Karnataka High Court

Mrs Shumita Deb vs Mr Gautam Bhattacharya on 10 April, 2023

Bench: S.R.Krishna Kumar

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                                                          MFA No. 626 of 2023




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 10TH DAY OF APRIL, 2023

                                              BEFORE

                          THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR

                                    M.F.A.NO.626 OF 2023 (CPC)

                   BETWEEN:

                   1.   MRS. SHUMITA DEB
                        D/O LATE PROBODH CHANDRA DEY
                        @ MANNA DEY
                        AGED ABOUT 58 YEARS
                        NO.402, 4TH CROSS, 5TH MAIN
                        HRBR 2ND BLOCK
                        BENGALURU - 560 043

                   2.   MR. JNAN RANJAN DEB
                        AGED ABOUT 63 YEARS
                        S/O K R DEB
                        H/O MRS. SHUMITA DEB
                        R/O 402, 4TH CROSS, 5TH MAIN
                        HRBR LAYOUT
Digitally signed        2ND BLOCK, KALYAN NAGAR
by VANDANA S            BENGALURU - 560 043
Location: High                                                   ...APPELLANTS
Court of
Karnataka          (BY SRI. MANU PRABHAKAR KULKARNI, ADVOCATE)

                   AND:

                   1.   MR GAUTAM BHATTACHARYA
                        AGED ABOUT 50 YEARS
                        R/O FLAT 3A, EE 23, SECTOR-II
                        SALT LAKE,
                        KOLKATA - 760 091
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                                      MFA No. 626 of 2023




2.   MS LAHAMA BHATTACHARYA
     AGED ABOUT 20 YEARS
     R/O FLAT 3A, EEE 23, SECTOR-II
     SALT LAKE
     KOLKATA - 700 091

3.   M/S DEEP PRAKASHAN
     209-A, BIDHAN SARANI
     KOLKATA - 700 006

     REPRESENTED BY
     SHANKAR MANDAL

4.   KALPANA OFFSET PRIVATE LTD.,
     123, TARICK PRAMANICK ROAD
     KOLKATA - 790015

     REPRESENTED BY ITS
     MANAGING DIRECTOR

5.   ABP PRIVATE LIMITED
     6, PRAFULLA SARKAR STREET
     KOLKATA - 790001

     REPRESENTED BY ITS
     MANAGING DIRECTOR

6.   ENTERTAINMENT NETWORK INDIA PVT. LTD.,
     4TH FLOOR, A WING
     MATULYA CENTRE
     SENAPATI BAPAT MARG,
     LOWER PAREL (WEST)
     MUMBAI - 400013

     REPRESENTED BY ITS
     MANAGING DIRECTOR

     HAVING OFFICE AT KOLKOTA
     SHANTHINIKETAN BUILDING
     8 CAMAC STREET 13TH FLOOR
     KOLKATA-700017
     TEL - (033) 44098300
                             -3-
                                      MFA No. 626 of 2023




    REPRESENTED BY ITS
    MANAGING DIRECTOR

                                          ...RESPONDENTS

(BY SMT. ANJU NAIR, ADVOCATE FOR
    SRI. PARTHA MANDAL, ADVOCATE FOR C/R1 IN
    CP NO.1351/2023;
    SMT. NIDHISHREE, ADVOCATE FOR R6;
    R2, R3, R4 & R5 ARE SERVED)

     THIS MFA IS FILED UNDER ORDER XLIII RULE 1(r) READ

WITH SECTION 114 OF CPC PRAYING TO a) SET ASIDE THE

IMPUGNED ORDER DATED 06.01.2023 PASSED IN I.A.NO.1 FILED

UNDER ORDER XXXIX RULE 1 AND 2 OF CODE OF CIVIL

PROCEDURE, 1908 IN O.S.NO.985/2017, ON THE FILE OF THE Ld.

LX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH-61),

BENGALURU, (ANNEXURE-A); b) GRANT THE PRAYERS AS

SOUGHT FOR IN I.A.NO.1 FILED UNDER ORDER XXXIX RULE 1 AND

2 OF CODE OF CIVIL PROCEDURE, 1908 IN O.S.NO.985/2017, ON

THE FILE OF THE Ld. LX ADDITIONAL CITY CIVIL AND SESSIONS

JUDGE (CCH-61), BENGALURU, UNTIL DISPOSAL OF THE SUIT IN

O.S.NO.985/2017; AND c) PASS ANY SUCH OTHER ORDERS AS

THIS HON'BLE COURT DEEMS FIT IN THE CIRCUMSTANCES OF

THE CASE, IN THE INTERESTS OF JUSTICE AND EQUITY.


     THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE

COURT DELIVERED THE FOLLOWING:
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                                                    MFA No. 626 of 2023




                                   JUDGMENT

This appeal by the plaintiff in O.S.No.985/2017 is directed

against the impugned order dated 06.01.2023 passed by the LX

City Civil and Sessions Judge, Bengaluru, whereby the application

I.A.No.1 filed by the plaintiff under Order XXXIX Rules 1 and 2 of

CPC for temporary injunction restraining the respondent Nos.1 to 5

from printing, circulating, modifying, selling or publishing in any

manner whatsoever the defamatory clause contained in

introductory page 54 and Chapter VII of the Book at pages 145 to

154 of the book "Tarader Sesh Chitthi", was rejected by the trial

Court.

2. After hearing both sides, this Court passed the

following interim order in the present appeal on 30.01.2023:

"ORDER ON IA No.1/2023

Sri Partha Mandal, Sri Umesha R. and Sri Akash Mukherjee, appearing for the caveator/respondent No.1 undertake to appear for respondent No.1.

Issue notice to other respondents. In addition, appellants are permitted to take out hand-summons and also serve the counsel who appeared for the respondents before the trial court.

MFA No. 626 of 2023

Heard on IA No.1/2023.

Learned counsel appearing for the appellants has raised the following contentions:

Firstly, they had an ex-parte interim order restraining the defendants from printing, circulating, modifying, selling or publishing the defamatory, false and maligning context contained in introductory page 54 and Chapter VII of the book at page 145 to 154 of the book "Tarader Sesh Chitthi" from 13.02.2017 till passing of the impugned order dated 06.01.2023.

Secondly, the trial court has vacated the interim order only on the ground that the father of the plaintiff - Mannadey died on 24.10.2013; the defamatory article by same author was published in the newspaper called "Anand Bazaar Patrika" in the year 2013; the book containing the said defamatory article has been printed in the year 2016 and they have also circulated the same in the public; the suit is filed in the year 2017. On the ground of delay and since the book is already in public domain, the interim order has been vacated.

Thirdly, the cause of action for filing the suit arises from the date of the new publication. In support of his contention, he has relied on the judgment of Punjab and Haryana High Court in the case of HARBHAJAN SINGH vs. STATE OF PUNJAB reported in 1960 SCC Online Punj.258 (Paragraph 95) and also judgment of the Mandhya Pradesh High Court in the case of RAM NIWAS GUPTA vs. DAINIK SANDHYA PRAKASH reported in

MFA No. 626 of 2023

2007 SCC Online MP 230 (Paragraph 8) and contended that the cause of action arises from the date of new publication. Since the defamatory article is published in the form of book in the year 2016, therefore, it is within the period of limitation.

Fourthly, in the said book "Tarader Sesh Chitthi" there is a defamatory allegation against the first plaintiff which affects her fundamental rights which is guaranteed under the Constitution of India. Even if the right of a person is affected he can file a case against a private person. In support of his contentions, he has relied on the judgment of the Hon'ble Apex Court in the case of KAUSHAL KISHOR vs. STATE OF UTTAR PRADESH AND OTHERS reported in 2023 SCC Online SC 6 (Paragraph -

83) and contended that the fundamental right under Article 19 and 21 can be enforced even against persons other than the State or its instrumentalities.

Lastly, there is a Book Fair in Calcutta tomorrow (31.01.2023), wherein the respondents are going to exhibit the said book. Therefore, he sought for stay of the impugned order.

Per contra, the learned counsel appearing for the caveator/respondent No.1 has raised the following contentions:

Firstly, the suit is barred by limitation. The first plaintiff's father - Mannadey died on 24.10.2013. The respondent No.1 has published the said article in the newspaper in the year 2013 itself and the same has been

MFA No. 626 of 2023

published in the form of a book in the year 2016. Now, the suit has been filed in the year 2017, there is a delay in filing the suit.

Secondly, defendant Nos. 5 and 6 have also filed an application under Order 7 Rule 11 of Civil Procedure Code for rejection of the plaint before the trial court, the same is pending consideration. He has relied on the judgment of the Hon'ble Apex Court in the case of C.S.RAMASWAMY vs. V.K.SENTHIL AND OTHERS in Civil Appeal No.500/2022 disposed of on 30.09.2022 and contended that the plaintiffs cannot be permitted to bring the suit within the period of limitation by clever drafting, which otherwise is barred by limitation.

