Himachal Pradesh High Court
Sh. Vijay Puri vs Sh. Ajay Mittal & Ors on 31 August, 2018
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RFA No. 152 of 2008 along with RFA No. 154 of 2008.
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Reserved on : 21st August, 2018.
Decided on : 31st August, 2018.
1. RFA No. 152 of 2008.
Sh. Vijay Puri .....Appellant/defendant.
r Versus
Sh. Ajay Mittal & Ors ....Respondents/Plaintiff.
2. RFA No. 154 of 2008
M/s Divya Himachal Prakashan Pvt. Ltd and another .....Appellant/defendants.
Versus Shri Ajay Mittal and another ....Respondents/plaintiff.
Coram:
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1 Yes.
For the Appellant(s): Mr. Malay Kaushal, Advocate in RFA No. 154 of 2008 and Mr. Raman Prashar, Advocate, in RFA No. 154 of 2008.1
Whether reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 04/09/2018 21:53:53 :::HCHP
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For Respondent No.1: Mr. Surender P. Sharma, .
Advocate in both appeals.
Nemo for other respondents.
Sureshwar Thakur, Judge.
The plaintiff's suit, for, rendition of a decree, for damages, arising from publication, of, libelous material, borne in Ex.P-3, stood, decreed by the learned trial Court.
The defendants being aggrieved therefrom, hence, instituted separate appeals before this Court, hence, both the appeals are amenable, for, meteings, of, adjudication, under, a common verdict.
2. Briefly stated the facts of the case are that the plaintiff is a member of Indian Administrative Service (AS) and he was selected as such in the year 1982. It is averred that the plaintiff was appointed as Principal Secretary to the Chief Minister of Himachal Pradesh, in March, 1998, and, he joined as such on April, 28, 1998.
Besides, working as Principal Secretary to the Chief Minister, the plaintiff was also working as Secretary to ::: Downloaded on - 04/09/2018 21:53:53 :::HCHP ...3...
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the Government in the Department of Excise and Taxation, Information and Pubic Relations and Language, Art and Culture etc. It is averred that having completed three years as Principal Secretary to the Chief Minister, the plaintiff was relieved from such post on December 1, 2001.
It is averred that the transfer orders were published in various Newspapers on December, 2, 2001.
It is averred that defendant No.1 got published his comments on the transfer orders on December 3, 2001, under the heading, "AFSARSHAHI KA GHERA TODA DHUMAL NEIN, ASANTUSHT KHUSH". The comments made by defendant No.1 in the write-up qua the plaintiff are stated to be highly malicious, derogatory, defamatory and factually incorrect which are reproduced here as under:
I) That, not only the dissidents, but the supporters of the Chief Minister were against the style of functioning of Ajay Mittal. Fora long time, Health Minister, J.P. Nadda and Excise and Taxation ::: Downloaded on - 04/09/2018 21:53:53 :::HCHP ...4...
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Minister Praveen Sharma had been trying that Ajay Mittal should be transferred from the post of Principal Secretary";
ii) That, Mohinder Singh, Ex. PWD Minister was also not satisfied with te style of functioning of Ajay Mittal. Recently he had alleged that the State Government had lost crores of Rupees on account of State Bureaucracy. As Excise and Taxation Minister, former Minister, Mohinder Singh had withdrawn exemption granted to M/s Gujrat Ambuja Cement and given notice to them to deposit Rs.35 crores. The matter was carried to the Hon'ble High Court where the Management of Gujrat Ambuja was directed to Rs. 9 crores. The accusation of Mohinder Singh is that the experienced lawyers were not engaged intentionally by the Officers. Further, it is claimed that in order to avoid engaging of experienced lawyers in the High Court, all the ::: Downloaded on - 04/09/2018 21:53:53 :::HCHP ...5...
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senior officers proceeded on leave and the plaintiff was also one of the Senior Officers;
iii) That Ex Chief Minister Virbhadra Singh had also objected to Ajay Mittal being a supporter of R.S.S;
and
iv) That "Even his RSS links could not work in favour of Ajay Mittal who is involved in allegations accusing him of getting paid Rs.24 lacs of medical bills in the name of his brother.
It is averred that the aforesaid allegations were incorrect and malicious. It is averred that the write-up has lowered the plaintiff in the eyes of general public by painting him as an arrogant officer As regard Shri Mohinder Singh, it is averred that the plaintiff had very good relations with him right from the year, 1990 when he was posted as Deputy Commissioner, Mandi. It is averred that during the last three and half years, the plaintiff has availed long leave only on three occasions, firstly in June/July, 1999, on account of treatment of his wife and, secondly in the first ::: Downloaded on - 04/09/2018 21:53:53 :::HCHP ...6...
