Delhi District Court
Dr. S.P. Barua vs Shri Ashok Sharma on 1 October, 2012
IN THE COURT OF MS. SNIGDHA SARVARIA, CIVIL JUDGE,
CENTRAL05 TIS HAZARI COURTS , DELHI
Suit No. 138/2010
IN THE MATTER OF:
Dr. S.P. Barua, Senior Medical Officer,
Directorate of Health Services,
Connaught Place, New Delhi
and R/o 14A, Delhi Admn. Flats,
New Mahavir Nagar, Delhi. ..........Plaintiff
VERSUS
1. Shri Ashok Sharma, Journalist
Hindustan ( Hindidaily) newspaper,
Hindustan Times ltd. 1820, Kasturba Gandhi,
Marg, New Delhi.
2. Shri Alok Mehta
Working Editor, Hindustan Times,
1820, KG Marg, New Delhi. .........defendants.
Date of Institution: 19.02.2000
Date of Reserving for Judgment: 20.09.2012
Date of Judgment : 01.10.2012
SUIT FOR RECOVERY OF DAMAGES TO THE TUNE OF RS.
50,000/ AND PERMANENT INJUNCTION
JUDGMENT:
1. Vide this judgment, I shall dispose of the suit for recovery of damages to the tune of Rs. 50,000/ and permanent injunction filed Suit No. 138/2010 Page No. 1 of 22 by the plaintiff.
2. Brief facts of the case as per the plaintiff are as under: The case of the plaintiff is that the plaintiff is a Doctor in profession and was working as Resident Medical Officer RMO, in the central Jail Tihar, New Delhi at the relevant time. The plaintiff is a honest and diligent person and has good professional track record. The plaintiff was ordered to be transferred from the post of RMO Central Jain Tihar New Delhi to the Driector of helth Service, Connaught Place New Delhi in a routine transfer and DR. S.K. Sharma was transferred in place of plaintiff in the Central Jail Tihar on 18061999 an item were reported in the Delhi Edition of Hindustan Hindi Edition titled " Tihar Jail Ke Mukhai Chikitsa Adhikari Ko Pad Se Hataya" The said new item was reported by defendant No. 2 and edited by defendant No. 1 before the same was published in the said newspaper. In the said newspaper item serious allegaion were levelled against the plaintiff to the effect that the plaintiff was transferred from the post of RMO Central Jain, Tihar New Delhi for submiting a fevourable report of Sh. Parduman Sharma, Chairman of Kuber Group who was arrested for commiting forgery. The allegation made by the defendant in the said new item were completely baseless, malesless , motivated Suit No. 138/2010 Page No. 2 of 22 and defamatory and without an iota of truth . Sh. Parduman Sharma came to Central Jail on 09061999 and order of routine transfer of the plaintiff was made on 24051999. Due to publication of the said newspaper article which had defamatory content the colleague, friends and relative, public at large were of the suggestion that the plaintiff was transferred on account of favourable report in respect of Sh. Parduman Sharma . Neitehr the medical report of Sh. Parduman Sharma was made nor he was examined and investigated by the plaintiff. The said report was submitted by SMO , Central Jail in the court and the said report does not indicate any kind of favour for Sh. Parduman Sharma. Due to the said defamatory news item the plaintiff has suffered great injry and loss of reputaion among the public at large and also amongs relation, family, friends, colleague etc. The plaintiff has also suffered a quit mental tension, mental agony, mental harassment due to the said defamatory news item. In this factual background the plaintiff has filed the present suit.
3. On the other hand, the defendant No. 1 filed his written statement and the defendant No. 2 has adopted the written statement filed by the defendant No. 1. In their written statement defendant have denied the averments made by the plaintiff in the plaint and have Suit No. 138/2010 Page No. 3 of 22 stated that the said news item was published on the basis of information received from Jail Sources and the reliability of said sources have never been doubted and challenged. The said news item was published on accounts of duty of the defendants towards general public . There was no callousness, negligence , malice or motive on the part of the defendants in publishing the said article. The defendant No. 2 has been incorrectly impleaded as a party in view of section 7 r/w section 1 (1) of the Press and Registration of Books Act, it has been also stated that after publication of the said Article on 18061999, the defendant had issued a clarification in the said newspaper on 21061999 . But as per the clarification given by the lawyer of Sh. Parduman Sharma, it appears that said lawyer was trying to protect and cover up the plaintiff and justify the action/ omission of the plaintiff to give plaintiff clean chit. Vide legal notice dt. 28061999 , the plaintiff had sought a claim of Rs. Five lacs against the defendant No. 1 whereas now suit for Rs. 50,000/ has been filed by the plaintiff. The defendants have claimed their innocence and submitted that the present suit has no merits and the same be dismissed.
