Delhi High Court
Kirti Azad vs Narinder Batra & Anr on 5 May, 2017
$~47
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO(OS)No.138/2017, CAV.No.457/2017 &
CM Nos.17236-38/2017
% Date of decision : 5th May, 2017
KIRTI AZAD ..... Appellant
Through : Mr. Manish Tewari, Mr. Amit
A. Pai and Mr. Rahat Bansal,
Advs.
versus
NARINDER BATRA & ANR ... Respondents
Through : Mr. Rajiv Nayyar, Sr. Adv.
with Mr. Shyel Trehan and Mr.
Manjira Dasgupta, Advs.
Mr. Akhil Anand and
Mr. Shivang Singh, Advs.
CORAM:
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MS. JUSTICE ANU MALHOTRA
JUDGMENT (ORAL)
GITA MITTAL, ACTING CHIEF JUSTICE
CAV.No.457/2017
As ld. counsel for the caveator has put in appearance, the caveat
stands discharged.
CM No.17238/2017
1. We have heard ld. counsel for the parties on this application.
2. We are satisfied that the appellants have adequately explained
the circumstances in which the delay in filing this appeal has
occasioned. The delay in filing the appeal is condoned.
The application is disposed of.
CM No.17237/2016
Allowed, subject to just exceptions.
The application is disposed of.
FAO(OS) 138/2017
3. The appellant assails the order dated 9th of March 2017 passed
by the ld. Single Judge dismissing I.A.No.8473/2016 filed by the
appellant/defendant under Order VII Rule 11 of the Code of Civil
Procedure seeking rejection of the plaint in CS(OS)No.72/2016 filed
by the respondents herein.
4. For reasons of clarity, we refer the appellant and respondents by
their appointment in the suit. The respondents/plaintiffs, filed the suit
seeking recovery of damages in the sum of Rs.10 crores for
defamation and for a decree of permanent injunction restraining the
defendant in future defaming the plaintiffs.
5. So far as description of the appellant/defendant is concerned, in
para 5 of the plaint, it was stated thus: (Page 23 para 5)
"5. The plaintiffs have instituted the suit pleading (i) that
the plaintiff no,.1 is the President of the plaintiff no.2; (ii)
that the plaintiff no.2 is a registered Society engaged in the
promotion, organization and development of hockey in
India and is the sole body responsible for the governance
of hockey in India; (iii) that the plaintiff no.1 is also the
Vice President on the Executive Board of the Asian Hockey
Federation and a member of the Executive Board of the
International Hockey Federation; (iv) that the plaintiff no.1
has served in and managed national and regional sports
organization and has earned a distinct regard and
reputation for his work and integrity; (v) that the plaintiff
no,.2 Hockey India has been granted recognition by the
Government of India, Ministry of Youth Affairs and Sports
as the National Sports Federation for the sport of hockey in
India; (vi) that the plaintiff no.2 Hockey India was granted
affiliation with the International Hockey Federation; (vii)
that the plaintiff no.2 Hockey India is also recognized by
the Indian Olympic Association as the Central Authority
responsible for all matters relating to hockey in India;
(viii) that the defendant is a renowned cricketer on the
international stage and a Member of Parliament (Lok
Sabha) and a member of various Parliamentary
Committees; (ix) that the defendant has made completely
false statements against the plaintiffs, with the knowledge
and intention of causing injury to the reputation and public
image of the plaintiffs and has succeeded therein; (x) that
the highly malicious, defamatory, reckless, baseless, false
and libellous statements against the plaintiffs are aimed at
maligning the public image of the plaintiffs and generating
adverse public opinion against the plaintiffs; and, (xi) the
defendant has repeatedly written various communications
to the Finance Minister, Minister of Sports and Youth
Affairs and various senior officials of the Sports Ministry,
with false allegations against the plaintiffs, with the sole
intention of maligning the images of the plaintiffs."
