Dr. Prof. Ashok Kumar Keshari vs Manika Gupta And Ors.
2014 Latest Caselaw 6068 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                         Judgment reserved on: 18.09.2014
%                                        Judgment delivered on: 24.11.2014

+                          IA Nos.1742/2012 & 2193/2013
                           In CS(OS) 378/2011

DR. (PROF.) ASHOK KUMAR KESHARI                              ..... Plaintiff


                           Versus


MANIKA GUPTA AND ORS.                                        .....Defendants

Advocates who appeared in this case:
For the Petitioner  :     Mr. Ashok Gurnani and Mr. Jai Singh, Advocates
For the Respondents :     Mr. S.N. Tripathy, Advocate for D-1 & 2
                          Mr. Dinesh Kr. Gutpa, Adv. For D-5, 7 & 8
                          Mr. Arjun Mitra, Adv. For D-6, 9 & 10

CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER

RAJIV SHAKDHER,J
IA No.1742/2012 (u/O. 7 R. 11 CPC by D-1 & 2) and IA No.2193/2013
(u/O. 7 R. 11 CPC by D-5, 7 & 8)

1.     Interlocutory application (IA) No.1742/2012 has been filed by
defendant nos.1 and 2 while the other application, being: IA No.2193/2013
has been filed by defendant nos.5, 7 & 8. These are applications filed for
seeking rejection of the plaint.
2.     The grounds articulated in the application are broadly as follows :
First, that the suit filed which is a suit for defamation is barred by limitation.
Second, the plaint has not been verified in accordance with the provisions of
Order VI Rule 15 of the Code of Civil Procedure, 1908 (in short CPC). In



CS(OS) 378/2011                                                      Page 1 of 15
 this behalf, it is stated that the verification of the plaint is by one, Mr. Suresh
Kumar Keshari, said to be the brother of the plaintiff. It is averred that Sh.
Suresh Kumar Keshari not being, in any way personally involved with or in
the knowledge of the allegations made in the plaint could not have verified
the plaint in the manner in which the verification has been carried out.
Lastly, the suit as instituted by Mr. Suresh Kumar Keshari on behalf of the
plaintiff is without authority in as much as it is based on a special power of
attorney which empowers the power of attorney holder to deal with the
property of the plaintiff and not institute a suit for defamation.
2.1    I must also note that arguments were also advanced on behalf of
defendant no.6, 9 & 10, who have raised the very same assertions, though no
application has been filed on their behalf.          In addition to the above
submissions, it is averred on behalf of the said defendants that there is no
cause of action arising as against them as they have neither spoken nor
published any defamatory statement against the plaintiff.
FACTS

3. In the background of what is stated above, all that, I am required to see, at this stage, while dealing with the captioned applications is, the averments made in the plaint.

3.1 Broadly, the suit for defamation has been filed against 10 defendants. Defendant no.1 & 2 are the original complainants, who had filed a complaint against the plaintiff alleging sexual harassment. Defendant nos.3 and 4 are apparently students in IIT, Delhi, while defendant nos.5 to 8 and 10 are professors who like plaintiff are employed by IIT, Delhi. Defendant no.9 is an employee of IIT Delhi who was appointed as a Presenting Officer in a departmental enquiry conducted against the plaintiff. 3.2 Though the plaint is prolix running into nearly 140 paragraphs, it does

not detail out with specificity the role of each of the defendants; the averments are diffused and sprayed all over. There are allegations though against each of the defendants with regard to their alleged role in defaming and / or maligning the reputation of the plaintiff.

4. Therefore, before I proceed further, it may be relevant to give a synoptic view of the facts which led to the institution of the suit: - 4.1 Defendant nos.1 and 2 evidently, joined the plaintiff, as research students for obtaining a Ph.D on 02.01.2007.

4.2 Between January, 2007 and May, 2007, defendants went on field trips with the plaintiff. These field trips took the defendants to places outside Delhi. It is suggested that while defendant no.1 went on two field trips, defendant no.2 went on one field trip with the plaintiff. It is also averred that though defendants did not perform as they should have, the plaintiff gave both defendants good grades in May 2007. This averment is followed by an averment to the effect that on 15.05.2007, the plaintiff declined to give a "satisfactory progress report" which, perhaps, was necessary for award of final grades qua defendant nos.1 and 2's research in the first semester. This report, it is suggested, apparently, led to an application being filed by the said defendants on 06.06.2007, for change of supervisor. The complaints, filed by defendant nos.1 and 2, are dated 06.06.2007. In these complaints, the reason put forth is, that the defendants, were harassed. Defendant no.2 in fact has been more specific in a sense that she has stated that she was eve- teased.

