Sri Chand vs Shri Jai Bhagwan Sharma & Ors.
2009 Latest Caselaw 63 Del

     *IN THE HIGH COURT OF DELHI AT NEW DELHI

                  + CS(OS) No. 2006/2002
         *
%13.01.2009                      Date of decision: 13.01.2009

SRI CHAND                                         ....Plaintiff

                             Through: Mr. J. K. Das and Mr. Avijit
                                      Bhujbal, Advocates

                                 Versus

SHRI JAI BHAGWAN SHARMA & ORS.                    .... Defendants

                              Through: Ms. Ruchi Sindhwani, Advocate


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

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

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

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


RAJIV SAHAI ENDLAW, J.

1. The plaintiff has instituted this suit for recovery of Rs. 25 lacs

with pendente lite and future interest at 18 % per annum, by way of

damages for defamation by the defendants of the plaintiff. The

defendant No. 1 is described as an inspector, the defendants No. 2 &

3, Head Constables of Delhi Police. It is inter alia the case of the

plaintiff that the plaintiff is a highly respectable person and Pradhan

of a Society and is involved in various charitable and philanthropic

activities and enjoys a high reputation and status in the society. The

plaintiff claims to have earlier instituted a suit in the Court of the

Civil Judge, Delhi against some persons who are not parties to the

present suit; in the said previous suit an interim order is stated to

have been granted in favour of the plaintiff and against the

defendants in that suit; the defendants in that suit are stated to have

violated the interim order; the plaintiff claims to have on 13th July,

1999 instituted contempt proceedings against the defendants No. 1

to 3 in this suit as well as certain other persons, before the Court of

Civil Judge where the other suit is pending, for breach of the interim

order aforesaid; the defendants No. 1 to 3 are stated to have filed a

reply on 30th November, 1999 to the contempt proceedings of the

plaintiff and in which reply, the defendants No. 1 to 3 are stated to

have pleaded as under:-

"..... It is further submitted that the applicant is a professional land grabber and have very bad reputation in police record and tries to take police department's help in carrying out illegal activities."

2. It is the averment of the plaintiff that the aforesaid averments

in the reply filed by the defendants to the contempt petition are not

only false, frivolous but defamatory, libelous and derogatory and

have lowered the reputation and honour of the plaintiff. The plaintiff

has further pleaded that the defendants herein have also circulated

the copy of the said reply filed by them amongst friends, neighbours

and relatives of the plaintiff, thereby defaming the plaintiff and

giving bad name to the plaintiff amongst his friends, neighbours and

relations. The plaintiff has in para 9 of the plaint stated that since

the defendants have made defamatory, derogatory and libelous

allegations against the plaintiff "in the reply filed in the court which

is a judicial record and is a public document, as such all the

defendants rendered themselves liable to compensate the plaintiff

and plaintiff has become entitled to claim damages from them...".

The plaintiff has claimed a sum of Rs. 25 lacs by way of damages

from the defendants.

3. The plaintiff further claimed to have sent notices dated 16th

September, 2002 and 1st October, 2002 to the defendants. The

plaintiff has in the cause of action paragraph in the plaint stated that

the cause of action accrued to the plaintiff when the defendants filed

their reply on 30th November, 1999 to the application of the plaintiff

under Order 39 Rule 2 A of the CPC and the cause of action further

arose when the legal notices dated 16th September, 2002 and 1st

October, 2002 were served on the defendants.

4. The defendants filed a written statement taking various pleas.

The plaintiff filed a replication thereto. The defendants also filed IA

No. 9400/2003 under Order 7 Rule 11 of the CPC. On 25th August,

2004, the said application under Order 7 Rule 11 of the CPC was

disposed of by framing the following preliminary issue:_

"Whether the suit in the present form is not maintainable and barred by the provisions of Section 52 of the NCT of Delhi Act? OPD"

5. The statement of the counsel for the parties was recorded that

no evidence is essential on that issue and the matter listed for

arguments. The matter was adjourned from time to time, mostly on

the request of the plaintiff. Ultimately on 17th July, 2008, when yet

again the plaintiff requested for adjournment, it was ordered that

since from the perusal of the plaint the claim also appeared to be

barred by limitation, the arguments on the next date will be heard on

the limitation aspect also. The counsel for the defendants then

stated that the suit was also barred by Section 140 of the Delhi

Police Act, 1978 and accordingly, it was ordered that the same also

being a question of law, arguments thereon shall also be heard.

6. The counsel for the plaintiff and the counsel for the defendants

have been heard on the preliminary issue aforesaid as well as on the

aspect of limitation and Section 140 of the Delhi Police Act, 1978

also. The counsel for the plaintiff has also filed synopsis of the

submission dated 18th September, 2008.

7. Taking up the aspect of limitation first, the suit is for

compensation for libel within the meaning of Article 75 of Schedule 1

of the Limitation Act. The period of limitation prescribed for

institution of such a suit is one year commencing from the date

when the libel is published.

