Delhi District Court
Smt. Asha vs Smt. Kavita on 9 April, 2014
1
IN THE COURT OF SHRI KAPIL KUMAR, CIVIL
JUDGE01 (WEST), TIS HAZARI COURTS, DELHI..
Unique ID No. : 02401C0158372010
SUIT NO :116/10
Date of Institution : 21.04.2010
Date of reservation of judgment : 02.04.2014
Date of pronouncement of Judgment : 09.04.2014
Smt. Asha
D/o Sh. Sarup Chand
R/o B943, Madipur Colony
New Delhi110063.
...............Plaintiff
v
1. Smt. Kavita
W/o Sh.Hukumchand
R/o RZQ88, Nihal Vihar
New Delhi.
2. Sh. Durga Prasad
S/o Sh. Kazore Ram
R/o A261, Madipur Colony
New Delhi110063.
3. Smt. Goma Devi ( U.D.C)
O/o Directorate of Income Tax
Hansh Bhavan, Bahadur Shah Jaffar Marg
New Delhi110001.
Suit No.116/10
2
4. Smt. Anita
W/o Sh. Durga Prasad
R/o A261, Madipur Colony
New Delhi110063
5. Smt. Sunita
W/o Sh. Fateh Singh
R/o D498, Madipur Colony
New Delhi110063.
............Defendants
SUIT FOR DAMAGES FOR RS.1,05,000/
JUDGMENT
Vide this Judgment I shall dispose off the present suit for the relief of damages on the basis of tort of defamation. Case of plaintiff
1. Plaintiff states that defendant no.1 filed a complaint to the police, National Human Rights Commission etc. against her husband Sh. Hukum Chand in which she mentioned that plaintiff has illicit relations with her husband, Sh. Hukum Chand. Further states that defendant no.1 alongwith other defendants distributed the copy of this complaint in the locality where the plaintiff is residing. Further states that defendant no.3, 4 and 5 used to gossip in the locality about the illicit relations of plaintiff with Sh. Hukum Chand. Further states that defendant no.2 who Suit No.116/10 3 happens to be the brother of Sh. Hukum Chand had visited the school of plaintiff's son and used defamatory language upon the very integrity and serenity of the plaintiff in front of her child. Further states that due to these acts of the defendant the reputation of the plaintiff has been tarnished in the society. Hence the present suit for damages.
2. By virtue of present suit plaintiff is praying for the the decree of sum of Rs.1,05,000/ alongwith pendente lite and future interest against the defendants jointly and severally. Case of defendants
3. Defendant no.1 not contested the present suit and was proceeded exparte vide Order dated 14.9.2010, passed by Ld. Predecessor of this court.
4. Defendant no.2 to 5 resisted the present suit by filing a joint written statement wherein it is stated that the plaintiff filed the present suit in collusion with Sh. Hukum Chand, who is husband of defendant no.1. Further state that the suit is time barred. It is further stated that defendants have not used any defamatory language for the plaintiff nor distributed any copy of the complaint as alleged by the plaintiff. It is denied on behalf of defendants that they did any gossip about the character of the plaintiff in the society. Defendant no.2 denied of using any Suit No.116/10 4 defamatory language for plaintiff in front of her child by visiting the school of the child of plaintiff. Defendant no.2 to 5 prayed for the dismissal of present suit being frivolous.
5. Replication filed by the plaintiff wherein all the averments of the defendants were denied and stand of plaint was reiterated.
6. Vide Order dated 15.03.2011 following issues were framed by the Ld. Predecessor of this court :
1. Whether any defamation has been committed by the defendants of the plaintiff ? OPP.
2. Whether plaintiff is entitled to any relief, if yes, for what amount ? OPP.
3. Relief.
7. Plaintiff examined herself as PW1. She has relied upon the copy of complaint as Mark A.
8. In defence evidence Sh. Durga Prasad was examined as DW1 and Smt. Goma Devi as DW2. No document was exhibited in defence evidence.
9. I have heard arguments advanced by Ld. Counsels for parties and carefully perused the record.
Suit No.116/10 5
10. My issuewise findings are as under :
ISSUE No. 1
Whether any defamation has been committed by the defendants of the plaintiff ? OPP.
The onus to prove this issue was upon the plaintiff.
11. Defamation is injury to the reputation of a person. A person's reputation is his property, and if possible, more valuable than any other property. Following are the essentials for tort of defamation :
(a) The statement made must be defamatory;
(b) The said statement must refer to plaintiff; and
(c ) The statement must be published.
All the above mentioned essentials of tort of defamation are required to be proved by the plaintiff in a suit for recovery of damages for defamation. If anyone of these essentials is not proved then the defendants cannot be held liable for committing tort of defamation.
