M/S Frank Finn Management ... vs Mr Subhash Motwani & Anr.
2008 Latest Caselaw 1648 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


+      CS(OS) 367/2002


%                                Date of decision: 12.09.2008

M/S FRANK FINN MANAGEMENT                           .......Plaintiff
CONSULTANTS

                   Through: Mr Valmiki Mehta, Sr Advocate with
                            Mr Ajit Nayyar, Mr Amit, Mr Gaurav Singh and
                            Ms Akansha Sharma, Advocates.




                                 Versus

MR SUBHASH MOTWANI & ANR.                                     ......Defendants
                   Through: Mr Ashok Gurnani with Mr Ranjan Roy,
                            Advocates.



CORAM :-
     HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW


     1.

Whether reporters of Local papers may be allowed to see the judgment? Yes

2. To be referred to the reporter or not? Yes

3. Whether the judgment should be reported Yes in the Digest?

RAJIV SAHAI ENDLAW, J

1. The plaintiff claims Rs 25 lacs as damages for

defamation by the libelous article written and published by the

defendants in their magazine "Opportunities Today" of September,

2001. The said article is under the column "Student Alert" and is

titled "Flights of Fancy Crash Courses or Crashing Hopes ?!?." The

article comments on the small/limited number of vacancies for the

posts of flight purser, air hostess and cabin crew in the airlines

industry and the large number applicants for the same. It proceeds

to tell that there are over a dozen institutes offering various

training programmes to entice students to pay between Rs 15000/-

to Rs 20000/- with the hope of scores of vacancies awaiting them;

the students are not told of the heavy odds against employment in

the said industry and are enrolled with promises of jobs. After

commenting generally on the dozen odd institutes, the impugned

article comments in particular on "one of the Delhi based

institutes" whose operations are at national level. The impugned

article tells that the said institute advertises every two months in

leading dailies of all metros in the country that there are over 150

vacancies of air hostesses and flight stewards expected to be

filled, the institute claims to have DGCA approved professionals

working with them as consultants and conducts a preliminary

interview of prospective candidates and anyone applying for the

interview has to pay non refundable Rs 750/- and selected

candidates have to undergo one week training programme of

18,000 rupees followed by a 100% job assistance and how the said

institute is profiteering in this manner.

2. It is significant to state that the article nowhere names

any of the institutes nor names the Delhi based institute

commented upon in particular. The plaintiff, after the publication

of the said article got sent a notice dated 9th October, 2001 (Exhibit

P-1) to the defendants claiming defamation and consequent loss to

its reputation and claiming Rs 25 lacs as compensation and

apology. The defendants vide their advocate's reply Exhibit P2,

inter alia, contended that the plaintiff had no cause of action and

claimed to be carrying on a crusade against malpractices in the

field of education and denied liability to pay or apologise. The suit

was instituted within the prescribed period of limitation.

3. On the pleadings of the parties, on 29th April, 2004, the

following issues were framed:

1. Whether this Court does not have territorial jurisdiction to entertain and decide the present suit? OPD

2. Whether the suit is signed, verified and instituted by a duly authorized person? OPP

3. Whether the article "Flights of Fancy Crash Courses or Crashing hopes ?!?" published by the defendants in the magazine "Opportunities Today" was a defamatory article and if so, whether the same was defamatory to the plaintiff's reputation? OPP

4. Whether there was any justification for publication of the aforesaid article and if so, its effect? OPD

5. Whether the plaintiff is entitled to recover any damages and if so, from whom and for what amount? OPP

6. Relief.

4. The plaintiff examined their Manager Mr Arun Kumar as

their only witness and both the defendants also appeared as

witnesses. The cross examination of all the witnesses was

conducted before the Local Commissioner.

5. After hearing the counsel for the parties, my issue-wise

findings are as under:-

Re: Issue No.1.

