Noorjahanben Iqbalbhai Tadha vs Ismailbhai Abdulrahim Shaikh
2023 Latest Caselaw 685 Guj

    C/FA/4008/2021                                      CAV JUDGMENT DATED: 25/01/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                 R/FIRST APPEAL NO. 4008 of 2021
                               With
           CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
                In R/FIRST APPEAL NO. 4008 of 2021
                               With
CIVIL APPLICATION (FOR PRODUCTION OF ADDITIONAL EVIDENCES)
                           NO. 1 of 2022
                In R/FIRST APPEAL NO. 4008 of 2021

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE N.V.ANJARIA

and
HONOURABLE MR. JUSTICE SANDEEP N. BHATT

==========================================================

1 Whether Reporters of Local Papers may be allowed to see the No judgment ?

2     To be referred to the Reporter or not ?                                   No

3     Whether their Lordships wish to see the fair copy of the                  No
      judgment ?

4     Whether this case involves a substantial question of law as to            No

the interpretation of the Constitution of India or any order made thereunder ?

========================================================== NOORJAHANBEN IQBALBHAI TADHA Versus ISMAILBHAI ABDULRAHIM SHAIKH ========================================================== Appearance:

MR MEET D KAKADIA(11896) for the Appellant(s) No. 1,2 MR SP MAJMUDAR(3456) for the Appellant(s) No. 1,2 MR HARNISH V DARJI(3705) for the Defendant(s) No. 1 ==========================================================

CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA and HONOURABLE MR. JUSTICE SANDEEP N. BHATT

C/FA/4008/2021 CAV JUDGMENT DATED: 25/01/2023

Date :25/01/2023

CAV JUDGMENT (PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)

Looking to the narrow compass of the issue arising from the contents of the impugned judgment in the order, the appeal could be taken up finally, at this stage.

2. Preferred by the original defendants, this First Appeal under Section 96 of the Code of Civil Procedure, 1908, is directed against judgment and decree dated 31.3.2021 passed by learned 5th Additional Senior Civil Judge, Vadodara in Special Civil Suit No.106 of 2018, thereby the court below awarded Rs.5 crores to the respondent- original plaintiff as damages for defamation by the defendants.

2.1 In the said suit in which plaintiff prayed for recovery of Rs.5 crores and made further prayer for declaration and permanent injunction, the defendant No.1 was sister of the plaintiff, whereas defendant No.2 was brother-in-law. The case of the plaintiff was that untill the death of their father, the relationship was affectionate between the parties, however, afterwards the defendants in order to snatch away the property, made several allegations and committed acts of defamation against the plaintiff.

3. It was the case that plaintiff was reputed person possessing several properties and had been running since years the Kohinoor Transport Company now known as Jayhind Roadways. It was alleged that the plaintiff hired persons and

C/FA/4008/2021 CAV JUDGMENT DATED: 25/01/2023

started distributing material and pamphlets stating that the plaintiff had killed his father in order to grab the ancestral properties. It was stated that such defamatory pamphlets were distributed at the mosques of Vadodara, Modasa and Mumbai. It was averred that pamphlets with photographs were distributed amongst the community persons coming to the mosques so as to disseminate defamatory allegations against the plaintiff about killing of father, taking of ancestral property and injuring his own sister.

3.1 It was stated that the notice was issued on 1.8.2017 to the defendants. It was further averred that defendants also filed complaint that the plaintiff was using kerosene in transport trucks, that wrong allegations were made about locker in the Bank and wrong complaints were also filed in the Civil Supplies Department which all were false and defamatory. It was the case that thereby the defendants defamed the plaintiff in the community in three cities and in the business class in the market places. It was on such count that the cause of action was pleaded and the damages were asked for, for the alleged tort of defamation.

