Delhi District Court
Sh. Sanjay Chiripal vs Sh. Tilak Raj Kapoor on 17 July, 2017
IN THE COURT OF SH. RAJ KAPOOR :
ADDITIONAL DISTRICT JUDGE-02, CENTRAL DISTRICT. DELHI
C.S. No. : 60/13 (New Number 15532/16)
Sh. Sanjay Chiripal
S/o Sh. Ram Kishan Chiripal,
R/o N-1, Riviera Apartments,
45, Mall Road, Delhi-110054.
.......Plaintiff
Vs.
1. Sh. Tilak Raj Kapoor,
Founder / Publishers & Managing Editor & Editor,
Mercantile Samachar,
11, Manohar Market,
Katra Neel, Chandni Chowk,
Delhi-110006.
Also at :
R/o 6-N, Riviera Apartments,
45, Mall Road, Delhi-110054.
2. Sh. G.S.Saini,
S-30, Riviera Apartments,
45, Mall Road, Delhi-110054.
........ Defendants
Date of filing : 17.04.2008
Date of arguments : 11.07.2017
Date of Judgment : 17.07.2017
JUDGMENT
1. By this Judgment, I shall dispose off the suit of the plaintiff for defamation and permanent injunction.
2. Brief facts of the case in nutshell are that the plaintiff is a share broker by profession and is actively involved in the stock broking Page 1 of 48 Sanjay Chiripal Vs. T.R.Kapoor & Anr. business since 1983 and is a registered member of the Delhi Stock Exchange Association Limited and also used to trade in the National Stock Exchange and Bombay Stock Exchange. He is holding a very sound reputation and prestige in the society, public, friends and society.
3. Defendant No.1 is the publisher / managing editor of a Magazine "Mercantile Samachar". The defendant No.1 was also a member of the Managing committee of the society of Riviera Apartments, 45, Mall Road, Delhi-110054 since 20.05.2007. He is also an ex-president of the aforesaid society.
4. Defendant No.2 was the President of the aforesaid society w.e.f. 1996 to 21.04.2008.
5. It is further submitted that defendant No.1 had published one article in December 2007 edition of the Magazine "Mercantile Samachar" to blemish / tarnish the reputation, honour and prestige of the plaintiff and by such defamatory words in the magazine, he has lowered the reputation of the plaintiff in the society and public. It is further submitted that the defamatory words published in the aforesaid magazine were knowingly and wilfully published in connivance with both the defendants.
6. It is further submitted that the plaintiff served one legal notice Page 2 of 48 Sanjay Chiripal Vs. T.R.Kapoor & Anr. dated 02.02.2008 to the defendant No.1 and copies of the same were also delivered to the Chairman and Secretary, Press Council of India, Lodhi Road, New Delhi. The defendant No.1, in relation to the aforesaid legal notice dated 02.02.2008, affixed another article which was already published in July 2007 Edition of the aforesaid magazine at the conspicuous places of the society and also circulated the same amongst the members of the society and in it, more defamatory remarks were also published by naming the plaintiff, only to harm his reputation and lower down his dignity in the society. In pursuance to the aforesaid act of the defendants, plaintiff got issued another legal notice dated 25.02.2008 to both the defendants and it was specifically mentioned by the plaintiff in the aforesaid legal notice to tender unconditional written apology.
7. It is further submitted that in February 2008 edition, defendant No.1 instead of publishing an apology, published one corrigendum. Thus, the defendant No.2 defamed the plaintiff by writing defamatory words against the plaintiff to different government authorities. In one of the letters dated 16.04.2007 sent to the Office of Registrar of Cooperative Societies, the defendant No.2 defamed the plaintiff by publishing the said letter containing the defamatory words. The defendant No.2 also issued another letter dated 30.04.2007 which was addressed to Shri Raj Kumar Chauhan, the then Minister of Cooperatives & Development by using defamatory words and language against the plaintiff.
Page 3 of 48 Sanjay Chiripal Vs. T.R.Kapoor & Anr.
8. In view of the aforesaid acts of the defendants, the reputation and prestige of the plaintiff has been degraded, with the sole intention to harm and damage the reputation and prestige of the plaintiff.
9. Thus, it has been prayed that a decree of permanent injunction be passed in favour of the plaintiff and against the defedant No.1, thereby restraining the defendant No.1 from publishing any defamatory articles against the plaintiff and the defendant No.2 may also be restrained to write any defamatory words against the plaintiff to the Government Authorities.
10. It has further been prayed that suit of the plaintiff be decreed against the defendants thereby directing the defendants to pay the damages for defamation as compensation to the plaintiff to the amount of rupees four lacs, for defaming the reputation of the plaintiff, with costs.
11. Written Statements [WS] have been filed by the defendants containing some preliminary objections together with parawise reply to the plaint. In the preliminary objections, it has been alleged by defendant no.1 there is no defamatory article naming the plaintiff and also when the magazine is not distributed among the business circle or connected circle of the plaintiff who is not a public figure. Page 4 of 48 Sanjay Chiripal Vs. T.R.Kapoor & Anr. The information given in the articles is regarding the unauthorized encroachment made in the society and the defendant no.1 being the resident and responsible person of the society is well aware of the events and affairs of the society and is aware of the pendency of the suit filed by or against the Reviera Apartment Management and by or against the plaintiff for raising unauthorized construction in the society. Therefore, there was no purpose of the defendant no.1 to take any view of the plaintiff as alleged wrongfully by the plaintiff. The conduct of the plaintiff is apparent from his admission in the plaint that he has filed number of litigations. The suit against the plaintiff for raising construction in the society was not filed by the defendant no.1 and was an action taken on the report of the MCD by the Housing Society Management and therefore there is no ill-will of the defendant no.1, rather it is the plaintiff who has admittedly initiated various litigations with malafide motive to harass and fetch heavy amount from the defendants. He prayed that suit of the plaintiff be dismissed with heavy cost.
12. In the preliminary objections, it has been alleged by defendant no. 2 that the suit as framed of the plaintiff is not maintainable. It has been stated that the suit is counter blast of legal notice dated 28.03.2007 served by defendant no.2 to the plaintiff pertaining to letter dated 22.02.2007 sent by plaintiff to him and further stated that the plaintiff has not approached to this Hon'ble Court with clean hands and has concealed the important and material facts from this Page 5 of 48 Sanjay Chiripal Vs. T.R.Kapoor & Anr. Hon'ble Court. It has further been stated in the written statement that the plaintiff is residing in N-1, Riviera Apartment, Mall Road, Delhi since 2004 and is indulged in unlawful activities including doing encroachment upon the common society's land and causing damage to the building of the society by digging of ground floor of his house. It has been further stated in the written statement that the defendant no.2 being the President of the society had filed a civil suit for removal of illegal and unauthorized encroachment and construction titled as Riviera Apartment OCHS Vs. Sanjay Chiripal and the said suit was pending before Hon'ble Court of Sh.Naveen Arora, the then Ld.Civil Judge, THC, Delhi, however, during pendency of said suit, the unauthorized construction was demolished by the MCD and the said suit was disposed off. However after disposal of the said suit, the plaintiff again encroached upon the common passage and the defendant no.2 being the president of the society again filed a civil suit for the same. It has been further stated in the written statement that the answering defendant never sent any letter in his individual capacity and on his own whereas in response to letters issued to the society, the answering defendant being the President of the society has given words and feelings of the residents of members of society who passed various resolutions in the M.C. and AGMS pertaining to contents of letters under reference. He prayed that suit of the plaintiff be dismissed with heavy cost.
Page 6 of 48 Sanjay Chiripal Vs. T.R.Kapoor & Anr.
13. From the pleadings of the parties following issues were framed by the ld. Predecessor of this Court on 27.5.2011:-
1.Whether the articles published in July, 2007 and December, 2007 by defendant no.1 are defamatory qua the plaintiff? OPP
2.Whether the letters dated 16.04.2007 and 30.04.2007 written and published by defendant no.2 are defamatory qua the plaintiff? OPP
3.Whether the plaintiff is entitled to damages from defendants no.1 and 2? if so, to what amount? OPP
4.Whether the plaintiff is entitled to a decree of perpetual injunction against both the defendants? OPP
5.Whether the suit is bad for non-joinder of necessary parties?
OPD
6.Whether the articles published by defendant no.1 amount to privileged communication? OPD
7.Relief.
14. In order to prove his case, plaintiff examined himself as PW-1 and defendant No.1 examined himself as DW-1 and defendant No.2 examined himself as DW-2.
15. I have heard the arguments on behalf of the parties and perused the records and the evidence led by the parties. I have also gone through the various citations filed by the parties.
