Delhi District Court
Mr. S.A. Naqvi vs Mrs. Archana Verma on 7 November, 2013
ID No.02401C1013662008
IN THE COURT OF SHRI PANKAJ GUPTA : ADDL. DISTRICT
JUDGE (CENTRAL07) : TIS HAZARI COURT : DELHI
CIVIL SUIT NO.505/2010
Mr. S.A. Naqvi
S/o Sh. K.H. Naqvi
R/o JD18/19, IInd Floor, Khirki Extn.,
Malviya Nagar,
New Delhi110017. ............. PLAINTIFF
VERSUS
Mrs. Archana Verma
W/o Sh. R.K. Verma
R/o JD18D, G.F. Servant Quarter,
Kirki Extension, Malviya Nagar,
New Delhi110017. ........... DEFENDANT
Date of Institution : 28.07.2008
Date when the case reserved for order : 07.11.2013
Date of Order : 07.11.2013
J U D G M E N T :
1. The plaintiff filed the suit for damage and compensation of Rs. 5,00,000/ along with pendent elite and future interest @ 24% p.a. against the defendant.
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2. In the plaint, it is stated that the plaintiff is a reputed person having worked with various ministries of government of India. To malign the image and reputation of the plaintiff, the defendant filed a complaint in the court of Sh. Rajesh Kumar Singh, Ld. Metropolitan Magistrate, Delhi alleging in para 4 (D) of the complaint that the plaintiff and his servant namely Sh. Raju have removed the gas cylinder lying in the toilet space near the parking place with object to dispossess her from that area. She also disclosed that her husband lodged a complaint to that effect at Police Station Malviya Nagar and an FIR no. 434/2007 has been lodged u/s 380 of IPC at PS Malaviya Nagar. It is also stated that in the said FIR, no evidence was found against the plaintiff and consequently, a final/untraced report was filed and was accepted by the concerned court. As such, the averments made in said complaint are not only false and fabricated but also has tarnished the reputation of the plaintiff in the society and amounts to malicious prosecution. The plaintiff got served a legal notice dated 03.05.2008 upon the defendant but of no use. Hence, the present suit.
3. Notice of the suit was issued to the defendant. In response thereto, the defendant filed the written statement (WS). It is admitted that she has filed a complaint against the plaintiff and the same is pending for disposal before the concerned court. She admitted that on the complaint of her husband, an FIR no. 343/2007 was registered at PS Malviya Nagar. The defendant showed her ignorance about filing of the untraced report by the police officials. The defendant denied each and every allegation made in the 2/15 S. A. Naqvi vs. Archana Verma plaint. It is stated that the plaintiff has filed the present suit just to harass her. Therefore, it is prayed that the suit may be dismissed.
4. The plaintiff filed the replication and reiterated the averments made in the plaint.
5. On 11.01.2011, the following issues were framed:
(1) Whether the suit has been filed by the
plaintiff to harass and pressurize the
defendant, as pleaded in preliminary
objection no. 1 of the WS? OPD
(2) Whether the plaintiff is entitled for a decree
for damages of Rs. 5 lacs, as prayed for in the
plaint? OPP
(3) In case issue no. 2 is decided in affirmative,
whether the plaintiff is entitled for the
interest? If yes, for which period and at what
rate?
(4) Relief.
6. The plaintiff no.1 examined himself as PW1 and his affidavit in evidence is Ex.PW1/1. He relied upon the documents Ex. PW1/A (OSR) to Ex. PW1/F (OSR). He also relied upon the documents Mark E, Mark G, Mark H, Mark I and Mark J.
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7. The defendant failed to lead the evidence despite given several opportunities. Hence, the right of the defendant to lead evidence was closed on 01.10.2013.
8. I have heard the ld. counsel for the parties and have perused the material available on record.
ISSUE NO. 2
9. Onus to prove the issue no. 2 was on the plaintiff.
10. Case of the plaintiff is that to malign the image and reputation of the plaintiff, the defendant filed a complaint in the court of Sh. Rajesh Kumar Singh, Ld. M.M. Delhi alleging in para 4 (D) of the complaint that the plaintiff and his servant namely Sh. Raju had removed the gas cylinder lying in the toilet space near the parking place with object to dispossessed her from that area. The averments made in said complaint are not only false and fabricated but also tarnished the reputation of the plaintiff in the society. As such, the present suit of the plaintiff is based upon the averments made by the defendant in para 4(D) of her criminal complaint which is pending for adjudication before the concerned court. The grievance of the plaintiff is that the said averments defamed him. Further, the said complaint amounts to malicious prosecution.