4.3 These complaints set into motion constitution of a Fact Finding Committee, followed by a departmental enquiry. In the departmental enquiry, the plaintiff was exonerated of the charges framed against him primarily on the ground that complaints made, could not be corroborated

beyond doubt. It appears thereafter based on a representation of defendants that the plaintiff during the course of the enquiry had, made the remark qua them that: "That I should have raped her", he was censured vide order dated 16.03.2010. The reasons qua what are evidently given in decision taken by the Board of Governor of IIT, Delhi at their meeting held on 11.03.2010. 4.4 The conclusions of the Enquiry Committee have been accepted by the Board of Governors of IIT. I was informed that both the plaintiff as well as defendant nos.1 and 2 have assailed the said decision of the Board of Governors. While, writ petition bearing nos.3821/2010 has been filed by the plaintiff, WP(C) 8701/2011 has been filed by defendant no.1. Both writ petitions are pending adjudication.

4.5 It is in the aforesaid circumstances that the instant suit was filed on 14.02.2011.

SUBMISSIONS OF COUNSELS

5. Based on the above, arguments on behalf of defendant nos.1 and 2 were advanced by Mr. S.N. Tripathy, while on behalf of defendant nos. 5 to 8 submissions were made by Mr. Dinesh Kumar Gupta. Mr. Arjun Mitra represented defendant nos.6, 9 and 10. The written submissions of Mr. S.N. Tripathy suggests that he represents defendant no.3, as well. The plaintiff was represented by Mr. Ashok Gurnani, Advocate.

6. The submissions advanced by counsels for the defendants had a common strain. They dilated upon their objections to the maintainability of the suit, as indicated hereinabove. It was argued by the counsels for the defendants that the cause of action, if any, for institution of the suit arose on, 06.06.2007 when, the impugned letters were written by defendant nos.1 and 2, seeking a change of supervisor on account of alleged harassment by the plaintiff. It was thus, contended that if the statements made in the said

complaints constituted defamation of the plaintiff then, the instant suit ought to have been filed within one year of its publication, which is the period of limitation prescribed under Article 75 of the Limitation Act, 1963. 6.1 The counsels for the defendants also submitted that the plaint, in any case, was not verified as required under the provisions of Order VI Rule 15 of the CPC in as much as paragraphs 1 to 136 are stated to be true and correct to the best knowledge of the deponent, while paragraphs 137 to 141 are stated to be true and correct as per information received by the very same deponent. The deponent in this case is one, Sh. Suresh Kumar Keshari, who is the brother of the plaintiff. It was contended that since Sh. Suresh Kumar Keshari, was in no way connected with the publication of the alleged libel, he could not have verified the plaint in the manner in which, it has been done. It was also submitted that Sh. Suresh Kumar Keshari was neither employed nor connected with IIT, Delhi in any manner whatsoever and therefore, had no personal knowledge of the averments made in the plaint. In this behalf, learned counsels for the aforementioned defendants submitted that objection qua this aspect was taken in the very first instance in their respective written statements, despite which, an affidavit was filed by the plaintiff only on 10.09.2014, seeking to substitute the power of attorney holder's affidavit accompanying the plaint with his own affidavit. In this regard, provisions of Order XIX Rule 3 of the CPC were also relied upon by the said defendants.

6.2 In support of this submission, counsels submitted that even if it is assumed that by such a defective affidavit filed in support of the averments made in the plaint could be cured, the defect had to be cured within the period of limitation and, not after, nearly, three years and seven months of the institution of the suit. As matter of fact, it was pointed out that most of

the written statements were filed in 2011, followed by the captioned applications, which were filed in 2012 and 2013.

6.3 The counsels for the defendants also submitted that the suit was instituted by Sh. Suresh Kumar Keshari on behalf of the plaintiff based on a special power of attorney dated 10.07.2010. This power of attorney on the face of it empowers Sh. Suresh Kumar Keshari to deal with an immovable property and not institute a suit for defamation against the defendants. It was further contended that an affidavit filed to cure this defect as well by the plaintiff, which is dated 10.09.2014, could not have cured the defect as, it only ratifies all acts and deeds of the plaintiff's attorney i.e., Sh. Suresh Kumar Keshari taken on the basis of the special power of attorney dated 10.07.2010.