6. I had at the beginning of the hearing inquired from the

counsel for the defendants whether he insisted on pressing this

issue. The counsel for the defendants not only so insisted but has

made elaborate arguments on the issue. It is, inter alia, the

contention of the defendants that the magazine "Opportunities

Today" in which the allegedly libelous article has appeared, is

admittedly published from Mumbai, that the defendants are

admittedly resident of Mumbai and are carrying on business at

Mumbai and thus the suit could have been instituted at Mumbai

only and could not have been instituted at Delhi. It was the

argument of the counsel for the defendants that if it was to be held

that the courts at Delhi where the plaintiff has its registered office

or were resident of, had jurisdiction to entertain the suit, it would

lead to ridiculous conclusion and a newspaper or a magazine could

be sued for defamation at faraway places or wherever the reader

carried with him the said newspaper or the magazine. It was urged

that the publishers of newspapers and magazines could not be

permitted to be so harassed and could be sued only at the place

where they carried on business and / or wherever they were

published.

7. I have drawn attention of the counsel for the defendants

to Section 19 of the CPC which is in relation to suits for

compensation for wrong done to the person or to movable property

and confers choice on plaintiff to sue either within the local limits

of the jurisdiction of the court where the defendant resides or

carries on business or within the local limits of jurisdiction of the

court where the wrong was done.

8. The counsel for the defendants, however, argued that,

the wrong, in a suit for defamation would be done at the place

where the publication was made and not at the place where the

same would have effect.

9. The plaintiff has invoked the jurisdiction of the courts at

Delhi on the plea that the plaintiff has its office at Delhi and the

impugned article besides publication in the magazine was also put

by the defendants on its website and the magazine is circulated all

over India; that the plaintiff noticed the said article in the

magazine at Delhi and, therefore, the cause of action had arisen at

Delhi.

10. The defendants, in their written statement in the

corresponding paragraph of the plaint, did not deny having put the

article on the website and also did not deny that the magazine is

circulated all over India but, as aforesaid, contended that the cause

of action had accrued at Mumbai and the publication had been

effected at Mumbai and, therefore, the Mumbai Courts and not this

court had jurisdiction to entertain the suit. The plaintiff in

replication reiterated that it has its registered office at Delhi and

the magazine containing the article was displayed on the website

and was circulated at Delhi and thus this court had the jurisdiction.

11. The only witness of the plaintiff reiterated the

averments in the plaint and proved the certificate of incorporation

of the proprietor of plaintiff as Exhibit PW1/1 which shows the

registered office at Delhi. He, in his cross examination, admitted

that the magazine, containing the impugned article, was published

from Mumbai and denied knowledge of how many copies of the

magazine were printed and in response to a question as to where

the magazine was circulated answered that it was circulated all

over India through the website of the defendants. He could not tell

how many subscribers were of the magazine. He further stated

that the subscription receipt of the magazine from a Delhi resident

could be produced. He claimed to have seen the magazine on sale

on road side in Connaught Place in Delhi and further claimed that

the magazine was also available with his friend Shri Manmohan

Gulati who had subscribed the magazine in Delhi; he claimed to

have purchased the magazine at Delhi by paying cash in South

Delhi but could not tell the name of the shop.

12. The defendant No.1, appearing as DW1, in his affidavit

by way of evidence reiterated that the courts at Delhi had no

jurisdiction. In his cross examination, he could not tell as to how

many subscribers were there of the magazine; he claimed that the

magazine was circulated within Bombay limits and is available

within Bombay limits only. However, he was forced to admit that

the magazine could be subscribed in any part of the world, though

he denied that the magazine had any subscriber in Delhi in 2001.

He further admitted that the readers were informed that the

magazine could be read on the website as well.

13. The defendant No.2, appearing as DW2, adopted the

evidence of the defendant No.1 but in his cross examination

admitted a receipt produced by the plaintiff in his cross

examination as of subscription received from Mr M Gulati at Delhi

and further admitted sending the magazine by post to Mr M Gulati

at Delhi in pursuant to the said subscription. His attention was

also drawn to the statement in the magazine that it was available

on all railway stalls and reputed outlets and when asked to

comment on the same, stated that it was meant railway stalls and

reputed outlets in Mumbai city only.

14. In the aforesaid state of evidence and law, it has to be

determined if this court has jurisdiction.