4. From the pleading of parties following issues were framed vide order dt. 18032009: Suit No. 138/2010 Page No. 4 of 22
1) Whether a news item appeared in Hindi addition of the daily newspaper Hindustan, Delhi on 18061999 to the effect that the plaintiff has been removed from his post in the capacity of Chief Medical Officer, Central Jail, Tihar, New Delhi as averred in para No. 3 of the plaint? OPP
2) Whether the aforesaid news item was deliberately published by the defendants in the newspaper concerned and whether it amounted to be a defamatory news in itself without an iota of the truth in the concerned news item? OPP
3) Whether any medical report had been prepared by the plaintiff pertaining to a under trial Sh. Pradhuman Sharma in the Central Jail, Tihar, New Delhi? OPP
4) Whether the publication of the alleged news item caused injury and loss of reputation to the plaintiff amongst the public at large and thereby caused defamation to the reputation of the plaintiff in the eyes of public and more particularly in the eyes of his close friends?
5) Whether the plaintiff has suffered an irreparable loss and injury to his reputation by the alleged publication of news item against him which was got published at the behest of the defendant? OPP
6) Whether the defendant No. 2 has been wrongly impleaded as a Suit No. 138/2010 Page No. 5 of 22 party in the suit? OPD
7) Whether the said news item was published in a bonafide belief and without any malice towards the plaintiff? OPD
8) Whether the concerned news item has been published in the concerned news paper on the basis of an information which was genuinely and bonafidely believed to be true by the defendants? OPD
9) Whether the news item in question was published by the defendants after making proper inquiry from the reliable sources at Tihar Jain, New Delhi? OPP
10) Whether the plaintiff has got no cause of action to file the present suit for damages against the defendants in its present form? OPD
11) Relief.
5. The plaintiff has examined himself as PW1. PW1 has filed his evidence by way of affidavit Ex. PW1/A. PW1 has reiterated the facts mentioned in the plaint and relied upon the following documents:
i) Copy of order dt. 07052003 is Mark A
ii) Copy of order dt. 24061999, 15061999, 24051999 is Mark B to D. Suit No. 138/2010 Page No. 6 of 22
iii) Photocopy of newspaper dt. 18061999 & 21061999 are Ex.
PW1/5 & PW1/8.
iv) Copy of Application dt. 10061999 made in the court of Sh. K.S. Mohi, Ld. MM, Delhi is Mark E.
v) The report of Dr. J.S. Mertolia, SMO is Mark F PW1 was also crossexamined by the Ld. counsel for the defendant and during crossexamination he was confronted with the documents i.e. legal notice dt. 28061999 Ex. PW1/D1.
6. On the other hand, the defendant has examined Sh. Ashok Kumar as DW1. DW1 has filed his evidence by way of affidavit Ex. DW1/A and reiterated the facts mentioned in the written statement and relied upon the reply dt. 27071999 as Ex. DW1/1 and the documents exhibited D8 which is already exhibited as PW1/8. The DW1 was also crossexamined by the Ld. counsel for the plaintiff at length.
7. I have heard Ld. counsel for both the parties, perused the record & gone through the relevant provision of law.
8. My issue wise finding is as under: I shall take issue No. 1 and 10 together.
9. Issue No. 1 Whether a news item appeared in Hindi addition of the daily newspaper Hindustan, Delhi on 18061999 to the Suit No. 138/2010 Page No. 7 of 22 effect that the plaintiff has been removed from his post in the capacity of Chief Medical Officer, Central Jail, Tihar, New Delhi as averred in para No. 3 of the plaint? OPP Issue No. 10 Whether the plaintiff has got no cause of action to file the present suit for damages against the defendants in its present form? OPD Issue nos. 1 & 10 are being decided together for the sake of convenience.
