ash 1 fa-611.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.611 OF 2010 Shree Maheshwar Hydel Power Corporation Ltd. and Another. .. Appellants. Vs Chitroopa Palit & Another. .. Respondents -- Shri S.U. Kamdar, Senior Advocate along with Ms Pooja Patil with Shri Fozan Lakdawala i/by M/s. Little & Co. for the Appellants. Shri Mihir Desai i/by M/s. Haresh Mehta & Co. for the Respondents. -- CORAM : A.S. OKA, J DATED : 4TH OCTOBER, 2011 P.C. . On 4th August, 2010, a notice before admission was issued and record was called for. On 16th August, 2011, the parties were put to notice that the Appeal will be taken up for final disposal at the admission stage. 2. This is an Appeal preferred by the original Plaintiffs. By the impugned judgment and decree, the learned Judge of the City Civil Court at Mumbai has dismissed the suit on the ground that the City Civil Court at Mumbai had no territorial jurisdiction to hear and decide the suit. ash 2 fa-611.10 3. The suit was filed by the Appellants inter alia for injunction restraining the Respondents and other activists of Narmada Bachao Andolan from making any statements, declarations, utterances, writings and publications regarding Maheshwar Project which are defamatory of the Plaintiffs. The second prayer was for injunction restraining the Respondents and other activists of Narmada Bachao Andolan from issuing defamatory press notes against the Plaintiffs or holding demonstrations with defamatory material or leading or participating in morchas and/or agitations against the Plaintiffs. A Leave was sought under Rule 8 of Order I of the Code of Civil Procedure, 1908 ( hereinafter referred to as “the said Code”) to sue the Respondents in a representative capacity for themselves and on behalf of all the activists of Narmada Bachao Andolan. 4. In Paragraph 10 of the plaint, a reliance was placed on the alleged defamatory allegations against the first Appellant made by the first and second Respondents on behalf of the activists of Narmada Bachao Andolan. The said alleged defamatory material was put in the form of a press note to which a reference has been made in paragraph 10 of the plaint. It was contended that what was set out in the press note was false and defamatory and imputations were made with a view to lower the reputation of the first Appellant. In Paragraph 14 it is ash 3 fa-611.10 alleged that apart from making defamatory statements against the Appellants, the Respondents and other activists of Narmada Bachao Andolan held demonstrations and/or participated in morchas and agitations all over the India including Mumbai. 5. In Paragraph 16 of the Plaint, it is alleged that apart from the Press Note dated 2nd October, 2001, another Press Note was released on 22nd October, 2001. In Paragraph 20 of the Plaint, it was contended that the Appellants were having their office in Mumbai and are widely known in Mumbai and the defamatory statements in the form of various news reports are widely circulated in Mumbai and therefore, the Court at Mumbai had jurisdiction to entertain the suit. Thus, in short, the reliance is placed on defamatory statements allegedly made in Press Notes dated 2nd October, 2001 and 22nd October, 2001. A leave was sought to file a separate suit for claiming damages on account of defamation. The suit was contested by the Respondents-Defendants by filing a Written Statement. 6. The Trial Court framed the issues. The first Issue was on the territorial jurisdiction of the Trial Court to entertain the suit. 7. Initially one Shri Supriyo R. Ganguly filed an affidavit in lieu of examination-in-chief on behalf of the Appellants. However, the ash 4 fa-611.10 said affidavit was withdrawn and a statement was made that the Appellants were not desirous of adducing the evidence. The Respondents examined four witnesses. On the basis of the evidence, a finding was recorded that Press Note was never published in the city of Mumbai and, therefore, the City Civil Court had no jurisdiction. It was held that the Appellants have not adduced evidence to show that the alleged defamatory articles were published in Mumbai. 8. The learned senior counsel appearing for the Appellants submitted that in the Written Statement of the Respondents, there is no specific or evasive denial of the averments made in Paragraph 20 of the Plaint regarding publication of the defamatory articles in Mumbai. He invited the attention of the Court to Rule 5 of Order VIII of the Code of Civil Procedure, 1908 and submitted that the averments made in Paragraph 20 of the Plaint shall be taken to be admitted as the Respondents are not the persons under disability. He submitted that as there was an admission on the part of the Respondents regarding publication of the defamatory material in Mumbai, it was not necessary for the Appellants to adduce any evidence. He submitted that in fact the issue regarding jurisdiction never arose in view of the failure of the Respondent to deny the material averments. He submitted that in view of Rule 2 of Order XVIII of the Code, as the issue regarding jurisdiction did not arise, it was not incumbent upon the Appellants to ash 5 fa-611.10 adduce evidence. He submitted that the first Respondent admitted that the Press Notes were being published on website and, therefore, in any case there was a publication in Mumbai. He submitted that the settled law is that if the publication is shown to have been made within the territorial jurisdiction of a Court, the said Court has jurisdiction to entertain a suit based on defamation. 