Calcutta High Court
Pijush Kanti Datta vs Mangilal Gidia on 10 January, 1986
Equivalent citations: AIR1987CAL136, AIR 1987 CALCUTTA 136
JUDGMENT Ajit Kumar Sen Gupta, J.
1. The plaintiff is a practising Barrister of this Court. His wife and his brother-in-law are stated to be the joint owners of the premises No. 4D, Lansdowne Road, Calcutta, where the plaintiff resides with his family in the first floor of the said premises. This suit has been instituted by the plaintiff on 9th August, 1985 for a decree for Rs. 30 lakhs, being the damages allegedly suffered by the plaintiff by reason of certain alleged defamatory words written by the defendant who is a tenant of the second floor of the said premises since 1st October, 1979.
2. The defendant entered appearance but did not file any written statement. This suit has appeared before me as an undefended suit on the basis of the Certificate issued by the Registrar. Original Side.
3. The case of the plaintiff briefly stated is as follows:
The reservoir on the western side of the said premises is the only source of supply of water to the plaintiff and his family in the first floor and to the ground floor of the said premises also occupied by the plaintiff. On 2nd June, 1984 masons and labour were engaged by the owners of the said premises to repair the said reservoir, the same having developed cracks and breaches resulting into leakage of water on all sides of the said reservoir. On the same day i.e. 2-6-84 the defendant and the members of his family wrongfully, illegally, mala fide and out of motive actuated by malice prevented and/or resisted the repairs of the said reservoir as ascertained from the said owner, on, inter alia, the false, mala fide and malicious ground that it was really intended to make a forcible, wrongful, illegal and unauthorised construction on the said rear balcony which the defendant untruly and mala fide claimed to be within his alleged tenancy. According to the plaintiff the tenancy of the said defendant was allegedly determined by a statutory notice dt. June 4. 1984 served upon the defendant.
Subsequent to the aforesaid, the defendant on the same day i.e. 2-6-84 falsely, mala fide and maliciously made a complaint with the Lake Police Station, recorded in writing by the Deputy Officer and signed by the defendant being "G. D. E. No. 162 dt. June 2, 1984" falsely, mala fide, and maliciously alleging therein with express malice to his knowledge as follows : --
"One Mr. M. L. Gidia of 4D, Lansdowne Place. 2nd floor, Calcutta-29, called at the P. S. and reported that he is the tenant of the said premises under Smt. Jyotsna Dutta. Today 2-6-84 morning at about 09.30 hrs. one Mr. P. K. Dutta husband of the landlady called at the informants place with two persons for pretext of Painting works. The informant requested him to defer the work for a few days as there were a few guests with some children there. But he refused and enforced to complete to paint the door. Then one carpenter enter from balcony side and he attempted to close the door by putting the lock on the door. The informant protested for the same. Then the carpenter left the place. At about 11-30 hrs. Mr. P. K. Dutta called the informant at down at the ground floor and threatened him to allow his men to put the lock, otherwise he will use the force. The informant requested him not to do any unlawful work. Then the informant left for his office work. At about 15.30 hrs. he got an information that Mr. Dutta entered his flat forcefully and beaten his son and his wife and also broken the balcony side door and damaged things. Again at about 16.30 hrs. he received a telephnic information from his residence, that the landlord disconnected his water line and electricity. The informant also apprehended that he will create trouble by using force and we feel dangerous to live there with old lady and small children. He wants to have it recorded for future reference referred to Court.
Sd/- T. Bose Sd/- M. L. Gidia A. S. I. (Illegible)"
It is a case of the plaintiff that "Mr. P. K. Dutta" or "Mr. Dutta", as used and expressed in the said complaint-police diary June 2. 1984, the defendant expressly referred to meant and caused to be meant and/or understood the plaintiff herein.
4, The case of the plaintiff is that the said alleged complaint as recorded in writing and signed by the defendant dt. June 2, 1984 as written of and referring to and in relation to the plaintiff is false, mala fide and malicious and the defendant by the words used in the said complaint as referring to and in relation to the plaintiff expressly meant and understood to mean that the plaintiff is a virulent criminal and has committed inter alia, offence or offences, under the Indian Penal Code, of criminal trespass, criminal assault and/or having outraged the defendant's wife, and her modesty as a woman and that, in fact, the plaintiff is a criminal in the guise of a Barrister who requires to be apprehended forthwith by the police to prevent commission of further offences by the plaintiff from befalling the defendant and his family. It is alleged that the said complaint dt. June 2, 1984 as made with the Police Station was made by the defendant deliberately, intently, falsely and out of motive, actuated by malice, knowing it to be false, mala fide and with express malice therein with a view to destabilise, discredit, disrepute, defame and injure the plaintiff, he has been cultivating for the last over 22 years.