In India the criminal liability for defamation is codified and embodied in S.499 of the Penal Code and differs from the law in England in that regard. The civil liability for defamation to pay damages, however, is not governed by any statute law but is determined with reference to the principles of justice, equity and good conscience, which generally have been imported in this country from the English principles. There are two types of defamation in the realm of torts; Libel is a written or printed defamation, while slander is a spoken defamation. The law as regards defamation in the field of civil law/torts is well settled. In order to sustain an action for defamation, it is necessary for the plaintiff not only to prove that a defamatory statement regarding him has been made by a person, but also to prove that the person Suit No. 138/2010 Page No. 8 of 22 making it has published it to some person other than the person defamed. The essence of a cause of action for defamation lies in the fact that the person defamed is lowered in the estimation of others. If none else has heard the defamatory remark, no suit is maintainable for damages for defamation. It is immaterial that the plaintiffs feelings were hurt by the said remark.
10.The defendant no. 1 has admitted in the written statement as well as while deposing in his crossexamination as DW1 that he had reported the news regarding the removal of the plaintiff from his post as the CMO, Central Jail, Tihar, New Delhi, which was published in the newspaper Hindustan (hindi Edition) on 18/6/1999, Ex. PW1/5. Further, the fact that the said news/alleged defamatory statement was published in the newspaper Hindustan (hindi Edition) on 18/6/1999, Ex. PW1/5, which is in good circulation in Delhi, clearly, shows that he person making it has published it to some person other than the person defamed. Thus, clearly, the said news item was published and was read by the persons who subscribe for the Hindustan (hindi Edition). Also, the same amounts to publication for the purpose of defamation. Thus, the present suit filed by the plaintiff discloses cause of action against the defendants and the present suit has been rightly filed Suit No. 138/2010 Page No. 9 of 22 by the plaintiff in its present form. Accordingly, these issues are decided in favour of the plaintiff and against the defendants.
11.Issue No. 3) Whether any medical report had been prepared by the plaintiff pertaining to a under trial Sh. Pradhuman Sharma in the Central Jail, Tihar, New Delhi? OPP Issue no. 3 is being decided before issue no. 2 for the sake of convenience.
In this regard, the contention of the plaintiff is that the report regarding the Chairman, Kuber Group, Sh. Praduman Sharma was never prepared by the plaintiff rather it was Dr. J.S. Martolia, SMO, Central Jail No. 4, who had prepared the said report, Mark F. On perusal of the said report, Mark F, it is manifest that the said report was prepared and forwarded to the Court by SMO, Central Jail No. 4. The plaintiff has stated in his crossexamination that he was the medical head in the Central Jail and Sh. Praduman Sharma was in his administrative control but that does not mean that he had got prepared the medical report of Sh. Praduman Sharma. To prove that the medical report of Sh. Praduman Sharma was prepared by the plaintiff, the defendants should have bring forth relevant witnesses or even Dr. J.S. Martolia as a witness. The defendants have not brought anything on record to Suit No. 138/2010 Page No. 10 of 22 rebut the said contention of the plaintiff and to show that the report was prepared by the plaintiff or on his instructions. Accordingly, this issue is decided in favour of the plaintiff and against the defendants.
12.Issue No. 2 Whether the aforesaid news item was deliberately published by the defendants in the newspaper concerned and whether it amounted to be a defamatory news in itself without an iota of the truth in the concerned news item? OPP Whether the said news item was published in a Issue No. 7) bonafide belief and without any malice towards the plaintiff? OPD Issue No. 8) Whether the concerned news item has been published in the concerned news paper on the basis of an information which was genuinely and bonafidely believed to be true by the defendants? OPD Issue No. 9) Whether the news item in question was published by the defendants after making proper inquiry from the reliable sources at Tihar Jain, New Delhi? OPP Issue nos. 2,7,8 & 9 are being decided together for the sake of convenience.
It is well settled that in a suit for defamation, it is open to the Suit No. 138/2010 Page No. 11 of 22 person who is sought to be charged with the liability to take up the defence of qualified privilege in respect of the publication. The scope of the plea of qualified privilege which the defendant might take in this regard covers a wide range of cases. Five illustrative cases of such qualified privilege which are relevant to the facts of the present case are enumerated below.