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half of the year 2000, when he had to remain present at Vellore for attending upon his younger brother who was suffering from M.D.S and was fighting for his life at Christian Medical College and Hospital, Vellore in Tamilnadu. It is averred that the defendants have wrongly alleged that the plaintiff had proceeded on leave under the pressure of Shri Nadda or Shri Sharma.
r As regard the reimbursement of the medical bills, it is averred that whatever was admissible under the Rules of Government was reimbursed to him and his wife. It is averred that whole write-up leaves a very foul taste in the mouth. The same is stated to be yellow journalism to defame and demoralize the whole bureaucracy, especially the plaintiff. The allegations are stated to be false and without any proper verification and have been made to lower him in the esteem of his friends, colleagues and acquaintances.
3. The defendants contested the plaintiff's suit and filed written statement, wherein, they have taken ::: Downloaded on - 04/09/2018 21:53:53 :::HCHP ...7...
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preliminary objections, qua maintainability, suit lacks material particulars, estoppel, publication is fair and bonafide etc. On merits, the averments qua the plaintiff being member of Indian Administrative Service and his posting in different departments have not been denied. It is also admitted that in the issue of December 3, 2001, the defendant No.1 got published the comments on the transfer orders of the plaintiff. It is denied that the write up qua the plaintiff is highly malicious, derogatory, defamatory and factually incorrect. It is averred that the work of the Pres sis specialized and very sensitive one. It is averred that a Citizen has a right to know about the activities of the State, the instrumentalities, the Departments and the Agencies of the State. It is alleged that it was generally the rumors of the corridors of the Himachal Pradesh Secretariat that he Principal Secretary to the Chief Minister has been shifted as certain Ministers were not happy with his working style. It is alleged that had the present plaintiff enjoyed good relations, he would ::: Downloaded on - 04/09/2018 21:53:53 :::HCHP ...8...
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not have been shifted from the Post of Secretary to the Government in the Departments of Excise and Taxation.
It is alleged that the publication of the said write-up is fair and bonafide comment on a matter of public interest and is a honest expression of opinion made in good faith and for the good of the public and the defendants have no grudge against the plaintiff. It is alleged that the it was the duty of the Senior Officers including the present plaintiff to engage a Senior Advocate for State in the Hon'ble High Curt to defend the cause of State. It is averred that PWD Minister, Sh. Mohinder Singh had written a letter on June 23, 1999 to the Chief Minister as well as to the present plaintiff wherein some of the senior officials of the Department including the plaintiff were held responsible. It is averred that during the Budget Sessions of 2002, in the debate on the budget, the former Speaker and sitting MLA of the Congress, Thakur Kaul Singh had specifically asked for the clarification whether there has been any reimbursement of Rs.24 lacs ::: Downloaded on - 04/09/2018 21:53:53 :::HCHP ...9...
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in the Education Department. It is averred that it is the function of the Press to disseminate news from as many different facts and colours as possible. It is denied that the plaintiff is entitled for the damages of Rs.10 lacs. It is alleged that the present plaintiff wanted to use 'Divya Himachal' as a mouthpiece for his vested interests and when the defendants did not toe his lines, they were engaged in the present suit. It is averred that various Newspapers had published the same new item with fervor intensity, but the plaintiff has targeted only the defendants which shows that the plaintiff is acting with ulterior motive and vested interest.
4. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:-
1. Whether the plaintiff has been defamed and demoralized as alleged, jointly and severally by the defendants?OPP ::: Downloaded on - 04/09/2018 21:53:53 :::HCHP ...10...
2. Whether the suit as framed is not .
maintainable?OPD.
3. Whether the plaintiff has no locus standi to file the suit?OPD.
4. Whether the plaintiff is estopped from filing the suit by his own act and conduct?OPD
5. Whether the plaint is not properly valued for the purposes of court fee and jurisdiction?OPD.
6. Whether the pu9blication in question is based on true and bona fide comment on a matter of public interest and is an honest expression of opinion made in good faith for the good of the public?OPD.
7. Relief.
5. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court, hence, decreed the suit of the plaintiff/respondent herein. Now the defendants/appellants herein, being aggrieved therefrom, have instituted separate Regular First Appeals, before, this Court, wherein they assail the findings ::: Downloaded on - 04/09/2018 21:53:53 :::HCHP ...11...
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recorded, in its impugned judgment and decree, by the learned trial Court.
