IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RFA Nos. 246 and 285 of 2005. Judgment reserved on: 24.6.2010 Date of decision: 27.8.2010 1. RFA No. 246 of 2005. Mohan Lal Benal ….. Appellant Versus Sham Lal and others …. .Respondents For the Appellant: Mr. G.D.Verma, Sr. Advocate with Mr. B.C. Verma, Advocate. For the Respondents: Mr. Ramakant Sharma, Advocate. 2. RFA No. 285 of 2005. Shyam Lal and another ….. Appellants Versus Mohan Lal Benal and ors. ……Respondents For the Appellants: Mr. Ramakant Sharma, Advocate For the Respondents: Mr. G.D.Verma, Sr. Advocate with Mr. B.C. Verma, Advocate. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting? No1 Kuldip Singh, Judge. This judgement shall dispose of RFA Nos. 246 of 2005 and 285 of 2005 both having arisen from common judgment and decree, dated 10.6.2005 passed by learned Additional District Judge Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… (Presiding Officer, Fast Track Court), Solan in Civil Suit No. 4FT/1/04/03 and Counter Claim No. 48FT/1/04/03. The parties and facts in this judgment are given from RFA No. 246 of 2005. 2. The brief facts of the case are that the appellant had filed a suit for recovery of Rs.6 lac against respondents on account of damages along with interest at the rate of 12% per annum from the date of filing of the suit till realization of the decretal amount. It is the case of the appellant that he has retired as Principal from Govt. Senior Secondary School (Boys), Solan in the year 2000. He retired as a Gazetted Officer and has spent honourable and peaceful life after retirement in village Shamlaich. He owns landed property in villages Shamlaich, Anji and Baggar. The respondents on 22.4.2003 addressed a complaint to Panchayati Raj Minister, Himachal Pradesh, with copies to others, in which, defamatory and unfounded allegations were levelled against the appellant. The said allegations were also highlighted by respondents in the newspapers. 3. The complaint was sent by Deputy Commissioner, Solan, to field agencies for verification and report. The matter was inquired by Patwari, Patwar Circle, Deon at Saproon. He recorded statements during inquiry and submitted papers to Tehsildar, Solan, who in turn submitted the papers to Sub Divisional Magistrate, Solan, and Sub Divisional Magistrate, Solan, submitted his report, dated 30.7.2003 to Deputy Commissioner, Solan. It was found that the allegations levelled in the complaint, dated 22.4.2003, were not correct. The Deputy Commissioner, Solan, filed the complaint with intimation to respondent No.1 on 3.9.2003. The respondents also …3… levelled defamatory allegations before public at large against the appellant during inquiry. 4. The respondents again addressed written complaint, dated 28.4.2003, to the Prime Minister of India and other dignitaries. The said complaint was also investigated by the Director General of Police, Himachal Pradesh and Director, Rural Development. The complaint was found to be false, frivolous and baseless. 5. The appellant was defamed. The reputation of the appellant was damaged. He was defamed and humiliated in the estimation of public at large. The appellant sent legal notice, dated 23.9.2003, to the respondents. The respondents No. 7 and 8 gave reply, dated 29.10.2003, to the notice wherein again similar attempt was made by them to defame the appellant. 6. The suit was contested by the respondents by filing written statement. It was pleaded that some persons lodged the complaint as the appellant did not allow cremation of Smt. Sewati, mother of respondent No.2 and grand mother of respondent No.1, who died in April 2003, in cremation ground constructed by Gram Panchayat, Anji, on the ground that the deceased belonged to lower caste. The complaint was true and was made bonafide to persons, who had the authority to redress the grievances. It was denied that the respondents highlighted any such allegation in the newspaper. It was further denied that the complaint was found to be false. The alleged complaint, dated 22.4.2003, was an information which was given bonafide with the hope to stop its repetition in future. It was …4… denied that all respondents made the complaint dated 28.4.2003, a letter was sent signed by respondents No. 7 and 8 as Presidents of Gram Panchayats on the basis of complaint made to them by other signatories including respondents No.1,2 and 5. The respondents took the plea of absolute privilege. It has been denied that alleged complaint was false. It has been denied that alleged complaints were not made to defame the appellant nor appellant has suffered any defamation. The appellant is estopped from filing the suit. 7. The respondents No. 1 and 5 raised counter claim. It has been alleged that appellant had made false and defamatory allegations against counter claimants before halka Patwari on 25/27.7.2003 alleging that the then President, Gram Panchayat Bhupinder Singh had embezzled and criminally misappropriated the government money and counter claimants are share holders in such embezzlement and misappropriation. These allegations were levelled by appellant intentionally in order to defame the counter claimants. The said allegations are false. The counter claimants claimed Rs.3 lac as damages along with interest at the rate of 12% per annum. 