13.Firstly, it might be pleaded by the defendant that the publication was made by him in discharge of a duty owed by him. The duty owed might be public or private. It might be legal, moral or social. It might even be conventional, and may relate to the ordinary practice observed in the conduct of his affairs. This is one aspect of the doctrine of the qualified privilege.
14.Secondly, the defendant might also set up the defence of qualified privilege on the ground that there existed between him and the party to whom the publication was made a common interest in the subjectmatter in question, and that this interest being of a reciprocal character, the publication in question was made in discharge of the duty generated by the subsistence of such interest.
15.Thirdly, the doctrine would also cover a confidential relationship between persons and societies as a result of which one party is Suit No. 138/2010 Page No. 12 of 22 empowered or entitled to tender advice or information to another party respecting a matter in which both are concerned. The communication might not be in discharge of a positive duty, but be merely in the nature of a duty imposed as a result of a private understanding between the parties and the situation created thereby.
16.Fourthly, where such a relationship exists, any enquiry made by one party from another might be an additional ground involving the other party in a kind of moral obligation to convey the information to the party that seeks the said information.
17.Fifthly, even apart from the aforementioned considerations the publication might be made to the other party for the protection of the legitimate interests of the person or persons who make the publication or even for the protection of the interest of another person in which both the parties are concerned.
18.In an action for defamation, defence of qualified privilege and malice go hand in hand. Malice in law which is alleged at the first stage of the case is merely a formal allegation. It is more or less a matter of presumption and hardly requires any proof. Malice in fact, or in other words, express malice, the burden of which is shifted on the plaintiff, once the occasion is proved to be a privileged one, is Suit No. 138/2010 Page No. 13 of 22 the substantial malice which the plaintiff has to prove before he can succeed in the case. The question of its proof arises at the second stage of the case. Once the defendant has succeeded in proving that the occasion was authorised or privileged, the ordinary presumption of malice in law is repelled, and the plaintiff is then called upon to prove express malice.
19.The defendants relied on decisions in Pandey Surendra Nath Sinha vs. BageshwariAIR 1961 Pat 164; M/s. Crop Care federation of India vs. Rajasthan Patrika (P) Ltd.decided on 27/11/2009 by the Delhi High Court in CS (OS) No. 531/2005 and R. Rajagopal vs. State of T.N.AIR 1995 SC 264, in this regard.
20.The onus to prove the fact that the alleged defamatory news article Ex. PW1/5 was published by the defendants after proper inquiry, genuinely, bonafidely and without malice lies on the defendants. The defendants have merely stated in the written statement and defendant no. 1 has deposed as DW1 that the said alleged defamatory news article Ex. PW1/5 was published in public interest without malice and in discharge of professional and public duty and responsibility towards the society. But it is no more res integra that in an action for damages for defamation, the defendant Suit No. 138/2010 Page No. 14 of 22 who wants to put forward the defence of justification must not only raise the plea in his written statement but should prove it strictly by leading evidence that the defamatory remarks about the plaintiff were true. The onus to prove justification always lies on the defendant. Merely by making averments in this regard, the defendants cannot discharge this burden. The defendants are to show that how the statement is true, which they have failed to show. On the other hand, the plaintiff has brought on record Mark D which is the transfer order dated 24/5/1999 of the plaintiff, whereby the plaintiff was transferred from Central Jail, Hospital to DHS. Accordingly, as per Mark C i.e. Order dated 15/6/1999, the plaintiff was relieved from his services as CMO Central Jail, Hospital. As per Mark F the medical report of Sh. Praduman Sharma was prepared and forwarded to the Court on 11/6/1999. Clearly, the transfer orders of the plaintiff were made, on 24/5/1999, before the preparation of the said medical report of Sh. Praduman Sharma. Thus, clearly, the plaintiff was transferred in a routine manner and not because of any incident of manipulation of the medical report of Sh. Praduman Sharma. Even otherwise, on reading the said medical report of Sh. Praduman Sharma, Mark F, the said report only states that the condition of Sh. Praduman Suit No. 138/2010 Page No. 15 of 22 Sharma is satisfactory and is being given necessary treatment in the jail. From no standards the said report can be said to be favorable to Sh. Praduman Sharma for assisting in getting him bail from the court on medical grounds. Thus, clearly, the plaintiff has proved that the said report Ex. PW1/5 has not even an iota of truth and is defamatory in nature. While the defendants have failed to discharge the burden of proving that the alleged defamatory news article Ex. PW1/5 was published by the defendants after proper inquiry, genuinely, bonafidely and without malice. In view of the aforesaid discussion, the decisions in Pandey Surendra Nath Sinha vs. BageshwariAIR 1961 Pat 164; M/s. Crop Care federation of India vs. Rajasthan Patrika (P) Ltd.decided on 27/11/2009 by the Delhi High Court in CS (OS) No. 531/2005 and R. Rajagopal vs. State of T.N.AIR 1995 SC 264, are of no assistance to the defendants as are based on different set of facts and it is well settled that judicial precedents cannot be applied as Euclid's theoreme without considering the factual scenario on which the precedents are based. Accordingly, these issues are decided in favour of the plaintiff and against the defendants.
