Delhi District Court
Malik Mohd. Tanveer vs Malik Mohd. Salim on 4 August, 2014
IN THE COURT OF SHRI RAJ KUMAR: ADDL. DISTRICT
JUDGE17: TIS HAZARI COURTS : DELHI
Suit No. 484/14 (Old Suit No.22/09)
Unique Case ID No. 02401C0017762009
Malik Mohd. Tanveer
S/o Late Malik Asloob Elahi
R/o 1454, Gali Syed Rafai,
Bazar Chitli Qabar,
Jama Masjid,
Delhi110006. ........... Plaintiff.
VERSUS
Malik Mohd. Salim
S/o Late Malik Nisar Elahi,
R/o 297, Kohinoor Apartment,
Second Floor, Flat no. 6,
Katra Sujan Rai, Delhi Gate,
Delhi110006.
Also At :
792, Suiwalan,
Kamra Bangash,
Jama Masjid,
Delhi110006. ......... Defendant.
Date of institution of the suit : 15.01.2009
Date on which order was reserved : 16.07.2014
Date of decision : 04.08.2014
Suit No. 484/14 (Old Suit No. 22/09) Page No. 1/29
SUIT FOR RECOVERY OF DAMAGES FOR RS. 4 LACS
JUDGMENT
The facts in brief, necessary for the disposal of the present suit filed by the plaintiff as disclosed in the plaint are that the plaintiff is a respectable person of Walled City of Delhi and engaged in the business of dealing/ manufacturing of handicrafts. It has been further stated that the plaintiff has been appointed as the Chairman/ President of the Handcraft Traders Welfare Association having more than 225 members. It has been further stated that the plaintiff is affiliated to Bhartiya Janta Party, which is a national political party and is engaged in various welfare activities. It has been further stated that the people of Delhi respect the plaintiff and he has amassed great reputation. It has been further stated that the plaintiff is such an important person that even Delhi Congress Govt. or any other Govt., which comes to power invites him as a gust. It has been further stated that the plaintiff receives invitation from the Lieutenant Governor of Delhi as well. It has been further stated that the plaintiff was the Chairman of Delhi U.R.S. Committee and was also the member of Delhi Haj Committee and Delhi Wakf Board. It has been further stated that the defendant is the cousin brother of the plaintiff. It has been further stated that the defendant has been residing at the address as given in the plaint and he has nothing to do with property bearing no. Suit No. 484/14 (Old Suit No. 22/09) Page No. 2/29 800, Haveli Azam Khan, Bazar Chitli Qabar, Jama Masjid, Delhi, where his brother Malik Mohd. Nadim and his family and his mother are residing. It has been further stated that the owner of the said property wanted to sell the said property and as such, he approached Sh. Malik Mohd. Nadim. It has been further stated that Sh. Malik Mohd. Nadim agreed to purchase the said property for a sum of Rs. 4 Lacs and he paid a sum of Rs. 4 Lacs on 21.08.2008. It has been further stated that the plaintiff is a witness in the agreement and in the receipt as well, which was entered into by Sh. Malik Mohd. Nadim. It has been further stated that later on, the defendant became interested in purchasing the said property and as such, he approached the plaintiff to back out from the said agreement. It has been further stated that the defendant wanted the plaintiff to help him in acquiring the said property in an illegal manner. It has been further stated that the plaintiff disagreed with the defendant and in order to create pressure upon the plaintiff, he lodged a false and frivolous complaint with PS Daryaganj, New Delhi against the plaintiff. It has been further stated that in the said complaint, the defendant accused the plaintiff of hiring 78 persons, who were equipped with hockey, gun and knife etc., who surrounded the defendant, when he was going to the office of Delhi Wakf Board at gun point. It has been further stated that in the said complaint, the defendant had alleged that if the decision of acquiring of the house and shop was not reversed, then, he Suit No. 484/14 (Old Suit No. 22/09) Page No. 3/29 will loose his life. It has been further stated that the defendant lodged the said complaint with ulterior motives to implicate the plaintiff in a false criminal case. It has been further stated that the said complaint is prima facie false because the date of the incident has been mentioned as 08.09.2008, whereas the said complaint was filed with the police only on 11.09.2008. It has been further stated that Sh. Nirpal Singh, the Investigating Officer conducted an enquiry and interrogated the plaintiff and the people of the area by calling them in Police Station Daryaganj. It has been further stated that the Investigating Officer submitted a report to the effect that no such incident had ever taken place and the complaint filed by the defendant was false. It has been further stated that after filing of the said complaint, the defendant started defaming the plaintiff in the entire vicinity, which is inhabited by Muslim Families. It has been further stated that the plaintiff was informed by Malik Mohd. Taqi, his uncle that the defendant had approached him on 16.09.2008 and had made defamatory statement against the plaintiff to the effect that the plaintiff had attempted to kill the defendant through gangsters. It has been further alleged that the defendant made similar false propaganda before the general public at large and particularly before two prominent persons namely Sh. Aftab and Sh. Salimuddin. It has been further alleged that the people, who had been treating the plaintiff as a man of good and balanced character were now reluctant to believe the innocence of the Suit No. 484/14 (Old Suit No. 22/09) Page No. 4/29 plaintiff. It has been further alleged that the plaintiff has suffered loss of reputation at the hands of the defendant. It has been further stated that the esteem and reputation of the plaintiff has been lowered down in the mind of the right thinking persons of the society. It has been further stated that the plaintiff served a legal notice dated 03.10.2008 upon the defendant, but the defendant failed to repudiate the contents of the said notice. It has been further stated that the plaintiff is entitled for actual and exemplary damages, which are assessed to the tune of Rs. 4 Lacs by the plaintiff.
