Madras High Court
Dr.Arul Prakasam vs P.Palkani on 25 November, 2021
S.A(MD)No.248 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 25.11.2021
CORAM
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
S.A(MD)No.248 of 2017
Dr.Arul Prakasam ... Appellant/Appellant/Plaintiff
Vs.
P.Palkani ... Respondent/ Respondent/Defendant
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the judgment and decree, dated 19.02.2016 passed in
A.S.No.23 of 2012, on the file of the II Additional District Court,
Thoothukudi, confirming the judgment and decree dated 18.07.2012
passed in O.S.No.172 of 2007 on the file of the Subordinate Court,
Thoothukudi.
For Appellant : Mr.C.Dhanaseelan
For Respondent : Mr.V.Balasubramaniam
1/19
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S.A(MD)No.248 of 2017
JUDGMENT
The appeal is directed against the Judgment and Decree
passed in A.S.No.23 of 2012, by the learned II Additional District Judge ,
Thoothukudi, in confirming the Judgment and Decree in O.S.No.
O.S.No.172 of 2007, passed by the learned Subordinate Judge,
Thoothukudi.
2. For the sake of convenience, the parties are referred to as,
as described before the trial Court.
3.The case of the plaintiff, as per the averments made in he
plaint, in short, is as follows :
The plaintiff had filed a suit against the defendant in
O.S.No.75 of 2005, on the file of the District Munsif Court,
Sathankulam, seeking injunction. The plaintiff had filed an I.A.No.335
of 2005 for restoration of the suit, which was dismissed for default. The
defendant filed a counter for the same on 29.06.2007, in which, the
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defendant levelled certain allegations, which are scandalous and
defamatory. The defendant alleged in the counter in I.A.No.335 of 2006
that the plaintiff is doing real estate and money lending business and also
performs 'Katta Panchayat' regarding the property dispute, who has got
money power and muscle power and as predominantly in the said area.
The allegations are totally irrelevant to the issues in the suit or the
petition. Thereby, the defendant spread derogatory and defamatory to the
Judge, O.T. Clerk, Advocate Clerks and other connected with Court work
and general public. The plaintiff was working as Headmaster in a Higher
Secondary School and had obtained Doctorate in Tamil. The defendant,
by filing such counter, spreading malicious allegations against the
plaintiff and therefore, the plaintiff had been gravely injured in his credit
and reputation and had been brought to odium and contempt in the eyes
of the public and thereby suffered pain and humiliation. Quantifying the
damages claimed by him at Rs. 10,00,000/-, the plaintiff sought a decree
of court in his favour for the said sum. The plaintiff had issued a
Lawyer's Notice, dated 26.09.2007, demanding the above said sum. The
defendant received the same on 27.09.2007, but he had not chosen to pay
the amount. On account of the financial constraints, the plaintiff restricts
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S.A(MD)No.248 of 2017
his claim to Rs.2,00,000/- (Rupees Two Lakh only). Hence, the suit was
filed for recovery of damages of Rs.2,00,000/- (Rupees Two Lakh only)
from the defendant.
4.The defendant filed a written statement contending
interalia that the averments made in the plaint are false. The plaintiff is
a native of Sankarankudierppu Village and was working as Headmaster
and retired from service. He is at present residing at Tuticorin. The
plaintiff filed O.S.No.75 of 2005, before the District Munsif Court,
Sattankulam, for permanent injunction and for that case, he used to visit
his native place and because of all those things, the plaintiff wanted to
drag the defendant to Tuticorin and only in order to drag this defendant
to Tuticorin, the plaintiff filed this suit for damages without any legal
basis. The counter filed in I.A.No.334 of 2005 will not amount to
publication. The representation, by way of counter made by the
defendant in legal proceedings, will not amount to defamation. The suit
schedule property in O.S.No.75 of 2005 is situated adjacent to the
property of the defendant. The plaintiff threatened and compelled the
defendant to sell her property to the plaintiff and for that purpose, the
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S.A(MD)No.248 of 2017
plaintiff filed the suit in O.S.No.75 of 2005. Now, by filing this suit, the
plaintiff is harassing the defendant in order to blackmail the defendant to
sell her property to the plaintiff. The suit is barred by limitation and
there is no cause of action for the suit and therefore, prayed for dismissal
of the suit.