11. The plaintiff filed the documents Ex.PW1/A (OSR) to Ex.PW1/F (OSR) to show that he worked with various ministries.
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12. Now the first question arises whether the complaint filed by the defendant amounts to malicious prosecution?
13. In the judgment titled as C.B. Aggarwal v. P. Krishna Kapoor, reported in AIR 1995 Delhi 154, the Hon'ble Delhi High Court held:
" 27. On the basis of the various pronouncements of courts in In- dia and in England, it can safely be concluded that civil actions which are normally covered under 'abuse of process' are relating to attachment of property, damage of a person, malicious bankruptcy, winding up proceedings and such other processes of the courts which are abused by a party. Only those cases can be considered by the courts which satisfy the following ingredients :
1. The proceedings must have been instituted or continued by the defendant;
2. He must have acted without reasonable and probable cause;
3. He must have acted maliciously;
4. The proceedings must have been unsuccessful - that is to say, must have terminated in favour of the plaintiff now suing;
5. The legal process was not only without foundation but is used for an improper and collateral purpose. Such orders were not used for a purpose, for which the court intended to pass the order or the order passed by a court in a case has been used with ulte-
rior motives to cause damage to the reputation, person or prop- erty of the affected party.
28. The probable cause is not the same thing as sufficient cause and has to be judged from the standard of reasonable and ordi- nary prudent man. The plaintiff is obliged to give positive evi- dence of not only the lack of proper probable and reasonable cause but also as to the requirements of other conditions, before any relief is granted to him against the defendant. Learned coun- sel for the plaintiff has argued that the defendant had no right to institute the proceedings and the initiation and continuation of proceedings was without probable cause and was malicious. I have already held that even these two ingredients are not proved in the present case. Even if these be assumed to have been proved, the remaining three ingredients have neither been plead- ed nor proved. As such, the plaintiff could hardly bring the present suit for damages against the defendant, and the net result is that the plaintiff is not entitled to any damages."
14. In view of the foregoing judgment, to succeed in the present suit, the plaintiff is to prove the following essential ingredients:
5/15 S. A. Naqvi vs. Archana Verma (1) The proceedings must have been instituted or continued by the defendant;
(2) She must have acted without reasonable and probable cause; (3) She must have acted maliciously;
(4) The proceedings must have been unsuccessful that is to say, must have terminated in favour of the plaintiff now suing; (5) The legal process was not only without foundation but is used for an improper and collateral purpose. Such orders were not used for a purpose, for which the court intended to pass the order or the order passed by a court in a case has been used with ulterior motives to cause damage to the reputation, person or property of the affected party.
15. In the present case, counsel for the plaintiff relied upon the or der dated 17.08.2009 Ex.PW1/D2 passed w.r.t. FIR no. 343/2007 P.S. Malviya Nagar (wrongly mentioned as FIR no. 434/2007 in the plaint) and pleaded that in the said FIR, the same allegations were made by the hus band of the defendant and vide order dated 17.08.2009, the said proceedings were closed on the closure/final report filed by the police authority. Therefore, the subject complaint amounts to malicious prosecution. In WS, the defen dant showed her ignorance about the said closure report. Counsel for the de fendant pleaded that the plaintiff misrepresented his identity before the con cerned court which resulted in acceptance of the final report.