2. On the basis of the abovesaid allegations as contained in the plaint, the plaintiff has prayed for a decree for an amount of Rs. 4 Lacs together with the pendente lite and future interest. The plaintiff has also prayed for the costs of the suit.
3. Written statement has been filed on record by the defendant stating therein that the present suit is an abuse of the process of law and the same has been filed by the plaintiff with a view to harass and pressurize the defendant to shell out illegal money. It has been further stated that the plaintiff had sent Sh. Aftab and Sh. Salimuddin to the defendant, who demanded a sum of Rs. 2 Lacs on behalf of the plaintiff. It has been further stated that the said Sh. Aftab and Sh. Salimuddin had threatened that if the said amount was not paid, then, the plaintiff would file a case against the defendant. It has been further stated that the present suit is without any cause of action. It has been further stated that the Suit No. 484/14 (Old Suit No. 22/09) Page No. 5/29 complaint filed by the defendant was against unknown persons and there was no allegation against the plaintiff. It has been further stated that the said complaint was neither published, nor circulated by the police officials and as such, the present suit for defamation does not fall within the definition of slander and libel. It has been further stated that the plaintiff has concealed the material facts from this Court.
4. On merits, the defendant has denied that the plaintiff is a respectable person of the Walled City of Delhi or that the plaintiff is engaged in the business of handicrafts. It has been denied that the plaintiff has been appointed as the Chairman/ President of Handicraft Traders Welfare Association. The defendant has taken the stand that the said association is unregistered. It has been further stated that to the knowledge of the defendant, the plaintiff is not an income tax payee. The defendant has alleged that the plaintiff does not command any respect from any political party. It has been further stated that the plaintiff, about 15 years back, had joined B.J.P., but he was thrown out of the party because of his antiparty activities and he was also blacklisted. The defendant has alleged that the plaintiff has a very notorious reputation amongst the people of the area, where he resides. It has been further stated that the plaintiff is an opportunist. It has been denied that the plaintiff was the Chairman of Delhi U.R.S. Committee or the Chairman of Delhi Haj Committee or Delhi Wakf Board. The defendant has alleged Suit No. 484/14 (Old Suit No. 22/09) Page No. 6/29 further that the plaintiff is in the habit of interfering in the matters of others and he takes illegal consideration from the people of the locality for getting their matters settled. The defendant has admitted that the plaintiff is his cousin brother. The defendant has denied that he has nothing to do with the property bearing no. 800, Haveli Azam Khan, Bazar Chitli Qabar, Jama Masjid, Delhi. The defendant has stated that in fact, late Malik Nisar Elahi, the father of the defendant was the tenant in the said property and after his death, all the legal heirs of late Sh. Malik Nisar Elahi have become the cotenants in the said property. The defendant has denied that the owner of the said property wanted to sell the same for a sum of Rs. 4 Lacs or that Sh. Malik Mohd. Nadim agreed to purchase the same. It has been denied that Sh. Malik Mohd. Nadim paid an amount of Rs. 4 Lacs on 21.08.2008. It has been further stated that property bearing nos. 800, 801 and 802 were owned by one Sh. Mohd. Sadiq Hussain and there were 9 occupants/ tenants in the said properties including Smt. Roshan Qamar (widow of late Sh. Malik Nisar Elahi). It has been further stated that Mr. Mohd. Sadiq Hussain agreed to sell the said properties for a sum of Rs. 2 Lacs for each of the 9 portions. It has been further stated that Mr. Malik Mohd. Nadim, who is the real brother of the defendant, without the knowledge and notice of her mother, paid a sum of Rs. 4 Lacs to one Sh. Mohd. Abrar, who had no concern with the said properties. It has been further stated that a receipt was got Suit