9. The learned counsel appearing for the Respondents supported the impugned judgment and decree. He submitted that the Appellants have chosen not to adduce any evidence and not to prove that the publication of defamatory material was made within the limits of Mumbai. The learned senior counsel for the Appellants submitted that in any event, the Trial Court could not have dismissed the suit and ought to have returned the Plaint for presentation to the appropriate Court. 10. I have given careful consideration to the submissions. Issue No.1 framed by the Trial Court is on the territorial jurisdiction of the said Court. There is nothing on record to show that the Appellants made any grievance regarding the framing of issue of jurisdiction. There is nothing on record to show that the Appellants applied for recasting and/or deleting the said issue. It will be necessary to make a reference to the Rule 3 of Order XIV of the said Code. Rule 3 provides ash 6 fa-611.10 that the issues can be framed not only on the basis of the pleadings but also on the materials set out in the said Rule. The Rule 3 of Order XIV of the said Code reads thus:- “3. Materials from which issues may be framed.- The Court may frame the issues from all or any of the following materials:- (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) allegations made in the pleadings or in answers to interrogatories delivered in the suit; (c) the contents of documents produced by either party.” 11. It is true that there was no specific pleading in the Written Statement regarding the issue of jurisdiction. However, considering the material on record, in view of Rule 3 of Order XIV of the said Code, the Trial Court was justified in framing the issue of jurisdiction. As stated earlier, the Appellants never applied for deleting the said issue. It is pertinent to note that when the suit reached the stage of recording of evidence, an affidavit in lieu of examination-in-chief was filed on behalf of the Appellants by Shri S.R. Ganguly. Not only that the said affidavit was withdrawn by the Appellants but the Appellants made a statement that they were not desirous of adducing any evidence. The affidavit of the witness Shri S.R. Ganguly was filed after the issues were settled. ash 7 fa-611.10 For the reasons best known to the Appellants, the said affidavit was withdrawn and the Appellants decided not to adduce any evidence. 12. However, the Respondents adduced the evidence. Before dealing with the evidence of the Respondents, it is necessary to refer to Paragraph 20 of the Plaint. As pointed out earlier, the suit is filed on the allegation that the defamatory statements were made in the Press Note dated 2nd October, 2001. There is further allegation that the Respondents were likely to issue defamatory Press Note on 22nd October, 2001. In the entire plaint, there is no assertion that the Press Notes were published or released on any website. In fact, in the entire plaint, there was no case made out that the defamatory material was published on website. The Press Note dated 2nd October, 2001 has been marked as Exhibit-A to the Plaint. 13. In Paragraph 3 of the affidavit in lieu of examination-in- chief of the first Respondent, it is stated thus:- “3. I say that the press note being Exhibit-A to the plaint was written in Mandaleshwar at Madhya Pradesh. This press note was never published in any newspaper either in Madhya Pradesh or in Maharashtra or anywhere else. This press note was not communicated to the Plaintiffs or any of them by us. This press note was prepared but not circulated on communicated to anybody either in Madhya Pradesh or in Mumbai as it was late in the night by the time it was prepared and it was realised ash 8 fa-611.10 that in any event press were present at the public meeting. I state that there has been no communication of this press note to anybody from our side.” 14. Thus, there is a categorical statement on oath on behalf of the Respondents that the Press Note was never published in any newspaper in Maharashtra and that the Press Note was not communicated to anybody in Mumbai. It is specifically stated that the Press Note was written at Mandaleshwar in the State of Madhya Pradesh. The witness was cross-examined on this aspect. The witness denied the correctness of the suggestion that usual practice of the Respondents is to publish such a note on Website. He stated that the Narmada Bachao Andolan has no Website. He stated that few times the Press Notes were placed on other Websites. He made a reference to the three Press Notes dated 7th January, 2001, 9th April, 2001 and 29th September, 2001. The said Press Notes were marked as Exhibit-81. He stated that he will be able to tell whether the Press Notes at Exhibits-81 were published on Internet or not, on the next day. However, he specifically denied the suggestion that the Press Note at Exhibits-A was published and put on the Internet. He denied the correctness of the suggestion that the Press Note was removed from the Internet when this Court passed an order in an Appeal from Order preferred against the interim order passed in the suit. He denied the correctness of the suggestion that the Press Notes were circulated to various persons. ash 9 fa-611.10 15. Thus, the evidence of the first Respondent was categorical that there was no publication made of the Press Note at Exhibit-A to the Plaint in any form in Mumbai. 