RSA 1081/2016
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
R.S.A.No.1081/2016
BETWEEN:
1. Southern Railway
Mazdoor Union (SRMU),
Mangaluru Headquarters,
Mangaluru Branch -
Represented by its
Secretary J.Anand,
Aged 46 years,
S/o Javere Gowda, Technical Grade III,
C/o Sr. Section Engineer/
Carriage Swagon Southern Railway,
Mangaluru-575001.
2. Sri K.V.kJayarajan,
Aged 56 years,
S/o Velayudhan,
President, Southern Railway
Mazdoor Union, Mangaluru-HQ-Branch:
Mangaluru, Key Man,
C/o Sr. Section Engineer/Permanent way,
Southern Railway,
Mangaluru-575001.
3. Sri J.Ananda
Aged 46 years,
Secretary, Southern Railway Mazdoor,
Technical Grade III,
C/o Sr. Section Engineer/Carriage
Swagon Southern Railway,
Mangaluru-575001. ... APPELLANTS
(By Sri P.P.Hegde, Adv.)
RSA 1081/2016
2
AND:
Sri A.V.Praveen Kumar,
Aged about 46 years,
S/o T.V.Padmanabhan Nambiar,
Section Engineer,
Carriage and Wagon (Mechanical)
Section,
Southern Railway,
Mangaluru-575001. ... RESPONDENT
This Regular Second Appeal is filed under Section 100 of
CPC against the judgment and decree dated 02.04.2016 passed
in RA.No.105/2012 on the file of the Ist Addl. District and
Sessions Judge, D.K., Mangaluru, dismissing the appeal and
confirming the judgment and decree dated 13.04.2012 passed
in OS.No.59/2009 on the file of the Ist Addl. Senior Civil Judge
and C.J.M., Mangalore.
This appeal coming on for Admission, this day, the Court
delivered the following:
JUDGMENT
1. The defendants have preferred this second appeal challenging the judgment and decree dated 13.04.2012 passed by the I Addl. Senior Civil Judge & CJM, Mangaluru, in O.S.No.59/2009 which has been confirmed by the I Addl. District & Sessions Judge, D.K., Mangaluru, vide judgment and decree dated 02.04.2016 in R.A.No.105/2012.
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2. For the sake of convenience, the parties are referred to by the rank assigned to them in the court at first instance.
3. Brief facts of the case that would be relevant for the purpose of disposal of this appeal are, plaintiff had filed O.S.No.59/2009 before the Trial Court against the defendants with a prayer to direct them to pay a sum of Rs.5,00,000/-, jointly and severally, towards the damages for defamation along with interest at 10% p.a., and for costs.
4. It is the contention of the plaintiff that he was an employee of Southern Railway working as Section Engineer in the Carriage and Wagon (Mechanical) Section, Mangaluru, and he had high reputation in the Railway Department having regard to his unblemished career and he also had secured CME Award twice while he was working in Mangaluru. Defendant no.1 had indulged in a malicious campaign against the plaintiff to the effect that he had misbehaved with a female employee during the RSA 1081/2016 4 course of his employment and with an ulterior motive, defendant no.1-Union had deliberately printed and published posters containing false and baseless allegations of misbehaviour of the plaintiff with the female employee of the Railway Department and those posters were published by affixing them on walls and pillars within the Railway Station premises of Kankanady, Mangaluru, Calicut and Sharanur Railway Stations. It is his case that the publications are per se defamatory and resulted in causing damage to his reputation in the eyes of the public and also the employees of the railway department. The plaintiff had further averred that he has suffered severe mental agony as a result of the publication and even his reputation in the family was affected. It is under these circumstances, the plaintiff had filed O.S.No.59/2009 against the defendants.
5. Defendant no.1 after service of notice, remained ex- parte. Defendants 2 & 3 had entered appearance through their counsel and filed written statement denying the plaint averments. It was contended on behalf of the said RSA 1081/2016 5 defendants that the plaintiff was a person of desperate character and he had misbehaved with one Mrs. Sheeba, an employee of the Railway Department and in this regard, there was a complaint against him and an inquiry was pending. Since defendants 2 & 3 were working in the railway union, the plaintiff with ulterior motives had filed the suit against them seeking vengeance against them and also with an intention to make unlawful gain. Accordingly, they prayed to dismiss the suit.
6. On the basis of the rival pleadings, the Trial Court had framed the following issues:
Issues
1. Whether the plaintiff proves that defendants have indulged in malicious campaign against the plaintiff like misbehaving with female employees etc., and have brought ill-reputation to the plaintiff in the eyes of public and have involved in activities of defamation as averred in plaint para no.2?