16. Admittedly, the said FIR was lodged at the instance of the hus band of the defendant and the plaintiff was the accused therein. In cross ex 6/15 S. A. Naqvi vs. Archana Verma amination, PW1 showed his ignorance whether he appeared on 17.08.2009 before the concerned court. He even showed his ignorance about the said date of hearing. However, he proved the order dated 17.08.2009 Ex.PW1/D2 and his signature at point A and B. Hence, it can be held that the plaintiff appeared before the concerned court on 17.08.2009. At portion A of the said order, the plaintiff wrote that he had no objection to the report filed by police u/s 173 of CrPC. On the basis of the said noting, the concerned court accepted the said report. Simultaneously, copy was ordered to be given dasti. In the said order, the presence of complainant was mentioned. But it is not the case of the plaintiff that husband of the defendant was present on the said date. Now the question arises as to why the plaintiff gave such no objection. In his cross examination, he deposed that he did not remember who directed him to write the no objection on the said order. He also deposed that he obtained the copy of the order by filing a due application. Portion B mentions about receipt of the order while under portion A, the plaintiff gave no objection. The plain tiff having worked under the different ministries for a considerable time can not be believed not to understand the meaning of no objection and the word ings mentioned therein. It implies that the plaintiff deliberately misrepre sented his identity as complainant before the concerned court which resulted in passing of such order. Further, admittedly, the said FIR was not lodged at the instance of the defendant. Rather, it was lodged against him at the in stance of husband of the defendant in which she was not involved anywhere. In the complaint filed by the defendant, her husband is not the party. There fore, the complaint filed by the defendant is separate proceeding and is pend ing for disposal. Hence, the order dated 17.08.2009 is not binding upon the defendant. Therefore, the said order is of no consequence to hold that the said 7/15 S. A. Naqvi vs. Archana Verma complaint is the malicious prosecution.
17. In view foregoing judgment and submissions, it can be held that except the ingredient no. 1, the plaintiff has failed to prove rest of the ingre dients to succeed in the present suit on the ground of malicious prosecution. Therefore, the plaintiff is held no entitled to the relief of damage on ground of malicious prosecution.
18. Regarding the defamation, case of the plaintiff is that the contents of para 4(D) of the said complaint have damaged his reputation in society at large. Now the question arises whether the contents of the para 4 (D) of the complaint as mentioned above defamed the plaintiff?
19. Contents of para no. 4 (D) of the complaint are reproduced herein for the sake of convenience:
"D. That on the very next day servant named Raju in the absence of the complainant and the members of the family Mr. Naqvi an his servant named Raju removed the gas cylinder lying on toilet space near parking space with an object to dispossess the complainant from that area. The husband of the complainant lodged a police complaint against Mr. Naqvi and his servant named Raju before P.S. Malviya Nagar. Despite the allegation is of dispossession from the property, theft and other serious penal offences, the police again came under the influence of Mr. Naqvi and registered a simple case of theft under section 380 IPC. The FIR is being numbered as 343/07 under P.S. Malviya Nagar, reliance is placed on this FIR."
20. The Hon'ble Patna High Court in the judgment titled as "Bira 8/15 S. A. Naqvi vs. Archana Verma Gareri vs Dulhin Somaria and Ors.", reported in AIR 1962 Pat 229, held:
"5. Folkard in his book "The Law of Slander and Libel', 7th edition, has said at pages 8889.
"As to defamatory statement and publications made in the reg ular course of proceedings in Courts of justice; by the general policy of the law, the occasion is such that it not only repels the presumption, of malice, but, as it appears, excludes all evi dence of malice, and allows the occasion and circumstance? to supply an a solute and peremptory bar to an action or prosecu tion for slander or libel in respect of any such statements or publication. And the reason is founded on the principle, that, 'the law will rather suffer a private mischief than a public in convenience:' and that persons engaged in the administration of the law, and those who seek justice in respect of wrongs or injuries suffered, or give evidence as to any such or make de fence thereto, may not be deterred from so doing by the fear of being harassed by actions or prosecutions for defamation in re spect thereof.
The law of absolute privilege concerning the judicial proceed ings is summed up under the heading Judicial privilege' at pages 348349 of the 12th edition of the wellknown book 'Salmond on Torts'. The following few lines need be quoted here: "This absolute privilege his been conceded on the grounds of public policy to ensure freedom of speech where it is essential that freedom of speech should exist, and with the knowledge that courts of justice are presided over by those who from their high character are not likly to abuse the privilege, and who have the power and ought to have the will to check any abuse of it by those who appear before them. The privilege extends to all counts, superior and inferior, civil and military. ........... The privilege extends not merely to Judges but witnesses, par ties, and advocates. It includes not merely statements made by a witness in court but also statements made by him to a party, 9/15 S. A. Naqvi vs. Archana Verma or to the party's solicitor, in the course of preparation for tri al."
