Delhi High Court

Raj Nath Khosla vs Acharya Dr John R Biswas & Ors. on 3 September, 2012

Author: Kailash Gambhir

$
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                      Judgment delivered on:   3rd September,2012

+      IA No.3415/2012 in CS(OS) 268/2011


RAJ NATH KHOSLA                                        ..... Plaintiff
             Through             Mr. Raman Kapur, Sr. Adv. with
                                 Mr. Dhiraj Sachdeva, Adv.

                      versus


ACHARYA DR JOHN R BISWAS & ORS         ..... Defendants
             Through   Ms. Anjana Masih, Adv.

       CORAM:
       HON'BLE MR. JUSTICE KAILASH GAMBHIR



1.

The present order will decide the application under

Order 7 Rule 11, C.P.C., 1908, presented by the defendants for

the rejection of the plaint on the ground that the plaint does not

disclose any cause of action for the tort of defamation.

2. The relevant averments made by the plaintiff in his plaint

are reproduced as under:

The plaintiff is engaged in the business of financial services and

is high income tax paying citizen. The defendants are the office

bearers of a literature society named Masihi Sahitya Sansthan.

The Defendant No. 1 is the Chairman, Defendant No. 2, the

Secretary and Defendant No. 3, the Manager of the above named

Society. The Society is the absolute owner of the properties

bearing flat no. 42 and two separate independent shops no. 42A

and 42B under it. The Masihi Sahitya Sansthan, as owner of the

property, Flat No. 42, Khan Market, New Delhi, entered into an

agreement to sell dated 16.3.1988 with the plaintiff to hand over

the said flat to the plaintiff in lieu of certain consideration. There

is no dispute regarding the ownership of the said flat but dispute

arose between the parties with respect to the ownership of the

barsati floor i.e. the roof top of the said flat.

In January 2010, when plaintiff was carrying out reparation and

renovation work on the barsati floor, some officials of the society

tried to interfere by making several calls to the police and as a

result a PCR van arrived at the premises. However, on

inspection, everything was found in place and police rejected the

baseless complaint filed by the society.

In February 2010, the society with malafide intentions, through

its Secretary, who was authorized by the Chairman, filed a suit

for permanent and mandatory injunction against the plaintiff and

the same is pending trial before the Hon'ble Civil Judge, Patiala

House Courts, New Delhi.

The plaintiff also discovered that the defendants had made a

false complaint against the plaintiff and also against the ex-

officials of the society, to the SHO, Police Station Tughlaq Road,

New Delhi alleging connivance and no authority to execute the

documents with regard to Flat no. 42 in favour of the plaintiff

which was later closed by the Investigation Officer.

3. According to the plaintiff, the defendant's wrongful

statement made in the complaint as well as the civil suit against

the plaintiff amounted to defamation. Such comments have

brought plaintiff into ridicule and very adversely affected his

impeccable reputation. Plaintiff was exposed to ridicule before

nearly 1500 of his employees being called an accused of a crime

which was patently false. That the slanderous and defamatory

statements made by the defendants against the plaintiff were

published by way of a complaint to the SHO, Police Station and

in the pleadings in the Civil Suit No. 28 of 2010 before the Ld.

Civil Judge, Patiala House, New Delhi.

4. Seeking rejection of the plaint through an application

under Order 7 Rule 11, CPC, the learned counsel for the

defendant submitted that on a bare reading of the plaint along

with the documents which have been relied & filed by the

plaintiff demonstrates that the suit is without cause of action,

barred by law and thus liable to be rejected. The counsel

submitted that the claim of the plaintiff is based upon the facts

stated in the complaints made by the defendants to the lawful

authorities regarding their grievances against the plaintiff. The

complaints filed by the defendants on behalf of the society are

still subjudice and it has not been held by any court that the

allegations made by the complainant through its officials were

false. The counsel submitted that the defendants had correctly

approached authority/court of law for redressal of their

grievances and therefore, such suit of the plaintiff is without any

cause of action and consequently the plaint is liable to be

rejected. The counsel also submitted that the plaintiff has filed

the present suit only with the objective of entangling suit

property in the litigation and to coerce the defendants to agree

to the illegal demands of the plaintiff.

5. Refuting the above arguments for the rejection of the

plaint under Order 7 Rule11, CPC the counsel for the plaintiff

submitted that:

Firstly, as the issues in the present case have been settled and

trial has already commenced, there is, thus, no question of

applicability of provisions of Order 7 Rule 11, CPC and the

present application has been filed by the defendants with the

sole intention to delay the present suit.