15. The magazine containing the article has been proved as

Exhibit P-3. Same, though shows to be edited, printed and

published at Mumbai, does not contain any limitation that it is for

circulation in Mumbai only.

16. From the evidence aforesaid, it stands established that

the magazine was being or could be subscribed at Delhi. The

magazine itself states that it is available at all railway stalls and

reputed outlets and the version of the defendant No.2 that the

reference was to railway stalls and reputed outlets within Mumbai

only, without it being so printed is unbelievable. Thus, it stands

established that the plaintiff has its registered office at Delhi and

the magazine has circulation at Delhi and is also put up on the

website of the defendants. Even otherwise growing number of

readers prefer to read newspapers and magazines via internet

rather than in hard form. By putting the magazine on the internet,

the magazine cannot be said to be for circulation within Mumbai

only and is concluded to be having circulation all over India. The

next question which arises is that if the magazine has circulation in

Delhi, will any article in the magazine defaming a resident of Delhi,

give jurisdiction, in an action for damages for defamation, at Delhi

or the plaintiff will have to rush to Mumbai to sue the defendants.

17. The wrong within the meaning of Section 19 of the CPC

in an action for defamation is done by the publication. The

defendants are confusing publication in the sense of printing, with

publication as in the case of libel. The publication in the sense of a

libel is not the mechanical act of printing of the magazine but is of

communication of the libelous article to at least one person other

than the plaintiff or the defendant. In this regard also see Aley

Ahmed Abdi v Tribhuvan Nath Seth 1979 All. LJ 542. If the

magazine, as aforesaid, has a circulation at Delhi, then it cannot be

said that the wrong would not be done to the plaintiff at Delhi and

thus the courts at Delhi would have jurisdiction under Section 19 of

the Act. A Division Bench in T.N.Seshan v All India Dravida

Munnetira Kazahagam 1996 AlHC 4283(AP) has taken the same

view. Even if the test of Section 20 of the CPC were to be applied,

even then the cause of action in part at least would accrue in Delhi.

A Single Judge of the High Court of Bombay in the The State of

Maharashtra v. Sarvodaya Industries AIR 1975 Bombay 197 has

held that the phrase wrong done in Section 19 would clearly take

in not only the initial action complained of but its result and effect

also and Section 19 is wide enough to take in those places where

the plaintiff actually suffered the loss because of the alleged

wrongful act. It was further held that the court within whose local

jurisdiction damage was caused or suffered or sustained, would

clearly answer the requirements of Section 19 for the purposes of

the suits mentioned therein. I respectfully concur with the said

view and unless Section 19 of the CPC is so interpreted, the

purpose thereof would be defeated. Similarly, State of

Meghalaya & Ors v Jyotsna Das AIR 1991 Gauhati 96 also held

that wrong done includes and covers the effect of the act. The

counsel for the defendants has relied upon Rashtriya Mahila

Kosh v The Dale View 2007 IV AD (Delhi) 593 to address the

principle of forum non conveniens. With respect, if under the CPC

the court has jurisdiction, I find it hard to hold that on the doctrine

in international law of forum non conveniens the plaintiff can be

non suited. I, therefore, decide issue No.1 in favour of the plaintiff

and against the defendants.

Re: Issue No.2.

18. The only witness of the plaintiff has proved the

resolution passed in the meeting of the Board of Directors of the

plaintiff company held on 6th February, 2002 as Exhibit PW1/26

authorising Mr Vijay Dewan to institute the suit and to sign and

verify the plaint on behalf of the plaintiff. He has also identified

the signature of Mr Vijay Dewan on the plaint. On the basis of the

said evidence, the authority of Mr Vijay Dewan to institute the suit

and to sign and verify the plaint stands established. The said

witness was cross examined about the constitution of Frankfinn

Management Consultants. However, the document Exhibit PW1/26

as well as the witness disclosed that Frankfinn Management

Consultants was a unit of Frankfinn Aviation Services (P) Ltd.

Thus, it is found that the suit has been instituted and the plaint has

been signed and verified by a duly authorized person.

This issue is also decided in favour of the plaintiff and

against the defendants.

Re: Issue No.3.