The principle and extent of absolute privilege relating to Judi cial proceedings is lucidly stated at pages 765768 of the 11th edition of 'Clerk and Lindsell on Torts' thus "It is impossible that litigation and public business, can be carded on without the character of individuals being constant ly called in question. If everyone thus impeached were permit ted to pursue his legal remedy, not merely would freedom of communication in matters where it is vitally necessary be ren dered impossible, but a perennial source of litigation would be opened. Accordingly, on occasions absolutely privileged not merely are those protected who act in the honest discharge of their legal right or duty, but also those who abuse the opportu nity with malacious motive and deliberate untruthfulness to malign their neighbours; and this because it, is impossible to devise a shield sufficiently broad to cover the former without also including the latter .'............ With regard to Judicial pro ceedings, "neither party witness, counsel, Jury, or Judge can be put to answer civilly, or criminally, For words spoken in of fice'. The authorities are clear, uniform, and conclusive that no action of slander or libel lies whether against judges, coun sel, witnesses, or parties, for words written or spoken in the or dinary course of any proceeding before any court or tribunal recognised by law' ............. It is not merely with respect to the hearing in open court that there is absolute privilege but also with regard to every step taken in the conduct of legal proceed ing.......................''
11. .......................In a well considered judgment, if I may any so with respect, S.K. Ghose, J., held at page 479 (AIR Vol ume): "With regard to the question whether statements to the police as distinct from statements in Court are protected, I have al ready pointed out that the settled law in England is that state ments made with a view to repeating them on oath in a subse 10/15 S. A. Naqvi vs. Archana Verma quent judicial proceeding are similarly protected. In a sense, statements made to the police appear to be in this respect on, stronger ground than statements made to the solicitor as re ported in (1905) AC 480 or (1914) 30 TLR 591. For statements made to a solicitor may or may not be followed up by judicial proceeding, the matter being at the opinion of the party con sulting such solicitor, in which case the statement would slum ber in the office of the solicitor as Lord Halsbury said. But the party lodging information before the police has no option and the police are empowered to go on with the matter and investi gate, leading to other results. It has been held in the case of complaints to a Magistrate followed by statements to the police to whom the Magistrate may have referred the matter for in vestigation that such statements are absolutely privileged and no action for defamation is maintainable. See the case in San juvi Reddy v. Koneri Reddy, ILR 49 Mad 315 : (AIR 1926 Mad
521)".
21. The Hon'ble Delhi High Court in the judgment titled as "Pun jabi Bagh Cooperative Housing Society Limited vs K.L. Kishwar & Anr." reported in 95 (2002) DLT 573/2002 III AD (Delhi) 859, held:
"13. .......................................In Mehtora's Law of Defama tion and Malicious Prosecution (Civil & Criminal) reference has been made to a decision of Madras High Court in the case of Bhanumathi Rajah v. M.S.P. Rajesh 1986 L.W. (Cr.) 16 at page 19 wherein it was held that if the statements were made only to the authorities having lawful authority over that person with re spect to the subject of accusation, they do not constitute defama tion........................... Therefore, in view of the law enunciated in the case of Bhanumathi Rajah (supra) no action for defama tion would lie against the defendants...........................In the case of Pandey Surendra Nath v. Baqeshwari Pd. , it was held that if the person who makes the statement 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 correspond ing interest or duty to receive it such statement commands a privilege and cannot be made the basis of an action for defama 11/15 S. A. Naqvi vs. Archana Verma tion. In the case of Stuart v. Bell, (1891) 2 Q.B. 354 and Smyth son v. Cramp (1943) 1 All E.R. 326 (C.A.) it was held that the occasion is privileged where the defendant has an interest in making the communication to the third person, and the third person has corresponding interest in receiving it. Reciprocity of interest is essential. In Sullivan's Law of defamation at page 80 learned author has referred to the case of Hebditch v. Macll waine, (1894) 2 Q.B. 54 wherein it was observed that the interest must exist in the party to whom the communication is made as well as in the party making it. It is sufficient that the defendants honestly and reasonably believe that the person to whom he made communication had an interest in the subject matter thereof.
14. If one party to the litigation communicates to the opposite party of an alleged interference with the course of justice it is a privilege occasion because it is in the interest of every litigant and common interest of both the parties to the litigation that there should be no interference with the course of justice. Hines v. Davidson, 1935 S.C. 30 at p. 37."