8. The appellant filed replication and written statement to counter claim and denied the stand of respondents while reiterating his own case. The counter claimants filed replication in the counter claim and reasserted their case. On the pleadings of the parties, following issues were framed:- 1. Whether the defendants made false allegations of defamatory nature and published those allegations with a view to defame the plaintiff as alleged ? ….OPP …5… 2. If issue No. 1 proved, whether the plaintiff is entitled to damages, if so how much and from whom ? ….. OPP 3. Whether the alleged false allegations were bonafide true and privileged and were made in the public interest as alleged, if so its effect ? ….OPD. 4. Whether the plaintiff made false accusation against the defendants and published those allegations with a view to defame them? ….OPD. 5. If issue No.4 is proved, whether the defendants are entitled to any damages from the plaintiff, if so how much? …. OPD. 6. Relief. 9. The issues No. 1, 2 4 and 5 were answered in negative and issue No.3 in affirmative. The learned Additional District Judge dismissed the suit and counter claim on 10.6.2005, hence RFA No. 246 of 2005 has been filed by appellant/plaintiff Mohan Lal Benal, whereas RFA No. 285 of 2005 has been filed by Shyam Lal and Nek Ram, defendants No. 1 and 5 respectively. 10. I have heard counsel for the parties and have also gone through the record. The learned counsel for appellant has submitted that the court below has erred in not decreeing the suit on the basis of material on record. He, however, has submitted that the trial court has rightly dismissed the counter claim. On the contrary, learned counsel for respondents while supporting the dismissal of the suit has submitted that trial court has wrongly dismissed the counter claim filed by defendants No. 1 and 5. 11. In order to appreciate the rival contentions of learned Counsel for the parties, it is necessary to refer to evidence …6… led by the parties. PW1, Randeep Thakur, has proved Ext.PA/5 complaint dated 22.4.2003, Ext.PA/2, statement of Mohan Lal Benal, dated, 25.7.2003, PA/3, statements of Nek Ram and Shyam Lal, dated 24.7.2003. PW2, Ashok Chummier, Patwari, has recorded statements Ext.PA/1 to Ext.PA/4. PW3, Jagat Ram, Senior Assistant, office of Directorate, Panchayati Raj, has placed on record Ext.PB, complaint dated 28.4.2003 addressed to Prime Minister. He has also proved a copy of statement Ext.PB/6 of Smt. Lokesh Kumari, President, Gram Panchayat, Anji, as well as Ext. PB/7 statement of Bhupinder Singh. He has also proved statements of other persons Ext. PB/8 to PB18. PW4, Ravinder Kumar, Panchayat Inspector, has stated that he was required to inquire into the complaint, Ext.PB. He recorded statements of witnesses, Ext.PB/6 to PB/18 and submitted his report, Ext.PB/4. 12. PW5, Mohan Lal Benal, appellant, tendered in evidence his affidavit, Ext.PC, Ext.PC/3, newspaper Amar Ujala, Ext.PC-4, newspaper Amar Ujala, notice dated 23.9.2003, Ext.P/4, reply Ext.P/13 to notice. In the affidavit, Ext.PC, it has been stated that the defendants addressed written complaint dated 22.4.2003, in which defamatory and unfounded allegations were levelled against him, which were false. The Patwari, Patwar Circle, Deon at Saproon was appointed to investigate the complaint, who investigated the complaint and submitted statements recorded during investigation to the Tehsildar, Solan. The defendants again addressed written complaint dated 28.4.2003 to Prime Minister etc. This complaint was got investigated by Director General of Police, Himachal Pradesh …7… through ASI, Police Post, Saproon vide report dated 18.7.2003. After the allegations were published, he does not enjoy the same reputation, which he used to enjoy before the publication of aforesaid allegations. The people started boycotting him in special functions and his image and reputation were tarnished, which caused mental agony and harassment to him. The counter claim of the defendants is baseless. He had complained that Pradhan, Gram Panchayat had embezzled the funds for construction of the shed. The reports in the newspapers were got published by the defendants. He denied that he did not allow Shyam Lal to cremate dead body of his grand mother in the shed. 13. PW6, Amar Singh, has tendered in evidence his affidavit, Ext.PD, in which he has stated that he knows the appellant since his childhood. He never saw him involving in criminal activities as he is mature and was gazetted officer. The allegations raised question mark on his character as being pubic man. He stopped visiting his place in functions and for day to day activities. The allegations levelled against him are false and far from the realities and have been levelled just to tarnish the reputation of the appellant. In cross-examination, he has stated that he and Mohan Lal belong to same paternity. 