1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO. 1564 OF 2009 IN SUIT NO. 651 OF 1983 ALONGWITH CHAMBER SUMMONS NO. 1563 OF 2009 IN SUIT NO.652 OF 1983 Konkan Unnatti Mitra Mandal & Ors. ....Plaintiffs Versus M/s. Bennett Coloman & Co. Ltd. & Ors. ....Defendants Mr. Rajendra Pai, Advocate al/w. Mr. Rajendra Desai, Mr.Faisal Sayyed and Mr. Mayur Bhojwani i/b. M. K. Ambalal & Co. for the Plaintiffs. Dr. Virendra Tulzapurkar, Sr. Advocate a/w. Ms. Alpana Ghone i/b. M/s. Kanga & Co. for Defendant Nos. 4 to 7 in Suit No. 651 of 1983 and for Defendant Nos. 1 to 4 in Suit No.652 of 1983. CORAM : R. V. MORE, J. DATE : 25th NOVEMBER, 2009. P.C. : Heard Mr. Pai, learned Counsel for the Plaintiffs and Mr. Tulzapurkar, learned Senior Counsel for the Defendants. 2. The issues involved in both the chamber summonses are common and therefore, they are being disposed of by the present order. 2 3. The chamber summonses are taken out by the Plaintiffs to : (a) amend issue No.1. (b) strike out issue No.2 and (c) frame additional issue in terms of the schedule annexed to the chamber summons. 4. By an order dated 25th August, 2008, this court framed issues in both the above suits, as follows: (1) Do the Plaintiffs prove that the defendants have, by publication of the photographs in juxtaposition with each other and/or in conjunction with the article published thereunder at Exhibit "A" to the Plaint, per se and/or in any manner defamed the Plaintiffs (Collectively) or any of the Plaintiffs (individually), having caused them or any of them to be the subject matter of defamation, contempt, hatred and/or ridicule in the eyes of the public and particularly people known to them? (2) Do the Plaintiffs further prove that the defendants published the above mentioned material with malafide intention to cause defamation of all the Plaintiffs or any of the plaintiffs individually ? (3) Do the Defendants prove that the 3 publication of the said photographs and the said Article at Exhibit "A" to the plaint is not malafide, malicious, false, calculated to defame the Plaintiffs (Collectively) or any of the Plaintiffs (individually) and does not have the effect of defaming the Plaintiffs (Collectively) or any of the Plaintiffs (individually) ? (4) Whether the Defendants prove that the clarification published in ‘The Times of India’ issue dated 8th April,1982 adequately published views of the Plaintiffs and whether the said Article read with above referred clarification amounts to balanced reporting of the issue in public interest ? (5) What Order ? 5. By the present chamber summonses, the Plaintiffs seeks to recast the issue no.1 as follows: " Do the Plaintiffs prove the Article and the photographs, in juxtaposition with each other, at Exhibit “A” to the Plaint were published by the Defendants”. AND " Do the Plaintiffs prove the Defendants were responsible for the publication of the Article and the photographs, in juxtaposition with each other, at Exhibit “A” to the Plaint which was defamatory to the Plaintiffs”. 4 As stated above, the issue no.2 is sought to be deleted. Mr. Pai, learned Counsel appearing for the Plaintiffs, after arguing for some time does not press his prayers regarding amendment of issue no.1 and striking out issue no.2. 4. Now, let us consider, whether the additional issue as requested by the Plaintiffs is required to framed. The Plaintiffs have proposed additional issue as follows: "Do the Defendants prove that the contents of the Article alongwith the photographs, in juxtaposition with each other, are true either in their literal or in their inferential or innuendo meaning" 5. Mr. Pai, learned Counsel for the Plaintiffs, in this regard took me through the pleadings of the parties and especially pleadings of the Defendants in paragraph no. 13 of the written statement. He also invited my attention to chapter 5 and chapter 11 i.e. “The ingredients of the prima-facie case” and “Justification” from the book "Defamation" written by Colin Dunkan QC and Brian Neill QC and submitted that the law presumes that defamatory words are false and the Plaintiff need do no more than prove that the defamatory words have been published of him by the Defendant; and it is for the Defendant to prove that the words are true, if he can. 6. Mr. Tulzapurkar, learned Senior Counsel, contested the Chamber Summonses and he relied upon the provision of Order 14 Rule 1 and Rule 3 of the Code of Civil Procedure, 1908. He submitted that if the pleadings of the parties are considered in proper perspective, then, there is no need to frame the additional issues. 5 7. Having considered the rival submissions of the learned Counsel and having gone through the pleadings of the parties alongwith the relevant law, I do not find any need to frame additional issue as claimed by the Defendants. In paragraph no.4 of the Plaint, the Plaintiffs have made following averments: " The Plaintiffs say and submit that the publication of the said article and the said photographs is false, malafide and malicious and calculated to defame and has the effect of defaming the Plaintiffs.” This averment is simplictor denied by the Defendants in paragraph 13 of the written statement. The relevant averment in written statement is as follows: " This Defendants further deny that the said article is false, malafide and malicious and calculated to defame and/or had the effect of defaming the Plaintiffs, in any manner, whatsoever.” It was the allegation of the Plaintiffs that the said article and photographs are false, malafide and malicious, which allegation is denied by the Defendants. After going through the written statement, I find that it is not the defence of the Defendants that the said article and the photographs are true. In order to succeed, the Plaintiffs have firstly to prove the factum of publication of the said article and the said photographs. Once this factum is proved, then, they have to further prove that the said article and photographs are defamatory. Since, it is not the defence of the Defendants that the said article and photographs are true, in my opinion, the issue as proposed by the Plaintiffs is not required to be framed. 6 8. The Order 14 Rule 2 of the Code of Civil Procedure, 1908 deals with the settlement of issue and determination of suit on issue of law or on issues agreed upon. Rule 1 of the Order 14 speaks about framing of issues. It further says that the issue arise when a material proposition of fact or law is affirmed by the one party and denied by the other. Rule 3 of the Order 14 speaks about materials from which issues can be framed. Under this Rule, the Court may frame the issues from : a) allegations made on oath by the parties, or by any persons present on their behalf or made by the pleaders of such parties; b) the allegations made in the pleadings or in answers to interrogatories delivered in the suit. c) the contents of documents produced by either party. 9. In the light of these provisions, if the pleadings of the parties are considered, then in my opinion, the issue as proposed by the Plaintiffs need not be framed. After considering the pleadings of the parties, the 5 issues are already framed on 25th July, 2008. In the facts and circumstances mentioned above, both the above said chamber summonses are dismissed. 10. It is expressly made clear that the issue regarding the Plaintiffs' entitlement to lead additional evidence under Order 18 Rule 3 of the Code of Civil Procedure, 1908 is kept open. 11. A common statement is made by learned Counsel for the Plaintiffs and the Defendants, that recording of Plaintiffs’ evidence is completed. 12. The learned Counsel for the Defendants to file affidavit in lieu of examination in chief and compilation of documents in this Court on or before 18th December, 2009. 7 13. Office is directed to place the above two suits under the caption “Directions” on 18th December, 2009. Sd/- (R. V. MORE, J.)