Calcutta High Court
M.N. Roy And Anr. vs Snehasis Bagchi on 10 October, 2002
Equivalent citations: 2003(2)CHN361
JUDGMENT S.P. Talukdar, J.
1. The instant application under Section 115 of the Code of Civil Procedure is directed against order 9th July, 2001 passed by the learned Judge, 11th Bench of City Civil Court, Calcutta in Title Suit No. 783 of 1998.
2. Opposite party, Sri Snehasis Bagchi, filed a suit for defamation and consequential reliefs against the present two petitioners. In the said suit it was alleged that the plaintiff was appointed by defendant No. 2 as Assistant Caretaker on a temporary post on 10.9.1993. On 2nd February,,, 1994 the plaintiff was transferred from the Office at Beliaghata to the Office of the Bureau of Investigation at 10, Madan Street, Calcutta-700 072 vide office order No. 15665 dated 25.1.1994. While working as Assistant Caretaker plaintiff detected certain malpractices and raised protests incurring displeasure of the Darwans and Night Guards. In the interest of the office administration the plaintiff couragiously put up the matter before defendant No. 1 over and again since 9th July, 1996 resting with his letter dated 13th February,,, 1997 for safety grounds. The sub-ordinate staff were trying to take vengeance upon the petitioner at the indulgence of the defendant Nos. 1 & 2 who inspite of being told about the illegal and irregular activities of the Darwans and Night Guards remained indifferent. Plaintiff made several applications for leave since 4.2.1997 before defendant No. 1 but the latter remained silent. In response to an urgent call relating to serious illness of his aunt, the plaintiff had to leave office on 14.2.1997 at about 3.25 P.M. verbally intimating the same to defendant No. 1 and also giving intimation in writing. Taking advantage of helpless situation of the plaintiff, a plot was hatched against him to take disciplinary action describing a note as an act of 'Sheer Stupidity' and served the notice through departmental peon and the matter was circulated to the whole office lowering the prestige and dignity of the plaintiff in the estimation of the public. Defendant No. 1 rejected the leave application of the plaintiff behind his back and the order dated 6th March, 1997 described the statement of the petitioner as "not only untrue but patently dishonest". All such communications were made by departmental process through peons before the office staff thereby lowering the dignity of the plaintiff in the estimation of the public. Both the defendant Nos. 1 & 2 being annoyed with the plaintiff for unearthing the illegal activities by pointing out how the Government premises were being misused by the unauthorised persons threatened the plaintiff that his services would be allowed any promotion. The malice against the plaintiff was apparent on the face of the record and he was transferred from Bureau of Investigation to the Office of the Commissioner, Commercial Taxes, Salt Lake until further order. Plaintiff by his letter dated 21.4.1997 claimed Rs. 3 lacs as damages for defamation for his monetary loss and mental agony plus mesne profits including damages at the rate of Rs. 100/- per diem since 4.2.1997 till the realisation of the damages amounting to Rs. 72,000/- plus loss of pay at the rate of Rs. 1,000/- per month and cost of the suit amounting to a total sum of Rs. 4,00,000/-. Such suit was filed after service of statutory notice under Section 80 of the Code of Civil Procedure and the cause of action arose at 10, Madan Street, Calcutta-700 072 on 4.2.1997 and 21.2.1997 at Calcutta.
3. In the said suit the defendants filed an application under Order 7 Rule 11(a) of the Code of Civil Procedure praying for rejection of the plaint. It was alleged that defendants No. 1 & 2 being official authorities passed the order and made remarks in the official capacity and such office order was communicated by departmental process through a peon. So by any stretch of imagination the said remarks could not constitute defamation. Defendants No. 1 & 2 further alleged in the said application that the order passed or the remarks made against the false statement of the plaintiff was dealt with officially and was not made public as alleged. The official acts on the part of the defendants in relation to the plaintiff could not amount to libel or defamation. Defendants further stated that the documents, as referred to in the plaint, and privileged communications sent from a public servant to a public servant in discharge of official duties. Defendants thus, claimed that plaint did not disclose any cause of action and so, prayed for rejection of the same.
4. Learned Trial Judge after due consideration of all relevant facts and circumstances and giving due regard to the submission made on behalf of the parties, dismissed the said application under Order 7 and Rule 11(a) of Code of Civil Procedure dated 30th March, 2000.
5. Being aggrieved by the said order of dismissal dated 9th July, 2001, the defendants, as petitioners, have filed the instant application under Section 115 of the Code of Civil Procedure.
6. The present petitioners having alleged that the impugned order dated 9.7.2001 suffers from illegality and learned Trial Judge acted with material irregularity in considering the point that the plaint does not disclose a cause of action. It is further alleged that the learned Trial Court failed to exercise jurisdiction vested upon it by not considering that the petitioners being official authorities passed the order and made remarks in course of discharge of their official and administrative functions and the same having been communicated by normal departmental process, it could not amount to any cause of action for defamation. It is further alleged that the learned Trial Court acted in excess of its jurisdiction by holding that the plaint discloses sufficient materials which can be termed as cause of action.