14. PW7, Muni Lal, has tendered in evidence his affidavit, Ext.PE, in which he has stated that Nek Ram and Shyam Lal during inquiry in their statements asserted that Mohan Lal was obstructing the cremation of dead bodies of the lower caste and that dead body of Smt. Sewati Devi, grand mother of Shyam Lal, was …8… obstructed by Mohan Lal for cremation in the cremation ground, Katli Khad. This created doubt in his mind regarding attitude of Mohan Lal towards lower caste persons. Thereafter, he boycotted the appellant socially and stopped attending functions at the appellant’s place as well as day to day meeting, which were previously used to be there with the appellant. In cross-examination, he has stated that he had contested election against Laxmi and lost the election. He is also signatory to the plaint, which was filed by Mohan Lal against Bhupinder Singh, in respect of execution of works. 15. PW8, Rattan Lal, has proved copy of letter, Ext.PF, received in the office of Superintendent of Police from Director General of Police. He has also proved Ext. PF/1, copy of complaint of Lokesh Kumari. Ext.PF/2 to Ext.PF/8, copies of the statements recorded during inquiry, were also proved by him. Ext.PF/9 is the copy of inquiry report. Ext.PF/10 is the copy of report of Superintendent of Police and Ext.PF/11 is the report, which was sent by Superintendent of Police to Director General of Police. 16. PW9, Roop Ram has tendered in evidence his affidavit, Ext. PG, in which he has stated that he knows Mohan Lal since childhood. In the inquiry conducted by Patwari, Nek Ram and Shyam Lal in their statements asserted that Mohan Lal was obstructing cremation of dead bodies of lower castes, dead body of Smt. Sewati Devi, grand mother of Shyam Lal, was not allowed to be cremated in the cremation ground, Katli Khad. This created suspicion, doubt and apprehension in his mind regarding attitude of Mohan Lal and, thereafter, he never visited Mohan Lal. …9… 17. PW10, Balbir Singh, ASI, has proved copy of complaint, Ext. PB. He conducted inquiry and submitted report, Ext. PF/9 along with copies of the statements, Ext.PF/2 to Ext.PF/8. 18. DW2, Shyam Lal, tendered in evidence his affidavit dated 14.1.2005, special power of attorney, Ext.DW2/A and death certificate, Ext.DW2/B. He has stated in the affidavit that his grand mother died in the intervening night of 9.4.2003 and 10.4.2003. Mohan Lal did not allow the cremation of his grand mother in the cremation ground constructed by Gram Panchayat, as a result of which, dead body was cremated at a distance of about 50 metres away from the cremation shed. He and many persons submitted complaint, dated 22.4.2003, bona fide to the authorities, who were in a position to redress their grievance with a hope to stop repetition of such incidents. Daily newspapers also reported this incident, but he and other respondents did not get the news published in the newspapers. The complaint, dated 28.4.2003 was not made by him. Mohan Lal has not suffered any defamation or any loss to his reputation on account of complaint and inquiry. Mohan Lal had been openly making defamatory statements after 22.4.2003 against him and Nek Ram that they had embezzled and criminally misappropriated Panchayat funds. Such allegations are false and have been made with mala fide intention to defame him and Nek Ram. Mohan Lal made such defamatory allegations on 25.7.2003 in his statement before Patwari. He has suffered mental shock due to false allegations. Many persons have stopped coming to him because of aforesaid allegations of embezzlement and …10… misappropriation. He is not commanding that much respect and reputation, which he used to command earlier. 19. DW4, Nek Ram, has tendered in evidence his affidavit, dated 14.1.2005. He has stated in the affidavit that grand mother of Shyam Lal, defendant, who was his sister-in-law, died on 10.4.2003. The plaintiff came at the cremation ground and asked them not to cremate dead body at the place constructed by Panchayat. He also stated that the said place is meant for cremation of deads of only high castes. In view of apprehension of breach of peace, they cremated the body upper side along the road. The plaintiff earlier also did not allow cremation of dead body of mother-in- law of Lokesh Kumari. On 22.4.2003, he along with about 20-25 persons had given written complaint. The defendants have no ill will against the plaintiff. The complaint was lodged by them only as per their duty with the purpose to bring to the notice of the authorities to tell the plaintiff not to obstruct schedule castes from cremating their deads in the cremation ground constructed by Panchayat. They never got published this news in the newspapers. Their complaint was not inquired properly nor their statements were recorded properly. 