7. The learned counsel for the plaintiff, on the other hand, submitted that the cause of action for institution the present suit arose only after the Enquiry Committee had submitted its report in November 2009 whereby, he was exonerated of the charges levelled against him: a decision which was accepted by the Board of Governors of IIT, Delhi and conveyed to the plaintiff vide communication dated 16.03.2010. It was his submission that the period of limitation under Article 75 of the Act would commence only from this point onwards. In any event, he submitted that since there is a specific averment that the defendants had published a poster concerning the plaintiff in August - November 2010, the suit was within limitation. In the written submissions filed on behalf of the plaintiff, there is a reference to several paragraphs in the plaint to demonstrate how cause of action would arise against each of the defendants. There is a specific reference to paragraphs 47 and 103 of the plaint which according to the plaintiff contains allegations with regard to all defendants; albeit generally.

7.1 Mr. Gurnani further contended that issue of limitation is, in this case, a mixed question of fact and law and hence, the plaint could not be rejected at this stage, without the suit being put up to trial.

7.2 In so far as the objection to the continuation of the suit on the alleged ground of cause of action was concerned, Mr. Gurnani said that the plaint will have to be read holistically. He submitted that a conjoint reading of the averments made in the plaint would demonstrate that apart from individual actions which, constituted a defamation of the plaintiff, the allegation is that, the defendants also conspired in publishing defamatory statements against the plaintiff. The best example of this, according to Mr. Gurnani, is the poster, which was pasted by the defendants in August-November 2010. 7.3 As regards the other two objections taken with regard to the verification of a plaint by Sh. Suresh Kumar Keshari and the limited nature of the power of attorney, Mr. Gurnani relied upon the additional affidavits dated 10.09.2014 filed by the plaintiff to which, I have already made a reference above.

REASONS

8. Having heard the learned counsel for the parties and perused the record, the first question, which needs to be addressed is : whether the suit is barred by limitation under Article 75and/or 76 of the Act? The period of limitation prescribed under Article 75 is one year from the date when the libel is published. Similarly, for slander, under Article 76 the period of limitation is one year when, slanderous words are spoken or if the words are not actionable by themselves when, special damage complained of results therefrom. There are references to other defamatory statements qua defendant nos.1 and 2 in paragraphs 17, 46, 67 and 124, as well. Admittedly, defendant nos.1 and 2 filed their complaints, which are dated

06.06.2007, around that time; about this, there is no dispute. 8.1 Similarly, vis-a-vis other defendants, there are allegations of defamation qua them, as well.

8.2 I am not specifically adverting to the allegations made against the defendants, generally, as in paragraph 47 of the plaint, the plaintiff avers that the defendants conspired and put out posters with his photograph which contained the libellous statement that he was a "sexual harasser". It is further averred that these posters were pasted in various places in the campus of IIT, Delhi.

8.3 Similarly, in paragraph 138 of the plaint, as indicated hereinabove, there is a reference to this very aspect though, the period referred to is : August - November, 2010.

8.4 In these circumstances, any action based on defamatory statements made prior to February 2010, in my view, would be barred by limitation. The fact that there is a fresh publication in the form of posters would, in my view, bring the suit within limitation.

8.5 At this juncture, I must note two arguments, one advanced on behalf of Mr. Gurgani and the other on behalf of the defendants. Mr. Gurnani's argument that the period of limitation would not commence till such time the plaintiff received a communication about his exoneration from the Board of Governors in March 2010 is, in my view, untenable.

8.6 The language of Articles 75 and 76 do not contemplate such a situation. Mr. Gurnani, in my view, is confusing a tortuous action for defamation; the limitation for which is governed by Articles 75 and 76 of the Act, with that, which pertains to compensation for malicious prosecution; that too, if departmental inquiry conducted against the plaintiff can be equated with prosecution. In such an eventuality, perhaps the plaintiff could

have argued that the period of limitation would kick-in only when the plaintiff was acquitted or the prosecution against him was terminated. The instant action, however, is one for claiming damages for defamation and hence, this argument, in my view, is misconceived.

8.7 This brings me to the argument advanced on behalf of the defendants that the publication of the poster would not supply a fresh cause of action and that, in this behalf a judgment of the single Judge of this court in the case of Khawar Butt Vs. Asif Nazir Mir and Ors., 2013 (139) DRJ 157, was cited. It was contended that substantially via the poster, the defamatory statement alleged to have been made against the plaintiff was that he had sexually harassed defendant nos.1 and 2 and, therefore, the publication of the poster did not supply any fresh cause of action.

