Delhi District Court
Rameshwar Dayal Gaur vs Kashmiri Devi on 23 July, 2018
IN THE COURT OF DR. HARDEEP KAUR ADJ
02(SHAHDARA)KKD COURTS/DELHI
RCA No. 190/16
Rameshwar Dayal Gaur
s/o Sh. Ram Dutt Sharma
r/o H. No. C6/17, 100 ft. Road,
Kabir Nagar, Babarpur, Shahdara,
Delhi. ...Appellant
Vs.
Kashmiri Devi
W/o Sh. V.S. Kardam
R/o H. No. 397, Gali no. 7,
West Kanti Nagar,
Delhi. ....Respondent
Date of Institution : 17.08.2016
Date of Judgment : 23.07.2018
Decision : Dismissed.
J U D G M E N T
1. This appeal has been filed against the impugned
judgment and decree dated 14.07.2016 passed by Ld. SCJ/RC
(East) Karkardooma Courts vide which Ld. Trial Court dismissed
the suit no. 7351/16 of the appellant/plaintiff titled as
Rameshwar Dayal Gaur vs. Kashmiri Devi.
RCA-190/16
Rameshwar Dayal Gaur vs. Kashmiri Devi
Page 1/15
For the sake of convenience nomenclature of the
parties are the same as in the suit.
Brief Facts:
2. Brief facts as stated in the plaint is that plaintiff has filed the present suit for damages for a sum of Rs. 3 lacs against the defendant submitting that on 10.05.2000 the defendant made a false complaint to police and with the help of SC/ST Commission FIR no. 107/2000 dated 10.05.2000 was registered against Sh. Ved Prakash Sharma and Sh. Rakesh Kumar Sharma, all are family members of the plaintiff. In Writ Petition no. 664/2000 vide order dated 04.09.2000 Hon'ble High Court of Delhi had stayed proceedings of trial court on petition of Sh. Rakesh Kumar Sharma. The name of Sh. Ramesh Kumar Sharma was quashed from the FIR vide order dated 27.11.2001 on admission of the defendant that Sh. Rameshwar Sharma was not present at the spot at the time of alleged incident and there was error in recognizing the accused. According to plaintiff, the defendant has misguided the police, the people and the Court Later on defendant had filed an application u/s 319 Cr.P.C. in the said FIR before the Ld. Trial Court which was dismissed vide order dated 02.06.2007. Vide the alleged false complaint, the plaintiff herein was summoned before various authorities due to which plaintiff had to engage counsels and represent RCA-190/16 Rameshwar Dayal Gaur vs. Kashmiri Devi Page 2/15 himself before District Court and before the Hon'ble High Court of Delhi and incurred various costs. The summons were intentionally issued in the name of plaintiff on 25.01.2008, 09.02.2008 and 12.02.2008 with the intention that the summons be not served on the plaintiff. It is stated that in criminal MC(C) no. 2029/07 the Hon'ble High Court of Delhi vide order dated 08.12.2010 has already dismissed the case of petitioner. The said order is perused and it is ordered as dismissed as withdrawn. It is stated that the defendant has filed false FIR only to cause mental and physical pain and loss of reputation in society due to which plaintiff has suffered agony and loss of livelihood for which damages are estimated @ Rs. 3 lacs, Rs. 2 lacs are estimated for loss of reputation and Rs. 1 lac are estimated for set back, loss of livelihood and expenses of advocates. Legal notice was sent on 24.10.2011 to the defendant to which false reply was given on 11.11.2011, through counsel. Accordingly, plaintiff has prayed that damages and cost of the suit be awarded to him of the present suit.
Defendant has stated that plaintiff, his sisterin law and his brother Vinod Sharma had passed remarks against the defendant against which complaint was lodged before competent authority. The name of Rakesh Kumar Sharma was given in FIR due to misidentification instead of RCA-190/16 Rameshwar Dayal Gaur vs. Kashmiri Devi Page 3/15 the name of plaintiff as Sh. Rameshwar Dayal Gaur. The said fact came into knowledge of defendant when Sh. Rakesh Kumar Sharma filed a criminal writ petition before Hon'ble High Court of Delhi in FIR no. 664/2000 dated 04.09.2000 and on the very first date of hearing defendant had deleted the name of Rakesh Kumar Sharma by filing written statement before Hon'ble High Court of Delhi and thereby saved the name of Rakesh Kumar Sharma. In evidence before the Ld. Trial Court in the said FIR between the parties the correct name of the plaintiff was disclosed by the defendant as Rameshwar Dayal Gaur and also on application u/s 319 Cr.P.C which was dismissed on 02.06.2007, the said order was challenged before Hon'ble High Court of Delhi but due to negligence of previous counsel the same was dismissed as withdrawn. It is stated that no damages are suffered by plaintiff and no cause of action arose in favour of the plaintiff and the defendant has pursued the course of law due diligently and made the facts within knowledge of the competent authority at the earliest and therefore, it is prayed that the suit of the plaintiff be dismissed with heavy costs.
