Bombay High Court
Ismail Yakub Payak vs Mukesh Chug And 2 Ors on 11 April, 2023
Author: R.I. Chagla
Bench: R.I. Chagla
3-S 1137.2019 and IA (L) 9703.2023.doc
K.S. Jadhav
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
SUIT NO.1137 OF 2019
AND
INTERIM APPLICATION (L) NO.9703 OF 2023
Ismail Yukub Payak ...Plaintiff
Versus
Mukesh Chug & Ors. ...Defendants
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Firoz Bharucha i/b Aditya Pratap, Advocate for the Plaintiff.
Mr. Samarth Raju Moray, Advocate for Defendant Nos.1 to 3.
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CORAM : R.I. CHAGLA J.
DATE : 11TH APRIL, 2023.
ORDER :
1. The learned Counsel appearing for the Defendants has in the Draft Issues sought to include an issue which is as under :
Issue No.1 : Whether the Defendants prove that the communications and statements made by the Defendants and relied upon in the Plaint are protected by either absolute privilege or qualified privilege ?1/4 ::: Uploaded on - 12/04/2023 ::: Downloaded on - 12/04/2023 23:33:01 :::
3-S 1137.2019 and IA (L) 9703.2023.doc
2. The learned Counsel for the Defendants states that it was unclear as to whether the Suit was a defamatory Suit from the pleadings and the prayer in the plaint. It is only upon receipt of the Draft Issues of the Plaintiff that the Defendants realised that the Suit is defamatory Suit. He has accordingly sought for this issue to be raised in the defence taken to the defamatory Suit.
3. The learned Counsel appearing for the Plaintiff states that the aforementioned Issue No.1 of the Draft Issues of the Defendants is a legal issue and it is always open for the Defendants to make legal arguments as to the communication and statement being protected by either absolute privilege or qualified privilege. He has submitted that it is not necessary for the Defendants to include this in their Written Statement / Defence.
4. In any event, at the stage of marking of documents, this Court will nevertheless go into the issue, as to whether the documents are admissible and the Defendants can at that stage object to the documents being marked on ground of absolute privilege or qualified privilege.
5. In counter, the learned Counsel for the Defendants states 2/4 ::: Uploaded on - 12/04/2023 ::: Downloaded on - 12/04/2023 23:33:01 ::: 3-S 1137.2019 and IA (L) 9703.2023.doc that though absolute privilege is a question of law, qualified privilege is a mixed question of fact and law. Accordingly, leave is sought to file an Interim Application for carrying out amendment of the Written Statement.
6. Having considered the submissions, in the interest of justice and to permit the Defendants to take this as an Issue, leave is granted to take out Interim Application for amendment of the Written Statement.
7. The Interim Application shall be filed within a period of one week from today.
8. The Plaintiff is at liberty to file Affidavit-in-Reply to the Interim Application as and when served upon the Plaintiff.
9. In the event, the Interim Application is filed within the time permitted by this Court, the Interim Application shall be listed on 2nd May, 2023 under the caption 'for Amendment'.
10. The framing of Issues will be only after hearing and disposal of the Interim Application.
11. The Interim Application (L) No.10075 of 2023 shall also be 3/4 ::: Uploaded on - 12/04/2023 ::: Downloaded on - 12/04/2023 23:33:01 ::: 3-S 1137.2019 and IA (L) 9703.2023.doc placed on next date.
[ R.I. CHAGLA J. ] 4/4 ::: Uploaded on - 12/04/2023 ::: Downloaded on - 12/04/2023 23:33:01 :::