Ajay Pal Sharma vs Udai Veer Singh
2020 Latest Caselaw 2277 Del

$~5 (original side)
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     CS(OS)139/2020         &      I.A.4364/2020,       I.A.6102/2020,
      I.A.6103/2020

      AJAY PAL SHARMA                                  ...Plaintiff
                   Through:             Mr. Sameer Kumar and Aditya
                                        Shankar, Advs.

                          Versus


      UDAIVEER SINGH                                  ... Defendant
                   Through:             Mr. Saurabh Kirpal and Mr.
                                        Anuroop Chakravarti, Advs.

      CORAM:
      HON'BLE MR. JUSTICE C. HARI SHANKAR

                      JUDGEMENT (ORAL)

      %                     28.07.2020
                      (video conferencing)


I.A. 6102/2020 (for condonation of delay)

1. For the reasons stated in the application, the delay of two days, in filing the rejoinder, is condoned. Rejoinder is taken on record.

2. The application is disposed of.

I.A. 6103/2020

1. Subject to the attested affidavit being filed within 72 hours of resumption of normal court work, exemption, as sought, is granted for the present.

2. The application is disposed of.

IA 4364/2020 (Order XXXIX Rules 1 and 2 CPC) in CS(OS) 139/2020

1. Detailed arguments were heard, on this IA, as advanced by Mr. Saurabh Kirpal, learned counsel for the defendant and Mr. Sameer Kumar, learned counsel for the plaintiff.

2. Consequent thereupon, it transpires that the present IA may be disposed of, without entering into the merits of the controversy.

3. For the sake of record, however, a brief allusion to the facts would be apposite.

4. The suit, as filed by the plaintiff, claims damages, is directed against a tweet, uploaded by the defendant on his Twitter handle. A snapshot of the tweet, which reveals itself, may be reproduced thus:-

5. Though, the aforesaid tweet does not name the plaintiff, the plaint avers that the man, shown standing in the photograph accompanying the tweet, resembles the plaintiff, though it is also asserted that he is not, in fact, the plaintiff. This fact, coupled with the reference, in the tweet, to an "Uchh Police Adhikari" (a high ranking police officer) and the comments, which the tweet has invited, which specifically name the plaintiff, the plaintiff would seek to allege, have resulted in his defamation at the hands of the defendant, entitling him to injunction and damages.

6. The defendant has, consequent to issuance of the summons, entered appearance and filed a written statement, in response to the plaint as well as a reply in response to the present IA. Rejoinder, thereto, has also been filed by the plaintiff.

7. Mr. Saurabh Kirpal, learned counsel for the defendant, advanced detailed submissions, to contend that the aforesaid tweet was not defamatory.

8. Additionally, Mr. Kirpal has sought to point out that the suit was bad for want of territorial jurisdiction, for which purpose, he has placed reliance on the recent judgment by a Single Judge of this Court, in Escorts Limited v. Tejpal Singh Sisodia1. He has drawn especial attention of this Court to paras 33, 34 and 37 to 46 of the said judgment, which may be reproduced thus:

"33. I have wondered, that if such is the plea, whether a plaintiff in a suit for compensation for defamation by publication on internet, has an option under Section 19 of the CPC to sue the defendant anywhere in India.

34. In my opinion, no. Section 19, while vesting an option in plaintiff, only envisages, wrong done in jurisdiction of one Court and defendant residing in jurisdiction of another Court. Merely because, with the advent of trade and commerce, wrong done to the plaintiff can be across the country, cannot expand/widen the option vested under Section 19 in the plaintiff. Reading Section 19 so, would render it arbitrary, vesting an unguided option, capable of misuse in one of the parties to the lis i.e. the plaintiff and lead to "court shopping" and "libel tourism". There is thus a need to construe/apply Section 19, in such situations, reasonably, so as not to put a

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plaintiff in such a suit, in a position disadvantageous to the defendant.

*****

37. According to paragraph 37 of the plaint itself, the defamatory tweets can be accessed, not only at New Delhi but "across the globe". The question which arises is, whether in case of defamation alleged on such social media platform, the plaintiff under Section 19 has an absolute option to institute the suit anywhere across the globe or across the country. In my view, Section 19 of the CPC, though drafted in the pre- internet era, cannot be so interpreted. I reiterate that it is clear from a reading of Section 19 of the CPC that the legislative intent was to confine the choice of jurisdiction to only two Courts i.e. either where the defendant resides or carries on business or "where wrong was done". Wrong of defamation on social media platform/internet cannot be said to have done across the globe or across the country, permitting a plaintiff to choose jurisdiction of a Court, contest wherein would cause maximum harassment to the defendant, compelling the defendant to give in to the demand of the plaintiff, even if unreasonable. No such intent can be imputed to the Legislature in enacting Section 19 of the CPC.