5. Before the trial Court, on the side of the plaintiff, the
plaintiff examined himself as P.W.1, one S.Dasan and Rajan were
examined as P.W.2 and P.W.3 and Exs.A1 to A25 were marked. On the
side of the defendant, the defendant examined herself as D.W.1 and
Exs.B.1 to B.5 were marked.
6. On the basis of the rival pleadings on either side, the trial
Court, after framing necessary issues and after evaluating both the oral
and documentary evidence, has dismissed the suit in favour of the
respondent / defendant.
7. Aggrieved by the Judgment and decree passed by the trial
Court, the plaintiff, as appellant, had filed an Appeal Suit in A.S.No.23
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of 2012 on the file of the learned II Additional District Judge,
Thoothukudi. The first appellate Court, after hearing both sides and
upon reappraising the evidence available on record, had dismissed the
appeal and confirmed the Judgment and decree passed by the trial Court.
Challenging the said concurrent Judgments and decrees passed by the
Courts below, the present second appeal has been preferred at the
instance of the plaintiff, as appellant.
8. Heard the learned counsel for the appellant / plaintifft and
the learned counsel for the respondent and also perused the materials
available on record.
9.The learned counsel for the appellant/plaintiff would
submit that the Courts below failed to note that the contention of the
defendant made against the plaintiff in his counter filed in I.A.No.335 of
2005 in O.S.No.75 of 2005, on the file of the District Munsif Court,
Sathankulam, that the plaintiff was doing 'Katta Panchayat' is per se
defamatory and intended to discredit the integrity of the appellant. He
further submits that all the disputes arising out from his native village, in
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the cross-examination, the plaintiff has stated that adducing any evidence
to substantiate the allegation that the plaintiff was doing 'Katta
Panchayat' is erroneous.
10.He further submits that the Courts below failed to note
that the allegation of doing real-estate business and money lending
business need to be taken into consideration in the said context in which,
it was used against the plaintiff, who is a well known Headmaster in
Thoothukudi and the Courts below failed to give due importance to the
status of the plaintiff. The defendant as a party to the suit, has no
privilege to defame the plaintiff by false imputation in her counter, filed
against I.A.No.335 of 2005 in O.S.No.75 of 2005, especially the said
petition is for condonation of delay only. The trial Court has wrongly
held that there is no proof that the defamatory statements has lowered the
status of the appellant in the society, even though it has correctly held
that the disputed settlement made in the counter filed by the defendant in
the court would amounts to publication, by relying on the Judgment of
this Court in Thangavelu Chettiar Vs. Ponnammal reported in (AIR
1966 Madras 363).
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11. Adding further, the learned counsel for the appellant /
plaintiff would submit that the trial Court has given an erroneous finding
that the statement has been made only to protect her interest in O.S.No.
75 of 2005 is not correct, especially when the suit is for resolving a
boundary dispute and the I.A.No.335 of 2007 is for condonation of
delay. The title, possession and enjoyment of the respective parties are
the relevant facts to the case. The statement made by the defendant that
the plaintiff is doing 'Katta Panchyat', 'Real-estate business' and 'Money
lending business' are defamatory statements are not falling under
exception No.5 and 9 of Section 499 of the Indian Penal Code. The
parties to the suit shall not make use of the Court of law and has no
vested right or privilege for abusing another party by way of pleading
and put it in record of the Court. The Code of Civil Procedure is also
having a provision in Order 6 Rule 16(a) for striking out such pleadings.
He further submits that the defendant deserves to be mended for her jolly
in making unnecessary, scandalous defamatory statements and the
professional ethics of Advocates also requires them whether his client
can substantiate such allegations made into the pleadings are not at all
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S.A(MD)No.248 of 2017
considered by this Court and prayed for Rs.2,00,000/- (Rupees Two Lakh
only) as compensation.
12.In the Memorandum of Second Appeal, the plaintiff /
appellant sought to raise the following Substantial Questions of Law.