3.2 The trial court framed issued on the basis of pleadings of the plaintiff at Exhibit 8. The first issue was whether the plaintiff proved that the defendants had defamed the plaintiff by distributing pamphlets and publishing writings. The second issue was that whether the legal notice was issued and the third was whether the plaintiff was entitled to recover Rs.5 crores. All the issues were answered in affirmative.

C/FA/4008/2021 CAV JUDGMENT DATED: 25/01/2023

3.3 The trial court granted compensation to the tune of Rs.5 crores on the basis of the evidence put forth by plaintiff which included the affidavit of examination-in-chief of the son of the plaintiff (Exhibit 23). The chief-examiner of plaintiff himself (Exhibit 10), witnesses Riyaz Uddin (Exhbit 27). The plaintiff was shown to be in transport business. The alleged defamatory material in the nature of circulars and pamphlets was produced (Exhibit 51 and 53). The court recorded on the basis of one sided evidence of the plaintiff that those pamphlets and circulars were distributed. There was no cross examination of the defendants in respect of any of the evidence. The court assessed the compensation of Rs.5, crores on the basis of valuation report (Exhibit 39 to Exhibit 41) relating to the ancestral property of the plaintiff himself. The conclusion was drawn that the defendants had defamed by levelling allegations and disseminating the same in the community and in the public about snatching of the ancestral property and killing of father.

3.4 The trial court did record that the summons issued in the suit was sent to the defendants by Registered Post A.D. but the defendants had not appeared in the suit and did not submit any defence statement either personally or through advocate and accordingly had not denied the case of the plaintiff.

4. Learned advocate Mr. S.P. Majmudar for the appellant assailed the findings on merits recorded by trial court by submitting that the defendant had no opportunity and they did not file the written statement. It was submitted that on the basis of the decision of the Supreme Court in Balraj Taneja Vs. Sunil Mada, [(1999) 8 SCC 396] in particular paragraph

C/FA/4008/2021 CAV JUDGMENT DATED: 25/01/2023

Nos.29,38 and 47 thereof and in Shantilal Gulabchand Mutha Vs. Tata Engineering and Locomotive Company Limited, [(2013) 4 SCC 396] in paragraph Nos.8, 9 thereof, that it is well settled legal position that even if written statement is not filed, the case of the plaintiff cannot be believed blindly.

4.1 It was submitted that by referring to paragraph No.7.2 and 7.3 of the impugned judgment that the factual aspects regarding prestige and defamation by the defendants and allegations regarding commission of defamatory act had been believed by trial court in absence of the defendants and their defence much less any rebuttal.

4.2 Learned advocate for the appellant also mentioned certain aspects regarding criminal history of the plaintiff. Also seriously called in question was the aspect of awarding damages by submitting that in was in absence of any evidence which could be said to have proved the allegations of defamation. It was further submitted that the damages could not have been awarded, and that the evidence in that regard (Exhibit 39 to 41) were misapplied and could not have been relied on. It was submitted that the damages for the defamation could be calculated only on the basis of valid consideration and it was further submitted that the income of the plaintiff was only Rs.60,000/- and he possessed Maha Amrutamjan Card as per his evidence.

4.3 It was submitted that the exemplary damages as are awarded by trial court would only follow only on the basis of heinous crimes. It was further submitted that awarding the

C/FA/4008/2021 CAV JUDGMENT DATED: 25/01/2023

damages is based on only one witness named Riyazuddin- rickshaw driver who saw defamatory pamphlets been distributed at mosque and there was no other evidence. It was submitted that defamatory pamphlets were never distributed either by appellants or their agents.

4.4 The decision of the Supreme Court in Gorantla Venkateshwarlu Vs. B. Demudu [2002 SCC Online AP 686] was relied on. With regard to service of notice on the appellants- original defendants, it was submitted that the address of the appellants which was mentioned in the plaint deferred from address which was shown in the Aadhar Card of the appellant, which was produced. It was submitted that the residential address provided by plaintiff of the defendants was incomplete and false. It was submitted that the notice issued by the court did not return back therefore plaintiff undertook to serve the defendants.