5. The defendant also instituted a suit being Title Suit No. 119 of 1984 in the 3rd Court of the learned Assistant District Judge, Alipure, 24 Parganas on June 28, 1984 wherein the defendant filed a petition of injunction and obtained an ex parte order. The owners of the said premises who are defendants in the said suit filed an appeal against the said ex parte order which was vacated by the judgment and order dt. 17-9-84. The further case of the plaintiff is that the defendant deliberately, intently, motivatedly and maliciously wanted to harm and injure and harmed and injured the plaintiff in his social and professional standing which would also be evident from another purported untrue and maliciously false written complaint dt. June 11, 1984 made and sent by the defendant with copies thereof to the Deputy Commissioner of Police (South) the Home Secretary, Government of West Bengal, and, on top of it, to the Hon'ble Chief Minister of West Bengal. The said purported complaint dt. June 11, 1984 was served upon the defendants in the said Title Suit on or about September 20, 1984.
6. In the said letter dt. 11th June 1984 the defendant, inter alia, stated as follows : --
"I am, the tenant in respect of the entire second floor flat with balconies on the Eastern and Western sides of the premises No. 4D, Lansdowne Place, Calcutta-29 under the Landlady Mrs. J. Dutta of the same premises at a monthly rent of Rs. 1550/- payable according to the English calendar months. On a portion of the western side balcony of the said flat there is a Water Reservoir of the said landlady and the said portion of the balcony is partitioned by a pucca cemented grill wall and as per the agreement entered into between the landlady and me, I have been permitted to enjoy by way of uses and occupation even the said portion of the water reservoir.
I am getting filtered water supply in my said flat from the overhead water tank of the said premises and getting electricity from a separate meter No. 039018 and consumer No. 1802209000 standing in the name of Sri Shyamal Chowdhury, who is not living in the said premises but the said meter is controlled by the said landlady. I am paying the entire electric charges as per the bill of the said Electric meter month by month since the inception of my tenancy from Oct. 1979 and the landlady takes the said electric bills from me after payment by me or by her person.
Recently Sri P. K. Dutta, husband of the said landlady is making attempts to forcibly occupy the western side balcony of the flat of mine with a view to make some illegal and unauthorised construction there with a motto to encroach upon my privacy and to block the air and light of my flat, which I am getting through window and door opening on the said balcony, so that I may be compelled to vacate the said flat.
With that end in view, on 2-6-84 the said Sri P. K. Dutta forcibly entered into my flat with his men to illegally occupy the said balcony by blocking my window and door in my absence. As only female member and my minor son were present at that time, they resisted to the said illegal act of the said Mr. Dutta and as a consequence thereof he abused, used criminal force and intimidated my wife and son and caused mischief by breaking my door and creating serious breach of peace."
"On top of these the said landlady and her husband Mr. P. K. Dutta has let loose the reign of terror by threatening and not allowing anybody to work in my flat, threatening to stop water supply to my flat again and stopping the passage and not opening the gates of the main entrances of the said building to my persons, family members, guests, etc. This situation may endanger our lives and cause serious breach of peace.
In the circumstances I request you to kindly use your good office and to take necessary action on this complaint, so that I get back my supply of electricity and the said Mr. P. K. Dutta and the landlady do not attempt to commit any cognizable offences and forcibly occupy my said balcony or wrongfully attempt to evict me from the said flat."
7. It has been alleged that in the consequence aforesaid, the defendant by the said complaints respectively dt. 2nd June and 11th June 1984 projected the plaintiff as a culprit and a criminal having committed criminal offence punishable under the Indian Penal Code.