Secondly, the defendant's allegation that the complaints are

subjudice before the courts is completely false. In support of this,

the counsel for the plaintiff submitted that the said complaints

were closed by the police authorities and the application of the

defendants under section 156(3) of the Cr PC for the registration

of the F.I.R. was dismissed by the learned magistrate vide order

dated 5.5.2011 in CC No. 09/1. The defendants then filed a

Revision Petition before the Learned Additional Session Judge,

Patiala House, New Delhi, in Crl Revision No. 16 of 2011, which

was also dismissed by the Learned Additional Session Judge vide

order dated 31.10.2011. The civil suit filed by the defendants has

also been withdrawn by the defendants. Such dismissal of

complaints by the court and the withdrawal of the civil suit by

the defendants clearly establish the fact that the complaints are

not subjudice and that they were falsely made to the authorities

with a sole intention to tarnish the reputation of the plaintiff.

6. Based on these submissions, the counsel for the plaintiff

submitted that there exists a clear cause of action on the part of

the plaintiff to file the present suit and the application filed by

the defendants under Order7 Rule11, CPC cannot be allowed.

7. I have heard Ld. counsels for the parties and given

my deep thought to the arguments advanced by them.

8. The first objection raised by the plaintiff that the

instant application cannot be considered by the court at such

later stage affords outright rejection. The law is clear and well

settled that the trial court can consider the application under

Order VII Rule 11, CPC at any stage of the suit. This position was

explained by the Apex court in Saleem Bhai & Others v. State

Of Maharashtra & Ors. (2003), 1 SCC 557, wherein it was

observed that

"The trial court can exercise the power under Order VII Rule 11 Code of Civil Procedure at any stage of

the suit - before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial."

The above principle has been reiterated in Raptakos Brett And

Co. Ltd. V. Ganesh Property (1998) 7 SCC 184, Mayar (H.K.)

Ltd. And Others V. Owners And Parties, Vessel M.V.

Fortune Express And Others, (2006) 3 SCC 100 and recently

in The Church Of Christ Charitable Trust And Educational

Charitable Society, Represented By Its Chairman V.

Ponniamman Educational Trust Represented By Its

Chairperson/ Managing Trustee MANU/SC/0515/2012

9. Coming to the second objection raised by the plaintiff that

the complaints are not subjudice and they have already been

adjudicated in favour of the plaintiff by the court and hence

proved to be false and such false statements caused defamation

to the plaintiff, the court rejects the same too.

10. It is a settled law that to decide an application under Order

7 Rule11, CPC, the court has to look into the averments made in

the plaint and nothing else. Referring again to one of the above

mentioned cases which has given the guidelines for deciding an

application under Order 7 Rule 11,CPC, i.e. Saleem Bhai's

Case(supra) wherein it was observed by the Apex Court that:-

"A perusal of order 7 rule 11 CPC makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. ....For the purpose of deciding an application under clauses (a) and

(d) of Order 7 Rule 11,CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage..."

11. On a bare perusal of the averments in the plaint, it is a

clear admission on the part of the plaintiff that the civil suit

instituted by the defendants against the plaintiff is pending

adjudication. Also, as far as criminal complaints are concerned,

according to the plaintiff, the case has been closed by the

investigation officer and the complaint filed by the defendant had

been rejected. The submission of the plaintiff that the application

of the defendant under section 156(3) of the Cr. P.C for the

registration of the F.I.R. on the basis of said complaints before

the Metropolitan Magistrate , Patiala House, New Delhi, was

dismissed by the learned magistrate after considering it vide

orders 5.5.2011 in CC No. 09/1 and that the revision petition

filed by the defendant before the Learned Additional Session

Judge, Patiala House, New Delhi, in Crl. Revision No. 16 of 2011,

was also dismissed by the Learned Additional Session Judge vide

order dated 31.10.2011 and that the civil suit instituted by the

defendants has also been withdrawn by the defendants cannot be

looked into for deciding the present application as these

developments took place later during the pendency of the

present suit and due to that reason were never asserted in the

plaint.

Therefore, with the averments in the plaint not establishing the

fact that a competent court had declared that the complaints

filed with the police authorities were false, the contention of the

plaintiff that the statements made to the lawful authorities were

false cannot be accepted.

12. Now, for deciding the present application on the basis of

the averments made in the plaint, let us first look into the law on

defamation. It would be relevant to reproduce the observations

of the Apex Court in the case Pandey Surendra Nath Sinha v.