No. 484/14 (Old Suit No. 22/09) Page No. 7/29 executed from Mohd. Abrar in which the plaintiff was a witness. The defendant has alleged that by getting the said receipt from Sh. Mohd. Abrar, the brother of the defendant played a fraud upon the defendant and his mother. It has been further stated that the plaintiff was a witness to the said forged receipt. It has been further stated that though, the plaintiff is the cousin brother of the defendant, yet he gets sadistic pleasure in brewing fights amongst the real brothers and other family members. It has been further stated that the plaintiff is in the habit of filing false and frivolous defamation cases against the respectable persons of his community. It has been further stated that Mr. Mohd. Sadiq Hussain sold the properties bearing nos. 800, 801 and 802 to one Mst. Huma Begum and there was a clear understanding that Mst. Huma Begum will execute the sale deed in favour of all the nine tenants including the mother of the defendant. It has been further stated that the plaintiff and Malik Mohd. Nadim came to know about the said understanding/ settlement and Sh. Malik Mohd. Nadim, at the instance of the plaintiff, filed a false and frivolous suit for Declaration, Specific Performance or in the alternate, for damages through the wife of Malik Mohd. Nadim (namely Mst. Shagufta Malik) against Mr. Mohd. Sadiq Hussain, Sh. Abdul Majid, Mst. Huma Begum and Mohd. Abrar before the Hon'ble High Court of Delhi. It has been further stated that the abovesaid events clearly reflect the dubious character of the plaintiff and Malik Mohd. Nadim. The Suit No. 484/14 (Old Suit No. 22/09) Page No. 8/29 defendant has denied that he became interested in purchasing property bearing no. 800, Haveli Azam Khan, Bazar Chitli Qabar, Jama Masjid, Delhi. The defendant has denied that he ever approached the plaintiff for helping him in acquiring the said property. It has been further stated that the defendant had lodged a correct and genuine complaint, but the plaintiff, being an influential person, won over certain persons of the locality, who were enquired by ASI Nirpal Singh. It has been further stated that on account of the fear of the plaintiff, the truth could not come to the surface. It has been further stated that fair investigation was not conducted by the police officials on account of the influence of the plaintiff. The defendant has admitted the receipt of the notice issued by the plaintiff, but the defendant has taken the stand that the said notice was false and frivolous and that is why, the same was not replied by the defendant. Rest of the contents of the plaint have been denied and it has been prayed that the suit of the plaintiff be dismissed with exemplary costs.
5. Replication has been filed on record by the plaintiff reiterating and reaffirming the stand as taken by the plaintiff in the plaint and denying the contents of the written statement filed by the defendant.
6. From the pleadings of the parties, the following issues were framed by my Ld. Predecessor vide orders dated 25.08.2009 :
1) Whether the plaintiff is entitled for recovery of a sum of Suit No. 484/14 (Old Suit No. 22/09) Page No. 9/29 Rs. 4 Lacs from the defendant, as claimed in the plaint?
OPP.
2) Relief.
EVIDENCE :
7. The plaintiff has examined himself as PW1 and in his evidence by way of affidavit, he has reiterated and reaffirmed the stand as taken by the plaintiff in the plaint. He has filed on record his evidence by way of affidavit as Ex. PW1/A, the photocopy of the Registration Certificate of New Handicrafts Traders Welfare Association as Ex. PW1/1, newspaper cutting as Ex. PW1/4, the invitation card received from Lt. Governor of Delhi Sh. Vijay Goel dated 20.11.2003 as Ex. PW1/5, the greeting card received from Kerala State Government as Ex. PW1/6, IdMubarak card as Ex. PW1/7, Letter written by Chief Minister Sh. Sahib Verma as Ex. PW1/9, Greeting card received from Sh. Murli Manohar Joshi as Ex. PW1/10, Greeting card received from Sh. Vijay Goel, Minister Youth as Ex. PW1/12, Greeting card received from Maulana Azad Education Foundation as Ex. PW1/13, legal notice as Ex. PW1/28 and postal receipt thereof as Ex. PW1/29.
