Calcutta High Court
Subal Kumar Dey & Anr vs Rose Valley Chain Marketing Systems & ... on 19 April, 2011
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
1
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
(Original Side)
Present:
The Hon'ble Mr. Justice Bhaskar Bhattacharya
And
The Hon'ble Mr. Justice Sambuddha Chakrabarti
G.A. No. 2651 of 2010
A.P.O.T. No. 464 of 2010
Subal Kumar Dey & Anr.
Versus
Rose Valley Chain Marketing Systems & Ors.
For the Appellants: Mr. Ashok Banerjee,
Mr. Saptanshu Basu,
Mr. Pallav Banerjee.
For the Respondents: Mr. P.C. Sen,
Mr. Jayanta Kumar Mitra,
Mr. Debnath Ghosh,
Mr. Raja Basu Chawdhury.
Heard on: 21.03.2011
Judgment on: 19th April, 2011.
Bhaskar Bhattacharya, J.:
This appeal under Clause 15 of the Letters Patent is at the instance of the defendant Nos.1 and 3 in a suit for defamation and is directed against an order 2 dated 4th August, 2010, passed by a learned Single Judge of this Court by which His Lordship disposed of three applications being G.A. No.2867 of 2009 claiming interlocutory relief in the suit for defamation, G.A. No.3390 of 2009 being the application for revocation of leave granted under Clause 12 of the Letters Patent by the defendant No.1 and G.A. No.1367 of 2010 filed by the plaintiff alleging violation of the interim order of injunction earlier granted.
By a common order the learned Single Judge has dismissed the application for revocation of leave filed by the defendant No.1, the plaintiffs' application for interim order has been disposed of by restraining the defendants, their servants and agents or assigns from publishing any comments in the defendants' newspaper imputing improper motive to the plaintiffs or any of them and further restraining them from describing the plaintiffs or anyone of them as cheats or using of per se defamatory words about the plaintiffs or any of them. His Lordship, however, made it clear that the order will not prevent the defendant from publishing news concerning the plaintiff/company subject to the article justifying the basis of the news. The defendants were also reminded that journalistic morality and ordinary propriety demand that if allegations are made against a person, then the article should make it clear that they are allegations and not established facts.
As regards the applications for disobedience of the injunction filed by the plaintiff, the learned Judge has attached the property of the defendant in Lenin Sarani and passed an order of injunction restraining the defendants from dealing 3 with or disposing of or alienating or encumbering any of the assets at the office at Room No.F/F-2, 79 Lenin Sarani, for a period of one year from the date of passing of the order.
Being dissatisfied, the defendant Nos.1 and 3 have come up with the present appeal.
In the suit for defamation, one Subal Kumar Dey has been described as the defendant No.1 on the allegation that he was carrying on business not only from 41 Shakuntala Road, Agartala 799001, Tripura, but also from Room No.R/F-2, 79, Lenin Sarani, Kol-13 within the territorial jurisdiction of the Original Side of this Court. The defendant No.2 was one Buddha Gupta, who was also described as working for gain both at 41 Shakuntala Road, Agartala and also at Room No. R/F-2, 79, Lenin Sarani. One Jammuna Press has been described as the defendant No.3.
After filing of the suit, the plaintiff prayed for leave under Clause 12 of the Letters Patent as the defendant No.3, Jammuna Press, was situated outside the jurisdiction of the Original Side of this Court and such leave was granted.
The allegation of the plaintiff in the suit was that the defendant No.1 who was running a newspaper published from Agartala had published defamatory statements about the plaintiffs and the said newspaper had also an office at Lenin Sarani within the territorial jurisdiction of the Original Side of this Court. 4 According to the plaintiff, the said newspaper has publication also in Calcutta and those are circulated also from the Kolkata Regional Office at 79, Lenin Sarani. The plaintiff after getting information from his friends over telephone that defamatory statements had been published in the said newspaper of the defendant No.1 purchased the same from news stand in Kolkata and thereafter, filed the suit for defamation.
An application for interlocutory relief was filed thereby praying for injunction restraining the defendants from publishing any defamatory news item about the plaintiff and the learned Single Judge granted an ad interim order of injunction.
The defendant No.1 and the defendant No.3, Jammuna Press, being represented by its owner, the defendant No.1, entered appearance but an application was filed only on behalf of the defendant No.1 thereby praying for revocation of the leave under Clause 12 of the Letters Patent on the allegation that by making false allegation the jurisdiction has been created in Kolkata and in fact the defendant No.1 or the defendant No.2 has no office for publication in the Lenin Sarani address but the said address is only an office for collection of advertisements for the newspaper.
Various allegations of inconvenience of the defendant No.1 in contesting the proceeding were also put forward as a ground for revocation of leave. 5
As indicated earlier, the learned Single Judge dismissed such application holding that it has been established from the averment made in the plaint that the defendant Nos.1 and 2 are also carrying on business within the jurisdiction of this Court and as such, at that stage, there was no question of revocation of leave.
Being dissatisfied, the defendant Nos.1 and 3 have preferred the present appeal although the defendant No.3 did not file any application for revocation before the learned Single Judge.
Mr. Banerjee, the learned senior Advocate appearing on behalf of the appellants, strenuously contended before us that the suit filed by the plaintiff is a mala fide one and it is a fit case for revocation of leave under Clause 12 of the Letters Patent. According to Mr. Banerjee, by making absurd statement in the plaint the alleged cause of action for filing the suit has been made out so as to harass the defendant Nos.1 and 2 in contesting the suit from Agartala. Mr. Banerjee further contended that it will be an uphill task for his clients to contest the proceedings from Agartala by bringing witnesses in support of the defence. Mr. Banerjee, therefore, prays for setting aside of the order impugned and also for vacating the interim order granted by the learned Single Judge.