20. DW4, has further stated that complaint dated 28.4.2003 was not lodged by him. The plaintiff was not defamed by their complaint. The plaintiff in order to defame him and Shyam Lal has levelled false allegations that he and Shyam Lal embezzled Panchayat funds. The allegations are false. These allegations were levelled by plaintiff while recording his statement during inquiry and openly after 22.4.2003 before the public. This has defamed him and …11… Shyam Lal. Many people suspected them and stopped talking to them. They have been defamed and they are entitled to Rs. 3 lac on account of damages. In cross-examination, he has stated that a case of theft of timber was registered against him and others. He has stated that in the year 1983, another case of timber was registered, in which allegations of timber theft were there. He was acquitted in that case. Yogesh Sethi had filed three cases of cheque bouncing against him. K.K.Malhotra had also filed a case of cheque bouncing against him. He has stated that his statement was recorded by Patwari as well as by Panchayat Inspector and ASI. The plaintiff has never levelled any allegations against him. He had good relations with his relatives and friends. 21. DW5, Laxmi Nand, has tendered in evidence his affidavit, dated 14.1.2005. He has stated that on 8.11.1998, when they were constructing the cremation shed, at that time plaintiff came there and said that the cremation ground is not meant for low caste people and is meant for only high caste people. He was told by Shyam Lal that Mohan Lal did not allow cremation of his grand mother at the cremation ground and for that reason they had to cremate the body in open. On 22.4.2003, about 20-25 persons including he submitted a written complaint. This complaint was given by them as per their duty towards society. The plaintiff after 22.4.2003 started levelling allegations against Shyam Lal and Nek Ram that they in connivance with Bhupinder, Pradhan, misappropriated funds of the Panchayat. Shyam Lal and Nek Ram never remained Panchayat members. Shyam Lal and Nek Ram are …12… respectable persons, but on account of aforesaid allegation, they have been defamed. Now, they do not command that much respect, which they used to command earlier. In cross-examination, he has stated that complaint, Ext.PA/5 is signed by him. This complaint was written by Anil Kumar and Lokesh Kumari. He is on speaking terms with the plaintiff and he respects him being a good person and a retired Principal. The cremation ground was constructed with the money of Government and, therefore, it belongs to all. He has stated that he does not know that the plaintiff had levelled any allegation against Shyam Lal and Nek Ram. 22. DW6, Amar Dutt, has tendered in evidence his affidavit, dated 14.1.2005. In the affidavit, he has stated that on 10.4.2003, when he and other persons were cutting wood for cremation of mother of Shonkiya at Katli Khad, the plaintiff came there and said do not cremate the dead body at the place constructed by the Panchayat, which is meant for cremation of higher castes. He and other persons have laid the pyre at the place constructed by the Panchayat, but the plaintiff again came there and asked them to remove the pyre. On this, pyre was removed and the body was cremated near bridge 50 metres away in open. In cross-examination, he has denied that he has given the statement on the asking of Nek Ram and Shyam Lal. 23. DW7, Smt. Lokesh Kumari, has tendered in evidence her affidavit, dated 14.1.2005 and death certificate, Ext.DW7/A. She has stated that Gram Panchayat Anji and Gram Panchayat Saproon were composite prior to the year 2000. Shyam …13… Lal, Nek Ram and many other persons gave written complaint, dated 22.4.2003 to Gram Panchayat, Anji as well as Gram Panchayat, Saproon. In view of moral and public duty, they sent the complaint bona fide to higher authorities to initiate some action, so that such things may not be repeated. The plaintiff himself had given news in the newspapers that schedule castes have no right to cremate their deads at the place, where cremation shed has been constructed. She had written letter, dated 28.4.2003 on account of her social and moral duty to inform the authorities. This letter was written bona fide. The plaintiff has not suffered any defamation. The plaintiff levelled allegations against Shyam Lal and Nek Ram that they had embezzled Panchayat funds in connivance with Bhupinder Singh, former President of Gram Panchayat. Shyam Lal and Nek Ram are respectable persons. They were never involved in the working of Panchayat. The respect and reputation of Shyam Lal and Nek Ram were lowered in the eyes of the public due to these allegations. Now, the public looks them with suspicion. In cross-examination, she has stated that her statement was recorded by ASI and Panchayat Inspector. 