Smt. Bhagya Anil vs Sri.K.G. Gururaj @ K. Gururaj ...
2023 Latest Caselaw 6430 Kant

                                             -1-
                                                        NC: 2023:KHC:32771
                                                      RSA No. 1272 of 2023




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                       DATED THIS THE 11TH DAY OF SEPTEMBER, 2023

                                          BEFORE

                          THE HON'BLE MR JUSTICE H.P.SANDESH

                     REGULAR SECOND APPEAL NO. 1272 OF 2023 (INJ)

                   BETWEEN:

                      SMT. BHAGYA ANIL
                      W/O T.J.ANIL
                      AGED ABOUT 46 YEARS
                      OWNER, EDITOR OF
                      BELAGINA VIDAATHA
                      DAILY NEWS PAPER
                      AZAD ROAD, THIRTHAHALLI,
                      SHIVAMOGGA DISTRICT-577432.
                                                               ...APPELLANT
                              (BY SRI PRASHANTH H.S., ADVOCATE)
                   AND:

                      SRI K.G. GURURAJ @ K. GURURAJ KALKUR
Digitally signed      S/O K. GOPALAKRISHNA KALKUR,
by SHARANYA T         AGED ABOUT 44 YEARS
Location: HIGH
COURT OF              R/O AZAD ROAD,
KARNATAKA             THIRTHAHALLI TALUK,
                      SHIVAMOGGA DISTRICT-577432.
                                                             ...RESPONDENT

                        THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
                   THE JUDGEMENT AND DECREE DATED 13.04.2023 PASSED IN
                   R.A.NO.57/2021 ON THE FILE OF SENIOR CIVIL JUDGE AND
                   JUDICIAL MAGISTRATE OF FIRST CLASS, THIRTHAHALLI
                   DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT
                   AND DECREE DATED 19.10.2019 PASSED IN O.S. NO.9/2014
                   ON THE FILE OF II ADDITIONAL CIVIL JUDGE AND JMFC,
                   THIRTHAHALLI.
                                   -2-
                                                    NC: 2023:KHC:32771
                                               RSA No. 1272 of 2023




     THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
                             JUDGMENT

Heard the learned counsel for appellant. This

matte is listed for admission.

2. The factual matrix of the case of the plaintiff

before the Trial Court that defendant Nos.1 and 2 are

jointly with an intention to defame the plaintiff who is an

advocate has published the defamatory article on

26.10.2013 in the newspaper belongs to defendant No.2

wherein a defamatory statement is made that the

advocate involved in forgery and also for money he is

causing threat under the said title it was published. Hence,

the plaintiff has issued the notice against the defendant

Nos.1 and 2 before filing the suit and also filed PCR

No.106/2013 and the same was numbered as CC

No.303/2013.

3. In pursuance of the suit notice was also ordered

and defendant No.1 has appeared and the present

appellant who arrayed as defendant No.2 in the Trial

NC: 2023:KHC:32771 RSA No. 1272 of 2023

Court, though served with the notice, she did not choose

to engage any counsel and contest the case. The Trial

Court having considered the material available on record

particularly the document marked at Ex.P1 i.e., paper

publication and all other materials on record, decreed the

suit and awarded sum of Rs.24,000/- for damages against

defendant Nos.1 and 2 and directed to pay the amount

within 3 months from the date of the order and also

restrain them from making any false and defamatory

statement against the plaintiff.

4. Being aggrieved by the said judgment and

decree the 2nd defendant who has not appeared and

contested the matter in the Trial Court has filed an appeal

in RA No.57/2021. The First Appellate Court having

considered the grounds urged in the appeal, formulated

the points as whether the Trial Court is right in holding

that both the defendants are liable to pay the damages

and has tarnished the image of the plaintiff and the said

news article is a defamatory article and also formulate the

points as whether the circumstances warranted to remand

NC: 2023:KHC:32771 RSA No. 1272 of 2023

the matter to the learned Trial Court and whether it

requires an interference of the appellate Court.

5. The First Appellate Court having considered

both oral and documentary evidence available on record

and also taken note of news item in paragraph No.17 of

the judgment and answered the point No.1 as affirmative

and answered point No.2 and 3 as negative and dismissed

the appeal. Being aggrieved by the said judgment and

decree of the First Appellate Court, the defendant

No.2/appellant herein has filed present second appeal

before this Court.