6. The plaintiff had thereafter in para 6 complained that the
defendant had made completely false statements against the plaintiff
with the knowledge and intention of causing injury to their reputation
and public image as well as mental harassment to the plaintiff no.1. It
was specifically alleged in para 6 that highly malicious, defamatory,
reckless, baseless, false and libellous statements against the plaintiff
aimed at maligning the public image of the plaintiffs stood made by
the defendant who, it asserted had "repeatedly" written various
communications to the Finance Minister, Minister of Sports and
Youth Affairs and various senior officials of the Sports Ministry
making false allegations with the said intention against the plaintiffs.
7. We extract hereafter the specific averments in this regard
contained in para 7 of the plaint :
"7. The plaintiffs have also pleaded that all the
aforesaid letters have wide circulation to various officials
of Ministry of Youth Affairs and Sports and are read by
officials of both Ministry of Finance and Ministry of
Sports. It is further the plea of the plaintiffs (i) that the
statements of the defendant are false, malicious and
defamatory and have been made with reckless disregard
of the truth; (ii) that the defendant has clearly misused his
position of power and responsibility to malign the image
and reputation of the plaintiffs and to discredit the
plaintiffs; (iii) that the defendant is attempting to promote
Indian Hockey Federation which was disaffiliated from the
International Hockey Federation in the year 2000 and
which from the year 2000 to 2008 had perpetrated a
complete sham on the International Federation; (iv) that
the defendant has misused his role as Member of
Parliament to further his ambitious as a sports
administrator in various organizations of which he is a
member or otherwise associated; (v) that the impact of the
publication of such communications is not confined to
the officials of the Ministries of Finance and Sports
Affairs but also with the officials of Central Bureau of
Investigation (CBI), Central Vigilance Commission
(CVC), with several people expressing great shock at the
contents of the said article; (vi) that the plaintiff no.1 has
been subjected to humiliation at social gatherings where
the contents of these communications have been
discussed and questions have been raised by members of
the sports fraternity to whom the defendant circulated the
communication; (vii) that the statements have tarnished
the image of the plaintiffs and self respect of the plaintiff
no.1; and (viii) the statements have tarnished the image of
the plaintiff no.2, in the eyes of hockey players, sponsors
and Government officials and other sports organization at
national and international levels."
(Emphasis by us)
Thus, from the above, it appears that the plaintiff had
complained in the plaint, not only with regard to alleged mis-
representations and allegations made by the defendant in
communications addressed to Cabinet Ministers, but also to senior
officials of the Sports Ministry as well as the communications which
were distributed by the defendants to various office bearers of M/s
Hockey India.
8. Upon receipt of the summons in the suit, the
appellant/defendant filed an application being I.A.No.8473/2016
dated 3rd June, 2016 (under Order VII Rule 11 C.P.C.) seeking
rejection of the plaint on the following grounds which have been
noted in para 3 of the impugned order dated 9th March, 2017:
"3. The defendant seeks rejection of the plaint on the
ground that (i) allegedly defamatory statements attributed
to him are privileged and are made by the defendant as a
public representative to the authorities in the Government
seeking investigation by the authorities of various
irregularities and cannot constitute defamation; (ii) that
the allegations in the plaint are vague; (iii) that the
plaintiffs have not made any averments or specific pleading
in respect of publication of the allegedly defamatory
statements; the averments in the plaint are wholly based on
documents which have been obtained by the plaintiffs
under the Right to Information (RTI) Act, 2005; and, (iv)
that the plaintiffs in the plaint have loosely used the word
"libel" or "defamation", without substantiating the same."
9. Upon consideration of the matter, the application was rejected
by the ld. Single Judge by the order dated 9 th March, 2017 concluding
that the grounds on which the rejection was sought, were not made
out.
