Delhi District Court
Ashok Kumar vs Sh. Brahma Nand on 10 November, 2017
IN THE COURT OF SH. SATISH KUMAR ARORA,
ADDITIONAL DISTRICT JUDGE06, SOUTHEAST
DISTRICT, SAKET COURTS, NEW DELHI
RCA No. 20382/16
Ashok Kumar
s/o Late Sh. Charan Das,
R/o E2358, Jahangir Puri,
Delhi .....Appellant
Versus
Sh. Brahma Nand
s/o Sh. Chanda
R/o H. No. 81B, VillageGarhi,
East of Kailash, New Delhi110065 .....Respondent
Date of institution of appeal : 26.10.2016 Date of reserving the judgment : 10.11.2017 Date of pronouncement of judgment : 10.11.2017
REGULAR FIRST APPEAL U/S 96 OF CPC AGAINST THE IMPUGNED JUDGMENT AND DECREE DATED 24.09.2016 PASSED IN SUIT NO. 344/2014 TITLED AS 'BRAHMA NAND VS. ASHOK KUMAR' WHEREBY THE LD. SUBORDINATE JUDGE SH. HARJYOT SINGH BHALLA, LD. ACJCCJARC, SOUTH EAST DISTRICT, NEW DELHI, DECREED THE SUIT OF THE RESPONDENT AND AGAINST THE APPELLANT. RCA No. 20382/16 Ashok Kumar Vs. Brahma Nand Page No. 1 of 13 J U D G M E N T
1. The present appeal has been filed under section 96 of Code of Civil Procedure against the impugned judgment and decree dated 24.09.2016 passed by Sh. Harjyot Singh Bhalla, Ld. ACJCCJ ARC, SouthEast, New Delhi in Suit No. 344/2014 titled as "Brahma Nand Vs. Ashok Kumar."
2. Feeling aggrieved by the impugned judgment, the appellant has preferred the present appeal primarily on the grounds that firstly, the impugned order of the Trial Court is based on conjectures and surmises and without appreciating the pleadings, the defence and submissions of the appellant; secondly, that the Ld. Trial Court had failed to consider that no cause of action ever arose in favour of the respondent and against the appellant; and lastly, the Ld. Trial Court had failed to appreciate the judgments relied upon by the appellant.
3. Before taking up the grounds for appeal for determination, a RCA No. 20382/16 Ashok Kumar Vs. Brahma Nand Page No. 2 of 13 brief look on the facts of the matter can be made. Both the appellant and the respondent were working as Assistant Keeper and Zoo Guard respectively in the National Zoological Park, New Delhi. Both were having animosity against each other and first of the incident is that on 28.08.2004, while appellant was on his duty, the respondent herein in an inebriated condition gave him beatings and also verbally abused him with respect to his caste. Subsequent thereto, an inquiry was conducted by the National Zoological Department and respondent was found guilty. The matter does not end at that and a second round of altercation began which formed the basis of the suit preferred by the respondent herein. It is the complaint lodged before the National Commission for ST & SC on which the local police was directed to conduct inquiry. The respondent felt harassed at the hands of the police due to repeated visits of the enquiry/investigating officer at his place of work. After inquiry, alleged incident of 28.08.2004 was found to be false as on that date, respondent was found to be on leave, thus vindicating his stand of harassment at the hands of appellant. Thereafter, the respondent herein filed a civil suit seeking damages RCA No. 20382/16 Ashok Kumar Vs. Brahma Nand Page No. 3 of 13 for loss of reputation, mental agony, harassment and torture which was decreed in his favour vide impugned judgment challenged under present appeal.
4. I have heard the arguments of Ld. Counsel for appellant and respondent and have perused the entire record. Though the judgments were referred to by the appellant in the appeal, the same were not filed on record. Nonetheless, I have gone through the judgments cited as 'Purushottam Lal Sayal Vs. Prem Shankar AIR 1966 ALL 377', Ram Jethmalani Vs. Subramaniam Swamy AIR 2006 Delhi 300 and R.K. Karanjia Vs. K.M.D. Thackersey AIR 1970 Bombay 424.