8. In the crossexamination, PW1 states that he has studied upto VIIth class. PW1 further states that he does not know what was the turnover from his business of handicrafts for the years 2005 to 2009. Suit No. 484/14 (Old Suit No. 22/09) Page No. 10/29 PW1 further states that he is an Income Tax Assessee. PW1 further states that he does not remember the amount of the income tax paid by him during the said years. PW1 further states that he knows one Md. Idris. PW1 further states that he had filed a case for defamation against him also. By way of volunteer, PW1 states that the said matter has been compromised and he had withdrawn the said case. PW1 further states that he also knows Dr. Aftab Khan. PW1 admits it to be correct that the defamation suit with Md. Idris was settled due to efforts of Dr. Aftab Khan, who is a common friend. PW1 denies the suggestion that he had taken a sum of Rs. 1.5 Lac from Md. Idris and only thereafter, he had withdrawn the said suit.
9. During the crossexamination of PW1, certified copy of the order dated 15.04.2010 passed in suit no. 622/08 with original number as 194/2008 titled as Malik Mohd. Tanveer Vs. Mohd. Idris Khan has been exhibited as Ex. PW1/D1. PW1 admits his signatures on the said orders at point A. PW1 admits it to be correct that he had filed a suit against Delhi Wakf Board and the said suit was pending in the Court of Sh. Vidya Prakash, the then Ld. Civil Judge, Delhi and the said suit has already been disposed off on 11.11.2009.
10. PW1 admits it to be correct that he had filed another suit against Md. Idris and his family members and the MCD and the said suit was also assigned to the court of Sh. Vidya Prakash, the then Ld. Civil Suit No. 484/14 (Old Suit No. 22/09) Page No. 11/29 Judge, Delhi. By way of volunteer, PW1 states that all the cases with Md. Idris were compromised and were disposed off accordingly. PW1 denies the suggestion that the aforesaid suits were also rejected vide order dated 21.10.2009 by the said court being not maintainable. PW1 admits it to be correct that the said order dated 21.10.2009 was also challenged in the Appellate Court of Sh. Pankaj Gupta, the then Ld. ADJ, Delhi. PW1 further states that the said appeal was rejected by the court of Sh. Pankaj Gupta, the then Ld. ADJ. PW1 admits it to be correct that all these cases have been contested on his behalf by Sh. Vijay Tandan, Advocate.
11. PW1 further states that no agreement to sell, as stated by him in his affidavit at para no. 6 was ever executed. PW1 further states that only a receipt was prepared. PW1 further states that nobody had approached him to back out from the said deal as a witness. PW1 further states that ASI Nirpal Singh had not issued any notice to him on the complaint of the defendant. PW1 further states that ASI Nirpal Singh had recorded his statement. PW1 further states that he is not aware about the recording of the statements of other persons by ASI Nirpal Singh on the complaint of the defendant. PW1 further states that ASI Nirpal Singh had not supplied or shown any copy of the complaint dated 11.09.2009 to any other person. By way of volunteer, PW1 states that the defendant himself was showing his complaint to various persons. PW1 further states that the police officials have not taken any action against him on the said Suit No. 484/14 (Old Suit No. 22/09) Page No. 12/29 complaint. PW1 admits it to be correct that as per the police officials, no offence was made out and therefore, the police officials had closed the enquiry on the said complaint. PW1 further states that 1012 persons of the locality had asked him about the lodging of the complaint on various dates. PW1 further states that he has no knowledge whether the defendant had defamed him in his political circle or not.
12. The plaintiff has further examined Sh. Mohd. Aftab Khan as PW2 and this witness, in his evidence by way of affidavit, has supported the case of the plaintiff as per the stand of the plaintiff as contained in the plaint. He has filed on record his evidence by way of affidavit Ex. PW2/A.
13. In the crossexamination, PW2 states that he has not received any summons from the Court and he has come to depose in the Court at the instance of the plaintiff. PW2 admits that the plaintiff is his friend. PW2 further states that the defendant had disclosed about the allegations against the plaintiff at his residence at about 44:30 pm. PW2 further states that the defendant had defamed the plaintiff in the locality of his office. PW2 further states that he has not stopped his relations and talks etc. with the plaintiff despite hearing serious allegations against him from the defendant. PW2 further states that he does not know the names of the persons, who were talking about defamatory statements alleged by the defendant against the plaintiff. PW2 further states that even prior to Suit No. 484/14 (Old Suit No. 22/09) Page No. 13/29 20.09.2008, the plaintiff was depressed because the defendant had lodged a police complaint against the plaintiff. PW2 further states that he had read the said complaint. PW2 further states that the said complaint was also containing allegations of intimidation and threat as disclosed by him in para no. 2 of his affidavit Ex. PW2/A. PW2 further states that he has no relation with the defendant and the defendant had visited his residence only once because he knew that the plaintiff was his friend. PW2 admits it to be correct that even after hearing defamatory statement regarding the plaintiff, he has great respect for the plaintiff.