10. Before us, this order dated 9th March, 2017 is assailed primarily
on the ground that the ld. Single Judge has misconstrued the privilege
allowed to a Member of Parliament by virtue of Article 105 of the
Constitution of India. It is contended that this privilege applies to all
dealings of the Member of Parliament and that, the suit for defamation
premised on communications addressed by such Member of
Parliament in official capacity to the authorities, is not maintainable.
11. We find that, in view of this objection being pressed, the ld.
Single Judge has considered in detail the contours of the privilege
conferred on the Member of Parliament under Article 105 of the
Constitution of India and observed that Article 105 could not be read
as allowing a Member of Parliament to, even outside the Parliament,
in the name/garb of being a representative of the people of its
constituency or in public interest, make statements which are
defamatory, without being liable therefor.
12. We may also usefully extract hereunder Article 105 of the
Constitution of India which reads thus:
"105. Powers, privileges, etc of the Houses of Parliament
and of the members and committees thereof
(1) Subject to the provisions of this constitution and the
rules and standing orders regulating the procedure of
Parliament, there shall be freedom of speech in Parliament
(2) No member of Parliament shall be liable to any
proceedings in any court in respect of anything said or
any vote given by him in Parliament or any committee
thereof, and no person shall be so liable in respect of the
publication by or under the authority of either House of
Parliament of any report, paper, votes or proceedings
(3) In other respects, the powers, privileges and immunities
of each House of Parliament, and of the members and the
committees of each House, shall be such as may from time
to time be defined by Parliament by law, and, until so
defined shall be those of that House and of its members and
committees immediately before the coming into force of
Section 15 of the Constitution (Forty fourth Amendment)
Act 1978
(4) The provisions of clauses ( 1 ), ( 2 ) and ( 3 ) shall
apply in relation to persons who by virtue of this
constitution have the right to speak in, and otherwise to
take part in the proceedings of, a House of Parliament or
any committee thereof as they apply in relation to
members of Parliament."
(Emphasis by us)
13. A bare reading of the Constitutional provision would show that,
so far as the protection and privilege under Article 105 is concerned,
sub clause (2) of Article 102 clearly states that Member of Parliament
shall not be liable to any proceedings in any court "in respect of
anything said or any vote given by him in Parliament or any
committee thereof". The said privilege does not extend to
representations and communications addressed by a Member of
Parliament not only to other Parliamentarians but also to members of
the general public, which in the present case, included office bearers
of M/s Hockey India.
14. In support of these observations, the ld. Single Judge has placed
reliance on the pronouncement of the Supreme Court reported at
(1970) 2 SCC 272 Tej Kiran Jain & Ors. vs N. Sanjiva Reddy & Ors.
wherein it was held that Article 105(2) though gives immunity in
respect of everything said in Parliament but subject to the limitation
that it should have been said during the sitting of Parliament and in
the course of business of Parliament.
15. It is also trite that so far as the consideration of an application
for rejection of plaint under Order VII Rule 11 of the CPC is
concerned, the same has to be tested on demurer. The court has to
examine the prayer for such rejection assuming the averments in the
plaint as correct. Defence of the defendant cannot be pressed into
service to seek rejection of the plaint under Order VII Rule 11 C.P.C.
16. Mr. Rajiv Nayyar, ld. Senior Counsel for the
respondents/caveators has placed before us a pronouncement of this
court reported at (2015) 217 DLT 79 (DB), T. Muralidhar vs. PVR
Murthy wherein settled principles of law were relied upon and
reiterated in the following terms :
"Scope of inquiry under Order VII Rule 11 of the Code of
Civil Procedure
7. While construing the plaint from the perspective of its
rejection for want of cause of action or its being barred by law
under Order VII Rule 11 of the Code of Civil Procedure, the
Supreme Court has unequivocally declared that the court
should not pick out averments in the plaint in isolation but has
to conduct its meaningful reading. In this regard, reference
may be made to (1977) 4 SCC 467 T. Arivandandam v. T.V.
