Southern Railway vs Sri A V Praveen Kumar
2021 Latest Caselaw 5357 Kant

                                                RSA 1081/2016
                              1


     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 3RD DAY OF DECEMBER, 2021

                           BEFORE

     THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY

                     R.S.A.No.1081/2016

BETWEEN:

1.    Southern Railway
      Mazdoor Union (SRMU),
      Mangaluru Headquarters,
      Mangaluru Branch -
      Represented by its
      Secretary J.Anand,
      Aged 46 years,
      S/o Javere Gowda, Technical Grade III,
      C/o Sr. Section Engineer/
      Carriage Swagon Southern Railway,
      Mangaluru-575001.

2.    Sri K.V.kJayarajan,
      Aged 56 years,
      S/o Velayudhan,
      President, Southern Railway
      Mazdoor Union, Mangaluru-HQ-Branch:
      Mangaluru, Key Man,
      C/o Sr. Section Engineer/Permanent way,
      Southern Railway,
      Mangaluru-575001.

3.    Sri J.Ananda
      Aged 46 years,
      Secretary, Southern Railway Mazdoor,
      Technical Grade III,
      C/o Sr. Section Engineer/Carriage
      Swagon Southern Railway,
      Mangaluru-575001.            ... APPELLANTS

(By Sri P.P.Hegde, Adv.)
                                                  RSA 1081/2016
                               2



AND:

Sri A.V.Praveen Kumar,
Aged about 46 years,
S/o T.V.Padmanabhan Nambiar,
Section Engineer,
Carriage and Wagon (Mechanical)
Section,
Southern Railway,
Mangaluru-575001.                         ... RESPONDENT

      This Regular Second Appeal is filed under Section 100 of
CPC against the judgment and decree dated 02.04.2016 passed
in RA.No.105/2012 on the file of the Ist Addl. District and
Sessions Judge, D.K., Mangaluru, dismissing the appeal and
confirming the judgment and decree dated 13.04.2012 passed
in OS.No.59/2009 on the file of the Ist Addl. Senior Civil Judge
and C.J.M., Mangalore.

      This appeal coming on for Admission, this day, the Court
delivered the following:

                          JUDGMENT

1. The defendants have preferred this second appeal

challenging the judgment and decree dated 13.04.2012

passed by the I Addl. Senior Civil Judge & CJM,

Mangaluru, in O.S.No.59/2009 which has been confirmed

by the I Addl. District & Sessions Judge, D.K., Mangaluru,

vide judgment and decree dated 02.04.2016 in

R.A.No.105/2012.

RSA 1081/2016

2. For the sake of convenience, the parties are referred

to by the rank assigned to them in the court at first

instance.

3. Brief facts of the case that would be relevant for the

purpose of disposal of this appeal are, plaintiff had filed

O.S.No.59/2009 before the Trial Court against the

defendants with a prayer to direct them to pay a sum of

Rs.5,00,000/-, jointly and severally, towards the damages

for defamation along with interest at 10% p.a., and for

costs.

4. It is the contention of the plaintiff that he was an

employee of Southern Railway working as Section Engineer

in the Carriage and Wagon (Mechanical) Section,

Mangaluru, and he had high reputation in the Railway

Department having regard to his unblemished career and

he also had secured CME Award twice while he was

working in Mangaluru. Defendant no.1 had indulged in a

malicious campaign against the plaintiff to the effect that

he had misbehaved with a female employee during the RSA 1081/2016

course of his employment and with an ulterior motive,

defendant no.1-Union had deliberately printed and

published posters containing false and baseless allegations

of misbehaviour of the plaintiff with the female employee of

the Railway Department and those posters were published

by affixing them on walls and pillars within the Railway

Station premises of Kankanady, Mangaluru, Calicut and

Sharanur Railway Stations. It is his case that the

publications are per se defamatory and resulted in causing

damage to his reputation in the eyes of the public and also

the employees of the railway department. The plaintiff had

further averred that he has suffered severe mental agony

as a result of the publication and even his reputation in

the family was affected. It is under these circumstances,

the plaintiff had filed O.S.No.59/2009 against the

defendants.

5. Defendant no.1 after service of notice, remained ex-

parte. Defendants 2 & 3 had entered appearance through

their counsel and filed written statement denying the

plaint averments. It was contended on behalf of the said RSA 1081/2016

defendants that the plaintiff was a person of desperate

character and he had misbehaved with one Mrs. Sheeba,

an employee of the Railway Department and in this regard,

there was a complaint against him and an inquiry was

pending. Since defendants 2 & 3 were working in the

railway union, the plaintiff with ulterior motives had filed

the suit against them seeking vengeance against them and

also with an intention to make unlawful gain. Accordingly,

they prayed to dismiss the suit.

6. On the basis of the rival pleadings, the Trial Court

had framed the following issues:

Issues

1. Whether the plaintiff proves that defendants have indulged in malicious campaign against the plaintiff like misbehaving with female employees etc., and have brought ill-reputation to the plaintiff in the eyes of public and have involved in activities of defamation as averred in plaint para no.2?