14. The plaintiff has further examined Sh. Nirpal Singh Virk, ASI, PS Darya Ganj, Delhi as PW3 and this witness has proved on record complaint no. 6123, addressed to SHO, Darya Ganj, dated 11.09.2008 and the complaint no. 98 dated 11.09.2008 addressed to ACP, Darya Ganj. The said witness has further filed on record the photocopy of the entire record containing 16 pages of the complaint as well as investigation as Ex. PW3/1(colly).
15. In the crossexamination, PW3 states that no action was taken against the plaintiff because on the basis of the evidence collected from the area, no case was made out against the plaintiff & others.
16. The defendant has examined himself as DW1 and in his evidence by way of affidavit Ex. DW1/A on record, he has reiterated and reaffirmed the stand as taken by the defendant in the written statement. Suit No. 484/14 (Old Suit No. 22/09) Page No. 14/29
17. DW1 i.e. the defendant in his crossexamination admits that the plaintiff is his cousin brother and Nadim is his real brother. DW1 admits it to be correct that the plaintiff has no concern with property bearing no. 800, Haveli Azam Khan, Bazar Chitli Qabar, Jama Masjid, Delhi. By way of volunteer, DW1 states that the plaintiff was interfering in his family matters. DW1 admits it to be correct that Mst. Shagufta and Nadim Malik were residing in this property and they are still residing. By way of volunteer, DW1 states that his family members were also residing. DW1 further states that Flat bearing no. 297, Kohinoor Apartments was purchased by him somewhere in the year 2009 and since then, he has been residing therein. DW1 denies the suggestion that he pressed and harassed the plaintiff to refuse to identify his signatures on the agreement to sell. DW1 admits it to be correct that Delhi Wakf Board is not the owner and is not having any concern with the property bearing no. 800, Haveli Azam Khan, Bazar Chitli Qabar, Jama Masjid, Delhi. DW1 denies the suggestion that he filed a false complaint against the plaintiff. DW1 further states that the complaint dated 11.09.2010 was prepared by him, but he does not remember from where he got it typed. DW1 further states that the said complaint was got typed on 10.09.2010. DW1 was asked the question that as per the complaint, the incident happened on 08.09.2010, then, why he filed the complaint on 11.09.2010. DW1 has answered that after the incident, he was afraid and he discussed the issue with his Suit No. 484/14 (Old Suit No. 22/09) Page No. 15/29 family and only thereafter, he decided to file the complaint. DW1 further states that he discussed the issue with his brotherinlaw Sh. Nazimuddin, who is an Advocate and thereafter, the said complaint was drafted. DW1 further states that he does not know, if the plaintiff deals in handicrafts or is the President of Handicrafts Association. DW1 further states that he does not know if the plaintiff is an Income Tax Assessee or is a social worker having status in the society. DW1 further states that he does not know if the plaintiff ever became the member of Haj Committee, the member of the Delhi Wakf Board or the Chairman of Delhi U.R.S. committee. DW1 further states that he does not know if the plaintiff is a well known personality in Delhi6 area. DW1 further states that he did not lodge any police complaint against Mohd. Aftab and Salimuddin. DW1 further states that as per his information, there is a case U/s 307 of the IPC against the plaintiff and he has the documents. Photocopies of the documents were taken on record during the crossexamination of DW1 in the form of Ex. DW1/P1. DW1 points out that in the orders dated 26.04.2011, the name of the plaintiff has been mentioned. DW1 further states that he does not know if the police filed the charge sheet in that case or that the said case was still pending. DW1 denies the suggestion that after lodging the complaint, he also defamed the plaintiff in the neighbourhood by visiting the residences of the known persons of the locality. DW1 further states that he did not take any other action except Suit No. 484/14 (Old Suit No. 22/09) Page No. 16/29 lodging the complaint to the police. DW1 denies the suggestion that he had defamed the plaintiff in the entire Delhi6, which is inhabited by more than 30 Lacs persons. DW1 admits it to be correct that he did not reply the notice sent by the plaintiff.