8. It is also alleged that the defendant by the said alleged complaints respectively dt. June 2, 1984 and June 11, 1984 being expressly false, mala fide, malicious and defamatory, designed and motivated to falsely project and, indeed, projected the plaintiff as a culprit and a criminal of having committed offence or offences punishable under the I.P.C. and the defendant wanted the police to take cognizance thereof and to take the plaintiff into police custody forthwith. It is also contended that by reason of the aforesaid and by reason of the venom associated with the words used in the said complaints and each of them and as they are understood in common parlance, being clearly defamatory of the plaintiff and in relation to him, the defendant clearly meant and/or was understood to mean that the plaintiff is a daring abominable criminal of despicable character who could, as falsely and maliciously alleged, even beat up one's wife and that but for the plaintiff's arrest and but for the police taking cognizance of the said complaints or either of them the defendant and the members of his family shall always live in danger and their lives would be at stake, with the plaintiff residing in the same house. It is also alleged that by reason of the defendant having positioned and projected the plaintiff as aforesaid, the plaintiff has been immensely defamed, discredited and injured in his social standing as well as professional, and indeed, the defendant has lowered, humbled and humiliated the plaintiff in the estimation of the right thinking members of the society generally and in the community of the plaintiff's profession particularly. It is further alleged that the defendant's actuated motive and motivation in lodging the said complaints has, thus, cast a telling effect on the plaintiff being shunned or avoided by the company and the profession he keeps and cultivates. In the consequences aforesaid, the defendant has become and is liable to compensate and/or indemnify the plaintiff for defaming and injuring him in the matter as stated hereof which the plaintiff claims and assesses at Rs. 30 lakhs.
9. The plaintiff himself was examined and some questions and answers put to the plaintiff are relevant and are reproduced :
"Q. 24. How are you prejudiced with regard to the complaint which was made by the defendant at Lake Police Station by G.D. No. 162 dated 2-6-84?"
"Ans. This complaint is written in unspeakable letters. It says that I had entered into the flat of the defendant forcefully and beaten his wife and his son. I also assaulted his daughter in his presence and I had committed outrageous immodesty on his wife. I had criminally assaulted and beaten up all female members who were found by me on 2nd of June, 1984."
"0- No. 43. I am showing you another certified copy of the document (shown). What is this document about?
Ans. This is a further follow-up complaint in writing dated 11th June, 1984 against me addressed to the Officer-in-charge, Lake Police Station with a copy to D.C. (South) Cal. Police and the Home Minister, Govt. of West Bengal. This is again written against me in unspeakable language and that I have let loose a reign of terror in the entire house. I have beaten up his wife, daughter etc. and I have not allowed anybody to work in that flat."
"Q. No. 45. Please tell his Lordship how have you been prejudiced by reason of making of these diaries in the Police Station?
Ans. The complaint lodged by the defendant shows that his wife was beaten up by me, his daughter was beaten up by me. I committed assault, I committed criminal trespass, I committed outrageous immodesty on his marriageable daughter on the 2nd of June, 1984 and again on the 11th of June, 1984 as well. This is nothing but vilification of my character. I have been defamed, discredited and injured in my social standing as well as in my profession. The defendant has humiliated me in the estimation of the right thinking members of the society generally and in the community of my profession. I am a practising Barrister of this Hon'ble Court for over 20 years. This diary has put me in the criminal records section of the Lake P.S. This shows that I am a fraudulent type of person, I have no respect for fatherly sentiment. It has caused such a pain in the which beggars description."
"Q. No. 48 : Have you disclosed what was your income before and how this has been affected by this sort of allegation?
Ans. This incident is of the last year and I have not yet filed the return. But since June last year I could not undertake any professional work. The police visited my premises and for that matter I was very ridiculed, then I was very much harassed by the police. Even I was arrested."
"Q. No. 56 : What relief are you seeking from this Court?
Ans. I am claiming defamatory damages for my mental agony, diminution of my position and status as a result of highly defamed and pernicious written publication and libellous publication against me. This publication was made not only with the police but was also put in the motivated publication in the judicial proceedings in the Alipore Court till the injunction was finally disposed of."
"Q. No. 57 : Look at paragraph 25 of the plaint (shown). Tell his Lordship how did you assess the quantum of damage as stated in paragraph 25 of the plaint?
Ans. As I have already submitted to your Lordship in my deposition, since June, July, August and September, that is to say, last year's 4 months, I could not work. There was a total professional stoppage last year. That apart, in respect of standing and position in the society I have been very badly damaged. People call me in the locality, I am a criminal, since I was arrested in July, 1984. I was kept in the lock up on 3rd July, 1984 for about 3 hours. Thereafter police harassment was there, practically almost all days and all Sundays of last June and last July, my sons have been jeered (interposed by the Court)."
"Q. No. 58 : Have you stated so in your plaint?
Ans. No."