7. Learned Counsel for the petitioners, Mr. Laxmi Gupta first drew attention of this Court to page-28 and page-31 of the case record which revealed the comments 'Sheer Stupidity' and 'not only untrue but patently dishonest.' It was submitted by the learned Counsel for the petitioners that the plaint did not disclose any cause of action and as such, was liable to be rejected. Order 7 Rule 11(a) lays down that the plaint shall be rejected where it dies not disclose any cause of action. There is a clear distinction between a case where the plaint itself does not disclose any cause of action and a case in which the court after consideration of the entire materials including oral and documentary evidence comes to the conclusion that there is no cause of action. While considering the application under Order 7 Rule 11(a) of Civil Procedure Code, the Court is not required to take into consideration the defence set up by the defendant in his written statement. The question whether the plaint discloses any cause of action is to be decided by looking at the averments contained in the plaint itself and not the defence set up in the written statement. It is to be seen as to whether or not a meaningful reading of the plaint discloses a cause of action. The court is not required to consider the application in the context of the strength or weakness of the case of the plaintiff. It is well settled that if the plaint discloses a cause of action, the correctness or otherwise of the allegations constituting the cause of action is beyond the purview of Order 7 Rule 11(a) of C.P. Code.
8. Learned Counsel for the petitioners, Mr. Gupta submitted that a communication relating to State matters made by one officer of State to another in the course of official duty is absolutely privileged and cannot be made the subject of an action for libel. Mr. Gupta has referred to the decision in the case of Chatterion v. Secretary of State for India in Council, reported in 2 Queen's Bench Division Page-189, in support of his contention that the documents containing such alleged comment or remark can't be produced nor could secondary evidence of its contents be given. It was submitted that such alleged communication is an act of State in respect of which, even if secondary evidence of it could be given, no action can be maintainable. It was further submitted that on grounds of public policy the court will no allow such a document to be produced in evidence or secondary evidence of it given, and, therefore, if the action is allowed to proceed, the plaintiff must fail at the trial. Referring to the observations made in the judgment as referred to earlier, it was submitted that as the action is wholly misconceived and cannot possibly succeed, it ought to be dismissed as vexatious. Mr. Gupta further submitted that as a matter of law, a Judge at the trial would be bound to refuse to allow such an inquiry to proceed, whether any objection be taken by the parties concerned or not. If an action cannot possibly in point of law be maintained, to allow it to proceed would be merely vexatious and a waste of time and money.
9. In response to this, learned Counsel for the opposite party Mr. R. Deb submitted that in the words of Mr. Justice Cave, defamation is "a false statement about a man to his discredit." It is true that "the law recognises in every man a right to have the estimation in which he stands in the opinion of others unaffected by false statements to his discredit." In the words of Lord Atkin the test is "would the words tend to lower the plaintiff in the estimation of the right thinking members of the society generally." It is libellous to write and publish of a man that he is insane or not quite responsible for what he does, as the tendency of such an imputation is to exclude the person from the society of its fellow men.
10. In determining whether the words are defamatory or not it is necessary that the words are construed in their natural and ordinary meaning and the words are considered as a whole.
11. Learned Counsel Mr. Deb appearing for the opposite Parties submitted that the written statement cannot be taken into consideration while dealing with an application under Order 7 Rule 11(a) of Civil Procedure Code. He further contended that "absolute privilege" was not pleaded in the revisional application. Referring to 'Concise Oxford Dictionary" of P.G. Osborn, 5th Edition, it was stated that "demurrer" means a pleading by which one of the parties alleged that the preceding pleading of the other parties showed no good cause of action or defence. Mr. Deb further submitted that a demurrer was a form of pleading under the old system, by which a party objected that his opponent's pleading disclosed no cause of action or ground of defence, as the case might be. When a demurrer was pleaded, the question raised was forthwith set down for argument and decision. Unless the court or a Judge otherwise orders, a point of law raised by the pleading is now disposed of by the Trial Judge at or after the trial. Following Biswas Law Dictionary, Second Edition, Demurrer is an objection to the form or substance of the indictment, apparent on the face of the indictment and is not to be decided by examination of the depositions.
12. In response to this, learned Counsel for the petitioners submitted that demurrer is required to be pleaded in defence.
13. It is true that the reason why the point of demurrer is to be raised by pleading is that no party is entitled to spring surprise upon the other. Learned Counsel for the opposite parties Mr. Deb submitted that the petitioners, as defendants, barely mentioned "privilege" in the application under Order 7 Rule 11(a) of Code of Civil Procedure. "Absolute privilege" having not been mentioned either in the application under Order 7 Rule 11(a) of Civil Procedure Code filed before the learned Trial Judge, nor having been referred to in the revisional application, the said plea cannot be raised at this stage. On the other hand Mr. Gupta, learned Counsel for the petitioners submitted that para-4 of the original application filed before the learned Trial Judge refers to such privilege,. It may however be pointed out that where a defence of absolute privilege is set up, it is for the defendant to allege and prove all such facts as are necessary to bring the words within the scope of such privilege. Learned Counsel for the opposite parties seems to be perfectly justified in pointing out that for the purpose of an application praying for rejection of plaint, cause of action to be disclosed in the plaint cannot have any relation to the defence of absolute privilege that the defendants may take. It is also true that the defence may prove sufficient at the time of trial resulting in dismissal of the suit, but there is a gulf of difference between the expression "the plaint does not disclose cause of action" as required under Order 7 Rule 11(a) of the Civil Procedure Code and the finding that "the plaintiff has no cause of action against the defendants."