22. The Hon'ble Karnataka High Court in the judgment titled as "V. Narayana Bhat vs E. Subbanna Bhat" reported in AIR 1975 Kant 162, held:
"7. The reason why absolute privilege is extended to the state ment of a witness made prior to the commencement of a judi cial proceeding is based on public policy as stated by Lord Halsbury in 1905 AC 480. There is no reason why the principle stated in the said decision should not be extended to a party and the absolute privilege confined only to the statement of a witness under such circumstances. Of the two instances re ferred to by Blagden J. in ILR (1943) 1 Cal 250 the first refers to the editor of a newspaper as stated above. But it is doubtful whether the editor of the newspaper in such circumstances can claim absolute privilege on the basis of the principle laid down in 1905 AC 480. With regard to the second illustration referred to by Blagden J., if the complaint to the police results in an un successful prosecution then the person defamed can only claim 12/15 S. A. Naqvi vs. Archana Verma damages for malicious prosecution and not for defamation. In case the complaint to the police does not result in a prosecution, then also the persons defamed have no remedy in respect of defamatory statements made in such a complaint to the police. But if a false complaint is made to the police, the person who makes such a false complaint would be punishable either under Section 182 or Section 211 of the Indi an Penal Code. It cannot therefore be said that a person against whom false charges are made in a complaint to the po lice, even if no further action is taken by the police authorities on such complaint, goes scotfree. I would, therefore, prefer to follow the earlier view of the Division Bench of the same High Court in AIR 1939 Cal 477 and the other decisions referred to above which take the view that a complaint to a police officer is absolutely privileged."
23. The Hon'ble Delhi High Court in the judgment titled as "Dr. Nidhi Bhatnagar And Anr. vs Citi Bank N.A. And Ors." Reported in 147 (2008) DLT 349, held:
9................ Even otherwise under law of defamation, the test of defamatory nature of a statement is its tendency to incite an adverse opinion or feeling of other persons towards the Plaintiffs. Where a person alleges his reputation has been damaged it only means he has been lowered in the eyes of right thinking people of society or his friends or relatives. It is not enough for a person to sue for words which merely injure his feelings or annoys him. Injuries to feelings of a man cannot be made a basis for claiming of damages on the ground of defamation. For defamation the words must be such which prejudice to man's reputation or are so offensive as to lower the man's dignity in the eyes of others. Insult in itself is not a cause of action for damages on the ground of defamation....................................."In the judgment
24. Counsel for the defendant pleaded that the complaint was made by the defendant against the plaintiff before the competent forum.
Admittedly, the said complaint is pending for adjudication before the 13/15 S. A. Naqvi vs. Archana Verma competent authority. Therefore, the said complaint falls in the category of absolute privilege.
25. On the contrary, counsel for the plaintiff relied upon the judgment passed by the Hon'ble Delhi High Court in CRL. MC. No.3350/2008 titled as "Sanjay Mishra Vs. Govt of NCT of Delhi & Anr." and pleaded that the averments made in para 4 (D) of the complaint amounts to defamation. The judgment relied upon by the plaintiff is not applicable in the present case because the said judgment dealt with the defamation under the criminal law and meaning of defamation u/s 499 of Indian Penal Code; and the parameters to hold the defamation are different in the criminal proceeding and in the civil proceeding for granting the damages to the plaintiff. Further, in the said judgment itself, the Hon'ble Delhi High Court also observed that meaning of publication for criminal purpose has a wider meaning than it has in civil law, since it includes a communication to the person defamed alone. In the present case, except making a plea that the defendant made the said averments in the complaint, the plaintiff has failed to prove the publication of the same to the public at large. Not the least, the plaintiff has not examined a single witness to prove the essential elements of publication to establish the charge of defamation and loss of reputation to him. He even failed to disclose the name of the neighbours, friends and relatives in front of whom his reputation was damaged. In view of the foregoing judgments and discussions, it can be held that the complaint of the defendant falls in the category of absolute privilege. Therefore, the plaintiff has failed to prove that he suffered damages on account of defamation.
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26. Therefore, the plaintiff is not entitled for the relief as claimed for. Hence, the issues no. 2 is decided against the plaintiff and in favour of the defendant.
ISSUE No.1.
27. Onus to prove the issue no.1 was on the defendant. The defen dant has failed to lead any evidence to prove the same. Therefore, the issue no.1 is decided in favour of the plaintiff and against the defendant. ISSUE NO.3 (RELIEF)
28. Therefore, the plaintiff is held not entitled to the relief as prayed for. Therefore, the suit is dismissed. No order as to cost. Decree sheet be prepared accordingly.
File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT, Today i.e. on 7th of November, 2013.
(PANKAJ GUPTA)
ADJ(CENTRAL07)/DELHI
07.11.2013
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16/15 S. A. Naqvi vs. Archana Verma