5. As the impugned judgment and order would reveal, following issues were taken up for adjudication by Ld. Trial Court.
(i) Whether the plaintiff is entitled to a decree in the sum of Rs.
2,00,000/ towards mental agony, torture, etc suffered by the plaintiff because of false and frivolous allegations leveled by the defendant? OPP.
RCA No. 20382/16 Ashok Kumar Vs. Brahma Nand Page No. 4 of 13 (ii) Relief.
6. While considering and adjudicating upon issue no.1, Ld. Trial Court court not only took the pains to give a detailed account of the plaintiff's examination but also as to how the defendant while stepping into the witness box as DW1 gave an account of incident in question at complete variance to what was asserted by him before the National Commission for SC and ST as well as the local police. The malice on the part of the defendant was writ large requiring no further enquiry. The relevant paras of the impugned judgment may also be taken note of and same are reproduced herein:
First of all, I proceed to examine whether or not any defamatory statements, words or reference were made by the defendant vizaviz the plaintiff. It may be relevant to refer to the complaint Ex. DW1/1, complaint Ex. DW1/2 and the complaint Ex. DW1/3 in this regard. Ex. DW1/2 is a complaint dated 16.05.2010 having allegations against one Khan Sahab for an alleged incident of verbal abuse on RCA No. 20382/16 Ashok Kumar Vs. Brahma Nand Page No. 5 of 13 16.05.2010. The complaint Ex. DW1/3 on the other hand is dated 05.09.2010 and states that few years back the defendant herein had filed a complaint against Brahamanand (plaintiff herein) and one Sahib Singh. Since the complaint is about to be decided one Riaz Khan and one Anand Krishan, Assistant Director have threatened him asking me to take my case back and on my refusal they got my signatures on the same forcibly. It is also stated that they told him that he had managed to suppress Brahamanand but they will hang him upside down.
Thereafter, caste related remarks were also made by both of them. The third complaint i.e. Ex. DW1/1 is dated 24.06.2013 and it again starts with the complaint against Brahamanand in the year 2004 and states that the complaint was decided in the year 2009 and Brahmanand was dismissed from service. It further states that few officials gathered together and RCA No. 20382/16 Ashok Kumar Vs. Brahma Nand Page No. 6 of 13 requested the Director to reinstate Brahamanand on the job and on their request Brahamanand was kept back on the job. Now Brahamanand and Director are very close and they are doing whatever they feel like. It is further stated that on the instruction of Brahamanand the Director Amitabh Agnihotri, Dr. Paneer Selvan, Curator Riaz Khan and one Babulal are making false complaints against me (the defendant). Allegations of caste abuse by these officials has been made.
Over all, this complaint made to the NCSC and admitted by the defendant gives an impression that Brahamanand was thrown out of the job and reinstated by the Director on the request of the others as a favour illegally as also that the plaintiff Brahamanand was orchestrating some kind of conspiracy against the defendant/complainant Ashok Kumar although there are no direct allegations of RCA No. 20382/16 Ashok Kumar Vs. Brahma Nand Page No. 7 of 13 verbal abuse by Brahamanand after the incident of 2004. The document Ex. PW3/A is the inquiry report of SI Chail Bihari Sharma which records that Ashok Kumar the complainant had made a supplementary statement on 05.08.2013 where he stated that the plaintiff Brahamanand had called him using caste related words on 21.04.2013 and by one Vijay Bahadur Pal on 18.05.2013. During inquiry, it was found that Brahamanand was on duty rest on 21.04.2013 which was duly supported by the attendance record. It was also stated that they both work in different Sections and none had any interaction with each other after the previous incident of 2004. The incident against Vijay Bahadur was also found to be false who was stated to be on E.L from 15.05.2013 to 22.05.2013. The attendance record of Brahmanand was summoned and same is Ex.PW2/1 and the entry dated 21.04.2013 at point A records that RCA No. 20382/16 Ashok Kumar Vs. Brahma Nand Page No. 8 of 13 he had an off day on 21.04.2013. The document Ex.PW2/2 is the Office Order of the Government of India dated 27.09.2011 conveying the decision of the appellate authority to revoke the penalty imposed by the Director National Zoological Park on the plaintiff Sh. Brahamanand and he was exonerated from all charges.