8.8 I am unable to accept this contention advanced on behalf of the defendants for a simple reason that though one of the ingredients may have been the same (which is the alleged sexual harassment of defendant nos.1 and 2, though there are reference to other such incidents in the course of enquiry), the form and manner in which the publication has been made persuades me to hold that it supplies a fresh cause of action. In the poster, there is no direct reference to the complaints of defendant nos.1 and 2, though it alludes to the fact that enquiry vis-a-vis the misdeed of the plaintiff would begin shortly wherein, his "lecherous dispositions", shall stand exposed.

8.9 The case cited by the defendants pertains to posting of libelous statements on the internet. The judgement raises and answers the issue : whether leaving defamatory statements on the internet / face book would give rise to a fresh cause of action. In this context, the court considered the multiple publication rule which, prevailed in United Kingdom till its

amendment by Defamation Act, 2013 which, brought in the single publication rule. This court accepted the view of the American Courts which, put in use the single publication rule. The relevant observations of the court are contained in paragraph 38, which for the sake of convenience is extracted hereinbelow:-

"....38. I am of the view that the Single Publication Rule is more appropriate and pragmatic to apply, rather than the Multiple Publication Rule. I find the reasoning adopted by the American Courts in this regard to be more appealing than the one adopted by the English Courts, prior to the amendment of the law by the introduction of the Defamation Act, 2013. It is the policy of the law of limitation to bar the remedy beyond the prescribed period. That legislative policy would stand defeated if the mere continued residing of the defamatory material or article on the website were to give a continuous cause of action to the plaintiff to sue for defamation/ lible. Of course, if there is re-publication resorted to by the defendant - with a view to reach the different or larger section of the public in respect of the defamatory article or material, it would give rise to a fresh cause of action....."

8.10 As is clear, from a reading of the judgment that, these are cases where the same defamatory material is accessed whether on the web or by way of re-publication of a book or periodical or any other defamatory material. The instant case, is one, in which, it was not the original complaint made by defendant nos.1 and 2 which were published but a poster of the plaintiff was published allegedly not by defendant nos.1 and 2 alone but by all defendants. Furthermore, the caveat entered in the judgment that if the re- publication was designed to reach a larger cross section of the public would give rise to a fresh cause of action, in my view, makes the ratio of the judgment inapplicable to what obtains in case.

9. This brings me to the other aspect, as to whether the instant plaint is

meets the parameters of Order VI Rule 15 and Order XIX Rule 3 of the CPC. Sub-Rule (1) of Rule 15 of Order VI, clearly provides that save as otherwise provided by any law for the time being in force every pleading shall be verified at the foot by the party or by any one of the parties pleading or by some other person who would to the satisfaction of the court to be acquainted with the facts of the case. Sub-Rule (2) of Rule 15 requires the person, verifying the plaint to number those paragraphs of the pleadings which are based on his own knowledge while distinguishing those he verifies upon information received and believed to be true. Under Sub-Rule (3) of Rule 15 of Order VI, the verification is to be signed by the person making it, which is required to be accompanied by the date on which and the place on which it is signed.

9.1 Rule 1 of Order XIX of the CPC empowers the court to direct at any time and for sufficient reason, any particular fact or facts to be proved by way of an affidavit, or that, affidavit of any witness may be read at a hearing on such conditions as the court thinks reasonable. The proviso though places a caveat, which is, where it appears to the court that either party bonafide desires production of a witness for cross-examination and such a witness can be produced, then it may dispense production of evidence by way of affidavit..

9.2 Rule 2 of Order XIX empowers the court to direct cross-examination of the deponent even where evidence is filed by way of affidavit. The cross- examination unless so exempted by the court, is to take place in court. 9.3 Rule 3 of Order XIX mandates that the affidavit so filed shall be confined to such facts, as the deponent is able to prove of his own knowledge. This, of course, does not apply to affidavits accompanying interlocutory applications. Sub-rule (2) of Rule 3 is indicative of the fact

that affidavit so filed should not include matters which are hearsay, argumentative in nature or supply copies or extracts of documents. The deponent of such affidavit can be mulct with cost by the court unless otherwise directed by it.

10. No doubt, prima facie, it may appear that the verification by Mr Suresh Kumar Keshari, is suspect, as he was in no way involved or connected with the impugned allegation of sexual harassment by defendant nos. 1 and 2 or the events and publications which took place thereafter, and thus, could not have stated that averments made in paragraphs 136 are true to the best of his knowledge, however, these are not defects which are not curable in law. The provisions of Order VI Rule 15 and/or Order XIX Rule 3 are found on the statute book so as to make the person, i.e., the deponent responsible for the averments made in the plaint. A false verification may lead to legal consequences, including punishment under Section 199 of the Indian Penal Code, 1860. Whether Suresh Kumar Keshari had personal knowledge of the averments made in paragraphs 136 of the plaint, is an aspect which perhaps can be ascertained only at the stage of trial as at this stage the court would have to look to only the plaint.

