Delhi High Court
Ajit Kar vs Rajesh Rai on 15 February, 2011
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No. 102/2011
% 15th February, 2011
AJIT KAR ...... Appellant
Through: Mr. Ajit Kar, appellant in person.
VERSUS
RAJESH RAI ...... Respondent
Through: None
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
1. Whether the Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest?
VALMIKI J. MEHTA, J (ORAL)
1. The challenge by means of this Regular First Appeal under
Section 96 of the Code of Civil Procedure, 1908 is to the impugned judgment
and decree dated 30th September, 2010 whereby the suit of the
appellant/plaintiff for defamation against an Advocate/defendant/respondent
was dismissed, and which suit was filed on the ground that the
Advocate/defendant/respondent sent a legal notice dated 30th July, 2008,
Ex.PW1/6, alleged to be without authorization of the client one Mrs.Sangita
Mudgal.
RFA No. 102/2011 Page 1 of 5
2. The Trial Court has arrived at a finding of fact based on the
evidence led by the respondent/defendant and also Sh.Harender Mudgal,
husband of Smt. Sangita Mudgal as DW-2, that there was due authorization
on behalf of Smt. Sangita Mudgal to send the legal notice. Paras 42 to 44
and 48 to 51 of the impugned judgment and decree read as under:-
"42. The defendant filed a brief evidence by way of
affidavit. Defendant exhibited vakalatnama given by Smt.
Sangita Mudgal in his favour authorizing defendant to issue
notice to plaintiff as Ex.DW1/1. Defendant stated that he
had explained contents of notice to Smt. Sangita Mudgal
before dispatching the same to the plaintiff. Te defendant
denied that he had sent legal notice dated 30.07.2008
without instructions of Smt.Sangita Mudgal.
43. In cross-examination, defendant clarified that
defendant has signed vakalatnama at point A and
Smt.Sangita Mudgalsigned at point B. Defendant sated
that Smt.Sangita Mudgal filed a Criminal case and Civil Suit
for recovery of damages on the basis of legal notice dated
30.07.2008. Defendant stated that he gave a copy of
notice dated 30.07.2008 to Smt. Sangita Mudgal. It was
also stated that legal notice dated 30.07.2008 and
vakalatnama were explained to Mrs. And Mr. Harender
Mudgal.
44. DW-2 is Shri Harender Kudgal, husband of Smt. Sangita
Mudgal. His evidence by way of affidavit is also very brief.
He stated that vakalatnama signed by his wife was
Ex.DW1/1 as per which she authorized the defendant to
serve legal notice upon the plaintiff. Legal notice Ex.PW1/6
was issued by defendant under instructions of his wife in
his professional capacity. Contents of notice were
explained by defendant to him as well as his wife Smt.
Sangita Mudgal. His wife never denied instructing
defendant to send notice Ex.PW1/6.
................................
48. Issue wise findings are as under:-
RFA No. 102/2011 Page 2 of 5
Issue No.2 : - Burden to prove this issue was on the
defendant. Defendant has relied upon vakalatnama
Ex.DW1/1 given by Smt. Sangita Mudgal to him before
serving legal notice upon the plaintiff. Defendnat has
stated that said vakalatnama bears signatures of
Smt.Sangita Mudgal at point B and by defendant at point A.
Defendant stated that he takes a vakalatnama from every
client before sending notice on his/her behalf. No
suggestion was given by the plaintiff that Ex.DW1/1 is not
a vakalatnama signed by Smt. Sangita Mudgal. Only
suggestion given for vakalatnama was that it was not as
per law. Why it was not as per law is not explained by the
plaintiff. The plaintiff stated that there was no need to give
suggestion regarding vakalatnama because Smt. Sangita
Mudgal has admitted in Suit No.03/08 that she had not
instructed the defendant to serve legal notice dated
30.07.2008 upon the plaintiff.
49. DW2 Shri Harender Mudgal has also stated that his
wife had given a vakalatnama to the defendant before
sending notice to the plaintiff. There is o suggestion to this
witness that no vakalatnama was given by Smt.Sangita
Mudgal to the defendant for serving the plaintiff legal
notice dated 30.07.2008 which is Ex.PW1/6.
50. Smt. Sangita Mudgal could not be cross examined b y
the plaintiff as she did not enter witness box. Legal notice
dated 30.07.2008 is not signed by Mrs. Sangita Mudgal.
There is no legal requirement that notice sent by a counsel
on behalf of h is client be signed by the client as well.
51. Considering the fact that the evidence of DW1 and
DW2 has remained unchallenged with regard to
vakalatnama given by Smt.Sangita Kudgal it is held that
the defendant took a vakalatnama Ex.DW1/1 from Smt.
Sangita Mudgal before serving legal notice dated
30.07.2008, upon the plaintiff." (Emphasis added)
3. I do not find any illegality or perversity in the finding and
conclusion of the Trial Court that there was due authorization by the client,
Smt. Sangita Mudgal to the respondent/defendant to send the legal notice.
RFA No. 102/2011 Page 3 of 5
4. The Trial Court has also given a finding of fact that the
appellant/plaintiff failed to prove publication and which was necessary to
succeed in a suit for defamation. The relevant paras of the impugned
judgment and decree are paras 64 to 69 of the impugned judgment and
decree which read as under:
"64. To the objection of the defendant that there is no
publication, the plaintiff stated in the replication that "facts
of how and when notice of 30.07.2008 was received how
served or treated whatever required for this plaint has
been given and the rest if required would come in
appropriate stage."
65. The plaintiff relied upon the following from his
replication to show publication "Enquiry made plaint serve
to multiple defendant in Suit No.03/08 pending in this
Court admittedly case filed for false criminal defamation by
some defendant concerned therein the suit, family
members obviously going through friends coming round all
derivable and the flow of news, multiplying years,
whispered and whispering all nothing other than the
publication and the like factors focuses more of the same
misconceived by the answering defendant."
66. The above allegation of publication in replication is
no publication because pleadings of publication are
missing in the plaint and the publication imputed in para
65 above is vague and ambiguous.
67. Only in the evidence by way of affidavit, the plaintiff
stated that the notice in question was read by his daughter
and told to plaintiff when other family members were
present along with some neighbours.
68. There is no such pleading of the plaintiff in the plaint
that the notice was read by the daughter of the plaintiff in
the presence of family members and neighbours.
Something which is not pleaded cannot be proved. There
is no evidence of minor daughter, family member or
neighbours about alleged publication of the notice dated
30.07.2008.
RFA No. 102/2011 Page 4 of 5
69. Therefore, there is no defamation." (Emphasis
added)
I agree.
5. In view of the above, I do not find any merit in the appeal, which
is therefore dismissed, leaving the parties to bear their own costs.
Caveat No.135/2011
Since no one appears for the caveator and the main appeal is
disposed of, caveat is also disposed of having become infructuous.
CM No.3207/2011
Since the main appeal is disposed of, the application is also
disposed of having become infructuous.
FEBRUARY 15, 2011 VALMIKI J. MEHTA, J.
ak