24. DW8, Anil Kumar has tendered in evidence his affidavit, dated 14.1.2005. In the affidavit, he has stated that on 22.4.2003, Shyam Lal and Nek Ram along with 20-25 persons had submitted a written complaint, dated 22.4.2003. On the basis of this complaint, he and President, Gram Panchayat, Anji had written a letter, dated 28.4.2003. This letter was written by him as per his duty and in public interest in order to check the actions of the plaintiff. The letter dated …14… 28.4.2003 was written bona fide without any ill-will. The plaintiff has not been defamed by this. He commands the same respect as he used to command earlier. 25. DW9, Bhupinder Singh, has tendered in evidence his affidavit, dated 17.3.2005. In the affidavit, he has stated that he remained President, Gram Panchayat, Anji from 1995 to 2000. The cremation shed in question was constructed by him in the year 1997- 98. Shyam Lal and Nek Ram, respondents had never done any work in Gram Panchayat during his tenure nor they were members of the Panchayat. The plaintiff had levelled false allegations of embezzlement of Gram Panchayat fund against Shyam Lal and Nek Ram. Shyam Lal and Nek Ram have been defamed by these allegations and they do not command that much respect and reputation, which they used to command earlier. The plaintiff has not suffered any defamation and loss to reputation on account of complaint or inquiry. 26. DW10, Rakesh Mehta, has tendered in evidence his affidavit, dated 15.3.2005 and has stated that from April-May, 2003, the plaintiff had been openly making propaganda in the area that Shyam Lal and Nek Ram have embezzled Gram Panchayat funds for their own use, such allegations have defamed Shyam Lal and Nek Ram. They are not commanding that much respect, which they used to command before the propaganda. The people have now become suspicious about them. He also avoids them as their reputation has been lowered down in the society. In cross- examination, he has stated that he is on speaking terms with the …15… plaintiff and he has cordial relations with him. He never talked to him about Shyam Lal and Nek Ram. 27. DW11, Rajinder Singh, has tendered in evidence his affidavit, dated 6.4.2005, in which he has stated that for the last about 2 years, the plaintiff had been making propaganda in the area that Shyam Lal and Nek Ram have embezzled Panchayat funds during the tenure of Bhupinder Singh as President of Gram Panchayat. Shyam Lal and Nek Ram are respectable persons of the area. The respect and reputation of Shyam Lal and Nek Ram have been lowered in the eyes of the public due to the aforesaid allegations. They are not commanding that much respect, which they used to command earlier. Now, he suspects them on account of aforesaid allegations. In cross-examination, he has denied that because of enmity, he has made this statement. 28. The grievance of the appellant is against complaint, dated 22.4.2003, Ext.PA/5, which has been signed by respondents No. 1 to 7 and addressed to Panchayati Raj Minister, Himachal Pradesh. It is also the case of the appellant that Patwari, Patwar Circle, Deon at Saproon during inquiry of complaint recorded the statements. Ext.PA/3 is the joint statement of respondents No. 1 and 5. It is the case of the appellant that in complaint, Ext.PA/5, the respondents have levelled false and defamatory allegations against the appellant, which have lowered down his reputation in the estimation of general public. In the complaint, Ext.PA/5, it has been stated that complainants are Dalits. Mohan Lal Benal etc., are prohibiting them from cremating their deads in the cremation ground …16… constructed by Panchayat. At the time of construction of cremation ground, they threatened former President, Panchayat, he was implicated by levelling false allegations and an inquiry was got conducted in order to harass him. Even the present office bearers of the Panchayat are obstructed. A request was made that such people be stopped to act against the Constitution and an inquiry be got conducted in order to prevent communal tension. 29. In the joint statement of respondents No. 1 and 5, Ext. PA/3, it has been stated that on 10.4.2003 Sewati Devi had died and her dead body was taken to Katli Khad for cremation in the shed constructed by Panchayat for this purpose.