“1. Whether the Courts below are legally
correct in holding that the marked Ex.A1
statements, made by the respondent is protected
under the Doctrine of Absolute Privilege?
2. When the suit is for resolving a boundary
dispute, whether the courts below are legally
correct in applying the doctrine of absolute
privilege with respect to Ex.A1, which is beyond
the nature and scope of all the relevant issues to
be decided in the suit?
3. Whether the courts below have entered
into a perverse finding in holding that the plaintiff
has not proved that the statement marked as
Ex.A1 has not lowered his status?
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4.When the respondent did not prove by
citing single incident that the appellant is doing
“Katta Panchayathu” whether he lower appelalte
court has entered into a perverse finding in
holding that the statement in Ex.A1 is not
perverse defamatory?
5. Whether the courts below have failed to
consider that evidentiary value of Ex.A4 to A6 to
A24 on the status of the appellant in order to
consider the seriousness of the libelous statement
marked as Ex.A1.
13.This Court paid its anxious consideration to the rival
submissions made and also carefully perused the materials placed on
record.
14. On perusal of the records, it is seen that the plaintiff had
filed a suit, as against the defendant in O.S.No.75 of 2005, on the file of
the District Munsif Court, Sathankulam, seeking injunction. The
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plaintiff had filed an interim application in I.A.No.335 of 2005 for
restoration of the suit, which was dismissed for default. According to the
plaintiff, in the counter filed I.A.No.335 of 2005, the defendant levelled
various allegations, against the plaintiff, which are scandalous and
defamatory. Quantifying the damages, the plaintiff had issued a Lawyer's
Notice, dated 26.09.2007, demanding Rs.2,00,000/-. But, according to
the defendant, to drag on the defendant to Tuticorin in the pending civil
suit proceedings, the plaintiff filed this suit for damages, without any
legal basis. The representation by way of counter made by the defendant
in legal proceedings will not amount to defamation. Now by filing this
suit, the plaintiff is harassing the defendant only to blackmail the
defendant to sell her property to the plaintiff.
15. The only question, which arises for consideration in this
appeal is whether the defendant has levelled allegations, under Ex.A1,
against the plaintiff, which are scandalous and defamatory and for
quantifying such damages, the claim of Rs.2,00,000/- made by the
plaintiff, as against the defendant is sustainable in the eye of law. Ex.A1
is the counter filed by the defendant in I.A.No.335 of 2007 in O.S.No.75
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of 2005, on the file of the District Munsif Court, Sattavnkulam.
According to the defendant, by filing such counter, spreading malicious
allegations against the plaintiff and therefore, the plaintiff had been
gravely injured in his credit and reputation and had been brought to
odium and contempt in the eyes of the public and thereby suffered pain
and humiliation.
16. No doubt, the counter filed in the Interlocutory Application is
not a public document. The contention of the plaintiff that all the
persons and the advocates present in the Court, during the cross
examination, may spread the news against the plaintiff, cannot be
accepted for the simple reasons that the counter will be scrutinised only
by the person, who are connected with this issue and not others. It is
between the Judge and the counsels on either side and the parties to the
proceedings. The plaintiff has not examined any advocate or the
advocate clerk or any other person, who is having access to the Court or
any other general public, who had come to the knowledge of the said
defamatory statement. A defamatory statement is one, which has a
tendency to injure the reputation of the person to whom it refers; which
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tends that is to say, to lower him in the estimation of right-thinking
members of the society generally and in particular to cause him to be
regarded with feelings of hatred, contempt, ridicule, fear, dislike or
disesteem. The statement is judged by the standard of an ordinary, right-
thinking member of the society. In the instant case, it cannot be inferred
that due to the assertions in the pleading/ evidence referred above, the
complainant was lowered in the estimation of right-thinking member of
the society generally.
17. The words used in the pleadings or in the affidavit by the
defendant in the course of the judicial proceedings are privileged and
therefore, cannot be made basis for any defamatory action by the
'Doctrine of Judicial Privilege'. In the Full Bench Judgment of the
Hon'ble Supreme Court in Chunni Lal Vs. Narsingh Das reported in
(1918 All 69 (FB)), it has been held that in the course of judicial
proceedings were not actionable on the ground of 'Absolute Privilege'.
