IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Civil Suit No. 48 of 2003. Judgment Reserved on November 4, 2008. Date of decision 08.1.2009. Mr. Dawa Gyaltsen …Plaintiff. Versus Mr. Sonam Sangbo Jadur and another …Defendants. Coram: The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. For the plaintiff Mr. Vijay Pandit, Advocate, with Ms. Yogita Dutta, Advocate. For the defendants Mr. J.M.Mukhi, Advocate, with Mr. Anuj Gupta and Ms. Shakumbri Singh, Advocate. Dev Darshan Sud, J. The plaintiff and defendant No. 1 are Tibetans who are residing at Dharamsala. The plaintiff has filed this suit on the allegations that defendant No. 1 who was a Member of the Tibetan Supreme Justice Commission deliberately and with malicious intent undertook a course of conduct to malign the reputation of the plaintiff. According to the pleadings, the plaintiff pleads 1 Whether Reporters of Local Papers are allowed to see the judgment? Yes. - 2 - that the acts constituting defamation attributable to defendant No. 1 are that he was proclaiming: (i) The plaintiff is not a loyal and a conscientious Tibetan citizen; (ii) The plaintiff stands ostracized from the Tibetan society as he no longer can vote or hold any elected office in the Tibetan society; (iii) The plaintiff is a convict and has been convicted by the Justice Commission whereas this is not the case and (iv) The plaintiff has been misdirecting and also willfully flouting the Rules under which a scholarship was awarded to him to study abroad. This circulation, according to the plaintiff, was made by defendant No. 1 by word of mouth amongst the Tibetan community and the public at large on various occasions, has damaged his reputation and he claims damages which he quantifies at Rs.10,25,000/-. He also prays for a decree of declaration that the order dated 21.9.2002 Ex.PW-4/E, passed by the Tibetan Supreme Justice Commission be declared null and void, a decree of permanent prohibitory injunction restraining the defendants from functioning or holding the office of the Chief Justice/ Commissioner of Tibetan Supreme Justice Commission. The suit is resisted by the defendants on a number of grounds as pleaded. They have denied - 3 - the allegations of the plaintiff and in particular being responsible in any manner for circulating malicious propaganda. It is pleaded that the purported statements as detailed in paragraph four of the plaint have not been circulated by defendant No. 1 and allegations made against him do not have any iota of truth. These are the results of plaintiff’s imagination. On the pleadings of the parties, this Court framed the following issues: 1. Whether the order dated 21.9.2002 passed by the defendant No. 1 is illegal, without jurisdiction, malafide, as alleged and is liable to be set aside? OPP. 2. Whether the plaintiff is entitled to any damages and if so, to what extent? OPP. 3. Whether the plaintiff is entitled to the relief of injunction as prayed for? OPP. 4. Whether the suit is maintainable in the present form? OPP. 5. Whether this court has no jurisdiction as alleged? OPD. 6. Whether the suit is barred by principles of res judicata as alleged? OPD. 7. Whether the suit is barred under the provisions of Arbitration and Conciliation Act, 1996, as alleged? OPD. 8. Relief. - 4 - Issue No. 3 3. “Whether the plaintiff is entitled to the relief of injunction as prayed for? OPP.” Findings on this issue would be academic. The relief prayed for by the plaintiff cannot be granted. The plaintiff has prayed for permanent prohibitory injunction restraining defendant No. 1 from functioning as Chief Justice Commissioner of the Tibetan Supreme Justice Commission. This plea has been taken on the ground that defendant No. 1 is alleged to have manipulated his date of birth. According to the plaintiff, the defendant No. 1 had attained his age of superannuation of 65 years on 15th August, 2003. Learned counsel for the defendants submits that the defendant has retired on 15th September, 2004 Ex.DG/1. In these circumstances, no decree of injunction can be granted to the plaintiff. This issue is decided accordingly. Issue No. 1 & 2 1. Whether the order dated 21.9.2002 passed by the defendant No. 1 is illegal, without jurisdiction, malafide, as alleged and is liable to be set aside? OPP. 2. Whether the plaintiff is entitled to any damages and if so, to what extent? OPP. - 5 - These are the crucial issues for determination. Each party is peeved with the other. The flashpoint is the two orders Ex. DB dated 27.3.2002 and Ex.PW-4/E / Ex.DW-1/D-1, order dated 21.9.2002 of the Tibetan Supreme