Karnataka High Court
Sri Sathish N Vaidya vs Sri N B Aboobakar on 1 September, 2023
Bench: H.P.Sandesh
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RSA No. 1032 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 1032 OF 2019 (DEC/INJ)
BETWEEN:
1. SRI SATHISH N. VAIDYA
AGED ABOUT 46 YEARS
EDITOR, PUBLISHER & PRINTER
KARAVALI ALE
KANNADA DAILY NEWSPAPER
400-C, BAIKAMPADY
INDUSTRIAL AREA
MANGALURU-575 011.
2. M/S. CHITRA PUBLICATIONS (PVT) LTD.
OWNER OF KARAVALI ALE NEWSPAPER
HEREIN REPRESENTED BY ITS DIRECTORS
(1) B.V. SEETARAM AND (2) SMT. ROHINI,
(400-C) BAIKAMPADY
INDUSTRIAL AREA
MANGALURU-575 011.
Digitally signed
by SHARANYA T
3. M/S. ARADHANA PRINTERS
Location: HIGH
COURT OF PRINTING PRESS
KARNATAKA BY PROPRIETRIX SMT. ROHINI
400-C BAIKAMPADY
INDUSTRIAL AREA,
MANGALURU-575 011.
4. SRI B.V. SEETARAM
S/O. LATE VENKATRAMANA
AGED ABOUT 63 YEARS
R/AT KARAVALI
VISHNUMURTHY TEMPLE ROAD
KULAI, MANGALURU-575 019.
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5. SMT. ROHINI
W/O. B.V. SEETARAM
AGED ABOUT 55 YEARS
R/AT KARAVALI
VISHNUMURTHY TEMPLE ROAD KULAI
MANGALURU-575 019.
...APPELLANTS
(BY SRI VENKATESH R. BHAGAT, ADVOCATE)
AND:
1. SRI N.B. ABOOBAKAR
S/O. LATE B.K.IBRAHIM
R/AT BAITHUL FATHIMA
SITE NO.25, ANAGARAGUNDI
BAIKAMPADY
MANGALORE-575 011.
2. SRI B. MAYYADI
S/O. LATE UMARABBA
AGED ABOUT 53 YEARS
R/AT SITE NO.59
ANAGARAGUNDI
BAIKAMPADY
MANGALURU-575 011.
...RESPONDENTS
(BY SRI A. RAJESH, ADVOCATE FOR R1 & R2)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 18.02.2019
PASSED IN RA.NO.54/2017 ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE AND CJM, MANGALURU, D.K,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 28.01.2017 PASSED IN O.S.NO.205/2012
ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE AND JMFC,
MANGALURU.D.K.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
This matter is listed for admission and I have heard the
learned counsel for the appellants and learned counsel for the
respondent Nos.1 and 2.
2. This second appeal is filed against the concurrent
finding of the Trial Court and the First Appellate Court. The
factual matrix of the case of the plaintiff before the Trial Court
is that he had filed the suit for the relief of damages against the
defendants for defamation and perpetual injunction restraining
the defendants, their men, servants, agents and
representatives from making, printing or publishing any article,
news items, statements which is defamatory, injurious or
insulting of the plaintiff and other reliefs'.
3. While seeking such relief, in the plaint, it is
contended that the plaintiff is a Civil Engineer as well as Social
Workers since last 24 years. As a result, the plaintiff was
appointed as President of All India Arabic School, Sunni
Management Association, Mangalore Range. The Secretary for
5 years and as a President for 9 years of Mohiuddin Jumma
Masjid, Baikampady. The plaintiff has been in important
positions in many other socio, religious organizations. The
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plaintiff has been an active worker of Bharatiya Janatha Party.
At the time of incident, the plaintiff was appointed as Chairman
of Karnataka Minorities Development Corporation. The plaintiff
has held other positions in other institution.
4. The plaintiff contend that he obtained grant from
the Government to the Government Higher Primary School at
Baikampady as well as community hall at Baikampady to the
tune of Rs.2 Crores. Therefore, the plaintiff has earned great
respect, esteem and reputation in his family as well as society.
At the same time, because of his excellent qualities and
achievements, the plaintiff has become the target of some
jealous, criminal minded and mischievous people like
defendants. The defendant Nos.1 to 5 are the editor, printer,
owners and printing press owners in respect of the Kannada
Daily Newspaper namely, "Karavali Ale". The said newspaper is
edited, published and printed at Baikampady, Mangalore, and
the said newspaper is sold and circulated throughout Dakshina
Kannada, Udupi and Kasargod District. The defendant No.6 is
in fact an agent, broker and accomplice of the defendant Nos.4
and 5. The said defendants through their people like defendant
No.6 approached the politicians, important and respectable
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peoples of the society and demand from them expensive
advertisement in their paper under the threat that they will
publish defamatory news items and articles, if the
advertisements are not given.