8. The libel pleaded in the present case is the reply filed by the

defendants in judicial proceedings, i.e., to an application of the

plaintiff under Order 39 Rule 2A of the CPC. The said reply, as per

the averments in the plaint was filed on 30th November, 1999. That

would be the date of publication of libel. The suit was instituted on

30th November, 2002. The suit is thus clearly beyond the period of

one year from the date of publication of libel. The plaintiff appears to

have proceeded on the premise that the limitation was of three

years. In fact, the counsel for the plaintiff at the time of hearing did

not even make argument on the aspect of limitation. However, in the

written synopsis filed subsequently, it is urged that the suit is not for

damages on account of defamation only but is also for damages for

wrongful deprivation of the shop in question, the interim order in the

other suit with respect whereto is stated to have been violated.

Reliance in this regard is placed on para 5 of the plaint. It is next

urged in the synopsis that it is also the averment in para 8 of the

plaint that the defendants apart from filing the reply also circulated

copy of the reply and the date on which said circulation was made

will have to be established by evidence.

9. Both the pleas taken in the synopsis by the plaintiff are

contrary to the plaint. The plaint expressly claims Rs. 25 lacs by way

of damages/compensation for defamation and does not claim the

same on account of deprivation of any property. This is also evident

from the fact that had the claim been for deprivation of property, the

suit would not have been confined against the defendants who are

police officials and who are alleged to have assisted the defendants

in the other suit filed by the plaintiff in violating the interim order.

10. Similarly, the other plea of the plaintiff raised for the first time

in the synopsis is also contrary to the plaint. The plaintiff has

neither given any date in para 8 when the copy of the reply is alleged

to have been circulated by the defendants amongst friends,

neighbours and relatives of the plaintiff, nor have in the cause of

action paragraph pleaded that any cause of action accrued to the

plaintiff on that date. The only two dates pleaded in the cause of

action paragraph are of 30th November, 1999 and the date of the

service of the legal notices. The plaintiff after taking adjournments

for over four years to address on the preliminary issue cannot be

permitted to so twist the facts. The claim in suit, from the averments

in the plaint is barred by time and no purpose will be served in

putting the suit to trial and the suit is liable to be dismissed as

barred by time.

11. I may notice that the suit having been found to be barred by

time, I am not expressing any opinion on as to whether a suit for

defamation at all lies on the basis of the pleadings in a civil suit or

till the veracity of the averments is established. On the date of the

institution of the present suit, the other suit, in reply to an

application under Order 39 Rule 2 (A) CPC wherein the alleged

defamatory statements are stated to have been made, was still

pending. The defendants have in their written statement pleaded

that the plaintiff had been involved in number of criminal cases and

at that time was also facing trial in two criminal cases particulars

whereof were given. It was also pleaded in the written statement of

the defendants that the defendants police officials had on the basis

of the entries in their record stated that the applicant is a

professional land grabber and had bad reputation in police record;

the copies of the said records are stated to have been filed in the

other proceedings. It was recently held by this Court in Ram Singh

Batra vs. Smt Sharan Premi 133 2006 DLT 126 that the cause of

action for defamation would arise only when the falsity of the plea is

proved. However, as aforesaid it is not deemed necessary to enter

into the said questions, the suit being barred by time.

12. The preliminary issue framed and the plea with respect to

Section 140 of the Delhi Police Act can be taken up together.

Section 52 of the Government of National Capital Territory of Delhi

Act, 1991 provides that all suits and proceedings in connection with

the administration of the capital shall be instituted by or against the

Government of India. Section 140 of the Delhi Police Act, 1978

provides that in any case of alleged offence by a police officer or of a

wrong alleged to have been done by such police officer by any act

done under colour of duty or authority or in excess of such duty or

authority, such suit shall not be entertained and if entertained shall

be dismissed if it is instituted, more than three months after the date

of the act complained of. Sub-section (2) provides for a notice of not

less than one month of the intended suit.

13. I may, however, state that the plaintiff has filed before this

Court only the reply stated to be containing the libelous allegations

and copies of notices stated to have been sent and a trust deed

executed by the plaintiff. Neither the plaintiff nor the defendants

filed before this Court copy of the application under Order 39 Rule

2A of the CPC filed by the plaintiff and in reply whereto against the

libelous allegations were made. From the material on record it thus

cannot be stated whether the defendants herein were impleaded as

parties to the application under Order 39 Rule 2A of the CPC in their

personal capacity or in their capacity as police officials of the

National Capital Territory of Delhi. All that can be seen from the

record is that in the memo of parties the defendants were described

as police officials that is in their official capacity. It may also be

noticed that the defendants in paras 6 & 7 of their written statement

pleaded that they are working under the authority and since the

specific authority has not been impleaded the suit was liable to be

dismissed. It was further pleaded that they have discharged their

duties in accordance with law and on the basis of information and

investigation conducted and no claim against them was

maintainable. The plaintiff filed a replication in which the plaintiff

denied all the said allegations. In the said state of records and

particularly since the suit is found to be barred by time, I refrain

from returning any finding on as to whether the action of the

defendants necessitating impleadment of the defendants in order 39

Rule 2A of the CPC was in connection with the administration and or

in the exercise of or colour of any duty.

14. The suit is, therefore, dismissed as barred by time. However,

in the facts and circumstances, the parties are left to bear their own

costs.

RAJIV SAHAI ENDLAW (JUDGE) January 13, 2009 PP