Justice Commission holding the plaintiff responsible for non compliance of the directions issued by the Commission, in a case instituted by the plaintiff herein. At the relevant time, defendant No. 1 was the Chief Justice Commissioner of the Tibetan Supreme Justice Commission. It is undisputed that the plaintiff was granted scholarship for higher studies in the United States and he executed surety bond Ex.DA on 11.7.1997 agreeing and undertaking to be bound by and abide by the conditions as set out therein. Defendant No. 1 passed an order Ex.DB on 27.3.2002 on the case instituted by the plaintiff herein with reference to the alleged violations alleged by the defendants for the breach of the conditions stipulated in Ex. DA. While disposing of the case, the Commission levied costs of Rs.3000/- on the defendants therein payable to the Tibetan Supreme Justice Commission for the expenses incurred on the cassettes / tapes and Rs.1000/- on the plaintiff herein as compensation to meet the costs of the case for his failure to prove the allegations made - 6 - against the second defendant on the issues raised in the case. The relevant extract of the judgment Ex.DB is reproduced hereunder: “….These have become the cause of action of the case. The first defendant, the secretary of the Department of Education, Mr. Tsering Dhondup has been excluded since he is not related to the cause of action of the case. Kalon Rinchen Khando, Additional Secretary, Nangsa Choedon and Deputy Secretary, Tenzin Lungtok were liable to pay Rupees 3000/- as a cost to the Tibetan Supreme Justice Commission for the expenses incurred on cassette tapes and transcripts. High Level Scholarship Committee has not taken into proper consideration of the above rules and thereby violated it. 3(a) Even if there was a specific rule of High level Scholarship Committee (Rule VIII (B)), the plaintiff had out of his own free will, extended his stay from June 1999 without any permission and thereby violated the Rules. b) The plaintiff even after knowing that the special scholarship to the 18 students from 2000-2001 cannot be transferred to 1999-2000, failed to submit the cost estimate as directed by the Tibet Fund. c) The plaintiff had without any due regard to the rules of the High - 7 - Level Scholarship Committee which requires him to get the permission from the Tibet Fund which decides whether to study CAGS or not and to get admission in the year 2000-2001, out of his own will decided to get admission and to study CAGS from 2000-2001. So these are the cause of action of the case. d) The plaintiff Dawa Gyaltsen is liable to pay a sum of one thousand rupees to the second defendant as a compensation to meet the cost of the case for his failure to prove the allegations made against the second defendant on the first and third issue. 4. Due to inappropriate compliance on the part of both the plaintiff and the defendant with regard to the rules about the permission for the further extension of scholarship as prescribed in the Bond of Surety, it has been decided that the plaintiff is not liable to pay the amount to the defendant as required by the bond at this moment. The respective parties are hereby required to comply with the execution of the judgment within fifteen days from the passing of this judgment.” As would be evident and apparent from the judgment, no liability was fastened on the plaintiff save and - 8 - except he was asked to pay compensation for his failure to prove allegations made against the second defendant. The plaintiff submits that despite his having complied with the judgment, defendant No. 1 deliberately undertook a course of action excluding the plaintiff from participating in the electoral process of the Tibetan Government in exile and defaming the plaintiff by alleging that he is not a loyal and conscientious Tibetan citizen, he has been excluded from the Tibetan society, he has been convicted by the Tibetan Supreme Justice Commission and has been willfully disobeying the rules etc. Parties have filed documents and led their respective evidence in the case. The pleadings of the plaintiff on these issues are in paragraphs 2 and 4. The case pleaded is that: (a) that According to Article 11 of the Charter Ex.PW-4/A-1, the plaintiff has a fundamental right to vote and this right cannot be taken away; (b) contempt of the orders issued by the Commission cannot be enforced by taking away the right to vote; (c) no instructions have been issued by his Holiness Dalai Lama debarring the plaintiff from taking part in the electoral process, (d) the plaintiff has