38. Even otherwise, no wrong can be held to have been "done" across the globe or across the country, wherever such social media platform/internet can be accessed. The Legislature has used the words "where wrong was done" and not "where wrong is likely to be done" or "wherever wrong is possible".

39. Wrong to the person of the plaintiff by libel would be done not by the mechanical act of tweeting by the defendant of the content defamatory to the plaintiff but by communication thereof to at least one person other than the plaintiff or the defendant and knowing the plaintiff and in whose esteem, the plaintiff would fall by reading the defamatory tweets. Merely the tweets of the defendant, even if defamatory of the plaintiff, sitting on the internet, even if accessible anywhere, would cause no wrong of defamation to the plaintiff. Merely because the tweets or other material on any other social media/internet can be accessed anywhere, would not amount to a wrong being done to the plaintiff

everywhere. A post on the internet which has not been downloaded, accessed and read, is like a defamatory letter in a sealed envelope and which letter cannot be said to have done any wrong of defamation till the seal is broken, the letter taken out and read and on which reading, the esteem in which the reader holds the plaintiff, falls. Wrong would be done only at the place where the said tweets are accessed and read by someone other than the plaintiff or the defendant and who knows the plaintiff.

40. The plaintiff, not only in para no.37 of the plaint reproduced above, but in no other paragraph of the plaint has pleaded the said tweets of the defendant to have been downloaded, accessed and read by anyone in Delhi and in whose esteem the plaintiff has fallen by reading the said tweets. The plaintiff has merely pleaded that the defendant has tagged the twitter handles of famous news channels having large number of followers and also on the twitter handles of various well-known individuals and organizations including „Prime Minister of India‟, „Arun Jaitely‟, „Federation of Indian Chambers of Commerce and Industry (FICCI)‟, „Escorts Group‟, „Make In India‟ etc. There is no averment in the plaint that the said tweets were downloaded, accessed and read by anyone in Delhi, causing wrong to the plaintiff.

41. There is no presumption in law or of fact, of content posted on the internet, though accessible, having been read. There is no publication of libel, till communication thereof is completed i.e. till the sealed envelope is opened and the libellous content thereof read.

42. I reiterate that the plaintiff has not given any such particulars in the plaint. No damage to the reputation of the plaintiff at Delhi has been pleaded. For that matter, it is not even the plea that the plaintiff has a reputation at Delhi.

43. I may further state that even in cases where the wrong done by the defamation is spread out across several jurisdictions, as would be the case with respect to a natural person enjoying a public stature and in the case of a company/ corporation having business interest across several jurisdictions, in my opinion, the jurisdiction even then for institution of a suit for defamation would be of a Court where

the maximum wrong is done and which generally in the case of a company/corporation would be the place where the registered office of the company/corporation is, unless it is pleaded that at the place of registered office wrong done is minuscule in comparison to wrong done at another place where the business interest largely is.

44. The second ground pleaded in para no.37 of the plaint reproduced above is of Mr. Nikhil Nanda, Chairman & Managing Director of the plaint being a resident of Delhi. However, in the matter of defamation, the Chairman & Managing Director of the plaintiff cannot have an existence separate from the plaintiff. It is not the case of the plaintiff that owing to the Chairman & Managing Director of the defendant reading the tweets at Delhi, the esteem in which the plaintiff is held by its Chairman & Managing Director has fallen. Thus, publication even if any to the Chairman & Managing Director of the plaintiff at Delhi would not qualify as a publication, furnishing a cause of action for a claim for compensation for damages for defamation.

45. The plaint thus, is not found to be disclosing any wrong done to the plaintiff at Delhi for this Court at Delhi to have jurisdiction to entertain the suit.