16. During the course of arguments plaintiff submitted that Words/ sentences/ allegations used by both the defendant nos.1 and 2 against the character and conduct of the plaintiff are per se defamatory (having one plain ambiguous meaning) for which no Page 7 of 48 Sanjay Chiripal Vs. T.R.Kapoor & Anr. justification has been proved by any of the two defendants and their publications are not privileged. Malice is inherent. In the absence of justification and privilege, substantial damages ought to be awarded to the plaintiff and suit is liable to be decreed as it is. Plaintiff again submitted that there is no resolution in any Managing Committee Meeting or Annual General Body Meeting or Special General Body Meeting in the society authorizing defendant no.2, the then President of the society, to write and publish letters dated 16.04.2007 and 30.04.2007 to Registrar Cooperative Societies and to Sh.Raj Kumar Chauhan, Minister of Cooperatives, Ex.CW1/15 and Ex.CW1/16, containing per se defamatory words, allegations and imputations against the conduct and character of the plaintiff. Publishing personal remarks against the conduct and character of a member of a society is not the affair of a society. Writing and publishing of the two letters by defendant no.2 cannot be attributed to the society which is a body corporate having a perpetual succession and a common seal. It is not the business of a society to write and publish per se defamatory words and allegations against the conduct and character of any person whomsoever. Society is not responsible for the personal act of the President. Society was not liable to be made a party.
Section 43 of Delhi Cooperative Societies Act 2003 (DCS Act 2003) reads as follows:-
"43.The registration of a co-operative society Page 8 of 48 Sanjay Chiripal Vs. T.R.Kapoor & Anr. shall render it a body corporate by the name under which it is registered having perpetual succession and a common seal, and with power to hold property, enter into contract, institute and defend suits and other legal proceedings and do all things necessary for the purposes for which it is constituted."
17. Society consists of its members who all have a equal share in all the funds and assets of the society. The individual members of the society cannot be held liable for the personal acts of the Office Bearers/Resident of the society. They have no role to play in the publication of per se defamatory words, allegations and imputations against the plaintiff. They cannot be penalized due to personal acts of the then president of the society. Plaintiff again submitted that Justification/Truth is a defence in civil action for defamation which has not been proved by any of the two defendant nos.1 and 2 in respect of any of the publications in reference to the conduct and character of the plaintiff. Plaintiff has relied upon the judgment :- Hon'ble Supreme Court further in the case of Surendra Nath Sinha vs. Bageshwari Pd., AIR 1961 Pat 164 had discussed the law on defamation in full length and observed as under:
".........A defamatory statement is one which has a tendency to injure the reputation of the person to whom it refer; which tends; that is to say, to lower him in the estimation of right thinking members of society generally and in particular to cause him to be shunned or avoided or regarded with feelings of hatred, contempt, ridicule, fear, dislike or disesteem, or to convey on imputation on him disparaging or injurious to him in his office, profession, calling, trade or business. Defamation, therefore, is the wrong done by a person to another's reputation by words, signs or visible representations......"Page 9 of 48 Sanjay Chiripal Vs. T.R.Kapoor & Anr.
18. Plaintiff again submitted that privileges are of two kinds.: i).
Absolute and ii). Qualified. Publications by both the defendants is not privileged. EDITORS HAVE NO SPECIAL PRIVILEGE. EDITORS ARE IN NO BETTER POSITION THAN ANY OTHER ORDINARY MAN.
19. Plaintiff again submitted that Hon'ble High Court of Patna in the matter of Pandey Surendra Nath Sinha versus Bageshwari Prasad reported as AIR 1961 Patna 164 has held that:-
26. 'Privilege' is of two kinds: (1) absolute and (2) qualified. ..............
28. The occasions of absolute privilege may be classed as the administration of justice, proceedings in Parliament and advising the State in affairs of State, this last mentioned category extending to communications between officers of State in relation to State affairs. The plea of 'absolute privilege', therefore, is available, for example, in respect of any statement made in the course of and with reference to judicial proceedings by any Judge, jurymen, party, witness or advocate. Such privilege is called 'judicial privilege' and "professional privilege."
57. ..... " The statement is protected if it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned.......
Amongst the chief instances of qualified privilege, which are relevant for our purpose, are also the following:-
1).Statements made in the performance of a duty;
whether legal, moral or social, such as, Police investigating a crime, and,
2) Statements made in the protection of some lawful interest, which includes statements in self protection-----protection of oneself or of one's property, and statements made to the proper authorities in order to procure the redress of public grievances.
Page 10 of 48 Sanjay Chiripal Vs. T.R.Kapoor & Anr.
58. A statement, therefore, is conditionally privileged, if the person who makes the communication has an interest or a duty, legal, social or moral, to make it to the person to whom it is made, and, the person to whom it is made has a corresponding interest or duty to receive it. This reciprocity is essential; per Lord Atkinson in Adam versus Ward, (1917) AC 509 H.l. at page 334. The privilege extends only to a communication upon the subject with respect to which privilege exists, and, does not extend to anything that is not relevant and pertinent to the discharge of the duty, or, the exercise of the right, or, the safeguarding of the interest, which creates the privilege.
60. A statement made in the performance of a duty is conditionally privileged if it is made in the performance of any legal, or moral duty imposed upon the person making it, provided that the person to whom the statement is made has a corresponding interest or duty to receive it. This is not to say that both the parties must have a duty, or both an interest. One may have an interest and other a duty. A statement made in the protection of an interest, even when there is no duty to make the statement, is nevertheless privileged if it is made in the protection of some lawful interest of the person making it; for example, if it is made in the defence of his own property or reputation. But here also there must be reciprocity. There must be an interest to be protected on one side and a duty to protect it on the other.
61. In order, therefore, to make out a communication to be privileged the defendant should prove (a) that there was a privileged occasion, i.e. an occasion in which he had a duty or interest in making the communication to a person or persons who had a corresponding duty or interest to receive it and, (b) that the communication was relevant or pertinent to the occasion. It is then for the plaintiff to prove malice of the defendant in making the statement; it is not enough for the defendant to prove that he honestly believed in the duty or interest in himself or the other person.......
67....in Air 1928 ALL 316 Sen j., observed that if the defendant pleads privilege, the onus lies upon him to prove the affirmative, and, if he succeeds in proving privilege, the onus of proving actual malice is then cast upon the plaintiff, for malice destroys privilege; but if the defendant has failed to prove that he made the statements on a privileged occasion honestly, the plaintiff is not called upon to prove actual malice."
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20. Plaintiff further submitted that suit for Damages for Defamation is maintainable irrespective of dismissal of criminal complaint on the same cause of action. Law of Defamation aims at protecting the name and goodwill of a person in society. Every individual has a right to protect his reputation. Right to preserve one's reputation is acknowledged as right in rem. Right of reputation is an inherent personal right of every person and more valuable than any other property. Disparaging and defamatory statements made about a person to a third person without lawful justification or excuse are actionable in law. Again plaintiff submitted that wrong of defamation is publication of false and defamatory statement concerning another person without lawful justification. Duty of Law is to protect personal reputation and adequately punish who falsely and maliciously attempt to destroy it without legal justification or truth. Plaintiff again submitted that publication is communicated the moment it received by any third person other than the person for whom it is written. No person can be allowed to make allegation against another in a bad language which amounts to prima facie defamation.
21. Further elaborating arguments, Plaintiff submitted that question of status is relevant in only measuring the quantum of compensation and not in deciding as to whether there has been actual defamation in case of a libel. Defences available to Page 12 of 48 Sanjay Chiripal Vs. T.R.Kapoor & Anr. defendant in action for defamation: i). Justification (or Truth), ii). Privilege, Absolute or Qualified and iii).Fair Comment. The plaintiff submitted that in a civil action, defendant has to plead and prove the truth of the statement to escape liability. It is no defence that publisher did not originate it but heard it or received it from another or that it was a rumour or person publishing it bonafidely believed it to be true. If identity is fully established, no defence that writer did not intend to defame the plaintiff. It is no defence that defendant did not intend to defame the plaintiff. It is no defence that people would not believe the imputation to be true. It is no defence to say that statement was not intended to be defamatory.
22. The plaintiff further argued and submitted that as per section 7 of press and registration act 1867, the persons declared to be printer, publisher and editor are responsible for contents of a magazine or a newspaper. Editor is defined to be a person who controls the selection of material that is published. Journalists and editors do not enjoy any special privilege. They are in no better position than any other ordinary person. Newspaper is in no better position in regard to law of defamation. Editor has to conduct inquiry before publication and should be satisfied that what is published is true and accurate. Imputation being per se defamatory relieves the plaintiff of burden of proving that publication has lowered him in the estimation of right thinking men of the society. Resultant harm need not be proved. Publisher must know that Page 13 of 48 Sanjay Chiripal Vs. T.R.Kapoor & Anr. imputation will cause harm if it is per se defamatory. Mens rea is presumed if imputation is per se defamatory. In case of libel it is not necessary to prove actual loss of reputation, damage is presumed. Every man has a status and he has a right to guard it. question of status is only to measure compensation and not to decide whether there has been actual defamation. When on the face of the words must have clearly injured the reputation of a plaintiff, they are actionable per se and plaintiff is entitled to get a verdict for a substantial amount without giving evidence of actual pecuniary loss.