19. The most striking aspect is that the article does not

mention or name the plaintiff. It was at the outset only to put to

the senior counsel for the plaintiff as to how the plaintiff could

claim defamation without it being named in the article. The senior

counsel for the plaintiff relied upon a passage in Tort Law by

Nicholas J McBride and Roderick Bagshaw to the effect that a

defamatory statement which did not on its face specifically refer to

V will still be defamatory if ordinary, reasonable person who knew

of V and his circumstances would have, on hearing or reading the

statement in question, thought that it referred to V and would, as

a result, have tended to think less of V or if the statement in

question was published to one or more people who thought that it

referred to V and if either of the said conditions was satisfied, it

would be immaterial that V was not referred to by name. The

counsel for the defendants relied upon a passage from the Law of

Torts by Ratanlal & Dhirajlal, 25th Edition reiterating the same

position and further stating that it is immaterial whether the

defendant intended the defamatory statement to apply to the

plaintiff or knew of the plaintiff's existence, if the statement might

reasonably be understood by those who knew the plaintiff to refer

to them. It is not necessary that all the world should understand

the libel; it is sufficient if those who know the plaintiff can make

out that he is the person meant.

20. I find that in a case where the plaintiff alleging

defamation is not named, it is incumbent upon such a plaintiff to

establish that the persons/people who knew him, understood the

impugned article to be referring to him, in spite of him being not so

named in the impugned article. Unless the said fact is established,

there can be no claim for defamation inasmuch as without the

persons knowing the plaintiff connecting the allegedly defamatory

allegations to the plaintiff, even if the allegations are per se

defamatory, the plaintiff cannot sue. In this regard, it is immaterial

whether the plaintiff understood the libel as referring to him or

that the defendants, in fact, intended the libel to be directed to the

plaintiff. Publication, i.e. communication to a third party, is the

essence of defamation. Without a person other than the plaintiff

and the defendant becoming privy to the libel, the same is not

actionable.

21. The plaintiff has failed in the present case to examine

even a single witness who connected the impugned article even if

defamatory, to be directed against the plaintiff. In fact, the

testimony of the only witness examined by the plaintiff is also

conspicuously quiet on this aspect. The said witness in para 4 of

his affidavit by way of examination in chief claims to have come to

know of the defamatory article from his friend Shri Manmohan

Gulati but does not even state that the said Shri Manmohan Gulati

understood the reference in the impugned article to the Delhi

based institute as that to the plaintiff. In para 8 of his affidavit, he

states that the characteristics of the Delhi based institute referred

in the article are of the plaintiff but again does not state that

anyone else besides the plaintiff, from the said characteristics

understood the said reference as that to the plaintiff. The witness

in paras 15 and 16 of his affidavit states that as a direct

consequence of the article, a number of prospective candidates,

applicants and other general members of the society carry an

impression and belief that the plaintiff is not an honourable

organisation and the plaintiff has suffered loss and damage in

reputation, image, good will and standing in the society at large.

However, no such prospective candidate/applicant or member of

the society has been examined and the statement of the witness

also is vague and is at best hearsay evidence. Moreover, the

witness in the cross examination was forced to admit that the

receipts and profits of the plaintiff have been rising and could not

point out any fall in revenue, income, receipts after the impugned

article.

22. In Bruce v Odhams Press Limited (1936) 1 KB 697

the defendant, in a claim for defamation from an article in which

the plaintiff was not named, had sought particulars of the

allegation that the words complained of were published of the

plaintiff. The court of Appeal held that it is an essential part of the

cause of action of a plaintiff in cases of defamation, whether of

slander or libel that the words are defamatory of the plaintiff, if

they are defamatory of some other person, real or imaginary, they

do not provide the plaintiff with any cause of action at all. It was

further held:

"Defamatory statements which are in the air, as it were, and do not appear by their words to refer to the plaintiff, have got to be made referable to the plaintiff by reason of special facts and circumstances which show that the words can be reasonably construed as relating to the plaintiff. It is not sufficient under the existing rules of practice merely to allege in general terms a cause of action. Such cause of action must be alleged with particularity."