11. Furthermore, the plaintiff. i.e., Dr. (Prof.) Ashok Kumar Keshari has attempted to cure the defect by filing an affidavit dated 10.09.2014. In the affidavit, the plaintiff avers that the contents of the plaint dated 01.02.2011 are true and correct to his knowledge, while the legal submissions made therein are true on the information received and believe to be true. Whether this affidavit of the plaintiff has cured the defect or not, is also an aspect which only the trial of the suit would unravel. That the defect is curable is no longer res integra. (See Gurjant Singh vs Krishan Chander & Ors. AIR 2001 Raj 211 and Bal Mukund Prasad Gupta & Ors. Vs Mathura Prasad

AIR 2002 Allahabad 363.]

12. Similarly, vis-a-vis the issue that the special power of attorney dated 10.07.2010, did not invest him with the necessary power to institute the present suit, is an aspect which will have to go to trial. I must, however, confess that the power of attorney by itself, when read holistically, does seem to empower Suresh Kumar Keshari to institute the suit on behalf of the plaintiff [i.e., Dr. (Prof.) Ashok Kumar Keshari], only, with respect to the immovable property referred to in the recital (see clause 1 and 3 of the power of attorney), and that, the power to institute a suit for recovery, compensation, as found in clause 6 of the very same document, can only relate to the said property - it is not an aspect on the basis of which the plaint can be rejected, at this stage. This is for the reason that de hors the document (i.e., the special power of attorney dated 10.07.2010) the trial may reveal that the plaintiff, i.e., Dr. (Prof.) Ashok Kumar Keshari, by his conduct or otherwise, had ratified the actions of Sh. Suresh Kumar Keshari. As a matter of fact, the plaintiff, i.e., Dr. (Prof.) Ashok Kumar Keshari has attempted to cure this defect as well, by filing an affidavit which is also dated 10.09.2014, wherein he says that I ratify the acts and deeds of Suresh Kumar Keshari, based on the special power of attorney dated 10.07.2010. As indicated above, the scope and effect of this ratification may have to be examined at the stage of the trial of the suit.

13. The arguments advanced on behalf of the aforementioned defendants that these affidavits should have been filed within the period of limitation and not after three years of filing of the suit, are also untenable for the reason that, if the defects with regard to verification and the purported lack of power to institute the suit is curable, as observed by me hereinabove, then the corrective action taken, would relate back to the date of institution of the

suit. [See United Bank of India vs Naresh Kumar & Ors. (1996) 6 SCC 660].

14. The judgement of the Division Bench of this court in the case of Miraj Marketing Corporation vs Vishaka Engineering & Anr. 115 (2004) DLT 471, is distinguishable as the said judgement was passed in an appeal by a Division Bench of this court, after the suit had been adjudicated upon both by the trial court and, in an appeal, by the first appellate court. In the instant case, parties have not reached the stage of trial.

15. This brings me to the last submission made on behalf of the defendants that the plaint discloses no cause of action against them. It is to be noted, that under Order VII Rule 11(a), a plaint can be rejected on the ground that it does not disclose a cause of action and not that there is no cause of action. The two expressions convey a materially different meaning. While based on the former, the plaint can be rejected, the latter becomes a subject matter of trial. The sense I get from this submission, especially with regard to defendants, who took part in the deliberations of the inquiry committee, in their official capacity, that the utterances made by them or communications issued by them, could not have formed the basis of action of defamation qua them, since they would be entitled to claim absolute and/or qualified privilege with respect to such actions, and that, the plaintiff was motivated by malice, in impleading them as parties to present proceedings. If that be so, these are aspects, on which conclusions can be reached only after evidence is led by parties, which is in consonance with pleadings made in that behalf. The plaint cannot be rejected under the provisions of Order VII Rule 11(a), at this stage, on this ground, having regard to the state of the pleadings.

16. For the reasons given above, I find no merit in the captioned

applications. The same are, accordingly, dismissed.

17. Needless to say, any observations made above, will not impact the merits of the case.

CS(OS) 378/2011

18. List before the roster Bench on 27.11.2014, for framing of issues.

RAJIV SHAKDHER, J NOVEMBER 24, 2014 yg/kk