Ram Jethmalani vs Subramaniam Swamy
2000 Latest Caselaw 1202 Del

JUDGMENT

S.K. Agarwal, J.

1. The defendant in this application under Order 7 Rule 11 read with Section 151 of the Code of Civil Procedure, 1908 (for short CPC) has prayed for rejection of the suit on the ground that it does not disclose any cause of action and that the suit is barred by Section 6 of the Commissioner of Inquiries Act, 1952 (for short the Act).

2. Brief facts necessary for he disposal of this application are that the plaintiff filed suit for damages of Rs. 50,00,000/- against the defendant alleging that on 20.10.1993 the Commission of Inquiry set up by the Government of India to investigate the circumstances relating to the assassination of late Shri Rajiv Gandhi under the Act, addressed a letter, to Ms. Jayalalitha (the then Chief Minister, Tamil Nadu) stating that the Commission would like to know if she had anything to say about the information furnished by the defendant which was quoted in the letter. The plaintiff was briefed as a senior counsel to appear for Ms, Jayalalitha, to conduct the cross-examination of the defendant and to urge that no case for summoning her before the Commission was made but. The defendant was cross-examined and the matter was argued by the plaintiff strongly opposing the request made by the defendant to summon Ms. Jayalatitha before the Commission for her cross-examination by the defendant. After the plaintiff's submissions were over, the defendant filed before the Commission "written submissions" which were read out in the court and also circulated to the press. It is further alleged that in the written submissions, the defendant made malicious and false, per se libellous accusation against the plaintiff when an intent to damage his personal, political and professional reputation. After he pleadings were completed, on 12th October, 1998 issues were framed. Issue No. 1 was framed with regard to the

maintainability of the suit in view of the provisions of Section 6 of the Act, which reads as under :--

"Whether the suit is barred under Section 6 of the Commission of Inquiries Act, 1952."

3. When the issues were framed, the defendant prayed that issue No. 1 be tried as a preliminary issue. However, having regard to the facts and circumstances of the case the prayer was declined. The suit was listed for trial. Against this order the defendant filed an appeal, which was dismissed by the Division Bench on 18th December, 1998. The defendant then preferred Special Leave Petition (Civil) No. 6518/99 against the said order, which was also dismissed by the Supreme Court on 20th July, 1999. Thereafter, on 23rd September, 2000 the defendant moved the present application for rejection of the plaint on the ground that the same is based on his deposition before the said Inquiry Commission, which is barred by Section 6 of that Act. Paragraphs 8 and 9 of the application read as under:-

"8. Thus it is the Plaintiffs own averment here and elsewhere that the allege defamation was "the Defendant's concluding arguments submitted in writing to the Commission".

9. Thus it is submitted that:

(1) the alleged defamation was the statement made by the Defendant in the course of giving evidence before the Commission; and

(2) this statement is relevant to the subject matter of inquiry."

4. I have heard the defendant and the learned counsel for the plaintiff and has been taken through the record.

5. Learned counsel for the plaintiff, at the outset, argued that the dcfcndnat's prayer for treating issue No. 1 as the preliminary issue having been declined, the present application for the similar relief is not maintainable. The defendant,on the other hand, submitted that scope of Sub-rule (2) of Rule 2 of Order 14 CPC for treating a particular issue as a preliminary issue, is totally different from the Sub-rules (a) to (d) of Rule 11 of Order 7 of the CPC which provide for rejection of the plaint on the grounds mentioned therein. Reliance was placed dn the Supreme Court decision in ITC Ltd. v. Debt Recovery Tribunal and Ors., wherein it was held:-

"We therefore hold that the fact that issues have been framed in the suit cannot come in the way of consideration of this application filed by the appellant under Order 7 Rule 11 CPC."

6. After the Apex Court's decision, there can be no dispute that an application for rejection of the plaint under Order 7 Rule 11 CPC can be made even after the issues are framed, thereore, merely because earlier prayer of the defendant to treat the issue No. 1 as preliminary issued was declined, cannot be the ground for defeating the application for rejection of the plaint, if it is otherwise maintainable.