23. The plaintiff again submitted that in action for defamation it is wrongful act to plaintiff's reputation which can be classified into i). consequences of attitude adopted towards him by other persons as a result of diminution of esteem in which they hold him due to defamatory statement and ii). grief or annoyance caused to plaintiff himself due to defamatory statement or mental agony suffered by him. Damages awarded are recompense to loss of honour and reputation, quantification cannot be done in terms of money. General damages are presumed to be natural or probable consequences of defamatory words/libel. They need not be proved. General damages shall be awarded. Court shall grant substantial damages in case of injury to reputation of a person without proof. When on the face of the words used by defendant must have clearly injured plaintiff's reputation they are said to be actionable per Page 14 of 48 Sanjay Chiripal Vs. T.R.Kapoor & Anr. se. Not necessary to produce any persons who are said to have made inquiries from plaintiff after publication of libel for grant of general damages. General damages need not be set expressly set out in the plaint. Quantum of damages is entirely within the domain and discretion of court. There is no hard and fast rule for assessing damages. While assessing damages, character of defamatory words must be taken into account. Method of publication must be considered in assessing damages. Quantum of damages has to be considered in the context of history of hostilities between parties.
24. The plaintiff submitted that damages are of two types, general and special. Special damages are specifically required to be pleaded and proved, general damages are not. There is no codified law or fixed rule to measure damages in suit for damages for defamation. Exemplary damages are imposed not only to compensate the plaintiff but also to punish a defendant for deterrence.
25. The plaintiff further submitted that JUDGMENT OF PUNJABI BAGH CO-OP HOUSING SOCIETY LTD., VERSUS K.L.KISHWAR REPORTED AS 95 (2002) DLT 573 RELIED UPON BY DEFENDANT NO.2 is not applicable in the present case because:
JUDGMENT PERTAINS TO PRESENT CASE PERTAINS TO Communications written and Letters dated 16.04.2007 Ex.CW1/15 and Page 15 of 48 Sanjay Chiripal Vs. T.R.Kapoor & Anr. published by member of a society 30.04.2007 Ex,CW1/16 have been written against Office Bearers of the & published by Defendant No.2, the then society to Officials of the President/Office Bearer of the Society Registrar Cooperative Societies against the Plaintiff/member of the society.
Communications written and The two letters written and published by published by a member of the Defendant No.2/Ex-President pertain to the society pertained to the conduct personal conduct and character of the of affairs of the Society by its plaintiff who is a member of the society. Office Bearers.
Para Nos. 12 & 14 of Judgment Here the two letters have been written and published by Defendant no.2 who was the Qualified Privilege is defined to then President of the Society regarding the be when statements are made conduct and character of the only to authorities having lawful plaintiff/member of the society.
authority over that person with
respect to subject matter of Defendant No.2 went upto the extent of
accusation. calling the plaintiff as a confused and a
mentally disturbed person, short
It was held that if any member of tempered, hard litigant, highly
the society makes a complaint vociferous, having no work apart from
against the office bearers of the doing some share and satta business, all
society regarding the affairs of the time roaming around the society day
the society and in the process and night etc.,
makes some defamatory
statements only in regard to the The present case does not fall under any
conduct of such office bearer in privilege, absolute or qualified.
the management of the society
such accusation cannot THE JUDGMENT RELIED UPON BY
constitute defamation. DEFENDANT NO.2 IS TOTALLY AGAINST
HIM ON FACTS AND CIRCUMSTANCES
In none of the alleged OF THE CASE.
objectionable statements the
defendants ever made any
remarks regarding the
personal character of the
plaintiffs.
26. The plaintiff again submitted on the point of malice that publication of statements which are false and injurious to character of another gives rise to inference of malice and makes publisher liable for damages to plaintiff. Plaintiff is not required to prove malice of defendant. Malice is required to be proved only when defendant proves that he is covered under privilege. If defendant fails to prove malice, plaintiff is not required to prove malice. Malice destroys privilege (only when proved). Onus to prove privilege is on defendant. if defendant succeeds in proving privilege, then plaintiff Page 16 of 48 Sanjay Chiripal Vs. T.R.Kapoor & Anr. is required to prove malice. If defamatory statement is unconnected to main statement and irrelevant, privilege cannot be claimed and defamatory statement is proof of malice. In legal proposition, expression of apology or regret cannot wash away any tortious liability once a civil wrong has been committed. Defendants have to prove that published matter is of public interest, statements of fact are true and comments based on facts are fair and bonafide.
Plaintiff again submitted that both the Defendants have miserably failed to lead any evidence for justification of their publications. The publications of both the defendants are not privileged. Per se defamatory words, allegations and imputations have been used by both the defendants against the conduct and character of the plaintiff. In the present facts and circumstances, suit of the plaintiff is liable to be decreed as it is.
27. Contrary to it, ld. Counsel for the defendant no.1 submitted that defendant no.1 Tilak Raj Kapoor, is aged about 78 years old. He summoned the Record Clerk, Reviera Apartment Owners Cooperative Group Housing Society to produce certain documents. The said witness appeared and produced the summoned record on 20.02.2017. It is submitted that the plaintiff cross-examined the said witness against the provisions of law. Section 139 of Indian Evidence Act provides:-
"A person summoned to produce a document does not become a witness by mere fact that he produces it and cannot be cross-examined Page 17 of 48 Sanjay Chiripal Vs. T.R.Kapoor & Anr. unless and until he is called as a witness."
28. Ld. Counsel for defendant no.1 submitted that the said witness was summoned merely to produce the documents and therefore cannot be cross-examined by the plaintiff. The cross- examination of the witness being against the law cannot be given credence and is not entertainable by the court. It is apparent that the said witness became hostile and is under the influence of the plaintiff and has intentionally deposed the false fact. It is, therefore, most humbly prayed that the defendant no.1 be permitted to cross-examine the said witness as per the provisions under Section 154 of the Indian Evidence Act or the cross-examination of the witness be ordered to be discarded being against the law.
29. Ld. Counsel for the defendant no.1 has filed his written arguments. I have perused the same. As regard his arguments on the Issue No.1, it is submitted that the issue no.1 pertains to two articles published in July, 2007 and December, 2007 Editions, whereas the plaintiff has submitted his arguments only in respect of the December, 2007 publication and is silent regarding the publication in July, 2007. This is only because the plaintiff is very much conversant with the fact that actually there is no defamatory article qua him. It is apparent that the December, 2007 publication does not mention the name of plaintiff. The issue no.1 is whether the articles are defamatory? The plaintiff has merely got admitted Page 18 of 48 Sanjay Chiripal Vs. T.R.Kapoor & Anr. from the defendant no.1 in his cross-examination about the existence of publication, which does not go to prove that the same are defamatory statement in order to prove the articles as defamatory. The basic requirement under the law is that the alleged statement is false, whereas the plaintiff has not adduced any evidence neither in his chief nor in the cross-examination of the defendant no.1 that the said statements were false and defamatory.
30. Ld. Counsel for the Defendant no.1 submitted that it is admitted fact by the plaintiff (para no.4 of the plaint) that number of litigations have been initiated by the plaintiff in retaliation of the suit filed by the Society against the plaintiff for illegal encroachment in his flat which are all frivolous as well as the present suit. The defendants are being harassed unnecessarily which itself supports the statements of the article. Moreover, the said statements are not the personal views of publisher, but narration of the agonies of the occupants of the society. Therefore, the arguments of the plaintiff on Issue No.1 are not sustainable against the defendant no.1, also in the light of the Ex.DW1/3, the order passed by the Hon'ble High Court dismissing the complaint of the plaintiff u/s 500 IPC.
31. That as regard the Issue no.3, it is submitted that when (as per Issue No.1) there is no defamatory publication, there is no entitlement of any damages to the plaintiff from the defendant no.1. The plaintiff has stated that he is the owner of flat no.1 so he is man Page 19 of 48 Sanjay Chiripal Vs. T.R.Kapoor & Anr. of standing. It is not that only the flat owners bear a standing. Merely the ownership of a flat is not a symbol of standing and makes the man immune. Every person of either capacity enjoys his own priceless repute and not the only owners of flat, the defendants are also owners enjoying reputation and therefore cannot be supposed to be harassed by the plaintiff on the basis of number of frivolous litigations and are compelled to spend their old age life in appearing daily in the courts.
