannot be accepted. This matter merely gives details of the plaint filed against the plaintiff by the defendant and the order passed by the Court. It relates to the proceedings before the Court which are instituted