14. Learned Counsel for the opposite parties relying upon the decision in the case of Jagannath Prasad and Ors. v. Chandrawati and Anr., , submitted that absence of cause of action in the plaint may only result in rejection of the plaint.
15. Considering all these aspects, I am of the view that even assuming that the defendants/petitioners succeed to establish the plea of absolute privilege, the court will not be justified in rejecting the plaint at this stage under Order 7 Rule 11(a) of Civil Procedure Code.
16. It was further contended on behalf of the opposite parties that scope and ambit of an application under Section 115 of Code of Civil Procedure are narrow and limited. It is to be seen as to how far the learned Judge failed to exercise jurisdiction vested in him and whether or not he assumed jurisdiction not vested in him. Learned Trial Judge found that there were sufficient materials pleaded in the plaint, i.e., publication of defamatory words like "sheer stupidity" and "not only untrue but patently dishonest." It is not for the learned Trial Court to assess as to how far such comments were justified in course of discharge of official duty or were protected within the plea of "absolute privilege." Referring to the decisions of the Apex Court as and , it had been argued that it is one thing to exercise jurisdiction illegally or with material irregularity and it is another thing to exercise jurisdiction wrongly. In the decision in the case of Rajah Amir Hussan v. Shew B. Singh, reported in 11 Indian Appeals Page-237, the Privy Council observed as follows:--
"The question then is, did the Judge of the Lower Court of this case, in the exercise of their jurisdiction, act illegally or with material irregularity. It appears that they had perfect jurisdiction to decide the case and even if they decided wrongly, they did not exercise their jurisdiction illegally or with material irregularity."
17. Learned Counsel for the opposite parties strongly contended that the impugned order does not suffer from any inherent impropriety which calls for any interference by this court.
18. On behalf of the O.Ps. it was submitted that Chatterton's case is not applicable to the facts and circumstances of the present case. In fact, the said case related to an act of State because question would be raised before the British House of Commons about it and the subject matter might be placed for discussion and decision by the Parliament. In the present case, it is just using of such uncalled for or unpleasant remarks made by a superior officer of the Government in respect of one officer subordinate to him. Mr. Deb appearing for the opposite parties submitted that Chatterton's case is not the last word on the ground of absolute privilege even if it were to assist the petitioners. He submitted that it does not assist because the libellous matter complained of neither an act of State nor does it relate to State matter.
1.9. Learned Counsel for the petitioners referred to the decision in the case of T. Arivandandam v. T.V. Satyapal and Anr., reported in AIR 1977 S.C. page-2721, wherein it has been observed that "If on a meaningful--not formal--reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, the Trial Court should exercise its power under Order 7 Rule 11 of C.P.C. taking care to see that the ground mentioned therein is fulfilled." Reference has also been made by learned Counsel for the petitioners to the decision in the case of Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi, , in support of his contention that if the court on examination of the plaint finds that it does not disclose any cause of action it would be justified in rejecting the plaint.
20. Considering all such facts and circumstances and in the back drop of the discussion as made above, I am of the opinion that the order under challenge does not suffer from any inherent illegality nor can it be said that the learned Trial Judge acted with material irregularity or that he failed to exercise jurisdiction vested in him or even that, he acted in excess of jurisdiction vested in him. It is not for the learned Trial Judge to decide at the stage of disposing of an application under Order 7 Rule 11(a) of Code of Civil Procedure as to how far the alleged comments were defamatory. It is also not for the learned Trial Judge to assess at this nascent stage to examine as to how far such comments or remarks were within the scope of the plea of absolute privilege. As observed earlier, the court is just to examine as to whether a plaint discloses a cause of action or not. If it does, the plaint cannot be rejected under Order 7 Rule 11(a) of the Civil Procedure Code irrespective of the final result or the fate of the case.
21. Accordingly, I fail to appreciate the grievances ventilated on behalf of the petitioners and as such, I am not inclined to interfere with the order which has been sought to be assailed herein. So the revisional application fails and accordingly, be dismissed on contest. The order dated 9.7.2001 passed by the learned Eleventh Bench of the City Civil Court, Calcutta in Title Suit No. 783 of 1998 stands affirmed.
22. There is no order as to costs.
23. Send a copy of this judgment to the learned Trial Court for information and necessary action.
24. Urgent xerox certified copy be given to the parties, if applied for, on payment of requisite fees on priority basis.
Later:
25. Immediately after delivery of the judgment, prayer is made by learned Counsel for the petitioners Mrs. Seba Roy for stay of operation of the order. Heard learned Counsel. Considered. None appears for the opposite party. Operation of the order be stayed for a period of two weeks from the date, of reopening after Puja Vacation.