32. Ld. Counsel for the defendant no.1 again submitted that argument of the plaintiff that he is entitled to the damages because the defendant no.1 has a good capacity is totally frivolous and shows apparently the oblique motive of the plaintiff to fetch heavy amount on the basis of such litigations from the defendants only because of the capacity of the defendants to pay. The paying capacity of the defendant does not create any entitlement in the plaintiff to claim such heavy amounts by entangling him into false litigation. Thus, in this case, the plaintiff has not evidenced that he has been defamed. Merely by statement of defendant that the magazine is distributed to 500 people does not suffice the requirement of tort of defamation, moreso, when there is no defamatory article naming the plaintiff and also when the magazine is not distributed among the business circle or connected circle of the plaintiff who is not a public figure.
33. It is also argued and submitted that the information given in Page 20 of 48 Sanjay Chiripal Vs. T.R.Kapoor & Anr. the articles is regarding the unauthorized encroachment made in the society and the defendant no.1 being the resident and responsible person of the society is well aware of the events and affairs of the society and is aware of the pendency of the suit filed by or against the Reviera Apartment Management and by or against the plaintiff for raising unauthorized construction in the society. Therefore, there was no purpose of the defendant no.1 to take any view of the plaintiff as alleged wrongfully by the plaintiff in his arguments. The conduct of the plaintiff is apparent from his admission in the plaint that he has filed number of litigations. The suit against the plaintiff for raising construction in the society was not filed by the defendant no.1 and was an action taken on the report of the MCD by the Housing Society Management and therefore there is no ill-will of the defendant no.1, rather it is the plaintiff who has admittedly initiated various litigations with malafide motive to harass and fetch heavy amount from the defendants. The burden to prove the issue no.3 was upon the plaintiff and the plaintiff has failed to discharge it. The Judgments cited by the plaintiff do not support his arguments and are not applicable to the present case. The Minutes of Meetings have been summoned by the defendant no.1 depicting the conduct of the plaintiff.
34. Ld. Counsel for the defendant no.1 again submitted that the arguments of the plaintiff regarding the issue no.4 that the defendant has admitted in his cross-examination that two cases Page 21 of 48 Sanjay Chiripal Vs. T.R.Kapoor & Anr. filed by the plaintiff against him are at final stage, do not create any entitlement in the plaintiff to obtain the relief of perpetual injunction, rather the above statement shows the malafide and ulterior design of the plaintiff. The burden to prove this issue was also upon the plaintiff. It is submitted that when there is no defamatory publication against the plaintiff, the plaintiff is not entitled to any relief as claimed above. The suit filed against the plaintiff as alleged in the written arguments was filed by the Riviera Apartment Management for the illegal construction raised by the plaintiff and for not submitting the requisite, is not the act of defendant no.1 and therefore there is no malice on the part of the defendant no.1.
35. Ld. Counsel for the Defendant no.1 further submitted with regards to the issue no.6, that the Articles published by the defendant no.1 amount to privileged communication. It is submitted that in order to prove the same, the two essential ingredients are that the statement is proved by the plaintiff to be untrue and the other thing is that the publication is a result of malice. The plaintiff has grossly failed to prove that the said statement are untrue and no act on the part of the defendant no.1 has been shown to be done out of malice by the plaintiff. It has been observed by our Hon'ble High Court in TATA SONS LIMITED VS. GREENPEACE INTERNATINOAL & ANR. reported as 178 (2011)DLT 705 that:
"...the right of free speech is one which it is for the public interest that individuals should possess and....Until it is clear that an alleged Page 22 of 48 Sanjay Chiripal Vs. T.R.Kapoor & Anr. libel is untrue, it is not clear that any right at all has been infringed; and the importance of leaving free speech unfettered is a strong reason in case of libel for dealing most cautiously and warily..."
36. It is submitted that every citizen has a right to express his honest opinion about the correctness and consequences of the acts engaged in matters of public interest. The defendants' statements are honest with justifiable reason and there is nothing in their conduct which demands action. It is submitted that the freedom of speech and expression guaranteed under the Constitution of India is without any restrictions and override and render irrelevant the rights and immunities that may be available to any person under any other law and therefore the plaintiff having not proved his case is not entitled to any relief. Ld. Counsel for the defendant no.1 submitted that the text attached as libelous is an intentional and calculated act of the plaintiff and therefore, the suit of the plaintiff is liable to be dismissed with costs.
37. Ld. Counsel for the Defendent no.2 has also argued and submitted that the plaintiff has filed a suit for defamation and permanent injunction against the defendants stating therein that he is a share broker and involved in the business of stock broking and has been residing in Riviera Apartment. It has been further stated that the defendant no.2 is President of that society since 1996 and Page 23 of 48 Sanjay Chiripal Vs. T.R.Kapoor & Anr. the plaintiff has so many litigations with Riviera Apartment OCHS Ltd. It has been further stated in the plaint that the defendant no.2 defamed the plaintiff by writing defamatory letters/words against the plaintiff in letter dated 16.04.2007 sent to office of Registrar of Co- operative Societies and further stated that in another letter dated 30.04.2007 issued by defendant no.2 addressed to Sh.Raj Kumar Chauhan, the then Minister of Co-operative and Development and in the said letter also the plaintiff alleged that the defendant no.2 used the defamatory words against the plaintiff with intention to lower the dignity and reputation of the plaintiff and accordingly filed a suit for defamation for Rs.4,00,000/- (Rupees four lac) against the defendants and permanent injunction.
38. Ld. Counsel for the defendant no.2 also argued and submitted that after receiving the summon appeared in the above mentioned case and filed his written statement stating therein that the suit is counter blast of legal notice dated 28.03.2007 served by defendant no.2 to the plaintiff pertaining to letter dated 22.02.2007 sent by plaintiff to him and further stated that the plaintiff has not approached to this Hon'ble Court with clean hands and has concealed the important and material facts from this Hon'ble Court. It has further been stated in the written statement that the plaintiff is residing in N-1, Riviera Apartment, Mall Road, Delhi since 2004 and is indulged in unlawful activities including doing encroachment upon the common society's land and causing damage to the building of Page 24 of 48 Sanjay Chiripal Vs. T.R.Kapoor & Anr. the society by digging of ground floor of his house.
39. It has been further been stated by the ld. Counsel for the Defendant no.2 in the written statement that the defendant no.2 being the President of the society had filed a civil suit for removal of illegal and unauthorized encroachment and construction titled as Riviera Apartment OCHS Vs. Sanjay Chiripal and the said suit was pending before Hon'ble Court of Sh.Naveen Arora, the then Ld.Civil Judge, THC, Delhi, however, during pendency of said suit, the unauthorized construction was demolished by the MCD and the said suit was disposed off. However after disposal of the said suit, the plaintiff again encroached upon the common passage and the defendant no.2 being the president of the society again filed a civil suit for the same. It has been further stated in the written statement that the answering defendant never sent any letter in his individual capacity and on his own whereas in response to letters issued to the society, the answering defendant being the President of the society has given words and feelings of the residents of members of society who passed various resolutions in the M.C. and AGMS pertaining to contents of letters under reference.
40. Ld. Counsel for the defendant no.2 further elaborating his arguments on the issues NO.1 TO 4 submitted that from the bare perusal of cross examination of PW-1 it is clear that PW-1 has admitted during the course of his cross examination conducted on Page 25 of 48 Sanjay Chiripal Vs. T.R.Kapoor & Anr. 05.08.2014 that "the defendant no.2 has not written the letter dated 16.04.07 of his own rather the same was written in response to comments sought by RCS of the society on the basis of letter given by plaintiff to the office of RCS". PW-1 Sanjay Chiripal further admitted during the course of his cross examination that "it is correct that defendant no.2 G.S. Saini had written the letter dated 16.04.2007 being the president of Riviera Apartment and being the president of the society". PW-1 further produced on record the letter Ex.PW1/D1 i.e. letter dated 26.03.2007 given by him to the office of RCS in response to which the defendant no.2 had written the letter dated 16.04.07. PW-1 Sanjay Chiripal further admitted during the course of his cross examination that "it is correct that letter dated 30.04.2007 was also written by the defendant no.2 being the President of the society and on behalf of the society". He further admitted in the cross examination that "the defendant no.2 had written letter dated 30.04.2007 after writing the letter dated 18.04.2007 by me".