6. The counsel for appellant would vehemently

contend that no opportunity was given to the

appellant/defendant No.2 before the Trial Court and also

the counsel would vehemently contend that appellant is

not aware of proceedings initiated by the plaintiff against

defendant No.2. The plaintiff has initiated several

proceedings against the defendant No.2 in different

forums. In view of receiving several notices by

inadvertences, the appellant has noticed suit number and

NC: 2023:KHC:32771 RSA No. 1272 of 2023

thought that it is one among the ongoing cases, the

appellant for the bonafide reasons could not appear before

the Trial Court and also resolution was passed by Bar

Association of Thirthahalli for resolving, restraining all

members from appearing against the plaintiff who is

member of Bar Association.

7. The counsel would vehemently contend that

both the Trial Court as well as the First Appellate Court

have committed an error in coming to the conclusion that

both defendant Nos.1 and 2 have colluded each other in

making publication dated 26.10.2013 and publication of

statement given by a person in newspaper showing the

same to be a statement by individual and publishing it

would amounts to defamation caused by Editor. Hence,

this Court has to frame substantive question of law and

admit the second appeal.

8. Having heard the appellant's counsel and also

considering the material available on record, first of all suit

summons was issued against the appellant and the same

was served on her and she did not choose to engage the

NC: 2023:KHC:32771 RSA No. 1272 of 2023

counsel and contest the matter. But, only ground urged by

the appellant before this Court is that the respondent has

filed several cases against her and by inadvertent she

could not make representation in O.S.No.9/2014. It is not

the case of the appellant that she was not served with suit

notice in the suit. No doubt other contention also raised

before this Court that there was a resolution passed by the

Bar that not to appear against defendants. But, the Trial

Court judgment clearly discloses that defendant No.1

represented through counsel and he has engaged the

counsel. But, this defendant No.2 was placed exparte.

When the 1st defendant would able to engage the counsel,

what prevented him to engage the counsel, for that no

explanation was given by the appellant.

9. It is also important to note that the appellant

counsel submits that based on the statement of defendant

No.1, she had published the same and when an allegation

is made against an advocate who is practicing in the local

Bar, an allegation is made in the paper and the same is

published in newspaper of the appellant herein that, the

NC: 2023:KHC:32771 RSA No. 1272 of 2023

plaintiff who is an advocate indulged in forgery and also

causing threat for money, it affects the very profession of

the advocate. Hence, the Trial Court taking into note of

the same, particularly in paragraph No.14 and also in

detail taken note of the Ex.P1 wherein an imputation is

made against the plaintiff/respondent in paragraph No.24

discussed the same in detail and decreed the suit and

ordered to pay sum of Rs.24,000/- as damages against

both the defendant Nos.1 and 2.

10. The very contention of the appellant's counsel

that both the Courts below have committed an error in

coming to the conclusion that defendant Nos.1 and 2 have

colluded with each other and published the said article

cannot be accepted and only ground urged by the

appellant that when the statement was given by the

defendant No.1 and the same was published in newspaper

and she being a Editor of the said paper ought to have

cross verified the same and the same is also not done, but

only based on the statement of the defendant No.1 that

too in a newspaper which is circulated within the vicinity of

NC: 2023:KHC:32771 RSA No. 1272 of 2023

the Court, where the counsel is making the practice, the

defendant No.2 has indulged in publishing the same, when

such material are found, the same is also considered by

the First Appellate Court while appreciating both oral and

documentary evidence, even in the paragraph No.17, the

First Appellate Court extracted the defamatory article

which was published in the newspaper and also taken note

of the material available on record and also at paragraph

No.27 to 49 taken note of the same, dismissed the appeal.

11. It is important to note that first of all the

appellant has not contested the matter in spite of service

of suit summons and he has not engaged the counsel. The

very reason given by the counsel for appellant that the Bar

has passed the resolution and that cannot be a ground and

not prevented him to engage any other counsel also. Apart

from that 1st defendant has engaged the counsel and

contested the matter. Now, in this second appeal he

cannot contend that the matter has to be remanded. The

said aspect also considered by the First Appellate Court,

when the ground was urged to remand the matter and the

NC: 2023:KHC:32771 RSA No. 1272 of 2023

Court also cannot remand the matter on whims and fancy

of the appellant and it is not the case of the appellant that

suit summons was not served. In spite of summons was

served, he kept quite and now he cannot seeks for an

order of remand as contended by the counsel. Hence, I do

not find any merit in this second appeal to interfere with

the findings of the Trial Court as well as the First Appellate

Court in the absence of any perversity. Hence, it is not a

case to admit the appeal and frame substantive question

of law by invoking Section 100 of CPC.

12. In view of the discussions made above, I pass the following:

ORDER The second appeal is dismissed.

The Criminal Court shall not be influenced with

observation made by this Court in considering the case on

merits.

Sd/-

JUDGE

RHS