"The material facts on which the plaintiff must rely for her claim in the present case seem to me necessarily to include the facts and matters from which it is to be inferred that the words were published of the plaintiff. Without a statement of these facts and matters, it seems to me impossible that the defendants could be in a position to decide how to plead to the statement of claim."

"In such a case as the present, the plaintiff, not being actually named in the libel, will have to prove an innuendo identifying her in the minds of some people reasonably reading the libel with the person defamed, for there is no cause of action unless the plaintiff can prove a publication of and concerning her of the libelous matter : see per A.L. Smith M.R., in Sadgrove V. Hole.(3) And such innuendo, being essential to the plaintiff's case, seems to me to fall within r.4 of Order XIX., as being a statement of the material facts on which the party pleading relies, without which no cause

of action is disclosed. The earlier cases as to the particularity with which an innuendo must be pleaded were concerned rather with the meaning of the defamatory matter itself in some secondary sense, than with the problem whether the person defamed would be understood to be the plaintiff and in such cases the extraneous facts which made a statement, ex facie innocent, defamatory had to be pleaded."

The plaintiff in that case was thus ordered to furnish particulars.

This judgment demonstrates the importance of the connection of

libel to plaintiff.

23. In Morgan Vs. Odhams Press Ltd. (1971) 1 WLR

1239, which also related to claim of damages for defamation of

unnamed plaintiff, six witnesses were examined and who deposed

that they thought that the article referred to the plaintiff. The

House of Lords held that the fact that a number of honest

witnesses formed a certain view was by no means conclusive and is

only an item of evidence; it is for the Judge to decide whether on

the evidence an ordinary sensible man could draw an inference

that the article referred to the plaintiff. Thus I find that on

evidence being led by the plaintiff, as in the said case, the court is

to evaluate whether the said evidence satisfied the test of

reasonable man. However, in the present case, there is no

evidence whatsoever, which can be evaluated. The House of Lords

in the case (supra) held:

"It is ordinary plain commonsense that a hurtful statement may be made concerning a person though his name is not given. In the language of the law a plaintiff will have a cause of action, if he proves that there has been

publication of and concerning him of words which are defamatory of him."

"The real issue was whether the words were published of and concerning the plaintiff. It mattered not what was the intention of the writer. In any event the jury had no means of knowing it. As the defendant did not give evidence the jury could not know whether the defendant had in some unfortunate way been misled or had based himself on some idle gossip: they would perhaps be disposed to give him the credit for not having merely invented a sensational story. But the question was "who was hit" by the words which were published. The issue was - was the plaintiff hit? If the words referred to the plaintiff there was no suggestion that the words were true. The question for the judge at the end of the plaintiff's case was whether there was evidence upon which the jury could (not would) decide in favour of the plaintiff. That in turn raised the question whether the jury could decide that some readers (having knowledge of certain circumstances) would reasonably understand the words as referring to the plaintiff. If no reasonable reader could have understood the words as referring to the plaintiff, then there would be nothing to be left to the jury.

In deciding whether or not the words referred to were reasonably understood as referring to the plaintiff the jury would consider any pieces of evidence which might tend to negative the conclusion that readers reasonably so understood, but if the conclusion were reached that readers did reasonably so understood, then it would be immaterial on this issue whether the readers further believed that the words were true or only partly so believed or declined to believe that they were true."

"It was for the jury to assess the witnesses and their reasonableness and to decide whether reasonable people would reasonably understand that the plaintiff was referred to. It could not possibly have been said in this case that all the evidence was so irrational that it could not be accepted by anyone and accordingly did not merit consideration by the jury."

The House of Lords held that extrinsic evidence is admissible to

connect the plaintiff with the person referred to in the Article. I

find such extrinsic evidence to be wanting in the present case.

Lord Donovan in the case (supra) held :

"Certain elementary propositions may be stated. It is always for the plaintiff to prove that the defamatory words were published of and concerning him. The onus is firmly upon him, and if he does not discharge it, he has no cause of action (Sadgrove V. Hole (190102 K.B. 1,4.