21. Issue No. 4) Whether the publication of the alleged news item caused injury and loss of reputation to the plaintiff Suit No. 138/2010 Page No. 16 of 22 amongst the public at large and thereby caused defamation to the reputation of the plaintiff in the eyes of public and more particularly in the eyes of his close friends?
Issue No. 5) Whether the plaintiff has suffered an irreparable loss and injury to his reputation by the alleged publication of news item against him which was got published at the behest of the defendant? OPP Issue nos. 4 & 5 are being decided together for the sake of convenience.
In this regard, the plaintiff has deposed as PW1 that the publication of said article Ex. PW1/5 by the defendants has caused great injury and loss of reputation to the plaintiff in the eyes of the public, colleagues, family etc. After reading the said news item Ex. PW1/5 the friends, colleagues and relatives of the plaintiff started enquiring about the alleged involvement of the plaintiff as regards the medical report of Sh. Praduman Sharma, which caused mental agony, tension harassment and loss of reputation of the plaintiff amongst his family, friends, colleagues, relatives and public at large. Sh. Subhash Chakravarty, Sh. Harinder Pal & Dr. Mansa Chakravarty enquired from the plaintiff about the said article Ex. PW1/5.
Suit No. 138/2010 Page No. 17 of 22
22.The defendants have relied on decision in Hohd. Ahsan Haji Mohd. Suleman vs. Haji Abdul Majid Thekedar 1997 (1) MPLJ 371; Pandey Surendra Nath Sinha vs. BageshwariAIR 1961 Pat 164; Renuka Iswariah vs Cynthia Dulipsingh decided on 23/7/2009 by the Delhi High Court in CS(OS) 569/2006 and Prof. Imtiaz Ahmad vs. Durdana Zamirdecided on 2/3/2009 by the Madras High Court in Cr.MP.No.1/2006 to contend that the essence of a cause of action for defamation lies in the fact that the person defamed is lowered in the estimation of others.
23.In an action for defamation, the wrongful act is damage to the plaintiff's reputation. The injuries that he sustains may be classified under two heads: (i) the consequences of the attitude adopted to him by other persons as a result of the diminution of the esteem in which they hold him because of the defamatory statement; and (ii) the grief or annoyance caused by the defamatory statement to the plaintiff himself. It is damages under this second head which may be aggravated by the manner in which, or the motives with which, the statement was made or persisted in.
24.The fact that the plaintiff was lowered in the estimation of others due to the alleged article Ex. PW1/5 is clear from the fact that Sh. Subhash Chakravarty, Sh. Harinder Pal & Dr. Mansa Chakravarty Suit No. 138/2010 Page No. 18 of 22 enquired from the plaintiff about the said article Ex. PW1/5. Also, the plaintiff is a doctor by profession and has great standing in the eyes of his peer, family and even general public. The publication of such an article, Ex. PW1/5 without any justification has definitely caused harrasement, mental agony and grief to the plaintiff. Clearly, from the aforesaid it is manifest that the article Ex. PW1/5 is defamatory and without any truth and has caused harassment, mental agony and grief to the plaintiff. Thus, clearly, the plaintiff has proved his case of defamation.