3. Following issues were settled for adjudication and determination vide proceedings dated 05.03.2012 by the trial Court:
1. Whether suit of the plaintiff is maintainable and RCA-190/16 Rameshwar Dayal Gaur vs. Kashmiri Devi Page 4/15 under which category of tort plaintiff is entitled to claim damages from the defendant? OPP
2. Whether suit filed by plaintiff is within the period of limitation?OPP
3. Whether plaintiff is entitled to damages to the tune of Rs. 3,00,000/ on the basis of averment made in the plaint? OPP
4. Whether plaintiff has not approached this court with clean hand and has suppressed material facts from this court? If so, its consequences? OPD
5. Whether plaintiff has filed this suit just to harass & humiliate the defendant to take advantage of his own wrongs? OPD
6. Relief.
4. After considering the documents/evidence adduced by the parties, ld. Trial Court had dismissed the suit of the appellant/ plaintiff. Consequently, being aggrieved of the order of learned Trial Court, the appellant/plaintiff has approached this court on the following grounds :
(a) that the impugned order/judgment is based surmises
(a) t and conjectures and the same has been passed in a very hurried manner without application of judicial mind.
(b) that ld. Trial Court has passed the impugned order without appreciating the documents and evidence available on record and the ld. Trial Court has also completely overlooked the citations/judgments filed by appellant at the RCA-190/16 Rameshwar Dayal Gaur vs. Kashmiri Devi Page 5/15 time of final arguments.
(c) that ld. Trial Court has not considered the fact that the respondent has admitted that one Rakesh Kumar Sharma was not present at the time of incident. It is submitted that the alleged offence of passing alleged remarks upon the defendant/respondent by the present appellant allegedly to have been committed in the presence of several persons openly which means that the present appellant was present at the time of alleged offence at the alleged place which shows that defendant can recognize that persons who were present there.
(d) that ld. Trial court has not considered the fact that
(d) t appellant alongwith other persons have been acquitted from the case FIR no. 107/2000 vide order dated 26.02.2011 passed by Ld. ASJ Karkardooma Courts, Delhi and this fact was admitted by the respondent/defendant.
(e) that ld. Trial Court has failed to consider that respondent/defendant with malafide intention named the present appellant unnecessarily just to defame, harass and torture him and his family.
(f) that ld. Trial Court has failed to consider the fact that the application u/s 319 Cr.PC filed by the respondent for impleading the present appellant in the said FIR as necessary party was dismissed by Ld. ASJ KKD Courts, Delhi and RCA-190/16 Rameshwar Dayal Gaur vs. Kashmiri Devi Page 6/15 thereafter Hon'ble High Court had discharged the present appellant on 14.07.2008.
(g) that ld. Trial Court has also not considered the fact that the alleged application dated 13.09.2000 which was filed by the respondent with her writ petition, was actually not on the judicial record of the trial Court and the said fact was confirmed by PW3 Bhim Singh Rawat Ahlmad in the Court of Ld MM, KKD Courts, Delhi in his evidence dated 30.01.2014.
5. Arguments heard on behalf of the parties and gone through the material available on record.
6. Perusal of the record shows that Ld.Trial Court has framed the issue on maintainability of the suit. While discussing the law of defamation at length, Ld. Trial Court held that : Before proceedings further the maintainability of the present suit has to be established by the plaintiff. For the said purpose the ingredient of publishing of statement of the plaintiff has to be established and which must be without qualified privilege. Not only this the plaintiff has to satisfy the necessary ingredients before proceedings further that Court has held that the defendant has filed the case with malice and with the motive to defame the plaintiff herein.
