IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RFA No. 149 of 2001 Date of Decision: 30th September, 2008 Shri Rahul Dutt and another Appellants Versus Smt. Pushpa Gupta and another Respondents. Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No. For the appellants: Mr. Janesh Gupta, Advocate. For the respondents: Nemo. Sanjay Karol, J. (Oral) The present appeal has been filed against the judgment and decree dated 7.3.2001 passed by Additional District Judge, Solan, H.P. in Civil Suit No. 44-S/1 of 1995, titled as Darshan Lal and another vs. Shri Guru Dutt, partly decreeing the plaintiffs’ suit and granting damages to the tune of Rs.20,000/- alongwith interest @ 12% per annum. Shri Darshan Lal and Smt. Pushpa Gupta, as plaintiffs No.1 and 2 (respondents No.2 and 1 herein) filed a suit for damages against the defendant Shri Guru Dutt (original appellant) (hereinafter referred to as defendant) for a recovery of sum of Rs.5 lacs on the ground that the defendant had written a complaint to the Minster, State of Himachal Pradesh, making certain allegations, which were false, incorrect and defamatory. The suit was contested by the defendant by filing written statement. Whether the reporters of Local Papers are allowed to see the Judgment? 2 On the pleadings of the parties, the trial Court framed the following issues:- 1. Whether the plaintiffs are entitled to recovery of Rs.2,50,000/- by way of damages as alleged in the plaint? OPP 2. Relief. In order to prove its case plaintiff No.1 Shri Darshan Lal examined himself as PW-1 and plaintiff No.2 Smt. Pushpa Gupta examined herself as PW-2 and Shri Amar Nath Gupta, (PW-3) and Shri Mohan Singh (PW-4) were examined as their witnesses. Defendant examined himself as DW-1 and also examined Sardar Nanak Singh as DW-2. Appreciating the material on record, the Court below partly decreed the plaintiff’s suit primarily on the ground that the defendant had failed to place on record demarcation report in order to prove that the contents of the complaint, with regard to alleged encroachment made by the plaintiffs on Government land were true. What also weighed with the Court below was the fact that the defendant had failed to examine the Pardhan and other Members of the Panchayat and thus had suppressed material evidence. Hence the present appeal filed by the defendant. The plaintiffs have been proceeded against ex parte vide order dated 8.9.2008. Shri Janesh Gupta, learned counsel for the defendant, had made the following submissions:- (1) The alleged complaint Ext.PW-4/A dated 21.3.1994 was not proved in accordance with law as the original of the same was never produced in the Court; (2) the Court below has ignored the Resolutions of the Panchayat, Ext.DW-2/A and DW-2/B from which it is evident that the 3 alleged complaint was in fact based on the record of the Panchayat (3) there was prior litigation inter se between the Panchayat and the plaintiffs with regard to land in question; and (4) there is no evidence whatsoever to show that plaintiffs suffered any damages or that the complaint was false and malicious. Record perused. The alleged complaint written by the defendant to the Minister Incharge is reproduced hereinbelow:- “Shri Gangu Ram “Musafer” The Hon. Minister for Panchayat & Rural Development, H.P. Govt., Shimla-2 Sub: Grabing Panchayat land at Dharampur. Dear sir, This letter is in connection with a news item published in the “Indian Express” dated 19.3.1994. The caption of the news is “Panchayat member resign in protest.” I, being a senior citizen of Dharampur town investigated the matter personally. I was shocked to know that respected member of Gram Panchayat Dharampur Mrs. Pushpa Gupta resigned on irrational ground. In fact her father-in-law Shri Darshan Lal one of the richest person of Dharampur wanted to construct few shops on the Panchayat land. His action was objected by the Pardhan Ashok Gupta and other members of the Panchayat. Lala Darshan Lal, after construction work, wanted to block the traditional path which links other villages and the entry of the official path is in the Revenue record. When he failed to grabe the Panchayat land her daughter-in-law and another member of the panchayat Radhe Shyam, his ex employee resigned as a protest. These are the real facts which I have noticed personally after inspection. The said incident is that Lala Darshan Lal is trying to encroach the panchayat land when the state Govt. has started vigorous campaign against the encroachees.” 4 The same was exhibited as Ext.PW-4/A by PW-4. It is only a photocopy. It is a matter of record that the original of the said complaint was not produced in the Court at any point in time and in fact at the time when the same was exhibited the defendant had objected to the same. From the record, it is evident that at the time of recording of the statement of PW-4 on 5.10.2000, the defendant had objected to the recording of the statement itself, but the objection was overruled only for the reason that the examination-in-chief of this witness has been recorded. Mere marking or exhibiting a document by the Court would not be enough to prove the document. In the absence of availability of the original letter alleged to have been written by the defendant, it was open for the plaintiffs to have proved the same by leading secondary evidence. It is not the case of the plaintiffs or their witness PW-4 that photocopy of the letter, which was produced by him was in fact the copy made from the original by mechanical process or was made after comparison with the original. Therefore, in my view, it cannot be said that the letter Ext.PW- 4/A was proved in accordance with law. Further mere reading of the document Ext.PW-4/A would show that contents are not defamatory at all. They are simple narration of facts. That the contents of the letter are correct is also evident from the fact that DW-2, Up-Pradhan, Gram Panchayat, Dharampur, has admitted that there was prior litigation pending between the family of the plaintiffs and the Panchayat and the demarcation with regard to the path in dispute was also obtained from the revenue officials. Be that at it may be, it is also a matter of record that vide Resolutions Ext.DW-2/A and Ext.DW-2/B the Panchayat resolved that the 5 plaintiffs’ family had encroached upon the Panchayat/ Government land and, therefore, the matter be brought to the notice of the concerned officials including the Revenue Minister for initiation of necessary action in accordance with law. Assuming that letter Ext.PW-4/A was written by the defendant, in my considered view, the contents thereof are not certainly defamatory and cannot be said to be completely false. From the careful scrutiny of deposition of PW-1 and PW-2 the alleged complaint was essentially made against PW-1. His deposition with regard to damage to his character and reputation is not sufficiently pleaded and proved. The Court below has awarded Rs.20,000/- as damages, in my considered view, purely on the basis of surmises and conjectures. There is nothing on record to show that the defendant had acted with malice and intentionally tried to damage the plaintiffs’ reputation. No doubt, it has come on record that plaintiff No.1 is a man of repute, but, however, a genuine complaint made by a senior citizen would not amount to defamation by itself. For the aforesaid reasons, the present appeal is accepted, the judgment and decree dated 7.3.2001 passed by Addl. District Judge, Solan, is set aside and the plaintiffs’ suit is dismissed. The amount, if any, deposited by the appellant be refunded to the appellants alongwith upto interest. 30th September, 2008 (Sanjay Karol) (C) Judge. 6