honoured the verdict of the Commission by depositing the costs of Rs.1000/- and he never refused to receive any - 9 - notice as issued by the Commission etc., (e) addressing the press was a bonafide act of fair criticism of the judgment which cannot be termed as contempt. He then pleads: “ That the Defendant in purely a malafide and a vindictive manner and with the sole intent of damaging the repute of the Plaintiff embarked upon a vicious and a malicious campaign of circulating amongst the Tibetan society, the social circles and before the other right thinking members of the society as under: (i) The plaintiff is not a loyal and a conscientious Tibetan citizen; (ii) The plaintiff stands ostracized from the Tibetan society as he no longer can vote or hold any elected office in the Tibetan society; (iii) The plaintiff is a convict and has been convicted by the Justice Commission whereas this is not the case and (iv) The plaintiff has been misdirecting and also willfully flouting the Rules under which a scholarship was awarded to him to study abroad. Dealing with the first aspect of the matter, that is, as to whether the order dated 21.9.2002 Ex.PW-4/E/ / DW-1/D-1 is illegal, without jurisdiction and malafide, the undisputed fact is that bond Ex.DA was executed by the plaintiff herein binding himself to the conditions stipulated - 10 - therein. Ex.DB is the judgment passed in the case instituted by the plaintiff in which the parties to the suit have been detailed in Ex.DW-1/A/1. The case set out by the plaintiff is that he had not violated any of the conditions in Ex.DA and the defendants in that suit were not entitled to recover any claim from him. The decision rendered has already been noticed by me above. The suit was decreed in favour of the plaintiff holding that no case was made out for any violations of Ex.DA and compensation payable to the defendants was levied both on the defendants and the plaintiff. The defendants were saddled with costs of Rs.3000/- payable to the Justice Commission and the plaintiff with costs of Rs.1000/- to be paid to the second defendant. This part of the order was not complied with by the plaintiff and the costs were sent directly to the Commission. This is stated by the plaintiff in his evidence. He had written to his Holiness the Dalai Lama vide Ex.DD asking for intervention in the pending suit. He writes: “ ….Though the right to apply for review over the judgment is provided in the Tibetan civil procedure code, At this juncture, it is very difficult for me to expect and to have a faith in getting a fair review since the place of justice commission for review, and the - 11 - justice commissioners who sits for review, are the same.” The plaintiff was sent a notice by the Commission to comply with the orders which he refused to accept. Report of the process server Ex.DW-1/B/1 has been proved by DW-1 Dhokhar Ngawang Choedak and DW-2 Shri Dawa. Thereafter, a registered AD notice Ex. DW-1/C was sent to the plaintiff, which was refused by him. The case set up by the plaintiff that he did not refuse to accept any notice cannot be accepted in view of the overwhelming evidence on the record. On the other point urged, that is right to vote could not be taken away, the plea of the defendants is that in accordance with Section 28(b) of the Tibet Code of Civil Procedure which provides that where a defendant fails to appear before the Justice Commission when he is summoned, his right to vote can be taken away. However, I must hasten to add that both the plaintiff and the defendant have not placed on record a complete Code, but the defendants had only filed an extract from the Code. The wide proposition urged by the plaintiff that in no event he can be deprived of his right to vote cannot be accepted. It was both for the plaintiff and the defendant to have established from the record as to whether the right is absolute or whether it is subject to statutory restrictions. - 12 - The plaintiff cannot under the guise of exercising his right to vote canvass that it is immutable not subject to any restrictions. Having refused the notices, the order was rightly passed by the Commission in the absence of the plaintiff. I cannot persuade myself to hold that this order is illegal or motivated or without jurisdiction. The second aspect interlinked with this issue is the question of award of damages. Learned counsel appearing for the defendants submits that there is no issue on the question as to whether defendant No. 1 was responsible for emanating slander against the plaintiff. He submits that in these circumstances, the