5. The plaintiff submits that in the month of February
2012, the representative of defendant Nos.4 and 5 made a
phone call to the brother by name Usman of the plaintiff and
demanded from him advertisement under the threat that they
will publish defamatory article against the plaintiff, if the
demand is not met. The brother of the plaintiff politely refused
to meet the said unlawful demand and ignored. The plaintiff
submits that thereafter in the "Karavali Ale" newspaper dated
25.02.2012 at its page No.4, the defendants published a false
and perse defamatory article under the caption
"Alpasankyathara Abhivruddiyo Aboobakar Abhivruddiyo" and
such caption is defamatory and also in the very newspaper
dated 07.03.2012 at its page Nos.1 and 3, the defendants
published false and defamatory article against the plaintiff
under the caption that "BJP ya Aboobakar Sahodarana Jagadalli
Nethaaduva Danada Thalegalu" and "Nethaaduva Danada
Thalegalu". In the said newspaper, defendants have described
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the plaintiff as a person, who has purchased immovable
property for himself and his relatives through the illegal money
received by him by misusing his power as a Chairman of
Minority Development Corporation.
6. It is also stated in the plaint that in the very same
newspaper dated 09.03.2012, in its 1st page and 3rd page, the
defendants published perse defamatory and false publication
under the caption that "Danada Thale Kattiddu Aboobakar
Sahodara", "Aboobakar Kutumba A.P.M.C. Jaaga
Kabalisiddannu Virodhisidde Muluvaagide" and "Virodhisidde
Muluvaagide". In the said false and defamatory article, the
defendants have described the plaintiff and his family a
persons, who have grabbed the land belonging to A.P.M.C. It is
also further stated that in the very same newspaper dated
10.03.2012, in front page and at page No.3, the defendants
published one more article against the plaintiff under the
caption "Aboobakar B.J.P. ge Asprishya" and in the very same
newspaper dated 12.03.2012, at front page and at page No.3,
the defendants have made and published false and perse
defamatory news items against the plaintiff under the caption
"A.P.M.C. Jaaga Kabalisida Aboobakar" and "Jaaga Kabalisida
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Aboobakar". In the said article, the defendants have described
the plaintiff as a person, who has illegally grabbed the land
belonging to A.P.M.C. and continuous defamatory articles are
written in the very same newspaper with an intention to
defame the plaintiff. Hence, filed the suit for the relief of
damages for the defamatory statements.
7. In response to the suit summons, the defendants
appeared and filed the written statement contending that the
said publications which have been narrated in the plaint are
true and the same are published in the public interest. Having
taken note of the pleadings of the parties, the Trial Court
framed issues with regard to the damages and also for
perpetual injunction as sought and also whether the defendants
prove that the same is published in public interest.
8. The Trial Court given opportunity to both the
plaintiff and the defendants and the plaintiff examined himself
as P.W.1 and got marked the documents as Exs.P1 to P16(a).
On the other hand, the defendants examined two witnesses as
D.Ws.1 and 2 and got marked the documents as Exs.D1 to
D17.
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9. The Trial Court, having considered both oral and
documentary evidence placed on record, answered issue No.1
as 'negative', in coming to the conclusion that the defendants
have not proved that the said articles are published in the
public interest and answered issue Nos.2 and 3 as 'affirmative'
and 'partly affirmative' respectively and granted an order of
injunction and also directed the defendants to pay damages of
Rs.1,00,000/- to the plaintiff. Hence, an appeal is filed before
the First Appellate Court in R.A.No.54/2017.
10. The appellants in the said appeal also raised the
ground that the plaintiff has not proved the case and burden is
on the plaintiff to prove that the articles published are perse
defamatory and instead, burden is shifted on the defendants
and the very approach of the Trial Court is erroneous. The First
Appellate Court, having considered the grounds urged in the
appeal memo and also on hearing learned counsel for both the
parties and considering both oral and documentary evidence
placed on record, formulated the points whether the appellants
prove that the finding recorded by the Trial Court is contrary to
law and facts and it needs interference. The First Appellate
Court, on re-appreciation of both oral and documentary
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evidence placed on record, confirmed the judgment and decree
of the Trial Court and dismissed the appeal. Hence, the present
second appeal is filed before this Court.
11. Learned counsel for the appellants would
vehemently contend that both the Courts have ignored the
principles of law and erroneously placed the burden on the
defendants and failed to consider the fact that the burden is on
the plaintiff to prove the publication is defamatory and thereby
erred in not framing an issue. The counsel would vehemently
contend that both the Courts failed to take note of the fact
without initial proof of concept of defamation, the Trial Court
and the First Appellate Court have erred in shifting the burden
on the defendants in a case of defamation and both the Courts
committed an error in not considering the fact that publications
in question were true and made in the public interest and failed
to take note of the documents of Exs.D1 to D17, which have
been produced by the appellants herein and the same is
published in the public interest. Hence, this Court has to admit
the appeal and frame substantial question of law to that effect.