6. This Court would proceed to validate, the, verdict pronounced by the learned trial Court, upon, firm evidence, making candid upsurgings, vis-a-vis, the defendants/appellants herein, with, an animo defamandi hence proceeding to print libelous material, borne in Ex.P-3, in the newspaper concerned. Contrarily, for exculpating, the apt tortuous liability, arising from the defendants, purportedly committing, the, tort, of, libel,
(a) they were enjoined to adduce evidence, vis-a-vis, the libelous item(s) being truthful, and, it, being published after theirs thoroughly recoursing, apt incisive verifications, of truth, vis-a-vis, all the narratives borne therein, (b) besides were also enjoined to adduce cogent evidence, in display, of, the purported libelous item(s), rather standing published in good faith, and, for public good.
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7. The plaintiff in discharge of the onus cast, upon, him, vis-a-vis, the libelous items borne, in Ex.P-3, emanating from or being engendered, by an active animo defamandi, reared against him, by the defendants,
(a) proceeded to step into the witness box, and, in his deposition, borne in his examination-in-chief, he has denied, the, truth, of, all the narratives borne in Ex.P-3,
(b) and, had also voiced therein, that, his transfer, was, in pursuance, to the norms appertaining, to, transfer, of, public officers, (c) besides has made a candid testification therein qua his being, a, Senior IAS Officer, and, his holding various responsible positions. He has hence made strivings, to make communications therein, vis-a-vis, his with integrity, honesty, and, efficiency, and, without any adverse remarks being borne in his ACR concerned, rather serving the Government of Himachal Pradesh, in, various capacities, (d) and, the libelous material being wholly untruthful, rather, it, lowering his esteem, and, reputation, amongst his colleagues, and, in ::: Downloaded on - 04/09/2018 21:53:53 :::HCHP ...13...
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society, (e) besides belittling his caliber and acumen, as an able administrative officer. He was subjected, to, a thorough incisive cross-examination by the counsel for the defendants, and, therein he has denied, qua his intentionally, omitting to engage the services, of the ablest senior lawyers, for, hence defending the State, in certain cases, and, he has further denied qua his holding membership of RSS, as long as, he continued to serve, in the government. The testification rendered, by the plaintiff, is, meted corroboration by the testifications, of PW-3, and, of PW-4.
8. The defendant(s) in proof of the contention(s) as, reared in the written statement, and, appertaining to the plaintiff, illegally withdrawing a sum of Rs.20 lacs, as, medical reimbursement, in the name of his brother, through DW-1, rendered testification(s), in consonance therewith, and, hence maintain qua the aforesaid narratives, borne in Ex.P-3, rather being truthful.
However, both their contention(s), and, their evidence, ::: Downloaded on - 04/09/2018 21:53:53 :::HCHP ...14...
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and, as borne in, the, self serving testification of DW-1, in support thereof, rather stand omnibusly belied, by documentary proof being adduced, qua the "Bhabhi" of the plaintiff, serving as a government employee, and, hers securing releases, of, medical reimbursement, comprised in a sum of Rs.10 lacs, and, thereupon, the aforesaid medical reimbursement, markedly holds no connectivity with the plaintiff. The effect thereof is qua the apt defence, of, truth, reared, vis-a-vis, the afore made narratives, borne in Ex.P-3, is hence eroded, (a) and, when hence imputations, of financial delinquency are falsely made, vis-a-vis, the plaintiff, the concomitant effect thereof, is, obviously qua the reputation, and, esteem, of, the plaintiff, in, society, rather being lowered.
Further corollary thereof, is, the defendants' propagation, in the written statement, and, rendering, of, testification(s) in concurrence therewith, qua the aforesaid material being published, after, verification of truth thereof, and, it being published, for public good, ::: Downloaded on - 04/09/2018 21:53:53 :::HCHP ...15...
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and, in good faith, also hence being rendered omnibusly falsified. In aftermath, the plaintiff, was, in the defendants with an evident animo defemandi, hence, printing the libelous material, hence entitled to stake computation, of pecuniary damages, as, aptly decreed, vis-a-vis, him.
9. to The other part of the narratives, borne in Ex.P-
3, are comprised in the factum of the plaintiff, being, a member of the RSS, (a) and, his failing to engage efficient, and, ablest lawyers, for, defending the government cases, before, the courts of law, (b) and, his transfer being made, at the behest, of, dissidents within the ruling regime, (c) and, predominantly, the, then Chief Minister, hence, side lining him, for, unsettling his grip, vis-a-vis, the administrative step up, of the times. The plaintiff, has, in his testification, corroborated by PW-2 and PW-3, rendered echoings qua his serving, the, government with efficiency, integrity and honesty, and, no adverse entries, during, his long span of service with ::: Downloaded on - 04/09/2018 21:53:53 :::HCHP ...16...