46. There is another aspect. Section 19 vests a plaintiff in a suit for compensation for defamation with an option to sue in either of the Courts i.e. where the wrong is done or where the defendant resides/carries on business, only when the two are different. This is clear from use of the words "....if the wrong was done within the local limits of jurisdiction of one Court and the defendant resides, or carries on business, or personally works for gain, within the local limits of jurisdiction of another Court ....". However this option would not be available to a plaintiff, wrong to whom by defamation is done within the jurisdiction of same Court within whose jurisdiction the defendant resides. It will not be open to such a plaintiff to contend that wrong has been done to him/it, also within the jurisdiction of another Court. I repeat, Section 19 vested option only in plaintiff for a situation where no wrong is done where defendant resides. If wrong is done where defendant resides, there is no option but to sue where defendant resides."

9. A reading of the afore-extracted paragraphs from the decision, in Escorts Limited1, clearly reveals that this Court has, in the said case, held, without any equivocation whatsoever, that, in the case of defamation, over the internet or over a public media platform, where the jurisdiction of a Court, within whose jurisdiction neither the plaintiff not the defendant resides, is being sought to be invoked, "the plaint has to necessarily contain specific pleas of wrong done within the jurisdiction of that Court, by giving particulars of the persons in that jurisdiction, in whose esteem the plaintiff claims to have fallen and/or the loss or damage suffered".

10. This Court has, thereafter, analysed Section 19 of the Code of Civil Procedure, 1908, (CPC), and held that a wrong of defamation, "on social media platform/internet cannot be said to have been done across the globe or across the country, permitting a plaintiff to choose jurisdiction of a Court, contest wherein would cause maximum harassment to the defendant, compelling the defendant to give in to the demand of the plaintiff, even if unreasonable." Paras 38 and 39 of the decision, as reproduced hereinabove, are even more categorical and hold that the latitude, available to a plaintiff under Section 19 of the CPC, to sue, for compensation, for the wrong done to the plaintiff, either in the Court within the local limits of whose jurisdiction the wrong was done, or the Court, within the local limits of whose jurisdiction the defendant resides, or carries on business, or personally works for gain, would be available only where the wrong was not done within the local limits of the jurisdiction of the Court, where the

defendant resides, or carries on business, or personally works for gain. In other words, if the wrong, which the plaintiff claims to be aggrieved, was done within the jurisdiction of various Courts, one of which is the Court within whose jurisdiction the defendant resides, or carries on business, or personally works for gain, the suit would necessarily have to be instituted in that Court. In such an event, it is not open to the plaintiff to contend that, as the wrong was also done within the jurisdiction of another Court, he could sue within such jurisdiction.

11. Mr. Sameer Kumar, learned counsel for the plaintiff, has not been able to draw my attention to any decision, which alters this position, as enunciated by this Court. He has placed reliance on a judgment of another Single Judge of this court in Swami Ramdev vs Facebook Inc.2, but acknowledges candidly, that the said decision does not opine differently, from the opinion, expressed by the learned Single Judge in Escorts Limited1. Mr. Sameer Kumar, in fact, drew my attention to the opening sentence of para 95 in Swami Ramdev2, which holds that the act of uploading data on the internet, would confer jurisdiction on the Court where such uploading had taken place. To a query from the Bench, as to whether the uploading of the tweet, by which the plaintiff is aggrieved, had taken place within the jurisdiction of the High Court of Delhi, Mr. Sameer Kumar frankly states that he is unable to offer a reply.

12. It is extremely unlikely, given the fact that the defendant resides

2019 SCC OnLine Del 10701

and works for gain in Uttar Pradesh, that the alleged defamatory tweet was uploaded in Delhi. There is, in fact, no such averment in the plaint.

13. Mr. Sameer Kumar also acknowledges that his client has been defamed not only within the jurisdiction of this Court but has been defamed, inter alia, within the jurisdiction of the State of Uttar Pradesh as well, as he has received messages and tweets from associates in Uttar Pradesh, relating to the alleged defamatory tweet, posted by the defendant. Even by this admission, it is obvious that the cause of action has arisen, inter alia, in the State of Uttar Pradesh, where the defendant resides. If that be so, in view of the principle enunciated in para 46 of Escorts Limited1, prima facie, this Court does not possess jurisdiction to try this suit.

14. In view thereof, as I am, prima facie, not convinced on the aspect of jurisdiction of this Court to entertain this suit, in the first instance, there can be no question of any interim relief being granted.

15. Resultantly, the application is dismissed.

C. HARI SHANKAR, J.

JULY 28, 2020 r.bararia