Where, as here, the plaintiff is not named or indicated in the libel, he may call persons to say that in the light of their knowledge of extrinsic facts they understood the publication to be defamatory of him. (Bourke V. Warren (1826) 2 C. & P. 307; Cassidy Vs. Daily Mirror Newspaper Ltd.[1929] 2 K.B. 331; Hough Vs. London Express Newspaper Ltd.[1940]2 K.B.

507)

Such witnesses can give their evidence generally, and the grounds on which they formed their opinion be left to be tested by cross examination.

The plaintiff must prove that the words of the article would convey a defamatory meaning concerning himself to a reasonable person possessed of knowledge of the extrinsic facts. This requirement postulates (as the appellant expressly accepted) not merely a reasonable person but also a reasonable conclusion. Mere conjecture is not enough. ( Capital & Counties Bank V. Henty & sons (1882) 7 App. Cas. 741, Hunt V. Goodtake (1873) 43 L.J.C.P. 54, 56; Jones V. Skelton [1963] 1 W.L.R. 1362, 1370; Gatley on Libel and Slander (1967) 6th ed. paras. 117 and 121-2).

Did the appellant by the evidence above referred to discharge the onus of proving that the defamatory matter in the article was published of and concerning him?"

"The standard of proof required in a civil action is, of course, less: it is enough if on a balancing of the probabilities the jury consider that such an accusation could be inferred. But it still has

to be reasonably inferred: and if it becomes clear from the cross examination of witnesses that their conclusion is mere conjecture or speculation then the scales remain evenly poised, and the plaintiff does not prove his case. In the present case, after cross examination, it was plain that each one of the six witnesses had put two and two together and made it a good deal more than four."

24. In a similar situation in Cassidy Vs. Daily Mirror

Newspaper Ltd (1929) 2 K.B. 331 Greer L.J. of the Court of

Appeal held:

"In order to succeed in her action the plaintiff was bound to show that, reasonably interpreted, the words used in the newspaper were intended to convey the meaning set out in the innuendo, the intention being judged not by what was in the mind of the writer, but what appears from the words he has used. In my judgment it was not enough for her to show that people who knew her jumped to the conclusion that she was living with Corrigan as his mistress. She was bound to show that, reasonably interpreted, the words of the alleged libel contained an allegation to that effect. She called as her witnesses three ladies who knew her as the wife of Cassidy and knew that her husband was the man who owned racehorses under the name of Corrigan."

In the present case no witness has been called who knew that the

characteristics imputed in the article to Delhi based institute were

of the plaintiff and who on reading of the article connected the

same to the plaintiff.

25. The counsel for the defendants in this regard also

relied upon Shri Bartu Vs. Indian Express Newspaper, 1995

(32) DRJ 246 and Fullam Vs. New Castle Chronicle (1977) 3 ALL

ER 32. I do not find the first of the said judgments of any

assistance to the defendants, Fullam (supra) holds that the

plaintiff in such an action must prove that there were persons to

linked the plaintiff to the impugned article.

26. I, therefore, find that the plaintiff has failed to prove the

real issue in this case that the libel was understood by anyone as

directed against the plaintiff. The latter part of Issue No.3,

".....whether the same was defamatory to the plaintiff's

reputation?" is thus decided against the plaintiff and in favour of

defendants.

27. Though the suit of the plaintiff is liable to fail on the

aforesaid finding but since in accordance with CPC all issues have

to be decided, I proceed to answer the first part of issue No.3, i.e.,

whether the article was a defamatory article, on the premise

(though not proved) that the libel was understood by anybody as

referring to the plaintiff.

28. The first part of the article refers to the class of

institutions offering training programmes for employment in the

aviation industry. It is a settled principle of law that there can be

no defamation of a class. See Knupffer v London Express

Newspapers Ltd (1944) 1 All ELR 495. Thus, the first part of the

article commenting generally on the institutes offering training

programmes cannot be defamatory to any one member of the class

and the plaintiff cannot take any action on the same, being one of

the dozen institutes referred to in the article. However, the latter

part of the article is with respect to an institute in particular. The

said part of the article definitely imputes to the institute referred to

therein, (i) misrepresentation of the vacancies; (2) false

representation as to employment of DGCA approved professionals;

(iii) amassing monies to the detriment of gullible students; (iv)

breach of ethics; (v) making scapegoat of students for their own

profit and goes to the extent of labeling such institute as a quack.