Bageshwari Pd. AIR 1961 Pat 164 which had discussed the

law on defamation in full length. The court observed as under:

A defamatory statement is one which has a tendency to injure the reputation of the person to whom it refers; which tends, that is to say,

to lower him in the estimation of right-thinking members of society generally and in particular to cause him to be shunned or avoided or regarded with feelings of hatred, contempt, ridicule, fear, dislike or disesteem, or to convey an imputation on him disparaging or injurious to him in his office, profession, calling, trade or business. Defamation, therefore, is the wrong done by a person to another's reputation by words, signs, or visible representations.

A wrong of defamation, as such, consists in the publication of a false and defamatory statement concerning another person without lawful justification.

The word 'defamation' is the generic name for the wrong; libel and slander are particular forms of it. Defamation, therefore, is of two kinds, namely, libel and slander. In libel the defamatory statement is made in some permanent and visible form in writing or otherwise recorded, such as, printing, typing, pictures, photographs, caricatures, effigies. In slander the defamatory statement or representation is expressed by speech or its equivalents, that is, in some other transitory form, whether visible or audible, such as, a nod, wink, smile, hissing, the finger-language of the deaf and dumb, gestures or inarticulate but significant sounds.

The actions of libel and slander are thus private legal remedies, the object of which is to make reparation for the private injury done by wrongful publication to a third person or persons of defamatory statements concerning the plaintiff. The defendant in these actions may prove the truth of the defamatory matter and thus show that the plaintiff has received no injury. For though there may be damage accruing from the publication, yet, if the facts published are true, the law gives no remedy by action.

In an action for libel the plaintiff should prove that the statement complained of (1)

refers to him; (2) is in writing, (3) is defamatory, and, (4) was published by the defendant to a third person or persons.

13. Deciding the issue whether statements made to the

lawful authorities can be made ground for defamation, in the

case of Pandey Surendra Nath V. Bageshwari Pd. (supra), it

was observed that

"If a person who makes the statements has an interest or duty, legal, social or moral to make it to the person to whom it is made, and the person to whom it is so made has as corresponding interest or duty to receive it such statement commands a privilege and cannot be made basis of an action for defamation."

14. The above principle was reiterated in the case of The

Punjabi Bagh Cooperative Housing Society Limited v. K.L.

Kishwar And Anr, 95 (2002) DLT 573 in which the court also

placed reliance on various English court judgments which are

reproduced as under

In Stuart v. Bell (1891) 2 Q.B. 354 and Smythson v.

Cramp, 1943 1 All E.R. 326, it was held that the occasion is

privileged where the defendant has an interest in making the

communication to the third party, and the third party has a

corresponding interest in receiving it. Reciprocity of interest is

essential. In Hebditch v. Macllwaine, (1894) 2 Q.B. 54, it was

observed that the interest must exist in the party to whom the

communication is made as well as the party making it. It is

sufficient that the defendants honestly and reasonably believe

that the person whom he made communication had an interest in

the subject matter thereof.

15. It has been held in Shri Ram Singh Batra v. Smt.

Sharan Premi, 133 (2006) DLT 126, that

"A complaint to a lawful authority is not actionable if it is not defamatory per-se unless it is established that the complaint is false and defamatory. Thus, till before the court of law it is not established that the FIR in question is based on a false allegation, no action is even maintainable."

16. Same has been held in the case of Prof. Imtiaz

Ahmad v. Durdana Zamir, 2009 (109) DRJ 357 , wherein it

was observed that:-

"Whenever a person makes a complaint against someone to the lawful authorities and in that complaint he makes imputations against the person complained of, it cannot be considered that the person has publicized or publically made defamatory averments against a person. If a prosecution is initiated against the person on the basis of such averments and the person is acquitted holding that the complaint was false, then only a cause of action arises against the complainant for launching a case for false prosecution or for damages on other grounds. Until and unless a competent court holds that complaint was false, no cause of action arises. Approaching a competent authority and praying that the authority should come to the rescue of the complainant

and prevent the interference of the plaintiff (in the family affairs of the defendant) cannot amount to defamatory imputation per-se and even if it is published, it does not tend to show that the defendant had tend to show that the defendant had intended to lower the reputation of the plaintiff."

17. Seeing the facts of the present case in the light of

well settled law as enunciated above, the complaints that are

filed by the defendants against the plaintiff are made to the

lawful authorities. As we have already discussed, what has to be

seen in deciding the application under Order 7 Rule 11, CPC, are

the averments in the plaint, and no subsequent facts, not even

the written statement can be considered in deciding such

application. It is clear, on the perusal of the averments made in

the plaint, that the present case is not that the court has

declared such complaints made by the defendants to be false.

Even if we consider the subsequent developments in the case,

which are, indeed, not required to decide the present