41. Ld. Counsel for the defendant no.2 again submitted that from the bare perusal of the aforesaid cross examination of PW-1 that PW-1 had admitted during the course of his cross examination that both the letters were not written by the defendant no.2 either in his individual capacity or suo moto rather both these letters given by him being the President of the society in response to letters written by plaintiff himself and when the comments were sought from the Page 26 of 48 Sanjay Chiripal Vs. T.R.Kapoor & Anr. society. PW-1 further admitted during the course of his cross examination that "it is correct that from time to time various AGMS were held in the society and various meetings of the MCs were also held from the date of purchase of flat by me till 2007". PW-1 during the course of his cross examination did not deny the resolutions passed in MCs and AGMs Mark Y Colly and these resolutions have duly been proved by examining the concerned witness from the society who has proved those resolutions wherein the conduct of the plaintiff had been discussed and has been criticized in various MCs and AGMs. PW-1 further admitted during the course of his cross examination that "I have neither brought any documentary proof to show any loss. I have not placed any document on record to show any loss". During the course of his cross examination of DW-2 Sh.G.S. Saini, nothing adverse has come on record.
42. Ld. Counsel for the defendant no.2 further argued its case on the ISSUE NO.5 [Whether the suit is bad for non joinder of necessary parties?] and submitted that from bare perusal of the cross examination of PW-1 Sh.Sanjay Chiripal conducted by the counsel of defendant no.2 it is crystal clear that the defendant no.2 did not write any letter suo moto or in his individual capacity rather both the letters dated 16.04.2007 and 30.04.2007 were written by the defendant no.2 being the President of the Riviera Apartment OCHS Ltd., hence the suit of the plaintiff was not maintainable without impleadment of society in the array of memo of parties. In Page 27 of 48 Sanjay Chiripal Vs. T.R.Kapoor & Anr. support of his arguments ld. Counsel for the defendant no.2 has relied upon the following judgments:-
a) 65(1997) Delhi Law Times 96 titled as Standard Book Company vs. Arun Goel & Ors, in this case it has been observed that :-
"Defamation - No material as to how plaintiff injured by remarks. No evidence from independent person showing the status of the Company. No relevant material to prove his case . Not maintainable."
b) 147(2008) Delhi Law Times 349 titled as Dr.Nidhi Bhatnagar & Anr. Vs. Citi Bank N.A. & Ors. , in this case it has also been observed that:-
"9............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 present case, the words which have been used by the defendants have been used in the pleadings before a Court and it has not been alleged by the plaintiffs anywhere in the plaint that by use of these words, the plaintiffs' image has got lowered in the eyes of his friends and relatives. The entire reading of the plaint shows that the plaintiffs in themselves felt annoyed because of use of these words for them and filed the present suit. No cause of action arose in favor of plaintiffs and the plea taken by the defendants that the suit does not disclose any cause of action is justified."
c) 2009 III AD(Delhi) 703 titled as Imtiaz Ahmad (Prof.) Vs. Durdana Zamir, in this it has also been observed that:-
"7. 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 Plaintiff. A statement is to be judged by the standard of the ordinary, right thinking members of the society at the relevant time. The words must have resulted in the Plaintiff to be shunned or evaded or CS (OS) 569.06 Prof. Imtiaz Ahmad vs. Durdana Zamir Page 3 Of 6 regarded with the feeling of hatred, contempt, ridicule, fear, dislike or dis- esteem or to convey an imputation to him or disparaging him or his office, profession, calling, trade or business. The defamation is a wrong done by a person to another's reputation. Since, it is considered that a man's reputation, in a way, is his property and reputation may be considered Page 28 of 48 Sanjay Chiripal Vs. T.R.Kapoor & Anr. to be more valuable than any other form of property. Reputation of a man primarily and basically is the opinion of friends, relatives, acquittance or general public about a man. It is his esteem in the eyes of others. The reputation spread by communication of thought and information from one to another. Where a person alleges that his reputation has been damaged, it only means he has been lowered in the eyes of right thinking persons of the society or his friends/relatives. It is not enough for a person to sue for words which merely injure his feeling or cause annoyance to him. Injury to feeling of a man cannot be made a basis for claiming of damages on the ground of defamation. Thus, the words must be such which prejudice a man's reputation and are so offensive so as to lower a man's dignity in the eyes of others. Insult in itself is not a cause of action for damages on the ground of defamation.
8. Where the words are used without giving impression of an oblique meaning but the Plaintiff pleads an innuendo, asking the Court to read the words in a manner in which the Plaintiff himself understands it, the Plaintiff has to plead that the libel was understood by the readers with the knowledge of subject or extensive facts as was being understood by the Plaintiff.
9. The plaintiff‟s submissions that adding of caste"Ansari"
against his name was per say defamatory is very strange. The plaintiff claims to be the professor of sociology working for the betterment of the society. If a professor CS (OS) 569.06 Prof. Imtiaz Ahmad vs. Durdana Zamir Page 4 Of 6 of sociology has a notion and thought that "Ansari" was a caste of lower class since it represents "Julaha‟ community, I can only take pity upon such „highly respected‟ and qualified professors‟. „Julaha‟ means „weavers‟. If those who weave clothes so that men may dress themselves, are of lower caste than those who get dressed and are ungrateful must be of much lower caste, even if they are professors. The allegations of plaintiff, who is professor are painful. The Constitution of India does not recognize that caste of any person confers any superiority or inferiority on him vis-à-vis others. The Constitution only recognizes deprived classes under which Scheduled Castes or Scheduled Tribes fall and mandates positive action only to bring them at par with the other members of the society so that they are not discriminated by so-called high castes people. If a professor of sociology in our country has this standard of social betterment, then God help this society.
10. The other imputations made to the defendant are also not defamatory in nature. It is not the case of the plaintiff that he was not present at the marriage. It is the case of the plaintiff himself that he attended the marriage of the defendant. If it is stated that a Hungama was created by many from in- laws of the defendant, including the plaintiff, that does not mean that the defendant made defamatory imputations against the plaintiff or the defendant made a statement to cause an adverse opinion or hatred feelings of other persons towards the plaintiff. As has already been observed above the statement is to be judged by the Page 29 of 48 Sanjay Chiripal Vs. T.R.Kapoor & Anr. standard of an ordinary person. The alleged words must have resulted in the plaintiff to be shunned or evaded or inculcated a feeling of hatred and condemn. The plaintiff continues to be the professor in JNU and he continues to a known voice at different TV Channels. It is not the case that people have abandoned him or boycotted him because CS (OS) 569.06 Prof. Imtiaz Ahmad vs. Durdana Zamir Page 5 Of 6 of this imputation. The plaintiff has not named a single person who had changed his opinion after filing of the complaint by the defendant.
11. Moreover, the defendant had a right to make complaints of her grievances to the authorities. Whenever a person makes a complaint against someone to the lawful authorities and in that complaint he makes imputations against the person complained of, it cannot be considered that the person has publicized or publicly made defamatory averments against a person. If a prosecution is initiated against the person on the basis of such averments and the person is acquitted holding that the complaint was false, then only a cause of action arises against the complainant for launching a case for false prosecution or for damages on other grounds. Until and unless a competent court holds that complaint was false, no cause of action arises. Approaching a competent authority and praying that the authority should come to the rescue of the complainant and prevent inference of the plaintiff in the family affairs of the defendant cannot amount to a defamatory imputation per se and even if it is published, it does not tend to show that the defendant had intended to lower the reputation of the plaintiff."
d) 2010 (119) DRJ 482 titled as Vijay Gulati Vs. Radhika & Ors., in this case it has also been observed that:-
"The learned counsel for defendants No.1 in support of his contention has also referred to Bira Garari Vs. Dulhin Somaria & Ors. AIR 1962 PATNA 229 wherein it has been observed by the Division Bench that in a case of defamation on the basis of registration of a cognizable offence, it could not be said that the person has been defamed unless and until the said complaint is tested before the appropriate forum. In other words, once a person has a legitimate grievance and he puts criminal law into action, the other side cannot lodge and bring about a suit for defamation so as to stop those criminal proceedings. The appropriate remedy for him would be either to get a case for damages for malicious prosecution or to get a case registered under Section 182 Cr.P.C. in case the charge sheet is not filed on the basis of the report or if he is able to earn acquittal, then a specific finding to the effect that the allegations against him were false. The said judgment, in my view, aptly applies to the facts of the present case also that till the time the present criminal complaint which has been initiated by defendant No.1 is not finally rejected, the maintainability of the present suit Page 30 of 48 Sanjay Chiripal Vs. T.R.Kapoor & Anr. on the ground of the plaintiff being defamed is premature and therefore lacks cause of action apart from being barred by limitation.