Further, in an yet another Judgment, the Hon'ble Supreme Court in Ali
Mohammad Vs. Manna Lal, reported in (1929 All 972), has held that
the 'Absolute Privilege' attached to the statement on the principle that
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there is an absolute privilege for parties, witnesses, counsel, jury or
Judges in regard to words spoken in office, and this privilege extends to
the statements in the affidavit made by the parties or witnesses.
18. At this juncture, it is worthwhile to refer Section 499 of the
Indian Penal Code, which reads as follows :
499. Defamation —
Whoever, by words either spoken or intended to be
read, or by signs or by visible representations, makes
or publishes any imputation concerning any person
intending to harm, or knowing or having reason to
believe that such imputation will harm, the
reputation of such person, is said, except in the cases
hereinafter expected, to defame that person.
Explanation 1 —It may amount to defamation to
impute anything to a deceased person, if the
imputation would harm the reputation of that person
if living, and is intended to be hurtful to the feelings
of his family or other near relatives.
Explanation 2 —It may amount to defamation to
make an imputation concerning a company or an
association or collection of persons as such.
Explanation 3 —An imputation in the form of an
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alternative or expressed ironically, may amount to
defamation.
Explanation 4 —No imputation is said to harm a
person’s reputation, unless that imputation directly
or indirectly, in the estimation of others, lowers the
moral or intellectual character of that person, or
lowers the character of that person in respect of his
caste or of his calling, or lowers the credit of that
person, or causes it to be believed that the body of
that person is in a loathsome state, or in a state
generally considered as disgraceful.
19.That being the case, the statement made by the defendant
in a written statement or counter, that too, which has been in support of
his case, are not to be considered to be a defamatory statement. The
plaintiff herein has not let in any evidence to disprove the averments
made in the counter. No doubt, this Court agrees that the plaintiff has got
reputation in the public, wherein, he has been put into social activities
and other awards to him. Whether that particular statement made in the
counter filed by the defendant, is a defamatory statement and it has been
published to a third person is not proved by the plaintiff. In the absence
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of any such proof to show that the counter filed by the defendant has
been circulated outside the Court Hall or the general public, this Court
is of the view that both the Courts below have absolutely and rightly
came to the conclusion that the said statement would not amount to
defamation.
20.In the considered opinion of this Court that unless and
until, the same is proved to be a defamatory statement, the plaintiff
herein cannot claim to strike out such pleading. When a specific plea has
not been made out by the plaintiff to strike out the same, the Court, Suo-
motu, cannot do so. Further, the plaintiff has not brought in any
evidence to show that there was only a boundary dispute, when the
allegations are made in the said counter runs to various other averments.
The questions of law formulated in the Memorandum of Appeal also do
not arise for determination in this Second Appeal, which are liable to be
dismissed in limine. That being the case, this Court is not inclined to
interfere with the concurrent findings of the Court below and also there
is no question of law much less substantial question of law is involved
in this appeal. The Judgment relied on by the plaintiff reported in
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(AIR 1966 Madras 363) (cited supra) is not applicable to the facts of
the present case.
21.In fine, the Second Appeal is dismissed, confirming the
Judgment and Decree passed in A.S.No.23 of 2012, by the learned II
Additional District Judge, Thoothukudi, in confirming the Judgment and
Decree in O.S.No.172 of 2007, passed by the learned Subordinate Judge,
Thoothukudi. However, there shall be no order as to costs.
25.11.2021
Index : Yes/No
Internet : Yes/No
rm
Note : In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may
be utilized for official purposes, but, ensuring that
the copy of the order that is presented is the correct
copy, shall be the responsibility of the
advocate/litigant concerned.
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S.A(MD)No.248 of 2017
To
1.The II Additional District Court,
Thoothukudi,
2.The Subordinate Court,
Thoothukudi,
3.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A(MD)No.248 of 2017
V.BHAVANI SUBBAROYAN, J.
rm
Judgment made in
S.A(MD)No.248 of 2017
25.11.2021
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