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12. Having heard the learned counsel for the appellants
and also on perusal of the material available on record, the
plaintiff has relied upon the articles before the Trial Court which
have been marked as 'P' series particularly, Exs.P1 to P4 and
they are the articles published on 07.03.2012, 09.03.2012,
10.03.2012 and 12.03.2012 with regard to the defamatory
publication in the daily newspaper "Karavali Ale". In support of
his case, he examined himself as P.W.1 and the very contention
of the learned counsel for the appellants is that no other
witnesses have been examined with regard to intentional
defamatory statement made in the publication. But, the fact is
that the very defendants have filed the written statement and
taken the defence admitting the said newspaper articles dated
07.03.2012, 09.03.2012, 10.03.2012 and 12.03.2012. But, the
only contention raised before the Trial Court was that those
publications are made in the public interest.
13. The witnesses were also examined before the Court
on behalf of the defendants and the witness, D.W.1 was cross-
examined before the Trial Court and when he was cross-
examined, he categorically admits that the said publication was
made on account of letter written by one of the reader. He also
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in the cross-examination admits that the said letter is in his
custody but, he has not produced such letter before the Court
and the very basis for publication of the said document is the
letter addressed by a reader and when the letter is in his
custody, he ought to have produced the same before the Court.
No doubt, the defendants mainly relied upon the documents of
Exs.D1 to D17 i.e., Vijaya Karnataka daily newspaper dated
07.02.2012, endorsement issued by the RTI Officer of
Panambur P.S., complaint submitted by Mayyaddi to Panambur
P.S., police complaint of B.K. Ummar Farooq, circular issued by
the Karnataka Government etc., and in order to publish a
defamatory publication which is also perse defamatory as
contended by the plaintiff, the plaintiff has categorically
pleaded in the plaint that he is a Social Worker and also an
Engineer and he also worked as Secretary and President of
Minority Institution and he is in the public field and the same is
also not denied by the defendants but, they only deny that the
said publication is made in the public interest and the same is
also considered by the Trial Court while appreciating the
material available on record with regard to the articles as well
as defence which has been taken and also answer elicited from
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the mouth of witnesses, particularly, D.W.1, he took the
defence that the same was published in the interest of general
public and the same is not substantiated and the very
contention of the appellants is that no issues have been framed
with regard to the burden of proving that the said publication is
defamatory is on the plaintiff and the said contention cannot be
accepted since, the defendants have admitted the very
publication made in the newspaper and only took the defence
that it was published in public interest. Hence, the Trial Court
rightly framed issue No.1 whether such publications are made
in the public interest and the Trial Court also taken note of both
oral and documentary evidence placed on record and the First
Appellate Court also on re-appreciation of both oral and
documentary evidence placed on record and also considering
the grounds urged in the appeal memo, formulated the point
whether the findings recorded by the learned Trial Court is
contrary to law and facts and it needs interference.
14. Having considered the material on record, the Trial
Court not only considered the factual aspects but also
considered the material on record and Evident Act (1 of 1872),
Section 81- Newspaper Report - Presumption of Genuineness
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attached under Section 81 - cannot be treated as proof of facts
stated therein - statement of facts are merely hearsay and also
taken note of several judgments of the Apex Court with regard
to defamation and defence of justification when the defence
was taken that the said publications are made in public interest
15. The Apex Court also taken note of the judgment in
HARIJAI SINGH AND ANOTHER VS. VIJAY KUMAR
reported in AIR 1997 SC 73 with regard to freedom of press
since, the learned counsel for the appellants would vehemently
contend that, under Article 19(1)(a) of the Constitution of
India, he has got right to publish the same and in this
judgment also, the Apex Court held that Editor of a Newspaper
or a journal has a greater responsibility to guard against
untruthful news and publications for the simple reason that his
utterances have a far greater circulation and impact than the
utterances of individual and by reason of their appearing in
print, they are likely to be believed by the ignorant. That being
so, certain restrictions are essential even for preservation of
the freedom of the press itself.
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16. All these facts were taken note by the Trial Court
and the First Appellate Court and given anxious consideration
to the material available on record and also the principles laid
down in the judgments of the Apex Court and in detail
discussed the material available on record and both the Courts
comes to the conclusion that the articles published is perse
defamatory in nature and affects the reputation of the plaintiff
and though the plaintiff claimed damages of Rs.2,00,000/-
before the Trial Court, only granted damages of Rs.1,00,000/-
and the same is affirmed by the First Appellate Court.
17. Having considered the material on record and also
the contentions of the learned counsel for the appellants that
burden is shifted on the defendants to prove that the
publication made is not perse defamatory instead of plaintiff
cannot be accepted since, the defendants have accepted the
very publication and no dispute with regard to the publication
made in the newspaper. But, the defendants have only taken
the defence that it was published in public interest and the
same has not been defended by placing any material before the
Court. Hence, the Trial Court and the First Appellate Court
have not committed any error and both the Courts have given
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anxious consideration to both the fact finding and question of
law involved in respect of defamatory statement is concerned
and there is no perversity in the judgment. Therefore, there is
no merit in the second appeal to admit and frame substantial
question of law.
18. In view of the discussions made above, I pass the
following:
ORDER
The appeal is dismissed.
Sd/-
JUDGE
ST