28. For the aforesaid reasons, I accordingly reject the plaint."
e) 131 (2006) Delhi Law Times 563 titled as RBEF (Ritnand Balved Education Foundation) Vs. Alok Kumar, in this case also it has been observed that :-
"12. Therefore, the inescapable conclusion is that all the purported defamatory statements that have allegedly been made by the defendant are directed against the Chauhan brothers and not against the plaintiff society. It is another thing that the Chauhan brothers are members of the Executive Board of the plaintiff society. But, it is their reputation in their personal capacity which has purportedly been besmirched and not the reputation of the plaintiff society. If at all, it was for them to have brought a suit for defamation and not for the plaintiff society. In paragraph 25 of the plaint, it was alleged that the statements made by the defendant were injurious to the plaintiff's reputation and that they referred to the plaintiff. This is not borne out by the evidence on record. The statements do not refer to the plaintiff society and, therefore, there is no question of causing any injury to the plaintiff's reputation. Apart from this, paragraph 32 of the affidavit by way of evidence of Sh. R.K. Sharma (PW-1) indicates that the plaintiff was put to great mental agony and torture. This statement obviously could not refer to the plaintiff society which is an inanimate juristic entity, being a registered society. It cannot suffer mental Page 2534 agony or torture as a human being could. It appears that the entire plaint and evidence is a litigation in proxy on behalf of the Chauhan brothers who have not chosen to come forward as plaintiffs. Such an action is not permissible in law. Moreover, there is no indication as to what loss was caused to the plaintiff.
13. While it may be said that if a defamatory publication is made against a private company or a registered society, its director/member of Executive Board could bring in an action on behalf of the company and/or registered society (see John Thomas v. Dr K. Jagadeesan ], it must be established that the defamatory words were directed against such a company or registered society. In such a situation where the defamation has a reference to the juristic legal entity, then its authorised constituent personalities, such as a director or a member of the Board could claim to have locus standi for filing a suit. However, where the defamatory statements are directed, not against the institution, i.e., a company or a registered society, but, against the individuals in the institutions, then such individuals would not have the Page 31 of 48 Sanjay Chiripal Vs. T.R.Kapoor & Anr. locus standi to bring in an action in the name of the institution. In fact, it is not so much a question of locus standi as it is a question as to who is the target of the defamation. When the target of the defamatory statements are the individuals in the institution, then it is the individuals alone who can file a suit. In such a situation, the institution would have no cause of action to file a suit. In Harsh Mendiratta v. Dr Maharaj Singh and Ors. , a learned Single Judge of this Court observed as under:
13. Moreover the settled position of the law appears to be that an action for the defamation is maintainable only by the person who is defamed and not by his friends, relatives and family members. Learned Counsel for the defendants have cited the following cases:
1. Subbaiyar v. Kristnaiyar 2nd Vol. 1 Mad. 383.
2. Daya v. Param Sukh 2nd Vol. II All. 104.
3. Bramanna v. Rama Krishna 2nd 1895 xviii Mad.
215.
4. Luckumsey Rowji v. Hurbun Nursey and Ors. 2nd (Vol.5) 1881 page 580.
14. In all these cases it was held that an action for defamation can be instituted only by a person who is defamed and not by others viz. family members, relatives and friends etc. If family members, friends were allowed to file suit for damages for defamation it will open flood gates of litigation. In 2nd Vol.I Mad. 383, the Court disallowed plaintiff's claim for damages for defamation of his sister. In 2nd Vol. II All. 104, the suit for defamation brought by the father for defamation of his daughter, was dismissed as not maintainable. In 2nd 1895 xviii Mad. 250, the suit brought by the husband for defamation of his wife by the defendant, was held to be not maintainable. Page 2535
15. The present case also falls in the same category. Mr Mendiratta, husband of the plaintiff has not filed any suit for damages for defamation against defendant No.1. Plaintiff who is the wife of Mendiratta has chosen to file this suit without joining Mendiratta as a party. The defect cannot be remedied at this stage even by impleading Mendiratta himself as a plaintiff as held in the case of 2nd Vol. 1 Mad. 383. No law to the contrary was cited before me by the learned Counsel for the plaintiff.
16. It must, therefore, be held that plaintiff has no cause of action for filing the present suit which is not maintainable. Both the issues are decided in negative and against the plaintiff.
14. In view of the aforesaid clear position in law, the plaintiff has no cause of action to file the present suit and, therefore, the suit is liable to be dismissed on Page 32 of 48 Sanjay Chiripal Vs. T.R.Kapoor & Anr. this ground alone. There is no necessity for me to examine the decisions cited by the learned Counsel for the plaintiff for quantification of the damages for defamation, namely:
1) Khair-ud-Din v. Tara Singh and Anr. AIR 1927 Lahore 20;
2) (Goginoni)Venkatappayya v. (Yerramneni) Ramakristnamma and Ors. ;
3) Bala Ram v. Sukh Sampat Lal and Ors. ; and
4) Ajay Aggarwal v. Vinod Mehta and Ors. .
This is so because the essential ingredient that the purported defamatory statements have a reference to the plaintiff has not been established. That being the case, there is no question of any injury having been caused to the plaintiff's reputation and, therefore, the consequential consideration on the question of damages does not arise at all.
15. In these circumstance, the suit is dismissed. No order as to costs."
f) 2002 III AD (Delhi) 859 titled as Punjabi Bagh Cooperative Housing Society Limited Vs. Shri K.L. Kishwar & Anr., in this case it has also been observed that :-
"15. Viewed in this legal perspective, I think the alleged defamatory statements made by the defendants in their various communications/petitions to the plaintiffs or to the Joint Registrar or other authorities having control over the aforesaid Society fall in the category of privileged communications and no action for defamation will be maintainable. The defendants who were members of the Society had the right and duty to complain to the office bearers of the society and concerned authorities under the law against the mismanagement of affairs/funds of the Society and vice-a-versa, the office bearers and authorities having control over the Society were obliged/entitled to entertain such complaints and look into them. The reciprocity of interest/obligation is thus manifest. Obvious conclusion, therefore, is that allegation/statement contained in such communications, petitions/complaints are privileged. They can not be made the basis of an action for damages for defamation. This suit, therefore, is not maintainable, under the law.
16. In the result, IA. No. 3298/95, under Order 7 Rule 11 CPC (d) filed by the defendant No. 2 is allowed and the pliant is rejected as the suit is barred by law as discussed above.
17. Suit as well as the I.A. stand disposed of."Page 33 of 48 Sanjay Chiripal Vs. T.R.Kapoor & Anr.
On the strength of the aforesaid citations and submissions ld. Counsel for the defendant no.2 submitted that the suit of the plaintiff is liable to be dismissed with heavy costs being based on false, frivolous and concocted facts without any merit, in the interest of justice.
43. My issue wise findings are as under:-
Issue no.1: Whether the articles published in July, 2007 and December, 2007 by defendant no.1 are defamatory qua the plaintiff? OPP Onus to prove this issue was upon the plaintiff. In this regard plaintiff has deposed that defendant No.1 had published one article in December 2007 edition of the Magazine "Mercantile Samachar"
to blemish / tarnish the reputation, honour and prestige of the plaintiff and by such defamatory words in the magazine, he has lowered the reputation of the plaintiff in the society and public. It has further been deposed that the defamatory words published in the aforesaid magazine were knowingly and willfully published in connivance with both the defendants. Plaintiff served one legal notice dated 02.02.2008 to the defendant No.1 and copies of the same were also delivered to the Chairman and Secretary, Press Council of India, Lodhi Road, New Delhi. The defendant No.1, in relation to the aforesaid legal notice dated 02.02.2008, affixed another article which was already published in July 2007 Edition of the aforesaid magazine at the conspicuous places of the society Page 34 of 48 Sanjay Chiripal Vs. T.R.Kapoor & Anr. and also circulated the same amongst the members of the society and in it, more defamatory remarks were also published by naming the plaintiff, only to harm his reputation and lower down his dignity in the society. In pursuance to the aforesaid act of the defendants, plaintiff got issued another legal notice dated 25.02.2008 to both the defendants and it was specifically mentioned by the plaintiff in the aforesaid legal notice to tender unconditional written apology.
In February 2008 edition, defendant No.1 instead of publishing an apology, published one corrigendum. Thus, the defendant No.2 defamed the plaintiff by writing defamatory words against the plaintiff to different government authorities. In one of the letters dated 16.04.2007 sent to the Office of Registrar of Cooperative Societies, the defendant No.2 defamed the plaintiff by publishing the said letter containing the defamatory words. The defendant No.2 also issued another letter dated 30.04.2007 which was addressed to Shri Raj Kumar Chauhan, the then Minister of Cooperatives & Development by using defamatory words and language against the plaintiff. Letters dated 16.04.2007 Ex.CW1/15 and 30.04.2007 have been got exhibited as Ex.CW1/16.