16. On one hand, there was absolutely no evidence adduced by the Appellants to prove that the publication of the Press Note was made in Mumbai. There is no pleading in the plaint that the Press Note was published on any of the Websites. On the other hand, there is an evidence of the first Respondent in which he has categorically stated that the Press Note was not released in Mumbai and it was released at a particular place in Madhya Pradesh. 17. The learned counsel appearing for the Appellants relied upon the Rule 5 of Order VIII of the said Code. The said Rule 5 thereof reads thus:- “5. Specific denial.-- (1) Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability: Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission. (2) Where the Defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained ash 10 fa-611.10 in the Plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved. (3) In exercising its discretion under the proviso to sub-rule (1) or under sub-rule (2), the Court shall have due regard to the fact whether the defendant could have, or has, engaged a pleader. (4) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which the judgment was pronounced.” 18. It is not in every case that the allegation of fact made in the Plaint which is not denied specifically or by necessary implication shall be taken to be admitted. The Court has discretion to require any fact so admitted to be proved otherwise than by such admission. There is enough indication that the Trial Court exercised the discretion under the proviso to Sub-Rule (1) of Rule 5 of Order VIII of the said Code from the fact that the issue of jurisdiction was framed though there was no specific pleading in the Written Statement. Thereafter, the parties were called upon to adduce evidence on this aspect. Therefore, obviously, this was a case where the power under the proviso to Sub- Rule (1) of Rule 5 of Order VIII of the said Code was exercised. 19. The submission that framing of issue of jurisdiction was not warranted and, therefore, there was no occasion for the Appellants to lead evidence is not at all well founded inasmuch as at no stage, the ash 11 fa-611.10 Appellants have made any grievance regarding the framing of issue of jurisdiction. 20. Coming back to the assertions made in Paragraph 20 of the Plaint, the suit was filed in the City Civil Court at Mumbai only on the ground that the defamatory statements were made by the Respondents in the form of various news reports which are widely circulated in Mumbai. Apart from the failure to adduce any oral evidence, the Appellants could not produce any newspaper circulated in Mumbai containing defamatory statements made by the Respondent. As regards the publication on Website, the Plaint is completely silent. 21. The burden to prove that the Trial Court had territorial jurisdiction to entertain the suit was only on the Appellants which burden was not at all discharged by the Appellants. 22. After the issues were framed including the issue of jurisdiction, the Appellants cannot contend that they were under no obligation to prove that the cause of action for filing a suit was arose in Mumbai. As stated earlier, the burden was on the Appellants which was not discharged. In the circumstances, the learned Judge of the City Civil Court was right in holding that the said Court had no territorial jurisdiction to entertain the suit. ash 12 fa-611.10 23. At this stage, it must be noted that after the finding that the said Court had no territorial jurisdiction, there was no occasion for the Trial Court to dismiss the suit. In fact, the Trial Court ought to have exercised the powers under Rule 10 of the Order VII of the said Code by returning the Plaint to the Appellants for presentation to the proper Court. To that extent, the learned Trial Judge has certainly committed an error. Hence, to that extent, the decree passed by the Trial Court will have to be modified. 24. Hence, I pass the following order:- (a) The finding recorded by the Trial Court on the first Issue regarding jurisdiction is hereby confirmed; (b) The impugned judgment and decree is modified and is substituted by the following operative part:- “(i) This Court has no territorial jurisdiction to entertain the suit; (ii) The Plaint be returned to the Plaintiffs for presentation to the appropriate Court; ash 13 fa-611.10 (iii) There will be no order as to costs;” (c) On the prayer made by the learned counsel appearing for the Appellants, the ad-interim relief granted by this Court on 4th August, 2010 will continue to operate for a period of ten weeks from today; (d) Civil Application No.2913 of 2010 does not survive and the same is accordingly disposed of. ( A.S. OKA, J )