29. The statements aforesaid, culled out, undoubtedly are

defamatory. The aforesaid imputations undoubtedly are of

disparagement of the business and reputation of the entity referred

to therein. It has been held in Union Benefit Guarantee

Company Ltd v Thakorlal P. Thakor & Ors AIR 1936 Bombay

114 that even a corporation, as the plaintiff herein is, can complain

of defamation and in that case an action at the instance of the

insurance company was allowed in respect of a libel which

suggested that the company was started and carried on by

adventurers who filled their pockets at the costs of ignorant/poor.

The Senior counsel for the plaintiff by referring to the text books

above quoted has argued that in the case of a libel as compared to

a slander, there can be defamation per se and there is no need to

examine any person to depose that in his opinion the reputation of

the plaintiff fell or was affected. Reliance in this regard is placed

on John Thomas v Dr K Jagdeesan (2001) 6 SCC 30, Sadasiba

Panda v. Bansidhar Sahu AIR 1962 Orissa 115, Cadbury (India)

Ltd. v. Dr. M.C. Saxena 83(2000) DLT 592 and Shri Ram Singh

Batra v. Smt. Sharan Premi 133 (2006) DLT 126. There is merit

in the aforesaid submissions of the senior counsel for the plaintiff.

I have already found the contents of the article to be libelous

and/or defamatory and I hold that the plaintiff was not required to

examine any witness in whose esteem the plaintiff may have fallen.

30. The counsel for the defendants urged that the article

was written in exercise of the right of freedom of speech and

expression and of which, freedom of press was a constituent. It was

urged that the press/media has a right to disseminate to the world

at large the information available with them. It was further urged

that the plaintiff which has claimed to be akin to a public figure,

has to be open to media reporting and comments and cannot rush

to the courts with actions for defamation curbing the freedom of

press and media. He argued that the newspapers and magazines

are entitled to express views in public interest and the article was

a fair comment and not actionable as libelous on the part of the

plaintiff. Truth is an absolute defence to defamation. The

defendants made a feeble attempt to justify the libel found above.

The defendants filed before the court a letter from the DGCA to the

effect that it did not approve any professionals for training.

However, the witnesses of the defendants could not justify the

truth of the other libelous statements culled out hereinabove.

31. The senior counsel for the plaintiff rightly relied upon

Sahib Singh Mehra v. State Of Uttar Pradesh, AIR 1965 SC

1451 Shree Maheshwar Hydel Power Corporation Ltd. v.

Chitroopa Palit and Anr., AIR 2004 Bombay 143 and Hari

Shankar v. Kailash Narayan and Ors. AIR 1982 MP 47 to

contend that the newspapers, magazines, press and media did not

enjoy any special status or privilege or rights so as to defeat the

claim for defamation if otherwise found so. The reliance by the

counsel for defendants on decisions of the U.S. Supreme Court in

Curtis Publishing Company v Wallace Butts & On New York

Times v L.B. Sullivan, is not found apposite to our laws.

32. I, thus, answer issue No.3 as under:

That the portions of the article culled out above are per se

defamatory but the plaintiff has failed to prove that the same are

defamatory to the plaintiff's reputation.

Issue No.4.

33. The senior counsel for the plaintiff has vehemently

contended that the article was intended to cause business loss to

the plaintiff and illegal enrichment to the defendants inasmuch as

the defendants who are the author and publisher of the article are

also carrying on business in the name and style of Institute of

Hotel, Cargo and Tourism Management (IHCTM) and themselves

offering courses for airline careers. It was argued that the

defendants had immediately under the article, on the same page,

inserted advertisement of IHCTM with the motive of dissuading the

prospective students from joining the institute of the plaintiff and

to pull them towards their own institute carrying on the same

business.