12. Case of plaintiff, in short, is that the defendants caused injury to reputation of plaintiff by spreading false rumour in the society about the illicit relation of plaintiff with the husband Suit No.116/10 6 of defendant no.1 i.e Sh. Hukum Chand. If it is proved on record that the defendants made such statement for the plaintiff in front of third person then the tort of defamation will be proved because the alleged statement that plaintiff has illicit relation with Sh. Hukum Chand is per se defamatory.
13. Now we have to see whether plaintiff has been able to prove her case or not? Plaintiff relied very heavily upon the alleged complaint made by defendant no.1 to the police, National Human Rights Commission and other authorities. Plaintiff stated that in the complaint defendant no.1 has written that the plaintiff has illicit relation with the husband of defendant no.1. Copy of complaint is on record and the same has been marked during the trial as mark A. The complaint has not been proved as per law. Ld. counsel for plaintiff did not take any steps to prove the complaint as per law. Plaintiff could have summoned the record from the concerned police station or National Human Rights Commission to prove that defendant no.1 filed a complaint in the police or in National Human Rights Commission. In the testimony of plaintiff/PW1 complaint was Suit No.116/10 7 not proved as she was not the author of the complaint nor the complaint was written to plaintiff directly. It is well settled law that the documents have to be proved by primary evidence. Primary evidence qua complaint Mark A has not been placed on record. Nothing is mentioned in examination in chief of PW1 as to for what reason the secondary evidence as to the complaint be admitted in evidence. It will not be wrong to say that whole of the case of plaintiff against defendant no.1, who is exparte in the present suit, centered around complaint mark A. No explanation has been given by Ld. counsel for plaintiff even during final arguments for not taking appropriate steps for proving complaint Mark A. Had the complaint mark A been proved as per law then certainly defendant no.1 would have been liable for defamation of plaintiff.
14. It is true that defendant no.1 chosen not to contest the present suit and has been proceeded exparte but this by itself is not the substitute for plaintiff from proving her case. Case of plaintiff has to stand on its own legs. In absence of proof of complaint allegedly filed by defendant no.1 the case of plaintiff qua defendant no.1 has not been proved.
15. Qua defendant no.2 to 5 plaintiff alleged the defamation was done by them by slander. Plaintiff mentioned in Suit No.116/10 8 the plaint that defendant no.2 to 5 defamed her by spreading rumours in the society about illicit relationship of plaintiff with husband of defendant no.1 orally while doing gossiping in the society and defendant no.2 even visited the school of child of plaintiff wherein he allegedly used defamatory language for the plaintiff in front of her child.
16. It is to be noted that the allegations against defendant no.2 to 5 are general in nature as no specific incident has been mentioned by the plaintiff. To prove case qua defendant no.2 to 5 plaintiff examined herself as PW1 in which she reiterated her stand of plaint in examination in chief by way of affidavit Ex. PW 1/A. Suggestions were put to PW1 to the effect that defendant no. 2 to 5 not committed any defamation of plaintiff but these suggestions were denied by plaintiff. Defendant no.2 and 3 stepped into the witness box as DW1 and DW2 respectively and deposed on oath that they have not spread any rumour against the plaintiff and all the allegations of plaintiff are false. DW1 deposed that he never defamed plaintiff and the averment of the plaintiff that he defamed plaintiff in front of her child by visiting the school is false. DW1 and DW2 were crossexamined by Ld counsel for plaintiff. No admission came into the testimony of defence witnesses which could be suggestive of inference that Suit No.116/10 9 defendants used defamatory language for plaintiff.
17. After weighing the testimony of PW1 and defence witnesses i.e DW1 and DW2 it appears that it is the case of assertion by one which is denied by other. It is to be kept in mind that by virtue of Section 101 r/w Section 106 of Indian Evidence Act,1872 it was the burden of proof of the plaintiff to prove her case and her specific positive assertions. No independent witness has been examined by the plaintiff to prove that defendants use to gossip about the character of plaintiff in the society. Plaintiff could have called her neighbours or any other person of the locality to prove that defendants used defamatory language for her. Besides this, any person from the school of the child of the plaintiff may be summoned in front of whom defendant no.2 allegedly defamed plaintiff. In absence of testimony of independent witnesses the case of plaintiff cannot be said to be proved on the basis of sole testimony of PW1.
In view of the above discussion the present issue is decided against the plaintiff and in favour of defendants.
18. ISSUE NO.2 Whether plaintiff is entitled to any relief, if yes, for what amount ? OPP.
In view of finding on Issue No.1 the present issue is Suit No.116/10 10 decided against the plaintiff and in favour of defendants.
19. Relief.
In view of findings on Issue No.1 and 2 the present suit is hereby dismissed. No order as to cost.
Decree Sheet be prepared accordingly.
File be consigned to record room after due compliance.
Announced in the open court ( Kapil Kumar)
today on 09.4.2014 Civil Judge01 (West)/Delhi
Suit No.116/10