Thirdly, since the book is already in the public domain, there cannot be any injection to restrain the publisher to publish further. It will affect his fundamental right guaranteed under Article 19 of the Constitution of India. In support of his contention, he has relied on the judgment of the Delhi High Court in the case of FITJEE LIMITED vs. VIDYA MANDIR CLASSES LTD. AND OTHERS reported in 2022 SCC Online Del. 484 (Paragraphs 16 and 19).

Heard the learned counsel appearing for the parties. Perused the appeal papers.

It is not in dispute that the plaintiffs have filed a suit seeking permanent injunction restraining the defendant Nos. 1 to 5 or his/its agents, friends or relatives or anybody acting for or under the defendants from reprinting,

MFA No. 626 of 2023

circulating or modifying and publishing in any manner whatsoever the defamatory, false and maligning content contained in introductory page 54 and chapter seven of the book page 145 to 154 about late Mannadey and published in the book Tarader Sesh Chitthi Stars last letter. It is also not in dispute that ex-parte injunction has been granted on 13.02.2017 restraining the defendants from publishing the said book.

After service of summons, defendants have appeared through their counsel and filed written statements and they have filed an application for vacating the ex-parte interim order. After considering the arguments of the parties, the trial court has given a finding that Mannadey, who is the father of the first plaintiff died on 24.10.1993. The article was published in "Anand Bazaar Patrika" at Calcutta in the year 1993. The said article has been published in the book form in the year 2016 and it is also in public domain. Therefore, since there is a delay, on the ground of limitation the trial court has allowed the application for vacating the ex-parte interim order and it has vacated the interim order.

Even though there is a dispute that the very same article has been published in the newspaper in the year 1993, in the year 2016, for the first time it has been published in the form of a book along with other articles. In respect of limitation is concerned, the defendants have already filed an application under Order 7 Rule 11 of Civil Procedure Code which is pending before the trial court. By allowing to exhibit the book in the Book Fair to be held

MFA No. 626 of 2023

tomorrow (31.01.2023) at Calcutta, it will affect the right of the plaintiffs since ex-parte interim order was operating from 13.02.2017 and there is also an injunction not to publish the book till the date of vacating the interim order, i.e., on 06.12.2023. The trial court has also heard the application filed under Order 7 Rule 11 of CPC on limitation. That was pending during the time of vacating the interim order. Therefore, the trial court has erred in giving a finding that there is a delay in filing a suit. Under these circumstances, since the matter requires to be heard finally on merits, till the next date of hearing, the respondents are directed not to exhibit or publish the book in respect of introductory page 54 and Chapter VII of the book at page 145 to 154 of the book "Tarader Sesh Chitthi" in the Book Fair which is to be held in Calcutta tomorrow (31.01.2023) or in any other place.

It is made clear that if the plaintiffs fail in the suit, the defendants have all the rights to claim all mesne profits, in accordance with law.

It is also made clear that the observations made above will not come in the way of the trial court to pass an order on the application filed under Order 7 Rule 11 of CPC, in accordance with law.

Re-list this matter on 21.02.2023."

3. Subsequently, this Court noting that the application

filed by respondent No.5 under Order VII Rule 11 of CPC seeking

rejection of the plaint was not disposed of by the trial Court, this

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MFA No. 626 of 2023

Court clarified that the pendency of the present appeal would not

come in the way of trial Court considering and disposing of the said

application under Order VII Rule 11 of CPC for rejection of the

plaint.

4. Learned counsel for both the sides submit that

subsequent to the aforesaid order dated 21.02.2023 passed by this

Court, the trial Court has heard the parties on the aforesaid

application for rejection of the plaint and the suit now stands posted

on 15.04.2023 for pronouncement of the orders on the said

application.

5. In view of the aforesaid facts and circumstances,

though several contentions are urged by both the sides in support

of their respective claims, without expressing any opinion on the

merits/demerits of the rival contentions of the parties, I deem it just

and appropriate to dispose of this appeal by modifying the

impugned order and issuing certain directions.

6. In the result, I pass the following:

ORDER

i) Appeal is hereby disposed of.

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MFA No. 626 of 2023

ii) Impugned order dated 06.01.2023 passed in

O.S.No.985/2017 on the file of the LX

Additional City Civil and Sessions Judge,

Bengaluru, is modified.

iii) The interim order dated 30.01.2023 passed

by this Court in the present appeal shall

continue to remain in force and operate

between the parties till the disposal of the suit

by the trial Court.

iv) The trial Court is directed to pass appropriate

orders on the application filed for rejection of

the plaint on the next date of hearing i.e., on

15.04.2023 and at any rate on or before

21.04.2023.

v) In the event the said application is dismissed

and the plaint is not rejected by the trial