7. Thereafter, Ld. Trial Court went on to discuss the testimony of crossexamination of defendant wherein he made the following deposition and which is quoted herein:
"I am working in the National Zoological Park since last 21 years. I am 10th pass. I can read and write Hindi. The complaint Ex.DW1/1 has been written by my friend/Sh. Saran Dass, who is working with me at my office. The complaint has been signed by me at point C. It is correct that I had filed a complaint against the plaintiff in the year 2004 also. (vol. The plaintiff has been terminated in the 2009 on my RCA No. 20382/16 Ashok Kumar Vs. Brahma Nand Page No. 9 of 13 complaint mentioned above). On the request of my other colleagues, I submitted my compromise with the plaintiff in the department. It is wrong to suggest that the plaintiff was never terminated only some increments were stopped. I cannot say whether the plaintiff was exonerated in the Appeal. It is correct that Ex.DW1/2 contains no allegations against Brahmanand i.e the plaintiff. I had informed the department about my complaint with the SC & ST Commission in the year 2013. There is no document to that effect that I had informed the department about my complaint. I had not given the same complaint to the SHO in the year 2013. It is correct that I had given Ex.DW1/3 to the SHO (vol. This is not the same complaint as given to SC & ST Commission). I had not informed the department about DW1/3."
8. It was after considering the testimony of the plaintiff as RCA No. 20382/16 Ashok Kumar Vs. Brahma Nand Page No. 10 of 13 also of the defendant that the Ld. Trial Court came to the conclusion that the defendant has been stating false facts about the punishment given to the plaintiff and the manner in which the punishment was revoked/not implemented. The record, the complaints made by the plaintiff and his crossexamination are all at variance with each other.
9. The judgments referred to by the Ld. Counsel for appellant in the grounds of appeal are in fact those citations which were referred to and relied upon by Ld. Trial Court while passing the impugned judgment and decree.
10. The citations Purushottam Lal Syal and Ram Jethmalani (supra) are more on the issue of absolute and qualified privilege available to a person who makes an assertion of facts which in the eyes of the other/the aggrieved person are scandalous and defamatory, thus, lowering his reputation and self esteem in the eyes of others. As has been noted, the facts of the present case do not offer any privilege what to say of absolute or qualified, to the defendant/appellant herein to file baseless complaints against the respondent before various RCA No. 20382/16 Ashok Kumar Vs. Brahma Nand Page No. 11 of 13 agencies.
11. The law in respect of a suit filed for damages on the ground of malicious prosecution and defamation is well settled. What is relevant in such a civil suit is that it must be found that a criminal complaint or an FIR was initiated without reasonable and probable cause. The term 'malice' as used in the expression "malicious prosecution" is not to be considered in the sense of spite or hatred against an individual, but of malus animus, and as denoting that the party is actuated by improper and indirect motives. (Reference :
Deepak Rathaur Vs. Shashi Bhushan Lal Dass, 2016 SCC DEL 5319). As can be seen from the evidence as sifted by the Ld. Trial Court and as has been noted above, there was malice understandable in the sense as above noted on the part of the appellant herein to lodge false and frivolous complaints against the respondent while also making assertions therein defamatory to his person and character.
12. The contention of the Ld. Counsel for appellant that the submissions were not properly appreciated by Ld. Trial Judge appears to have no force as nothing has been averred in the appeal as to how RCA No. 20382/16 Ashok Kumar Vs. Brahma Nand Page No. 12 of 13 and in what manner, the submissions were not entertained or not dealt with in the impugned judgment. In fact, a bare perusal of the impugned judgment would reflect that almost all the submissions made by the appellant herein have not only been taken note of but have also been dealt with in the light of the evidence as brought on record by the parties and the law as applicable.
13. In view of the reasons mentioned above, present appeal stands dismissed being devoid of merits. No order as to cost. Interim stay, if any, stands vacated. Copy of this judgment be sent to the Ld. Trial Court along with TCR. Appeal file be consigned to record room. Announced in Open Court (Satish Kumar Arora) On this 10th day of November, 2017 ADJ06 (South East) Saket Courts, New Delhi.
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