Satyapal wherein it was held that:
"5. ...The learned Munsif must remember that if on a
meaningful-not formal-reading of the plaint it is
manifestly vexatious, and meritless, in the sense of not
disclosing a clear right to sue, he should exercise his
power under Order VII Rule 11, C.P.C. taking care to see
that the ground mentioned therein is fulfilled. And, if
clear drafting has created the illusion of a cause of
action, nip it in the bud at the first hearing by examining
the party searchingly under Order X, C.P.C. An activist
Judge is the answer to irresponsible law suits. The trial
Courts would insist imperatively on examining the party at
the first hearing so that bogus litigation cam be shot down
at the earliest stage. The Penal Code is also resourceful
enough to meet such men, (Ch. XI) and must be triggered
against them. In this case, the learned Judge to his cost
realised what George Bernard Shaw remarked on the
assassination of Mahatma Gandhi.
"It is dangerous to be too good." (underlining by us)
xxx xxx xxx
10. Cause of action is that bundle of facts which are required
to be pleaded and proved for the purpose of obtaining relief
claimed in the suit. It is trite that only material facts are
required to be stated and that evidence can be lead only on
such facts as have been specifically pleaded.
11. It is equally well settled that so long as the plaint
discloses some cause of action or raises some questions of
facts to be decided by a judge, the mere fact that the case is
weak and not likely to succeed would not be a ground for
striking it out. The failure of the pleadings to disclose a cause
of action is distinct from the absence of full particulars (Ref.
(1994) 2 SCC 392 Mohan Rawale v. Damodar Tatyaba @
Dadasaheb.)"
(Emphasis by us)
17. Placing reliance on the pronouncement of the Supreme Court,
the ld. Single Judge has held that the appellant has been unable to
establish that his representations, which have given rise to the cause of
action for filing the suit, were privileged communications within the
meaning of the expression in the Constitution of India. We have
noted the Constitutional provision in Article 105 and found that it
confines privilege of the Member of Parliament to proceedings in the
Parliament. It does not extend to actions of the Member of Parliament
outside the House, as in the present case.
18. The respondent/plaintiff in the present case, as extracted above,
has specifically complained in para 7 of the plaint (and elsewhere)
that the defendant had circulated defamatory letters to "various
officials" of two ministries, officials of the Central Bureau of
Investigation, Central Vigilance Commission; being subjected to
humiliation at social gatherings; questions about the plaintiff being
raised as a result amongst members of the sports community. As per
the plaint, these amongst other acts, have given rise to the cause of
action for filing of the suit.
19. Before us, Mr. Tiwari, ld. Senior Counsel for the appellant does
not press the rejection of the plaint on the ground that on the face of
the plaint, it does not disclose cause of action for filing the suit.
20. We hasten to clarify that we have not expressed any opinion on
the merits of the plaintiff's case which has to abide by final
adjudication after recording of evidence.
21. Furthermore, the grounds on which the application being
I.A.No.8473/2016 was filed, which are the very grounds pressed in
this appeal, are concerned , the same are in the nature of the defence
of the appellant.
The order dated 9th March, 2017 clearly cannot be assailed on
any legally tenable grounds.
22. In view of the above discussion, the challenge by way of the
present appeal is clearly misconceived and is hereby rejected.
23. We may note that Mr. Rajiv Nayyar, ld. Senior Counsel for the
respondents has pressed an objection with regard to the appeal being
precluded under Order XLIII of the CPC. An examination of Rule 1
of Order XLIII would show that an appeal is provided under sub-rule
(a) of Rule 1 of Order VII only against an order passed under Rule 10
of Order VII returning the plaint to be presented in a proper form. Ld.
counsels have argued the matter on merits and we have even
otherwise, rejected the appeal.
This appeal is therefore, dismissed.
CM No.17236/2017
In view of the orders passed in the main appeal, this application
does not survive for adjudication which is hereby dismissed.
ACTING CHIEF JUSTICE
ANU MALHOTRA, J
MAY 05, 2017
aj