4.5 Learned advocate for the respondent- original plaintiff submitted that the notice was sent to the defendant to the corrected address and that various documents established the correct address of the appellant. According to respondents herein, the appellants were duly served at their permanent address mentioned in the cause title of the suit, still however did not choose to appear before the court.

4.6 Learned advocate for the respondent- original plaintiff Mr.Harnish Darji submitted that the plaintiff filed status of speed post to show that the service of notice was effected. It was however submitted that the speed post status showed that the

C/FA/4008/2021 CAV JUDGMENT DATED: 25/01/2023

notice was served to Behrampura pin-code 380022, whereas the present appellants resides in Juhapura pin-code 380055. It was submitted that the notice was never served on the appellants and the judgment and decree was ex-parte. It was submitted that under the provisions of General Clauses Act, 1894, the notice through Registered Post A.D. could be said to have been deemed to have been effected therefore the defendant cannot take plea that they were not served.

4.7 It was submitted that the conduct of the defendants amounted to refusal of the notice of the court. It was further submitted that the in such circumstances the judgment and decree was appropriately passed by the court below.

4.8 In respect of the merits, it was submitted that the plaintiff circulated pamphlets and other materials which was defamatory. It was submitted that the name and reputation of the plaintiff came to be tarnished and permanent damage was caused in the community and in the society. It was submitted that the plaintiff was highly reputed businessman. It was also submitted that the quantum of compensation was properly determined in view of the valuation report.

5. Having considered the facts, nature of findings recorded by the trial court and the rival submissions made, the court does not find it necessary to advert to the merits of the case of the plaintiff whether acts of defamation were committed by the defendants, much less the court is inclined to go into the aspect of quantum of damages awarded by the trial court, inasmuch as the findings and conclusions on those score by the court below

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are not based on bi parte consideration of the case.

5.1 Admittedly, there was no appearance of the defendants and they had not put their case, version and evidence. The case of the plaintiff was not rebutted for want of such opportunity to the defendants. It was on the basis of the pleadings of the plaintiff and the material produced from plaintiff's side alone, that the trial court concluded that the tort of defamation was committed and further that the compensation to the tune of Rs.5 crores was payable.

5.2 The ex-parte judgment and decree where the defendants did not lead any evidence, could not be allowed to sustain. In trial of any suit, both the sides ought to have been given adequate opportunity. The defendants should be allowed to met with and rebut the version of the plaintiff. Both the sides deserve to be permitted leading of evidence on their part. The findings of the court has to be based on proper assessment of the evidence.

5.3 The trial court could not come to conclusion that defamation was committed by defendants- the appellants herein nor could have determined the compensation. In absence of evidence such findings and assessment of compensation has no sanctity in law. They are the findings erroneously arrived at.

5.4 In light of above, proper course to be adopted is to remit the proceedings to the trial court to decide the suit afresh after extending opportunity to the appellants- original defendants to put forward their case and lead evidence. The plaintiff may also be permitted to lead evidence, if any.

C/FA/4008/2021 CAV JUDGMENT DATED: 25/01/2023

6. Accordingly, the court of learned 5 th Additional Senior Civil Judge, Vadodara, is directed to undertake the trial of Special Civil Suit No.106 of 2018 afresh, giving opportunity to the parties to lead their evidence. The defendants shall be permitted to file their written statement. The evidence shall thereafter be allowed to be led. The entire exercise shall be completed expeditiously by the court below and a decision in the suit shall be rendered.

6.1 The impugned judgment and decree passed by the court below stands set aside on the above limited ground, without going into the merits or expressing anything on merits. The suit shall be decided based on the evidence led by the parties and in accordance with law.

7. The present appeal is allowed in the aforesaid terms. In view of the disposal of the main appeal, Civil Applications will not survive, accordingly they are disposed of.

(N.V.ANJARIA, J)

(SANDEEP N. BHATT,J) Manshi