18. I have carefully gone through the entire material available on record and heard the rival submissions of Ld. counsels for both the parties. Both the parties have filed on record their written final arguments as well. I have also carefully gone through the written final arguments filed on record by the both the parties.
19. My issuewise finding on the abovesaid issues is as under:
Issues No. 1 :
20. The factual matrix and the evidence led by the parties has already been narrated herein above.
21. In the written final arguments, the plaintiff has argued that the defendant lodged a complaint dated 11.09.2008 against the plaintiff alleging the plaintiff of a serious offence U/s 307 of the IPC. It has been further argued that the plaintiff has placed on record various documents to show that he is a respectable person of the society. It has been further argued that ASI Nirpal Singh, who has been examined as PW3 has proved the investigation report as Ex. PW3/1. It has been further argued that the said report clearly states that the plaintiff was not found to be Suit No. 484/14 (Old Suit No. 22/09) Page No. 17/29 involved in any criminal activity. It has been further argued that the plaintiff is engaged in social and cultural activities in old Delhi and is also affiliated to political parties. It has been further argued that there is no crossexamination of PW1 on the documents placed on record by the plaintiff and as such, the plaintiff has been able to prove on record the documents showing his reputation in the society. It has been further argued that the defendant himself appeared as a witness and he failed to prove his defence. It has been further argued that the plaintiff has been able to prove his case of defamation and malicious prosecution. It has been further argued that the plaintiff is entitled to punitive and exemplary damages.
22. Ld. Counsel for the plaintiff has relied upon the following authorities :
i) Vineet Jain Vs. State of NCT Delhi, 2011 (184), DLT 596, wherein, it has been held that :
"(B) Indian Penal Code, 1860 - Sections 499 and 500
- Criminal Law - Words and Phrases - 'Defamation' -
Ingredients of offence - Strictly speaking in terms Section 499 IPC, offence of defamation consists of three vital components, viz. (i) making or publishing any imputation concerning any person; (ii) such imputation must have been made by words either written or spoken or by visible Suit No. 484/14 (Old Suit No. 22/09) Page No. 18/29 representation; (iii) such imputation must be made with intention to cause harm or with the knowledge or having reasons to believe that it was harm the reputation of the person concerned."
ii) S.N.M. Abdi Vs. Prafulla Kr. Mahanta AIR 2002, Gauhati 75, wherein, it has been held that :
"Torts - Defamatory publication - Compensation -
Following things are to be considered : (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 - Appeal dismissed with modifications."
iii) Rajeev Aggarwal Vs. Vijay Kumar Divakar, 2011 (184) DLT, 518, wherein, it has been held that :
"(A) Defamation - Publication in News Paper - Suit for Damages for Defamation and Permanent Injunction -
Unrebutted Evidence - Plaintiff is a man of repute and defendants are undeterred and have repeatedly defamed plaintiff - Defendants failed to appear in Court nor any Suit No. 484/14 (Old Suit No. 22/09) Page No. 19/29 written statement was filed by defendants - Plaintiff is entitled for relief claimed against defendant no. 1 and 2 to extent of Rs. 5 lacs as compensation/damages for defamation caused to plaintiff on account of publication of news item in newspaper."
iv) Ram Jethmalani Vs. Subramaniam Swamy, AIR 2006, Delhi, 300, wherein, it has been held that :
"Commissions of Inquiry Act, 1952 - Sections 3, 5 - Defamation - Commission of Inquiry - plaintiff engaged as Senior Counsel to represent Ms. Jayalalitha - he cross examined defendant - defendant not disclosing his source of information as disclosure may have imperil life of informant
- But it was unjust on his part to involve plaintiff - Plaintiff not admitted anything to do with LTTE much less received money from LTTEDefendant failed to prove same Defendant exceeded limits of qualified privilege - Statement against person that he has been receiving money from LTTE ex facie defamatory - Considering professions standing of plaintiff sum of Rs. 5 lacs awarded as damages."