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the government, being borne in the ACRs concerned.
The aforesaid statement also merits vindication, (d) given the defendants not placing on record any ACRs, appertaining to the plaintiff, and, theirs making bespeakings, vis-a-vis, the malignancy, of, the plaintiff, and, in his hence ably, and, honestly rather discharging the duties, as, appertaining to his public office. Dehors the above, the defendant could exculpate, the, computation of pecuniary damages, visited, upon them, upon, theirs establishing, (e) that the afore libelous narratives, borne in Ex.P-3, being fair, and, being in public good, and, publication(s) thereof being preceded by close scrutiny, qua truth thereof. Defendant Vijay Puri, during, the course of his examination-in-chief, tendered his affidavit, wherein, he has rendered echoings qua the apt reimbursement, of, the bills being rather discussed to be made, only upon, the plaintiff exerting influence, given, his thereat, holding the prime post, of, Principal Secretary, to the Chief Minister. Further, he ::: Downloaded on - 04/09/2018 21:53:53 :::HCHP ...17...
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made echoings therein qua many objections being raised but ultimately the bills being cleared. However, he has not been able to make, any disclosure therein, (a) that, the aforesaid releasing, of, reimbursements, towards medical bills, rather occurring, despite, theirs being proscribed to be releasable to the apt claimants, (b) and, theirs being merely released by the officer concerned, upon, the plaintiff exerting pressure, upon, the official concerned, (c) evidence whereof, was, comprised in the official concerned, stepping into the witness box.
However, the defendants,w ere, unable to adduce the aforesaid evidence. Therefore, it is concludable, that, the defendants without caring, to, ascertain the truth, of the apt therewith narratives, as, borne in Ex.P-3, theirs rather with utter recklessness, and, with a patent animo defamandi, ensuring its publication, in the apt newspaper, (d) thereupon, the estimation and esteem, of the plaintiff, being lowered in the public, and, amongst ::: Downloaded on - 04/09/2018 21:53:53 :::HCHP ...18...
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his friends, and, colleagues, as testified by PW-2, and, PW-3.
10. Be that as it may, DW-1, on his being subjected to cross-examination, has acquiesced to, a suggestion qua the State Government instituting, a criminal complaint against him, vis-a-vis, the matter borne in Ex.P-
3, and, thereafter it being withdrawn, at, the behest of the, then Chief Minister. He has also made voicings therein qua his making, a, request to the then Chief Minister, to withdraw, the apt criminal complaint, as, anvilled upon Ex.P-3. Even he has conceded qua his making the apt application, for withdrawal, of the criminal complaint, arising, from publication of Ex.P-3, to, the then Chief Minister. The effects thereof, qua the defendant, given his not holding, the relevant defence, to face the apt criminal charge, for, his committing, the, apt offences, under, the Indian Penal Code, his hence making the aforesaid endeavour, (i) thereupon, the propagation made by him, in his affidavit qua his after verification, ::: Downloaded on - 04/09/2018 21:53:53 :::HCHP ...19...
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and, in public good, rather ensuring the publication, of Ex.P-3, in the relevant newspaper, also, naturally foundering, (ii) rather it being evident qua his hence, holding, the apposite animo defamandi, in, publishing Ex.P-3. He has also admitted an apt suggestion, that, Mohinder Singh, the then PWD Minister, not, making any press statement bearing concurrence with the news item, borne in Ex.P-3, and, nor Mr. Praveen Sharma, making any apt press statement. In his cross-examination, he also proceeds, to acquiesce, to a suggestion qua his not going, through, the proceedings, as occurred on the relevant date, in, the Himachal Pradesh Legislative Assembly, whereat, the former Chief Minister Shri Virbhadra Singh hence made statements rather carrying imputations, vis-a-vis, the plaintiff qua his being, a, member of RSS. The effect thereof, is, qua the defendants' exculpatory contention, vis-a-vis, Ex.P-3 being printed after due verification qua its truth, rather not holding any veracity, with, a further concomitant ::: Downloaded on - 04/09/2018 21:53:53 :::HCHP ...20...
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effect, qua Ex.P-3 being neither published in public good nor in good faith, rather its publication being construable, to, stand sparked by animo defamandi.