7. This taken us to the question whether the plaint is liable to be rejected on the grounds mentioned in the application. Learned counsel for the plaintiff argued that the suit is based on false and malicious accusations made in the "written submissions/arguments", filed and published by the defendant against the plaintiff, who was appearing as a senior advocate, which was not the "statement made by the defendant during the course of his evidence" before the Commission. The defendant argued to the contrary. In order to appreciate the rival contentions of the parties, Section 6 of the Commission of Inquiries Act, 1952 is reproduced hereinbelow:-

6. Statements made by persons to he Commission

No statement made by a person in the course of giving evidence before the Commission shall subject him to, or be used against him in, any civil or criminal proceeding, except a prosecution for giving false evidence by such statement:

Provided that the statement-

(a) is made in reply to a question which he is required by the Commission to answer, or

(b) is relevant to the subject-matter of the inquiry.

8. Bare reading for this section reveals that before it is invoked it must be shown (a) that civil or criminal proceedings have been launched against the applicant on the basis of the statement made by the defendant/accused in the course of giving his evidence before the Commission (b) that the statement was made in reply to a question which he was required answer by the Commission and (c) that such statement was relevant to the subject-matter of the inquiry. If these conditions are not fulfillled, the protective umbrella provided under this section cannot be availed. Further, this protection is also not available against the prosecution of such witness for giving false evidence.

9. In this case, admittedly the defended has appeared as a witness. He was cross-examined by the plaintiff in discharge of his professional duties. In order to determine whether the cause of action against the defendant is not based on his statement given during the course of his evidence before the Commission or not relevant paras of the plaint are reproduced hereinbelow:-

"5. On instruction of the client. Ms. Jayalalitha through the instructing Advocate the plaintiff conducted the cross-examination of the defendant. The relevant portions of the defendant's deposition are hereto annexed and marked as Exhibit D. After the deposition of the defendant was concluded the plaintiff at the instance of the Commission addressed the Commission and strongly opposed the request made by the defendant to summon Ms. Jayalalitha before the Commission for her cross-examination by the defendant.

After the submissions of the plaintiff were over the defendant in reply chose to put before the Commission submissions in writing styled as "Concluding Arguments of Dr. Subramaniam Swamy, President of the Janta Party made before Jain Commission for summoning of Tamil Nadu Chief Minister Ms. Jayalalitha to depose on her links with the LTTE and knowledge of the conspiracy behind Rajiv Gandhi's Assassination." The plaintiff is not concerned with the merits of the said arguments or submissions.

6. On page 6 of the submissions the defendant has made the following assertions:-

"Hence his (Plaintiffs) obsession with my sources is at the LTTE's behest. According to my information. Mr. Jethmalani has been receiving money form the LTTE being deposited in his son's account in CITIBANK in New York. That such deposits take place has been admitted by Mr. Jethmalani." The plaintiff has chosen to ignore other less important averments, and insulting references made by the defendant in respect of the plaintiff. The present suit is based upon the assertion quoted above from page 6 of the defendant's submissions."

10. The averments made in the plaint quoted above clearly reveal that the cause of action is being claimed by the plaintiff against the defendant on the basis of the "written submissions" filed by the defendant before the Commission and not on the basis of the statement made by the defendant during the course of his evidence before the Commission. There is nothing on record to show that the written submissions were filed by the defendant in reply to any question by the Commission which the defendant was bound to answer and that the offending portion of the written submission against the plaintiff was in any way relevant to the inquiry before the Commission. Therefore, the basic ingredients for the applicability of Section 6 of the Act are not fulfillled. Thus, in my view, for the averments made in the plaint the protection provided by this section cannot be availed by the defendant.

11. The defendant in support of arguments has also placed reliance on he Supreme Court decision in Kehar Singh and Ors. v. The State, . In that case it was held that statement made by a witness before a Commission could not be used in a criminal trial for the purposes fo his cross-examination of a witness either to contradict him or to impeach his credit, which is not the issue in this case.

12. For the foregoing reasons. I find no merit in the application, the same is dismissed. Any observation made in this order to be not taken as an expression or opinion on the merit of the case. No order as to the costs.