25.The decision in Hohd. Ahsan Haji Mohd. Suleman vs. Haji Abdul Majid Thekedar 1997 (1) MPLJ 371; Pandey Surendra Nath Sinha vs. BageshwariAIR 1961 Pat 164; Renuka Iswariah vs Cynthia Dulipsingh decided on 23/7/2009 by the Delhi High Court in CS(OS) 569/2006 and Prof. Imtiaz Ahmad vs. Durdana Zamirdecided on 2/3/2009 by the Madras High Court in Cr.MP.No.1/2006 are of no assistance to the defendants as are based on different set of facts and it is well settled that judicial precedents cannot be applied as Euclid's theoreme without considering the factual scenario on which the precedents are based.
26.As regards damages of Rs. 50,000/, it is well settled that in a suit Suit No. 138/2010 Page No. 19 of 22 for defamation, the damages are in the nature of compensation. In deciding the question of compensation Court must take into consideration the following things: (1) The conduct of the plaintiff; (2) His position and standing; (3) The nature of libel; (4) The absence or refusal of any retraction or apology; and (5) The whole conduct of the defendant from the date of publication of libel to the date of decree. Considering that the plaintiff is a SMO, DDU Hospital, Hari Nagar, N. Delhi, I am of the view that the plaintiff is entitled to a decree of damages of Rs. 50,000/ against the defendants to be paid by the defendants equally to the plaintiff. Accordingly, these issues are decided in favour of the plaintiff and against the defendants.
27.Issue No. 6) Whether the defendant No. 2 has been wrongly impleaded as a party in the suit? OPD The contention of counsel for the defendant no. 2 in this regard is that as per the definition of 'Editor' in Section 1(1) of the Act 'Editor' means the person who controls the selection of the matter that is published in a newspaper. There is no reference to Resident Editor, Executive Editor, Managing Editor in the Act. The defendant no. 2 at the relevant time was working as working editor for Hindustan (Hindi) Newspaper. Neither the plaintiff has alleged Suit No. 138/2010 Page No. 20 of 22 any allegations against the defendant no. 2 also the defendant no.2 has relied on decision in C.B. Solanki, Major, Proprietor vs. Srikanta Parashar1997 (1) ALT Cri 912, 1997 CriLJ 3051, ILR 1997 KAR 1545 , to show that the defendant no. 2 cannot be said to have defamed the plaintiff, the said case is based on the criminal law of defamation and hence not applicable in the facts of the present case. The plaintiff has made the defendant no. 2 as a party as he was responsible for selecting and allowing the news article Ex. PW1/5 to be published in the newspaper, clearly, the defendant no. 2 is equally responsible for defaming the plaintiff in the present case.
28. Issue No. 10A Whether the plaintiff is entitled to the relief of permanent injunction as prayed?
This issue was inadvertently not framed by the Ld. Predecessor of this court at the timing of framing the other issues. This issue is being framed now at the time of passing of this judgment. The plaintiff has prayed for the decree of perpetual injunction restraining the defendants, their employees, associates, attorneys from publishing any defamatory news items containing imputations concerning the plaintiff in any manner or before any person or authority. The relief claimed herein is very vast and vague. Further, Suit No. 138/2010 Page No. 21 of 22 the decree of injunction is this regard cannot be passed in favour of the plaintiff and against the defendants in view of S. 41 (e) of the Specific Relief Act, as the court cannot pass injunction of the nature sought by the plaintiff as it involves performance of a continuous duty and which are ministerial in nature which the court cannot supervise. Accordingly, this issue is decided against the plaintiff and in favour of the defendants.
29. Relief.
In view of the aforesaid discussion, the suit of the plaintiff is partly decreed in favour of the plaintiff and against the defendants in the aforesaid terms. The costs of the suit is also in favour of the plaintiff. Decree sheet be prepared accordingly. File be consigned to the Record Room after due compliance.
Announced & signed in the ( Snigdha Sarvaria) open court on 01.10.2012. Civil Judge/Central05 Delhi Suit No. 138/2010 Page No. 22 of 22