11. The learned counsel appearing for the respondents, has contended with much vigour, before, that, to this Court that in forming the aforesaid conclusion, (i) unless the apt purported libelous material, is cogently proven, to be published in public good, and, in good faith, and,, its publication, being preceded, by, a thorough verification, vis-a-vis, its truth, the, defendants being amenable, to, be beset with a decree of damages,
(ii) whereas, hereat with evident wants thereof, rather enabling this court, to compute damages, arising from hence, proven libel, vis-a-vis, the plaintiff, this Court, is, enjoined, to, draw succor, from, the verdict of the Hon'ble Apex Court, reported in R. Rajagopal alias R.R. Gopal and another vs. State of Tamilnadu and others, reported in (1994) 6 SCC 632, the relevant portion thereof stands extracted hereinafter:-
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"(3) There is yet another exception to the rule in .
(1) above-indeed, this is not an exception but an independent rule. In case of public officials, it is obvious, right to privacy, or for that matter, the remedy of action for damages is simply not available with respect to their acts and conduct relevant to the discharge of their officials duties.
Tis so even where the publication is based upon facts and statements which are not true, unless the officials establishes that the publication was made (by the defendant) with reckless disregard for truth. IN such a case, it would be enough for the defendant (member of the press or media) to prove that he acted after a reasonable verification of the facts; it is not necessary for him to prove that what he has written is true. Of course, where the publication is proved to be false and actuated by malice or personal animosity, the defendant would have no defence and would be liable to damages. It is equally obvious that in matters not relevant to the discharge of his duties. The public official enjoys the same protection as any other citizen, as explained in (1) and (2) above. It is needs no reiteration that judiciary, which is ::: Downloaded on - 04/09/2018 21:53:53 :::HCHP ...22...
protected by the power to punish for contempt of .
court and Parliament and legislatures protected as their privileges are by Articles 105 and 104 respectively of the Constitution of India, represent exceptions to this rule."
The espousal, is accepted, given the afore decision,
12. to hence, satiating his submission.
During, the pendency of the instant appeals, before this Court, the appellants/defendants instituted an application, (a) borne under the provisions of Order 41, Rule 27 of the CPC, application whereof bears CMP No. 2297 of 2018, in, RFA No. 152 of 2008, (b) wherein they sought leave of the court, to place on record, the, apt proceedings, drawn, on the relevant day, in, the H.P. State Legislative Assembly, wherein, the former Chief Minister Virbhadar Singh, has made reference, to the plaintiff, qua his being member of RSS, (c) thereupon, the defendants/appellants herein hence make strivings, that Ex.P-3 being hence published in good faith, and, for public good, and,its publication being preceded by a ::: Downloaded on - 04/09/2018 21:53:53 :::HCHP ...23...
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thorough verification, of, the facts appertaining therewith. Even though, the aforesaid endeavour, even if belated, may be vindicable by this Court, importantly, when on the apt leave being granted, for its being permitted to be tendered, in evidence, it, may be the apt issue.
r to facilitative, for, this Court, to, render firm findings, upon, However, with the printing of Ex.P-3, occurring on 2nd December, 2001, and, whereas the proceedings, wherein, the apt reference, is, made by the former Chief Minister Shri Virbhadar Singh, vis-a-vis, the plaintiff being a member of the RSS, rather standing drawn much prior thereto, (i) thereupon, when the aforesaid proceedings were available to be adduced, as evidence before the learned trial Court concerned, yet theirs remaining unadduced thereat, (ii) rather with DW-1 in his cross-examination, making apt acquiescence, to, suggestion(s) qua his, not, from the apt proceedings, hence verifying, the, truth, of, narratives borne in Ex.P-3,
(iii) thereupon, per se with his conceding qua hence the ::: Downloaded on - 04/09/2018 21:53:53 :::HCHP ...24...
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narratives borne in Ex.P-3, being falsely printed, for want of, verification of truth thereof, (iv) thereupon, the leave as sought for adduction, into evidence, the proceedings drawn, a year prior, to the printing, of, Ex.P-3 is to be construed to be belated, and, a sheer contrivance, on, the part of the defendants, to untenably, unsettle the grip of the acquiescences, afore made, by DW-1, during the course his being held to cross-examination.
Consequently, CMP No. 2297 of 2018 in RFA No. 152 of 2008, is, dismissed.
13. The above discussion unfolds the fact that the conclusions as arrived by the learned trial Court being based upon a proper and mature appreciation of evidence on record. While rendering the findings, the learned trial Court has not excluded germane and apposite material from consideration.
14. In view of above discussion, there is no merit in the instant appeals and they are dismissed accordingly. In sequel, the judgment and decree ::: Downloaded on - 04/09/2018 21:53:53 :::HCHP ...25...
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rendered by the learned District Judge, Shimla, upon, Civil Suit No. 30-S/1 of 2001 is affirmed and maintained.
Decree sheet be prepared accordingly. All pending applications also stand disposed of. No order as to costs.
(Sureshwar Thakur) 31 st August, 2018. Judge.
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