34. I do not agree with the aforesaid submissions of the

senior counsel for the plaintiff. The article has generally

commented upon the low rate of vacancies available in the airlines

industry. Upon reading the article, the impression which one gets

is that it is very difficult to find employment avenues in the airline

industry. I do not see any way in which the defendants by placing

the advertisements of IHCTM under the article stood to gain. The

reader of the article was not to know the connection of the

defendants to IHCTM. The article nowhere states that IHCTM or

any institute was better than the other and has generally

condemned all the institutes. The article goes to the extent of

describing the odds of employment after training in such institutes

as 1:500 or even more. Thus, it cannot be said that the defendants

stood to benefit from inserting the advertisement of IHCTM in

close proximity to the article.

35. The counsel for the defendants has sought to justify the

article as a warning to young gullible minds desperate to find

employment. The article, if had restricted itself to commenting

generally upon such institutes, would have been justified.

However, nearly half of the article is directed against one institute

only. There can be no justification for the same. A reading of the

article leaves an impression as if the institute to which

approximately half of the article is devoted, is the worst of the

dozen odds institutes which the article states are offering training

programmes for employment in the airline industry. I do not find

any justification for targeting of one institute only, if the article

was to serve the purpose claimed.

36. The defendants could have justified the libel by taking

the plea of truth. However, the defendants have failed to establish

any truth except in relation to DGCA approved professionals. The

defendants if writing in public interest, ought to have before going

to the press elicited the comments of the institute referred to in

particular in the article and ought to have printed the response of

the said institute also. The witnesses of the defendants could not

name any other Delhi based institute having national presence,

other than the plaintiff and the tenor of the evidence of the

defendants indicates that the defendants referred to the plaintiff

only. However, the defendants in spite of having issue No.4

framed, the onus of which is on the defendants, failed to discharge

such onus. The defendants did not examine any student who

claimed to have been made a scapegoat or who claimed to be a

victim of misrepresentation by the institute referred to in the

article.

37. The society has in the recent times witnessed the havoc

which the omnipresent media can cause to the lives and reputation

of individuals (and which will include corporates) in the name of

dissemination of news. The media, to fill its expanding growth, in

terms of pages, number of publications and hours, is found to be

attempting to create rather than report news. While not denying

the importance of the press and media, I however find that the

press and media, if confined to their role of merely reporting news

within the guidelines of the Press Council of India can defend an

action for defamation, if they step out, they would be liable in tort,

if found so and there is no special defence available to them.

38. I therefore, decide the issue No.4 in favour of the

plaintiff and against the defendants.

Re : Issue No.5.

39 Owning to the decision on issue No.3, when the article

has been found to be not defamatory to the plaintiff's reputation,

the question of the plaintiff being entitled to recover any damages

does not arise. I must, however, notice that once defamation has

been proved, it is difficult to establish the quantum of damages

inasmuch as the reputation of a person is valueless. Reference was

placed on Tushar Kanti Ghose V Mrs Bina Bhowmick AIR 1955

NOC 406, Ram Jethmalani v Subramaniam Swamy 126 2006

DLT 535 where damages of Rs 5 lacs were awarded, Munshi Ram

V Mela Ram Wafa AIR 1936 Lahore 23 and Union Benefit

Guarantee Co V Thakorlal P. Thakor AIR 1936 Bombay 114.

However, in view of the findings above I need not address the

quantum of damages.

Re : Issue No.6

40. In view of the findings above, the suit of the plaintiff is

dismissed. I, however constrain from awarding any costs to the

defendants for the reason that on perusal of the file, I have found

the defendants to have conducted lengthy cross examination of the

witness of the plaintiff and to most of which cross examination no

reference even was made during the hearing. The witness of the

plaintiff was called before the Local Commissioner umpteen times.

Such practice of excessive, purposeless cross examination,

presumably to browbeat, tiring out the witness and to thereby gain

an advantage over the other party has to be deprecated specially

now when the recording of the evidence has been permitted to be

relegated to the Court Commissioners. The Court Commissioners

are not empowered to refuse any question and/or limit the cross

examination. It becomes the bounden duty in the circumstances to

exercise self-restraint. The suit is, therefore, dismissed without,

however, any order to costs. The decree sheet be drawn up.

RAJIV SAHAI ENDLAW (JUDGE) September 12, 2008 M