plaintiff cannot claim trial on the question of slander. Learned counsel for the plaintiff submits that the law of pleadings cannot be invoked in such a strict manner as the defendant was aware about the case which had been instituted against him and he allowed evidence on record to be admitted without any objection. He places reliance upon the decisions in Nedunuri Kameswaramma v. Sampati Subba Rao, AIR 1963 SC 884 holding: “….No doubt, no issue was framed, and the one, which was framed, could have been more elaborate; but since the parties went to trial fully knowing the rival case and led all the evidence not only in support of - 13 - their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mis-trial which vitiates proceedings. We are, therefore, of opinion that the suit could not be dismissed on this narrow ground, and also that there is no need for a remit, as the evidence which has been led in the case is sufficient to reach the right conclusion….” This principle of law which is well settled has been followed / reaffirmed in Budha and others v. Bedariya, AIR 1981 Madhya Pradesh 76, Shaikh Mohamad Umarsaheb v. Kadalaskar Hasham Karimsab and others, AIR 1970 SC 61, Sardul Singh v. Pritam Singh and others, (1999) 3 SCC 522, Sayeda Akhtar v. Abdul Ahad, AIR 2003 SC 2985 Banka Behari Dutt v. Gour Mohan Dutta, AIR 1981 Calcutta 185 and Smt. Katya Bala Dasi and another v.Nilmoni Pakhira and others, AIR 1987 Cal. 248. Learned counsel submits that when both the parties are aware what were the issues in the suit, absence of such issue formally does not vitiate the decision. He submits that failure to frame issue is not fatal if the parties led evidence being conscious of the points in controversy. There is weight in the submissions made by learned counsel appearing for the - 14 - plaintiff. I hold that non framing of the issue, if any, would not deprive of the plaintiff of his right of trial of the case as pleaded. Lastly, learned counsel contends that rules of procedure are meant to for furthering the cause of justice and not for thwarting litigation. Learned counsel for the defendant submits that in case of defamation/ slander, the plaintiff is required to plead the exact words used. It is undisputed before me that the case relates to defamation by slander. He places reliance on the judgment of the Division Bench of Calcutta High Court in W.Hay and others v. Aswini Kumar Samanta, AIR 1958 Calcutta 269 holding: “11. It is well settled that, in a libel action, the defamatory words must be set out in the plaint. Where the words are per se or prima facie defamatory only the words need be set out. Where, however, the defamatory sense is not apparent on the face of the words, the defamatory meaning, or as it is technically known in law, the “innuendo” must also be set out and set out in clear and specific terms. Where again the offending words would be defamatory only in the particular context, in which they were used, uttered or published, it is necessary also to set out, except where, as in England, the law is or - 15 - has been made expressly otherwise the offending context (colloquium) in the plaint and to state or aver further that this context or the circumstances, constituting the same, were known to the persons to whom the words were published, or, at least, that they understood the words in the defamatory sense. In the absence of these necessary averments, the plaint would be liable to be rejected on the ground that it does not disclose any cause of action.” This principle of law was also laid down by the Nagpur High Court in Krishanarao Jagoba Parkhi v. Firm Radhakisan Ramsahai and another , AIR 1956 Nagpur 264, holding: “6. A claim for damages for malicious prosecution is quite a separate species of tort from a claim for damages for defamation. In a suit for damages for defamation the law requires that the plaint ought to allege the publication of the defamatory statement, set out the actual words used and also state that they were published or spoken to some named individuals and specify the time and place when and where they were published. Where the plaint allegations only make out a case for malicious prosecution there could not be a decree for - 16 - damages for defamation in favour of the plaintiff.” While appearing as PW-4, the plaintiff states that defendant No. 2 passed an order debarring him from participating in the electoral process of the Tibetan society, prohibited him from contesting any election and deprived him of his right of voting vide order Ex.PW-4/E. He then states that defendant No. 2 spread false