2. Whether the plaintiff is entitled for damages of Rs.5 lakhs from the defendants no.1 to 3 jointly RSA 1081/2016 6 and severally along with interest at the rate of 10% p.a.?
3. What order or decree?
7. During the course of trial, on behalf of the plaintiff, he examined himself as PW-1 and two other witnesses were examined as PWs-2 & 3 and got marked twelve documents as Exs.P-1 to P-12. On behalf of the defendants, defendants 2 & 3 were examined as DWs-1 & 2, respectively, and no documents were produced and marked. The Trial after having heard the arguments of the learned Counsel appearing for both sides, answered Issue no.1 in the affirmative and Issue no.2 partly in the affirmative, and by its judgment and decree dated 13.04.2012, partly decreed the suit directing defendants 1 to 3 to pay a sum of Rs.1,00,000/-, jointly and severally, to the plaintiff towards damages for defamation and it was observed that if the decreetal amount is not paid within two months, then defendants 1 to 3 were liable to pay interest at 6% per annum. Being aggrieved by the same, the defendants had filed R.A.No.105/2012 before the First RSA 1081/2016 7 Appellate Court and the said Court, after re-appreciating the oral and documentary evidence available on record, by its judgment and decree dated 02.04.2016 has dismissed the appeal, and thereby confirmed the judgment and decree passed by the Trial Court in O.S.No.59/2009. It is under these circumstances, the defendants have filed this second appeal.
8. Learned Counsel for the defendants submit that the Trial Court has erred in decreeing the suit when there is no evidence to show that defendants 2 & 3 were responsible for the publication. He submits that defendants 2 & 3 have categorically denied with regard to their role in the publication and affixing the defamatory posters. He submits that the courts below have misread the evidence of DW-1 which has resulted in passing an erroneous judgment and decree. He further submits that undisputedly there was a complaint lodged against the plaintiff by a female employee of the department, and therefore, the publication was made only to expose the plaintiff and there was no other intention behind such a RSA 1081/2016 8 publication. He submits that the defendants being the labour union and the office bearers of the union have a duty to expose the cause, and therefore, the Courts below have erred in decreeing the suit.
9. I have carefully considered the arguments addressed on behalf of the appellants/defendants and also perused the material evidence available on record.
10. In support of the plaintiff's case, he had examined himself as PW-1 and two other witnesses as PWs-2 & 3. He has produced Ex.P-1 which is the photograph of the poster affixed in the railway stations, wherein there was an allegation that the plaintiff had misbehaved with the female employee of the very same department. The contents of Ex.P-1 has been taken note of by the Courts and the courts below have come to a conclusion that the publication is per se defamatory. Even the defendants have not disputed this aspect of the matter and it is not their contention that the publication is not per se defamatory in nature.
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11. Learned Counsel appearing on behalf of the defendants has contended before this Court that there was no evidence before the courts below to fix the liability on defendants 2 & 3 with regard to the publication of the alleged poster or with regard to the affixture of the same in the railway station. The Trial Court having appreciated the evidence of DWs-1 & 2 has given a categorical finding that DWs-1 & 2 have admitted Ex.P-1 was printed and published by the defendant-Union. DW-1 has even admitted that in Ex.P-1, it is mentioned that the plaintiff has misbehaved with a lady employee of the railway department. DW-1 has further admitted that Ex.P-1 is the photograph of the poster which was affixed in the railway station. Having regard to the evidence of DWs-1 & 2, the courts below have rightly held that the poster was published and affixed by defendant no.1-Union, and therefore, the suit was partly decree holding that defendants are jointly and severally liable to pay damages in a sum of Rs.1,00,000/- for defamation. Defendants 2 & 3 are admittedly the President and Secretary of defendant RSA 1081/2016 10 no.1-Union and the said fact has not been disputed by the said defendants who have filed their written statement. It is also not in dispute that the inquiry against the plaintiff with regard to alleged misbehaviour was also closed.
12. The courts below, after having appreciated the oral and documentary evidence available on record, have recorded a finding that the defamatory article was published and affixed by defendant no.1-Union and it is not the case of the defendants that the publication is not defamatory in nature. Under the circumstances, I find no illegality or irregularity in the judgment and decree passed by the courts below. It is a settled position of law that this Court in exercise of its powers under Section 100 CPC, cannot re-appreciate the evidence and interfere with the finding on facts recorded by the courts below. On a overall appreciation of the arguments addressed by the learned Counsel for the defendants and the material available on record, I am of the considered view that no substantial question of law arises for consideration in this second RSA 1081/2016 11 appeal. Accordingly, I decline to entertain this second appeal and the same is, therefore, dismissed.
Sd/-
JUDGE KK