It is deposed by the plaintiff as PW 1 that the RCA-190/16 Rameshwar Dayal Gaur vs. Kashmiri Devi Page 7/15 family members of the plaintiff were acquitted by the ld. Trial Court by Ld. ASJ vide order dated 26.02.2011. The said order is not proved by the plaintiff on record. The plaintiff has alleged in para 10 of the plaint that FIR were false against him and his family members to defame the plaintiff. However, the plaintiff has failed to aver in the entire plaint that there in the order of such release of the plaintiff from the criminal cases it was held that the complaint filed by the plaintiff were false and vexatious and under malice. In the written statement in para 6 on merits it is admitted case of the defendant that order dated 02.06.2007 of Ld. Trial Court u/s 482 Cr.PC before Hon'ble High Court in Crl. Misc. No. 2029/07 which is Mark F on record was dismissed as withdrawn thereby the said application of the defendant was not decided on merits much less of holding the complaint of defendant as false and vexatious with malice. Further in para 4 of WS of preliminary objection the defendant had submitted that she misidentified the plaintiff Rameshwar Dayal Gaur instead of Rakesh Kumar Sharma and when she has identified correctly the name of plaintiff then she herself filed written statement before Hon'ble High Court of Delhi on the very first date of hearing of such mistaken identity of plaintiff and thereby saved the plaintiff from mental harassment. The application of amendment is Mark C on record which is also Exhibited DW 1/D1 and also Ex. DW 1/P2 which is Mark D. In RCA-190/16 Rameshwar Dayal Gaur vs. Kashmiri Devi Page 8/15 application u/s 319 Cr.P.C moved by the defendant and appeal thereto is Ex.PW 2/17 which is Mark F1 on record. At para 3 of the said application it is mentioned by the defendant that the plaintiff had also participated in commission of the offence. The order of dismissal on application by Ld. Trial Court u/s 319 Cr.P.C is Mark E which was not dismissed on account of false allegations but on the ground that no prima facie evidence was found on record to summon the plaintiff u/s 319 Cr.P.C While deciding the maintainability of the suit, ld. Trial Court has discussed the judgments of various Hon'ble High Courts which are as under: In case titled Rajnath Khosla vs Acharya Dr. John R. Biswas & Ors I (2013) CLT 28 (CN) wherein Hon'ble High Court of Delhi has held in para 13, 14, 15 & 16 as follows:
13. Deciding the issue whether statements made to the lawful authorities can be made ground for defamation, in the case of Pandey Surendra Nath vs Bageshwari Pd (supra), it was observed that ' If a pers0on who makes the statements has an interest or duty, legal, social or moral to make it to the person to whom it is made, and the person to whom it is so made has as corresponding interest or duty to receive it such statement commands a privilege and cannot made basis of an action for defamation"
14. The above principle was reiterated in the case of RCA-190/16 Rameshwar Dayal Gaur vs. Kashmiri Devi Page 9/15 the Punjabi Bagh Cooperative Housing Society Limited vs K.L Kishwar and Anr 95 (2002) DLT 573 in which the Hon'ble court also placed reliance on various English Court judgments which are reproduced as under in Stuart v Bell (1891) 2 Q. B 354 and Smythson v Cramp 1943 I ALL E.R. 326, it was held that the occasion is privileged where the defendant has an interest in making the communication to the third party, and the third party has a corresponding interest in receiving it. Reciprocity of interest is essential. In Hebditch v Macllwaine, (1894) 2 Q.B 54 it was observed that the interest must exist in the party to whom the communication is made as well as the party making it. It is sufficient that the defendant honestly and reasonably believe that the person whom he made communication had a interest in the subject matter thereof.
15. It has been held in Shri Ram Singh Batra vs Smt Sharan Premi, 133 (2006) DLT 126 that " A complaint to a lawful authority is not actionable if it is not defamatory per se unless it is established that the complaint is false and defamatory. Thus, till before the court of law it is not established that the FIR in question is based on a false allegation, no actionis even maintainable.
16. Same has been held in the case of Prof. Imitaz Ahmad vs. Durdana Zamir, 2009 (109) DRJ 357.
RCA-190/16 Rameshwar Dayal Gaur vs. Kashmiri Devi Page 10/15 wherein it was observed that : "whenever a person makes a complaint against someone to the lawful authorities and in that complaint he makes imputations against the person complained of, it cannot be considered that the person has publicized or publically made defamatory averments against a person. If a prosecution is initiated against the person on the basis of such averments and the person is acquitted holding that the complaint was false, then only a cause of action arises against the complainant for launching a case for false prosecution or for damages on other grounds. Until and unless a competent court hold that complaint was false, no cause of action arises. Approaching a competent authority and praying that the authority should come to the rescue of the complainant and prevent the interference of the plaintiff (in the family affairs of the defendant) can not amount to defamatory imputation per se and even if it is published, it does not tend to show that the defendant had tend to show that the defendant had intended to lower the reputation of the plaintiff.