rumors that he had been excommunicated from the Tibetan community, is not a loyal Tibetan citizen and he has defied the orders of the Tibetan Supreme Justice Commission, which has adversely affected his rights. How, when and where these rumors were spread, to whom these have been communicated, has not been stated by the plaintiff. PW-6 Isten Dhondup only states that he heard rumors at Dharamsala that the plaintiff had been stripped of his right to vote and had been excommunicated from the Tibetan community. This witness resides at Shimla, but states that he has been visiting Dharamsala. In cross examination, he says that he does not know whether the plaintiff had gone abroad etc. and that he never visits the house of the plaintiff when he visits Dharamsala. He has gone to the extent of stating that he does not even know the house number of the plaintiff, but knows the parents of the plaintiff. To say that the evidence - 17 - of this witness is hearsay would be stating the obvious. This witness cannot be relied upon as his statement is general in nature and is not associated socially with the plaintiff. He does not even know the place of residence etc. of the plaintiff. PW-7 Mrs. Choedon also testifies on the same lines. She talks about wide spread rumors. She admits that defendant No. 1 while acting as Chief Justice has made an award against her husband in a case filed by one Pasang Tswang for wrongfully usurping Tibetan community’s property. She states: “ ….It is correct that one Pasang Tsewang filed a suit against my husband before the Tibetan Justice Commission for grabbing of the Tibetan Community’s property and not for having mis-utilized or misappropriated the contribution made by the Tibetan Public. It is correct that defendant No. 1 was the Chief Justice of the Bench which gave the award against my husband. It is correct that an award was made against my husband in which the Tibetan Justice Commission had directed my husband to return the belongings of the school to Education Department on payment of Rs. Ten lacs being made by the Education Department to my husband.” Again her testimony is in the nature of hearsay evidence which cannot be relied upon. Her - 18 - testimony becomes difficult to accept more especially when coupled with fact that defendant No. 1 decided a case against her husband. This leaves PW-5 Prem Sood who is a businessman and in addition a reporter for Dainik Bhasker and Hindustan Times. He says that in September, October, November, 2002 “we” came to know through defendant No. 1 that the plaintiff was working against Tibetan community and he has been punished by the Tibetan Supreme Justice Commission and ousted from the Tibetan community etc. A reading of his testimony shows that even if it is accepted without any fetter, he does not specify who “we” are. At best, the communication has been made to him. He says in his evidence that he did not inquire about these allegations from the plaintiff. In cross examination, this witness states that he is only a social worker and that he does not know the reasons on which the award was made. He says that he along with defendant No. 1 were sitting at a function on 10.12.2002 organized by the Tibetan community on the occasion of his Holiness, the Dalai Lama having been awarded the Nobel Price. 2/3 Tibetans were also sitting next to him when they started talking amongst themselves in Tibetan language. He asked them to speak in English and then came to know regarding this fact. This is not a satisfactory way of proving defamation. Who - 19 - those 2/3 Tibetans were, he does not know. What was the occasion for those persons for having communicated purported defamatory statements and that too on the asking of the witness is not clear. At best, his statement can be treated as a generalization of the alleged incident. It is by now well settled that merely using some harsh words are not sufficient to attract liability of defamation in tort. In Mst. Ramdhara and another v. Mst. Phulwatibai, 1970 Cri.L.J. 286, the High Court of Madhya Pradesh held that even vulgar abuse is not actionable unless the words are uttered in circumstances tending to lower the person addressed in the estimation of the people present to bring such a person to ridicule or contempt which would constitute actionable defamation. At this juncture Exts. DE and DF may be noticed. Ex. DE inter alia states: “ We pride in the fact that the Tibetan cause is based on the sole strength of truth and justice. We miss no opportunity in calling the act of our supporters around the world more as pro justice than