10. Mr. Nirmal Mitra, learned Counsel for the plaintiff has submitted that an action in tort is maintainable per se on the publication itself, without proof of any pecuniary damages being suffered. The law presumes that some damage will flow in the ordinary course of things from the mere invasion of his absolute right to reputation. He has contended that in this case the plaintiff has not relied on any actual loss and accordingly no evidence has been given on actual loss having been suffered by the plaintiff. Mr. Mitra has contended that in the present case the defamatory words charging the plaintiff with the commission of any crime, which may subject him to imprisonment or corporal punishment, but not where the crime is punishable by fine only are actionable without proof of special damage. He has relied on a decision in the case of Webb v. Beavan reported in (1883) 11 QBD 609. There the Court held as follows : --
"The words which impute any cirminal offence are actionable per se. The distinction seem a natural one, that words imputing that the plaintiff has rendered himself liable to the mere infliction of a fine are not slanderous, but that it is slanderous to say that he has done something for which he can be made to suffer corporally."
11. It has been contended by Mr. Mitra that the words which have been written of the plaintiff would have charged him, if proved, with offence Under Sections 352 and 448 of the I.P.C. Sections 352 and 448, I.P.C. provide as follows : --
"Section 352. Whoever assaults or uses criminal force to any person otherwise than on grave and sudden provocation given by that person, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both."
"S. 448. Whoever commits house-trespass shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both."
Although in the evidence the plaintiff has stated about several incidents, but in the complaint filed by the defendant on 2nd June 1984, it has been alleged that at about 15.30 hours the defendant got an information that Mr. Dutta (plaintiff) entered into his flat forcefully and had beaten his son and wife and also broke the balcony side door and damaged things. In the letter dt. 11th June 1984 it has been stated that P. K. Dutta forcibly entered into the fiat of the defendant with his men to illegally occupy the balcony by blocking the window and door in the absence of the defendant. As only female members and minor sons were present at that time, they resisted to the said illegal act of the said Mr. Dutta and as a consequence thereof he abused, used criminal force and intimidated the defendant's wife and son and caused mischief by breaking the door and creating serious breach of peace.
12. The plaintiff in his reply to question No. 24 said :
"This complaint is written in unspeakable letters. It says that I had entered into the flat of the defendant forcefully and beaten his wife and his son. I also assaulted his daughter in his presence and I had committed outrageous immodesty on his wife. I had criminally assaulted and beaten up all female members who were found by me on 2nd of June, 1984."
13. I am unable to accept all the statements made by the plaintiff. Whatever has been stated by the defendant in the said letter of complaint have been reproduced earlier. Nowhere it has been said that the plaintiff committed outrageous immodesty on the wife of the defendant or assaulted his daughter.
14. It is no doubt true as Mr. Mitra has contended, that certain statements have been made as regards the plaintiff's involvement in certain alleged offences, e.g., forcefully entering the defendant's room or beating the wife of the defendant. This, no doubt, if proved would be punishable under the Indian Penal Code. The question, however, is having regard to the facts and circumstances of this case and the evidence adduced before this Court whether the plaintiff is entitled to damages and if so the question (quantum) thereof.
15. Mr. Mitra has contended that it is the primary rule about defamatory words that they are presumed to be false and the burden of proof lies upon the defendant but in this case the defendant has not appeared at all. Accordingly, the allegations made in the plaint must be deemed to have been admitted or must stand uncontroverted. In this connection, he has relied on a judgment of the Supreme Court in the case of A. Raghavamma v. A. Chenchamma . In that case the Supreme Court was considering the concept of burden of proof and onus of proof and distinction between onus of proof and burden of proof. In that case the Supreme Court has held that there is an essential distinction between burden of proof and onus of proof, burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts. Such shifting of onus is a continuous process in the evaluation of evidence. But here this question does not arise inasmuch as nothing has been disputed by the defendant.
16. It is now well settled that a man commits the tort of defamation when he publishes to third person matter containing an untrue imputation against the reputation of another. The defendant in this case entered appearance but did not file any written statement. Having regard to the provisions of Order 8, Rule 5, Sub-rule (2) of the Civil P.C. the statement contained in the plaint shall be taken to be admitted. Any imputation which may tend to lower the plaintiff in the estimation of right thinking members of society generally or to expose him to hatred contempt or ridicule is defamatory of him. The publication of words defamatory of plaintiff gives rise to a prima facie cause of action. The taw presumes in the plaintiffs favour, as rightly contended by Mr. Mitra that the words are false, unless and until the defendant proves the contrary. The law presumes some damages will follow from the publication of a libel. Defamatory words charging the plaintiff with the commission of any crime, which may subject him to imprisonment or corporal punishment but not where the crime is punishable by fine only are actionable without proof of special damage : see Webb v. Beavan (1883) 11 QBD 609. As indicated earlier the plaintiff was charged with offence which, if proved, would have subjected him to imprisonment. On the facts and circumstances of this case the plaintiff is entitled to damages.