It is further held by the Ld. Trial Court that it is for the plaintiff to show that the Hon'ble competent Court has held that the complaint is false which is filed by the defendant. The competent court in the present case according to the plaintiff is Ld. Trial RCA-190/16 Rameshwar Dayal Gaur vs. Kashmiri Devi Page 11/15 Court and Hon'ble High Court of Delhi. The plaintiff has failed to prove anywhere in the order of Ld. Trial Court or Hon'ble High Court having held so that the complaint filed by the defendant are false. However, as per evidence by way of affidavit Ex. PW 1/AA1 plaintiff has referred to complaint made by defendant dated 10.05.2000 before SC/ST commission on the basis of which FIR no. 107/2000 dated 10.05.2000 was registered. In absence of proving of such order by the plaintiff the cause of action in favour of plaintiff does not arise in view of the settled law that the complaints were made to lawful authority and where the defendant has an interest in making the communication to the third party, and the third party has a corresponding interest in receiving it, reciprocity of interest has arisen. Such complaints are protected. On this ground also the suit of the plaintiff fails. The police authorities and Court of competent jurisdiction has corresponding interest or duty to receive such statement/ commands, a privilege from a person making the statement has interest or duty, legal, social, or moral to make it to the person to whom it is made and such statement cannot be made basis of an action for defamation.
Ld. Trial Court further observed that in the present case the defendant has a corresponding interest and duty and the police authority and Courts also have corresponding interest and duty to receive RCA-190/16 Rameshwar Dayal Gaur vs. Kashmiri Devi Page 12/15 complaints and when they are so received then privilege is attached to them. It is therefore held that the suit of the plaintiff is not maintainable under tort of libel and therefore, plaintiff is not entitled to claim damages from the defendant. In cross examination dated 03.09.2014 it is deposed by DW 1 that she was not knowing the name of the plaintiff as Rameshwar Dayal Gaur and thereby identified him as Ramesh Kumar Sharma and on receipt of notice from Hon'ble High Court of Delhi she came to know the correct name of the plaintiff. The defendant has deposed in cross examination dated 27.05.2015 that she heard the name as Rakesh in the quarrel and thereby she gave the said name in the police complaint and after knowing the correct name she had intimated Hon'ble High Court of Delhi about the said factual error on the very first date. It is deposed by her that prior to receiving notice from Hon'ble High Court of Delhi she had not given the name of the plaintiff as she was not knowing the correct name of the plaintiff. Thus, making of statement with malice is not proved which was in fact a true statement made by defendant at time of its making as per her knowledge and belief. The plaintiff hence fails to prove the falsity of statement made by defendant at the time of its making."
7. In view of the aforesaid discussions, this Court is of RCA-190/16 Rameshwar Dayal Gaur vs. Kashmiri Devi Page 13/15 the considered opinion that ld. Trial Court has rightly observed that suit of the plaintiff /appellant is not maintainable. Then, question does not arise for grant of damages to the plaintiff on account of defamation.
Though Ld. Trial Court has given its finding on the issue whether the plaintiff is entitled for damages or not. And while giving findings Ld. Trial Court observed that plaintiff must prove that the damages are compensatory in nature. In the entire evidence by way of affidavit the basis of suffering mental agony, physical pain and financial losses are not described. Much less classified in the plaint for a sum of Rs. 2 lac not or set back and loss to livelihood, nature of employment, how the amount of loss is suffered for a sum of Rs. 1 lac is not described. Therefore, no material is made available by the plaintiff to show that he had suffered such loss in the present case to be classified as compensatory damage. In absence of any specific material the averment is without basis and no material is available for cross examination and verification of such statement under judicial process. In absence of the same, it is held that the plaintiff has failed to prove that he has suffered loss of three lacs for award of compensatory damage.
In view of aforesaid discussions and the facts and RCA-190/16 Rameshwar Dayal Gaur vs. Kashmiri Devi Page 14/15 circumstances of the case, this court finds no illegality in the circumstances of the case, this court impugned order / judgment of Ld. Trial Court dated 14.07.2016. The appeal is hereby dismissed.
Decree sheet be drawn accordingly. Trial Court record be sent back along with copy of this order.
File be consigned to record room after necessary compliance.
(Typed to the dictation directly, corrected and pronounced in the open court on 23.07.2018) (Dr. Hardeep Kaur) ADJ02(SHD)/KKD/Delhi Digitally signed by HARDEEP HARDEEP KAUR KAUR Date:
2018.07.24 15:23:05 +0530 RCA-190/16 Rameshwar Dayal Gaur vs. Kashmiri Devi Page 15/15