23. Whereas, on the other hand, the defendant, in the written Suit No. 484/14 (Old Suit No. 22/09) Page No. 20/29 final arguments has argued that the defamation is of two types : libel or slander. It has been further argued that the plaintiff has not asked for defamation on the basis of libel i.e. on the basis of the complaint dated 11.09.2008. It has been further argued that the said complaint, which has been filed by the defendant against the plaintiff with the Police Authorities is a public document and no defamation lies on the basis of a public document. It has been further argued that defamation by slander has to be proved by the testimony of independent witnesses and the evidence of the person aggrieved will have no evidentiary value. It has been further argued that in the case in hand, the plaintiff has examined himself as PW1, who simply corroborated the contents of the plaint. It has been further argued that the testimony of Mohd. Aftab Khan, who has been examined as PW2 by the plaintiff, cannot be relied upon at all because he has admitted in the crossexamination that he has come to the Court to depose as a witness at the instance of the plaintiff and further that despite hearing defamatory statement against the plaintiff, he has great respect for the plaintiff. It has been further argued that PW2 is an interested witness and as such, his testimony has got no value. It has been further argued that the plaintiff has failed to examine any witness, who were examined by the IO of the complaint dated 11.09.2008. It has been further argued that the plaintiff has miserably failed to prove his case.
24. On the other hand, Ld. Counsel for the defendant has relied Suit No. 484/14 (Old Suit No. 22/09) Page No. 21/29 upon the following authorities :
i) 2006 AIOL 907 titled as West Bengal State Electricity Board v. Dilip Kumar Ray, wherein, it has been held that :
"Tort - Malicious prosecution causing harassment - Award of damages - Absence of reasons - Allegation of Mala fide departmental proceedings to defame - No specific averment regarding any malicious prosecution - Only averment made in the plaint shows that wild allegations were made without any material to substantiate them - Malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse, or for want of reasonable or probable cause
- Not established that any individual officer was responsible for it and dispute only have been revealed by the highpower enquiry which the court was incompetent to direct, the award for damages is clearly indefensible - Award not maintainable - Appeal allowed...
Held, 'MALICIOUS PROSECUTION" is a prosecution on some charge of crime which is wilful, wanton, or reckless, or against the prosecutor's sense of duty and right, or for ends he knows or its bound to know are Suit No. 484/14 (Old Suit No. 22/09) Page No. 22/29 wrong and against the dictates of public policy. In malicious prosecution there are two essential elements, namely, that no probable cause existed for instituting the prosecution or suit complained of, and that such prosecution or suit terminated in some way favorably to the defendant therein. The institution of a criminal or civil proceeding for an improper purpose and without probable cause. The cause of action resulting from the institution of such a proceeding. Once a wrongful prosecution has ended in the defendant's favour, lie or she may sue for tort damages - Also termed (in the context of civil proceedings) malicious use of process. (Black, 7th Edn. 1999). "The distinction between an action for malicious prosecution and an action for abuse of process is that a malicious prosecution consists in maliciously causing process to be issued, whereas an abuse of process is the employment of legal process for some purpose other than that which it was intended by the law to effect - the improper use of a regularly issued process. For instance, the initiation of vexatious civil proceedings known to be groundless is not abuse of process, but is governed by substantially the same rules as the malicious prosecution of criminal proceedings." 52 Am. Jur. 2nd Malicious Suit No. 484/14 (Old Suit No. 22/09) Page No. 23/29 Prosecution S. 2, at 187 (1970)."
ii) 1999 ACJ 287 titled as Klaus Mittelbachert (Deceased by LRs) Vs. East India Hotels Ltd. and Ors.
iii) 2002 AIR (Gau) 75 titled as S.N.M. Abdi Vs. Prafulla Kr.
Mahanta and others.
iv) 2011 (184) DLT 518 titled as Rajeev Aggarwal Vs. Vijay Kumar Diwakar & Anr.
v) 2006 (1) AD(Del) 614 titled as Ram Jethmalani vs. Subramaniam Swamy. vi) 1961 AIR (Pat) 158 titled as Rangabati vs. United Bank of India Ltd. and another. vii) 1999 AIR(SC) 2979 titled as Common Cause (A Registered Society) vs. Union of India. viii) AIR 1975 Karnataka 162 titled as Narayana Bhat vs. E. Suit No. 484/14 (Old Suit No. 22/09) Page No. 24/29 Subbanna Bhat.
25. Going by the ratio of the abovestated authorities relied upon by both the Ld. Counsels for the parties, it is amply clear that there are two essential elements for maintaining a suit for malicious prosecution. It must be proved on record that no probable cause existed for instituting the prosecution or the suit complained of and that such prosecution of suit terminated in some way favourably in favour of the party, who institutes such a suit for malicious prosecution.
26. The defendant, in the case in the hand, has categorically admitted the lodging of the complaint dated 11.09.2008. In the written statement, the defendant has taken a stand that the said complaint was against unknown persons. But if the said complaint (Ex. PW3/1 on record) is carefully gone through, it becomes evidently clear that there are specific allegations against the plaintiff herein. As such, to my mind, it cannot be said that the plaintiff has not been named in the said complaint.