44. On the other hand, Ld. Counsel for defendant No.1 has argued that plaintiff has merely got admitted in his cross-examination about the existence of publication, which does not go to prove that the same are defamatory statement in order to prove the articles as Page 35 of 48 Sanjay Chiripal Vs. T.R.Kapoor & Anr. defamatory. The basic requirement under the law is that the alleged statement is false, whereas the plaintiff has not adduced any evidence neither in his chief nor in the cross-examination of the defendant no.1 that the said statements were false and defamatory.
45. Ld. Counsel for defendant No.2 has argued that in the cross examination of PW-1, plaintiff / PW-1 has admitted that the defendant no.2 has not written the letter dated 16.04.07 of his own rather the same was written in response to comments sought by RCS of the society on the basis of letter given by plaintiff to the office of RCS. PW-1 Sanjay Chiripal further admitted during the course of his cross examination that defendant No.2 G.S. Saini had written the letter dated 16.04.2007 being the President of Riviera Apartment and being the President of the society and not in his personal capacity.
46. PW-1 / Plaintiff further admitted during the course of his cross examination that letter dated 30.04.2007 was also written by the defendant no.2 being the President of the society and on behalf of the society. He further admitted in the cross examination that the defendant no.2 had written letter dated 30.04.2007 after writing the letter dated 18.04.2007.
47. However, I am not in agreement with the contentions of the Ld. Counsels for the defendants. Defendant No.1 is the founder, publisher, managing editor and editor of the magazine Page 36 of 48 Sanjay Chiripal Vs. T.R.Kapoor & Anr. "MERCHANTILE SAMACHAR". In view of aforesaid discussions, it is clear that defendant No.1 in connivance with defendant No.2 had got published in the aforesaid magazine, "MERCHANTILE SAMACHAR", in July 2007 & December 2007 edition remarks, which are defamatory in nature which harm the reputation and lower the dignity and reputation and prestige of the plaintiff. The citations relied upon by ld. Counsel for defendants do not come to their rescue. Hence, the issue No.1 is decided in favour of the plaintiff and against the defendants.
ISSUE No.2 Whether the letters dated 16.04.2007 and 30.04.2007 written and published by defendant no.2 are defamatory qua the plaintiff? OPP
48. Onus to prove this issue was on the plaintiff. Plaintiff has argued that defendant No.2 has written and published per se defamatory words and imputations against the plaintiff in the two letters dated 16.04.2007 (Ex.CW1/15) and 30.04.2007 (Ex.CW1/16)., in which specific name of the plaintiff with his flat number/address has been. The aforesaid two letters were written to Registrar Cooperative Societies, Parliament Street, New Delhi and Shri Raj Kumar Chauhan, Hon'ble Minsiter of Cooperatives and Development, Govt. of NCT of Delhi. Plaintiff has further argued that defendant No.2 has admitted on various occasions during the trial that the two letters dated 16.04.2007 and 30.04.2007 pertain to Page 37 of 48 Sanjay Chiripal Vs. T.R.Kapoor & Anr. the plaintiff. The per se defamatory words, imputations and allegations and reckless allegations against the character the Plaintiff that have been levied against the Plaintiff in the letter dated 16.04.2007 by Defendant No.2:-
"Mr Sanjay Chiripal is being encouraged by your office because of which he is disturbing and harassing the Society and its members as well as your good office too by writing and raising irrelevant and frivolous issues so as to disturb the smooth working of the Society.
You may kindly go through the long series of letters from Mr.Sanjay Chiripal and our replies thereof given from time to time. He has no work apart from doing some share & satta business and is all the time roaming around the Society building night and day.
It can be seen that he is a confused and mentally disturbed and does not believe in community living."
49. Similarly, in the Letter dated 30.04.2007, which is Ex.CW1/16, was written and published by Defendant No.2 to Shri Raj Kumar Chauhan, Hon'ble Minsiter of Cooperatives and Development, Govt. of NCT of Delhi), thereby narrating defamatory words, imputations and allegations and reckless allegations against the character of the Plaintiff , as under :
" a. For the kind information of your honour, Shri Sanjay Chiripal is not only a short-tempered person but he is highly vocipherous, a hard litigant and lacks sense of community living.
b. Interestingly, right from the day Page 38 of 48 Sanjay Chiripal Vs. T.R.Kapoor & Anr. Shri Sanjay Chiripal has moved into his flat No. N-1 since the year 2004, he started to be proving a liability to the society by creating one problem for the Society after another.
c. First of all Shri Sanjay Chiripal encroached upon the common land of the Society by constructing an illegal structure on the ground floor of his flat despite repeated objections of the society, which structure was subsequently demolished by MCD on 10.05.2006 consequent upon a case filed by the Society in the Tis Hazari Court against Shri Sanjay Chiripal and the M.C.D. d. However, rather than gracefully honouring the verdict in the matter of encroachment, Shri Sanjay Chiripal again encroached illegally upon the same common land of the Society for which the society had to move again to court against him and the MCD and file a suit recently which is pending before the court of Shri Brajesh Garg at Tis Hazari Courts.
e. Your honour will kindly appreciate that the resistance made by the Society to the repeated attempt of illegal construction and encroachment by Shri Sanjay Chiripal has antagonized him so much that he has made it a point to make false, frivolous and baseless complaints against the Society before the RCS and file false cases before various courts of law including Consumer Courts.
f. In the light of what has been explained above, your honour is requested to note that all the allegations made by the complainant Shri Sanjay Chiripal are false and wrong and all the points issues raised by him are irrelevant, bogus and baseless.
g. Shri Sanjay Chiripal is also making serious attempts to prevent fresh elections to the society declared for 20.5.2007 under one pretext or another which please note."
Page 39 of 48 Sanjay Chiripal Vs. T.R.Kapoor & Anr.
50. The plaintiff has further argued that the defendant No.2 has admitted that the defendant no.2 had not written the letter dated 16.04.2007 of his own rather the same was written in response to comments sought by RCS from the society on the basis of letter given by the plaintiff to the office of RCS. However, he has denied the suggestion that defendant no.2 has given the words to the feelings of members and residents of the society.
51. Plaintiff has further argued that the defendant Sh. G.S.Saini has admitted that the letter dated 16.04.2007 was written by him to Asstt. Registrar (North) office of RCS in response to their letter bearing No. AR/N/694-695 dated 09.04.2007 pertaining to some complaints given by plaintiff to the office of RCS and the letter dated 30.04.07 was written by him to Sh.Raj Kumar Chauhan, the then Hon'ble Minister of Co-operative & Developments in pursuance to letter dated 08.04.2007 given by the plaintiff against expulsion notice dated 16.04.2007 issued by the society due to his non- payment of society's dues. However, he admitted that he has never written any letter in his individual capacity or suo moto rather he has given those letters dt. 16.04.07 and 30.04.07 in pursue to letters/complaints issued by the plaintiff to the office of RCS and to Sh.Raj Kumar Chauhan, the then Hon'ble Minister of Co-operatives & Developments. He had also admitted that he had no intention to malign the image and reputation of the plaintiff while writing the Page 40 of 48 Sanjay Chiripal Vs. T.R.Kapoor & Anr. letter dated 16.04.2007 and 30.04.2007 which were written by him in official capacity being the President of the Society and no damage by virtue of said letters dated 16.04.07 and 30.04.07.
52. In view of the aforesaid discussions, it is clear that the letters dated 16.04.2007 and 30.04.2007 were written by the defendant No.2, which are defamatory qua the plaintiff. Therefore, issue No.2 is decided in favour of the plaintiff and against the defendants. ISSUE No. 3 Whether the plaintiff is entitled to damages from defendant No.1 & 2 ? If so, to what amount ? OPP.
53. In view of my findings on issue No.1 & 2, this issue is decided in favour of the plaintiff and against the defendants. So long as quantum of damages is concerned it is noted that the society in this case has not been made party, which impacts the quantum of damages as the Defendant no.1, who happens to the President of Society and was not only acting as in his individual capacity but inseparably on behalf of the society as well, which is a body corporate. Therefore, the quantum of damages certainly invite the liability of society. Since society has not been made as a party therefore, the quantum of damages is to be ascertained keeping this fact in mind.
ISSUE No. 4 Whether the plaintiff is entitled to a decree of perpetual Injunction against both the defendants ? OPP.
54. Onus to prove this issue was on the plaintiff. The plaintiff has prayed for a restraint order against the defendants not to write any Page 41 of 48 Sanjay Chiripal Vs. T.R.Kapoor & Anr. defamatory letters or publish any defamatory articles against him. Perusal of the record reveals that both the defendants have given the statement in this regard on 04.03.2011 that they undertake not to write any defamatory letter to any Organization, Government Authority or publish any article against the plaintiff in the magazine, "Mercantile Samachar" or in any other Magazine. In view of the statements of the defendant No.1 & 2 made on 04.03.2001, they are hereby restrained not to write any defamatory letter to any Organization, Government Authority or publish any article against the plaintiff in the magazine, "Mercantile Samachar" or in any other Magazine. Hence, this issue is decided in favour of the plaintiff and against the defendants.