Mr. Sen, the learned Advocate appearing on behalf of the plaintiff, has, on the other hand, opposed the aforesaid contentions of Mr. Banerjee and has contended that in this case the defendant Nos.1 and 2 having business also 6 within the territorial limits of Kolkata as pleaded in the plaint, there was no necessity of taking leave even under Clause 12 of the Letters Patent. Mr. Sen submits that his client took such leave because the defendant No.3, the Jammuna Press, was situated outside the jurisdiction of the Original Side of this Court. According to Mr. Sen, now that it appears from the statements of the defendant No.3 itself that the said Press is really owned by the defendant No.1, there was no necessity even of taking any leave under Clause 12 of the Letters Patent. Mr. Sen, therefore, prays for dismissal of the appeal.
Therefore, the first question that arises for determination in this appeal is whether the learned Single Judge was justified in rejecting the application for revocation of leave under Clause 12 of the Letters Patent.
In order to appreciate the question involved in this appeal, it will be profitable to refer to the provision contained in Clause 12 of the Letters Patent which is quoted below:
"12. Original jurisdiction as to suits. - And we do further ordain, that the said High Court of Judicature at Fort William in Bengal, in the exercise of its ordinary original civil jurisdiction, shall be empowered to receive, try, and determine suits of every description, if, in the case of suits for land or other immoveable property, such land or property shall be situated, or in all other cases if the cause of action shall have arisen, either wholly, or, in case the leave of the Court shall have been first obtained, in part, within the local limits of the ordinary original jurisdiction of the said High Court, or if the 7 Defendant at the time of the commencement of the suit shall dwell, carry on business, or personally work for gain within such limits; except that the said High Court shall not have such original jurisdiction in cases falling within the jurisdiction in cases falling within the jurisdiction of the Small Cause Court at Calcutta, in which the debt or damage, or alue of the property sued for, does not exceed One hundred rupees."
On a plain reading of the aforesaid provision, it is apparent that in the case before us, there was necessity of taking leave under Clause 12 of the Letters Patent only because the Jammuna Press was described in the plaint as situated outside the territorial limit of the Original Side of this Court; otherwise, in the plaint there being specific averments that the defendant Nos.1 and 2 are also running their business from Lenin Sarani which is within the territorial limit of the Original Side, the suit was otherwise quite maintainable before this Court as the plaintiff has pleaded that newspapers are also published from that office at Lenin Sarani and he actually purchased newspaper from the territorial limits of the Original Side of this Court.
As regards the Jammuna Press, it is the specific defence of the defendant No.1 that the Jammuna Press is not a juristic entity and as such, the suit should be dismissed against the defendant No.3. However, in the Memorandum of this Appeal, the defendant No.1 himself has represented the said Press as owner thereof. Therefore, the owner of the said Press is also carrying on business from Lenin Sarani as would appear from the admission of the defendant No.1. 8
On considering the materials on record, we find that the defendant No.3, the Jammuna Press not having filed any application for revocation, no application for revocation was maintainable at the instance of the defendant No.1 alone, as according to the plaintiff, the other two defendants have also business in Lenin Sarani.
It is now settled law that for the purpose of revocation of leave under Clause 12 of the Letters Patent, the Court will accept the averments made in the plaint to be true and at this stage, the Court will not consider whether from the Lenin Sarani office of the defendant No.1 any publication of newspaper is made or the same is merely a collection centre for advertisements as claimed by the defendant No.1. If at the time of final hearing of the suit, it appears that there is no office of the defendant No.1 at Lenin Sarani, suit will fail but at this stage of considering the question of revocation of leave, the Court cannot enter into such disputed questions of fact. In view of the provision contained in Order 14 Rule 2 of the Code of Civil Procedure, disputed questions of fact cannot be adjudicated separately but it must be decided along with the hearing of the suit with other issues.
Moreover, we have already pointed out that the defendant No.3, the Jammuna Press which was described as situated in Agartala not having applied for revocation of leave, the defendant No.1 cannot have any right to pray for revocation when the defendant No.1 is stated to have business at Lenin Sarani and on that ground alone, the prayer for revocation should be rejected. We are 9 conscious that the defendant No.3 has joined the defendant No.1 in this appeal but for that reason the defendant No.3 cannot take the plea that it had filed an application under Clause 12 of the Letters Patent before the learned Single Judge. Moreover, when we find that the defendant No.3 is really owned by the defendant No.1 as admitted by it and who has also an office within the territorial limits of the Original Side of this Court, the prayer for revocation of leave is not maintainable even at the instance of the defendant No.3 in view of its admission that it is owned by the defendant No.1.
We, therefore, find that in the facts and circumstances of the present case, the learned Single Judge rightly dismissed the application for revocation of leave as on the basis of averments made in the plaint itself there was no justification of revocation of the leave granted.
As regards the order of injunction granted by the learned Single Judge, we are quite in agreement with the learned Judge that simply because the defendant No.1 is running a newspaper, defamatory statements cannot be published and the order passed by the learned Judge asking the defendant No.1 to restrict his criticisms within the recognised limits of journalism is in conformity with the law of the land.
We also do not find any reason to interfere with the discretion exercised by the learned Single Judge for attachment of the property at Lenin Sarani for violation of the order of injunction earlier granted 10 On consideration of the entire materials on record, we thus find no merit in this appeal and the same is dismissed.
In the facts and circumstances, there will be, however, no order as to costs.
(Bhaskar Bhattacharya, J.) I agree.
(Sambuddha Chakrabarti, J.)