27. It is not in dispute that the said complaint was ultimately closed by the IO, who has been examined as PW3 by the plaintiff. Ld. Counsel for the defendant in the written final arguments has argued that the plaintiff has not sought for the damages on the basis of libel and the plaintiff has sought for the damages only on account of slander. I am of Suit No. 484/14 (Old Suit No. 22/09) Page No. 25/29 the opinion that the abovesaid submission of the Ld. Counsel for the defendant is totally fallacious on the face of it. If the plaint, as a whole, is gone through, it becomes evidently clear that the damages have been sought for by the plaintiff on account of both libel and slander. Furthermore, in para no. 18 of the plaint, the plaintiff has categorically stated so.
28. In the written final arguments filed on record by the plaintiff, it has been argued that the plaintiff has placed on record various documents to show his reputation in the society. If the crossexamination of PW1 is carefully gone through, it becomes evidently clear that on the abovesaid documents placed on record by the plaintiff, the plaintiff has not been crossexamined at all. The settled law is that if a part of the examinationinchief of a particular witness is not crossexamined, then, the part, which is left uncrossexamined stand admitted. As such, I am of the opinion that it has been rightly pointed out by the Ld. Counsel for the plaintiff that the plaintiff has been able to show by way of the said documents that he is a respectable person of the society.
29. As stated by me herein above, the lodging of the complaint dated 11.09.2008 by the defendant is not denied. There are specific allegations against the plaintiff in the said complaint. The said complaint ultimately terminated in favour of the plaintiff. If the evidence and the pleadings of the parties are carefully gone through, to my mind, it Suit No. 484/14 (Old Suit No. 22/09) Page No. 26/29 becomes evidently clear that the plaintiff has been able to prove that the defendant was having malice towards the plaintiff, while lodging the said complaint against the plaintiff herein.
30. In the written statement, the defendant has denied that the plaintiff was the President of the Handicraft Association or that he was a social worker having status in the society. The defendant in the written statement has further denied that the plaintiff was a member of the Haj Committee, member of Delhi Wakf Board or Chairman of Delhi U.R.S. Committee. But in the crossexamination, the defendant has deposed diametrically opposite to his stand as contained in the written statement.
31. Ld. Counsel for the defendant has further argued that PW2 is an interested witness and as such, his testimony cannot be relied upon at all. It has been further argued that PW2 has admitted in his cross examination that he has great respect for the plaintiff even after hearing the defamatory statement. It is true that in the crossexamination, PW2 has admitted that he has great respect for the plaintiff even after hearing the defamatory statement and that the plaintiff is his friend, but the cross examination of PW2 is not shaken on the vital aspects of the matter. PW2, in his crossexamination, has stuck to the point that the defendant had approached him at his residence and he had made a defamatory statement. As such, I am of the opinion that the abovesaid submission of Ld. Counsel for the defendant is not tenable. To my mind, the testimony Suit No. 484/14 (Old Suit No. 22/09) Page No. 27/29 of PW2 cannot be discarded merely because he is a friend of the plaintiff and he has deposed as a witness before the Court at the instance of the plaintiff, if otherwise, the testimony of PW2 is reliable and trustworthy. To my mind, the testimony of PW2 is streamlined, confidence inspiring and trustworthy.
32. In the light of the abovesaid discussion, I have no hesitation to hold that the plaintiff has been able to prove his case for defamation against the defendant herein.
33. The next question is about the quantum of damages. The Hon'ble High Court of Delhi in the authority cited as 2006 AIR (Delhi) 300 titled as Ramjethmalani Vs. Subramaniam Swamy has held that the law of damages has not developed much at the same pace in India as it has developed in the European Countries. It has been further held that the damages awarded are a recompense to the loss of honour and reputation.
34. Keeping in view the entirety of the facts, I hereby award the damages to the plaintiff to the tune of Rs. 1 Lac.
Relief :
35. In the light of my findings upon the foregoing issue, I hereby decree the suit of the plaintiff for an amount of Rs. 1 Lac. Costs of the suit are also awarded in favour of the plaintiff.
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Decree sheet be prepared accordingly by the Reader.
File be consigned to Record Room after due compliance.
Announced in the open court (RAJ KUMAR)
on this 04th day of August 2014. ADJ17 (Central)
Tis Hazari Courts, Delhi.
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