ISSUE No. 5 Whether the suit is bad for non-joinder of necessary parties ? OPD.
55. Onus to prove this issue was on the defendants. Plaintiff has argued that none of the defendants have brought on record to show as to how the suit is bad for non-joinder of necessary parties. He has further argued that Defendant No.1 is Founder, Publisher, Managing Editor and Editor of magazine MERCHANTILE SAMACHAR and is responsible for the Articles published in July 2007 edition, December 2007 edition and February 2008 edition. He has further argued that Defendant No.2 has written, signed and published the two letters dated 16.04.2007 and 30.04.2007, which Page 42 of 48 Sanjay Chiripal Vs. T.R.Kapoor & Anr. has been admitted by him on various occasion during trial. He has further argued that defendant No.2 has taken a preliminary objection at s.no. 6 of his written statement that the Society is Riviera Apartments O.C.H.S.Ltd., and it has not been impleaded as a necessary party in the array of necessary parties. He has further argued that both the letters have been signed, written and published by Defendant No.2 as the President of the Society and not the society. It is Defendant No.2 who alone is responsible for the publication of the two letters. Society has no mind of its own. The society acts through its Office Bearers. The two letters dated 16.04.2007 and 30.04.2007 have been written and published by Defendant No.2 himself and not the society. Defendant No.2 in guise of being the President of the Society made scurrilous and reckless attack on the character and mental health of the Plaintiff and harmed the reputation of the Plaintiff. Plaintiff has further argued that defendant No.2 went beyond his authority to comment on personal behaviour and conduct of the plaintiff in his letter dated 16.04.2007 addressed to the Office of the Registrar Cooperative Societies. Plaintiff has further argued that defendant No.2 was the President of a society which is a cooperative group housing society and which is association of members. Each and every member of the society has a direct interest in all the affairs and share in all the assets, funds and properties of the society. The society has not published the letters. It is Defendant No.2 who has published the letters. He has further argued that he has rightly made Defendant Page 43 of 48 Sanjay Chiripal Vs. T.R.Kapoor & Anr. No.1 and Defendant No.2 as the Defendants.
56. On the other hand, Ld. Counsel for defendant No.2 has argued that From the bare perusal of the cross examination of PW-1 Sh.Sanjay Chiripal conducted by the counsel of defendant no.2 it is crystal clear that the defendant no.2 did not write any letter suo moto or in his individual capacity rather both the letters dated 16.04.2007 and 30.04.2007 were written by the defendant no.2 being the President of the Riviera Apartment OCHS Ltd., hence the suit of the plaintiff was not maintainable without impleadment of society in the array of memo of parties.
57. In view of the aforesaid discussions, I do not find any merit in the aforesaid issue as the plaintiff has rightly made the defendant No.1 & defendant No.2 as a necessary party and none else has been made as a party by the plaintiff. The non-joinder of society as a party impacts this issue but the individual acts of defendants can not be overlooked as well. Hence, the issue is decided in favour of the plaintiff and against the defendants.
ISSUE No.6 Whether the articles published by defendant No.1 amount to a privileged communication ? OPD
58. Onus to prove this issue was on the defendant. Defendant No.1 has argued that in order to prove the privileged Page 44 of 48 Sanjay Chiripal Vs. T.R.Kapoor & Anr. communication, the two essential ingredients are that the statement is proved by the plaintiff to be untrue and the other thing is that the publication is a result of malice. He has further argued that the plaintiff has grossly failed to prove that the said statement are untrue and no act on the part of the defendant no.1 has been shown to be done out of malice by the plaintiff. It has been observed by the Hon'ble High Court of Delhi, in case, titled as, "TATA SONS LIMITED VS. GREENPEACE INTERNATINOAL & ANR." reported as "178 (2011)DLT 705" that :
"the right of free speech is one which it is for the public interest that individuals should possess and....Until it is clear that an alleged libel is untrue, it is not clear that any right at all has been infringed; and the importance of leaving free speech unfettered is a strong reason in case of libel for dealing most cautiously and warily..." It is submitted that every citizen has a right to express his honest opinion about the correctness and consequences of the acts engaged in matters of public interest. The defendants' statements are honest with justifiable reason and there is nothing in their conduct which demands action. It is submitted that the freedom of speech and expression guaranteed under the Constitution of India is without any restrictions and override and render irrelevant the rights and immunities that may be available to any person under any other law and therefore the plaintiff having not proved his case is not entitled to any relief."
59. On the other hand, plaintiff has argued that defendant No.1 is the founder publisher, managing editor and editor of magazine Merchantile Samachar. He has further argued that defendant No.1 has neither pleaded nor placed anything on record that to show that the article published in July 2007 edition of magazine Merchantile Samachar is covered under absolute privilege or qualified privilege. Further, editors and publishers do not enjoy any kind of special privilege. Section 1 (1) of the Press and Registration Act, 1867 Page 45 of 48 Sanjay Chiripal Vs. T.R.Kapoor & Anr. defines "EDITOR" as a person who controls the selection of the matter that is published in a newspaper. In view of provisions of Press and Registration Act, 1867, particularly section 7 unless the contrary is proved, the persons declared as Printer, Publisher and Editor of the newspaper are presumed to be responsible for the contents of the newspaper and enjoy no special privilege.
60. Having gone through the submissions of both the parties on issue no.6 and having perused the aforesaid citation, I am of the view that since Letters dated 16.04.2007 Ex.CW1/15 and 30.04.2007 Ex,CW1/16 have been written & published by Defendant No.2, the then President/Office Bearer of the Society against the Plaintiff/member of the society. The two letters written and published by Defendant No.2/Ex-President pertain to the personal conduct and character of the plaintiff who is a member of the society. Defendant No.2 went upto the extent of calling the plaintiff as a confused and a mentally disturbed person, short tempered, hard litigant, highly vociferous, having no work apart from doing some share and satta business, all the time roaming around the society day and night etc. Therefore, the present case does not fall under any privilege, absolute or qualified. Defendant No.1 is solely responsible for any/all articles published in the magazine "MERCHANTILE SAMACAHAR". It is a settled law that journalists do not enjoy any special privilege and have no greater freedom than others to make any imputations or allegations, Page 46 of 48 Sanjay Chiripal Vs. T.R.Kapoor & Anr. sufficient to ruin the reputation of a citizen. Further journalists are in no better position than any other person. The press does not enjoy any exclusive rights under our Constitution apart from those enjoyed by a citizen as a concomitant of the freedom of speech and rights against unlawful deprivation of life and liberty guaranteed under Articles 19 and 21 of the Constitution. The press enjoys no special privileges to comment, criticize or even to investigate the facts of any case. The rights of press persons are not higher than that of the common man. In fact the responsibilities of a journalist are higher. The common man has limited means and reach in which he acts. A journalist on the other hand has a wider reach and power to disseminate information and therefore such power has the potential to cause irreparable damage to a matter under enquiry in a court of law or in a given case has greater propensity to scandalize or diminute the dignity, majesty or reputation of an individual or an institution. He has further argued that neither absolute nor qualified privilege has been pleaded by defendant No.1 for publication of July 2007 article wherein per-se defamatory words, allegations and imputations have been written and published by Defendant no.1 against the Plaintiff. Hence, in light of the above discussion, I am of the view that this issue goes in favour of plaintiff and against the defendants.
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RELIEF
61. In view of the aforesaid discussion and observation given on each and every issue, I am of the view that ends of justice shall be met if the damages are awarded as symbolic damages to the tune of Rs.30,000/- to the plaintiff to be paid by defendant no.1 and further symbolic damages of Rs.20,000/- to the plaintiff to be paid by defendant no.2.
A decree of permanent injunction is also passed in favour of the plaintiff and against the defendant No.1, thereby restraining him from publishing any defamatory articles against the plaintiff. The defendant No.2 is also restrained from writing any defamatory words / letters against the plaintiff to any government authority except in accordance with law. However, under the present circumstances of the case, both the parties shall bear their own cost.
62. Decree-Sheet be prepared accordingly and file be consigned to Record Room.
Announced in the Open Court on this 17th day of July, 2017 (RAJ KAPOOR) ADDL. DISTRICT JUDGE-02 CENTRAL DISTRICT, TIS HAZARI, DELHI Page 48 of 48 Sanjay Chiripal Vs. T.R.Kapoor & Anr.