17. The next question arises as to what should be the quantum of damages to be awarded, if at all, in this case. The amount of damages is entirely to the discretion of the Court and no rule as to the amount to be awarded has been or can be laid down and each case must necessarily depend upon its own peculiar or particular facts. But it is well settled now that in assessing damages the character of the defamatory words and the circumstances attending its publication are to be taken into account. The Court may take into account the rank and position in society of the parties, the mode of publication selected, the extent and long continuance of the circulation given and the defamatory words used, etc. The question, in this case, is whether the defandant has just overstepped the limit or it has been made with an object to defame the plaintiff. The circumstances under which the defamatory words have been written by the defendant have been indicated earlier. It is true that the defendant has not appeared in this case to controvert what the plaintiff has stated in the plaint. But the fact remains that there was a dispute between the landlord and the tenant and the Court cannot overlook such fact or the Court may also take judicial notice of the fact that now a days the relationship between the landlord and the tenant is not very cordial and there is always stress and strain in such relationship. The defendant has made a complaint and in that complaint he had written certain words about the plaintiff. Similarly also in the letters addressed to the Government authorities concerned, he had written certain words about the plaintiff. But in those letters nowhere the plaintiff's identity as such has been mentioned. It has not been stated that the plaintiff is a Barrister-at-law. Whoever has read that complaint or the letters would not know that the plaintiff is a practising Barrister-at-Law or what is his social status or how far he has been defamed by this process. To a great extent, in ascertaining the damages, one has to take into account the context in which the publication has been made. Once it has been done by the defendant when, according to the defendant, he was without any water. It may be true or it may not be true. But, it at least shows that there was some dispute regarding the supply of water or something like that. In the judicial proceedings, he relied on the letters and those letters have been read only by the person who came across with this proceeding. Excepting those, the persons who knew of the incident or who have to deal with the plaintiff would only be able to identify him as the person referred to in the complaint or in the said letters. No one who deals with the plaintiff has come across with that complaint or the letter. The plaintiff has not been identified as an Advocate or a Barrister-at-Law. Those who had read the complaint or the letters, usually get such type of complaints or letters. It will not make any impression upon them particularly when all such letters must have been either shelved or thrown into the waste paper basket by the authorities. The only identification which has been made is that the plaintiff is the landlady's husband.
18. Mr. Mitra has relied on a judgment of the Bombay High Court in the case of R.K. Karanjia v. Krishnaraj M. D. Thackersey, . In that case at para 42 the Bombay High Court has quoted a passage of Lord Justice Diplock in the case of Me. Carey v. Associated Newspapers Ltd. (1964) 3 All ER 947 at p. 959. The said passage reads as follows :
"In an action for defamation, the wrongful act is damage to the plaintiffs 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. There may also be cases where Lord Devlin's second principle is applicable, as, for example, if a newspaper or a film company as in Youssoupoff v. Metro-Goldwyn-Mayer-Pictures Ltd. (1934) 50 TLR 581 has in the view of the damage awarding tribunal, deliberately published a defamatory statement in the expectation of increasing its circulation and profits by an amount which would exceed any damages awarded by way of compensa-tion alone ....."
19. In this case no damage has been claimed under the first head, that is to say, the consequence of the attitude adopted by other persons to the plaintiff as a result of diminution of the esteem in which they held him because of the defamatory statement. The damage, if any, in this case will be on the second count, that is to say, the agony or annoyance caused by the defamatory statement to the plaintiff himself. In the deposition also the plaintiff has said that he mentally suffered agony for the publication which has been made of him in those two letters. Indeed, it is very difficult to assess the quantum of damages. The mental agony which the plaintiff may have suffered cannot have any objective manifestation, excepting that he has not been able to look after his work properly for sometime, which is the evidence before this Court, there cannot be any other criterion to judge what should be the compensation for the mental agony suffered by the plaintiff in this case. The task of the Court is to award "fair and reasonable compensation". In my view having regard to the facts and circumstances of this case and the context in which those words have been published, the plaintiff is only entitled to nominal damages and nothing else.
20. Having regard to the entirety of the circumstances of the case, I would award damages assessed at Rs. 1,000/-. There will be a decree for a sum of Rs. 1,000/- in favour of the plaintiff. The plaintiff will also be entitled to cost assessed at 30 gms.