2. Whether the plaintiff is entitled for damages of Rs.5 lakhs from the defendants no.1 to 3 jointly RSA 1081/2016

and severally along with interest at the rate of 10% p.a.?

3. What order or decree?

7. During the course of trial, on behalf of the plaintiff,

he examined himself as PW-1 and two other witnesses

were examined as PWs-2 & 3 and got marked twelve

documents as Exs.P-1 to P-12. On behalf of the

defendants, defendants 2 & 3 were examined as DWs-1 &

2, respectively, and no documents were produced and

marked. The Trial after having heard the arguments of the

learned Counsel appearing for both sides, answered Issue

no.1 in the affirmative and Issue no.2 partly in the

affirmative, and by its judgment and decree dated

13.04.2012, partly decreed the suit directing defendants 1

to 3 to pay a sum of Rs.1,00,000/-, jointly and severally, to

the plaintiff towards damages for defamation and it was

observed that if the decreetal amount is not paid within

two months, then defendants 1 to 3 were liable to pay

interest at 6% per annum. Being aggrieved by the same,

the defendants had filed R.A.No.105/2012 before the First RSA 1081/2016

Appellate Court and the said Court, after re-appreciating

the oral and documentary evidence available on record, by

its judgment and decree dated 02.04.2016 has dismissed

the appeal, and thereby confirmed the judgment and

decree passed by the Trial Court in O.S.No.59/2009. It is

under these circumstances, the defendants have filed this

second appeal.

8. Learned Counsel for the defendants submit that the

Trial Court has erred in decreeing the suit when there is

no evidence to show that defendants 2 & 3 were

responsible for the publication. He submits that

defendants 2 & 3 have categorically denied with regard to

their role in the publication and affixing the defamatory

posters. He submits that the courts below have misread

the evidence of DW-1 which has resulted in passing an

erroneous judgment and decree. He further submits that

undisputedly there was a complaint lodged against the

plaintiff by a female employee of the department, and

therefore, the publication was made only to expose the

plaintiff and there was no other intention behind such a RSA 1081/2016

publication. He submits that the defendants being the

labour union and the office bearers of the union have a

duty to expose the cause, and therefore, the Courts below

have erred in decreeing the suit.

9. I have carefully considered the arguments addressed

on behalf of the appellants/defendants and also perused

the material evidence available on record.

10. In support of the plaintiff's case, he had examined

himself as PW-1 and two other witnesses as PWs-2 & 3. He

has produced Ex.P-1 which is the photograph of the poster

affixed in the railway stations, wherein there was an

allegation that the plaintiff had misbehaved with the

female employee of the very same department. The

contents of Ex.P-1 has been taken note of by the Courts

and the courts below have come to a conclusion that the

publication is per se defamatory. Even the defendants have

not disputed this aspect of the matter and it is not their

contention that the publication is not per se defamatory in

nature.

RSA 1081/2016

11. Learned Counsel appearing on behalf of the

defendants has contended before this Court that there was

no evidence before the courts below to fix the liability on

defendants 2 & 3 with regard to the publication of the

alleged poster or with regard to the affixture of the same in

the railway station. The Trial Court having appreciated the

evidence of DWs-1 & 2 has given a categorical finding that

DWs-1 & 2 have admitted Ex.P-1 was printed and

published by the defendant-Union. DW-1 has even

admitted that in Ex.P-1, it is mentioned that the plaintiff

has misbehaved with a lady employee of the railway

department. DW-1 has further admitted that Ex.P-1 is the

photograph of the poster which was affixed in the railway

station. Having regard to the evidence of DWs-1 & 2, the

courts below have rightly held that the poster was

published and affixed by defendant no.1-Union, and

therefore, the suit was partly decree holding that

defendants are jointly and severally liable to pay damages

in a sum of Rs.1,00,000/- for defamation. Defendants 2 &

3 are admittedly the President and Secretary of defendant RSA 1081/2016

no.1-Union and the said fact has not been disputed by the

said defendants who have filed their written statement. It

is also not in dispute that the inquiry against the plaintiff

with regard to alleged misbehaviour was also closed.

12. The courts below, after having appreciated the oral

and documentary evidence available on record, have

recorded a finding that the defamatory article was

published and affixed by defendant no.1-Union and it is

not the case of the defendants that the publication is not

defamatory in nature. Under the circumstances, I find no

illegality or irregularity in the judgment and decree passed

by the courts below. It is a settled position of law that this

Court in exercise of its powers under Section 100 CPC,

cannot re-appreciate the evidence and interfere with the

finding on facts recorded by the courts below. On a overall

appreciation of the arguments addressed by the learned

Counsel for the defendants and the material available on

record, I am of the considered view that no substantial

question of law arises for consideration in this second RSA 1081/2016

appeal. Accordingly, I decline to entertain this second

appeal and the same is, therefore, dismissed.

Sd/-

JUDGE

KK