Gauhati High Court
Dr Keshari Chand Goel vs Sri Dinesh Kr Agarwal And 4 Ors on 2 May, 2019
Author: Suman Shyam
Bench: Suman Shyam
Page No.# 1/6
GAHC010002302017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : FAO 10/2018
1:DR KESHARI CHAND GOEL
R/O B-01, MAHESH APARTMENT, VASUNDHARA ENCLAVE, DELHI 96,
HAVING CLINIC AT GOEL POLYCLINIC 2/56-57, MAIN BUS STOP,
KHICHARIPUR, DELHI 91, PH. 9871728296 AND 9818508093
VERSUS
1:SRI DINESH KR AGARWAL and 4 ORS
R/O CULTACHERRA TEA ESTATE, KATLICHERRA, P.O. AND P.S.
KATLICHERRA, DIST. HAILAKANDI, ASSAM, PIN 788151
2:SRI RAJENDRA KR. AGARWAL
R/O CULTACHERRA TEA ESTATE
KATLICHERRA
P.O. AND P.S. KATLICHERRA
DIST. HAILAKANDI
ASSAM
PIN 788151
3:SAMIR AGARWAL
R/O CULTACHERRA TEA ESTATE
KATLICHERRA
P.O. AND P.S. KATLICHERRA
DIST. HAILAKANDI
ASSAM
PIN 788151
4:SRI SUMIT KUMAR AGARWAL
R/O CULTACHERRA TEA ESTATE
KATLICHERRA
P.O. AND P.S. KATLICHERRA
DIST. HAILAKANDI
Page No.# 2/6
ASSAM
PIN 788151
5:SRI VISHAL KUMAR AGARWAL
R/O CULTACHERRA TEA ESTATE
KATLICHERRA
P.O. AND P.S. KATLICHERRA
DIST. HAILAKANDI
ASSAM
PIN 78815
Advocate for the Petitioner : MR. D MOZUMDER
Advocate for the Respondent : MR. B. DUTTA (R1-R5)
BEFORE
HONOURABLE MR. JUSTICE SUMAN SHYAM
ORDER
Date : 02-05-2019 Heard Mr. D. Mazumder, learned Sr. counsel assisted by Mr. S. Biswas, learned counsel for the appellant. I have also heard Mr. B. Dutta, learned counsel assisted by Mr. S. Deka, learned counsel appearing for the respondents.
2. This appeal, preferred under Order XLIII Rule 1(r) of the CPC, is directed against the order dated 16-08-2017 passed by the court of learned Civil Judge, Hailakandi in connection with Misc. (J) Case No. 48/2017 arising out of Money Suit No. 07/2017 whereby the court below had issued an order of temporary injunction restraining the appellant from making or publishing any defamatory allegation against the respondents herein during the pendency of the money suit.
3. The facts of the case, in a nutshell, are that there is a property dispute between the appellant and the respondents who belong to the same family. The respondents as plaintiffs Page No.# 3/6 have instituted Title Suit No. 16/2017 before the court of Civil Judge, Hailakandi praying for a decree declaring that the appellant herein, i.e. the defendant in the suit does not have any share in the ancestral property. The respondents had also instituted Money Suit No. 07/2017 against the appellant as defendant before the court of learned Civil Judge, Hailakandi, inter alia, praying for a money decree for Rs. 5,00,00,000/- (five crores) as damages and compensation on account of tarnishing the goodwill and reputation of the plaintiffs/ respondents and also for causing pain, agony and mental sufferings to them. In the said money suit, the respondents had also filed Misc. (J) Case No. 48/2017 seeking an order of temporary injunction. It appears from the record that the appellant had earlier circulated a number of representations before the various authorities including the Hon'ble Prime Minister of India, Hon'ble Finance Minister and other Government authorities including banks and financial institutions, inter alia, alleging that the respondents have made an attempt to deprive the appellant from the ancestral property by forging documents. According to the respondents/ plaintiffs, circulation of such letters/ representations had lowered the image and reputation of the plaintiffs/ respondents in the eye and estimation of the public. As such, the suit for damages and compensation for causing defamation of the plaintiffs/ respondents together with the application for temporary injunction.
4. Mr. Mazumder, learned Sr. counsel for the appellant submits that the learned Trial Court has not recorded any finding as regards existence of the three ingredients, viz. prima facie case, balance of convenience and irreparable loss before issuing the order of temporary injunction restraining the appellant/ defendant from making any defamatory statement. Contending that the representation submitted by his client before the various authorities was with a view to apprise them about the true facts pertaining to the misdeeds of the plaintiffs Page No.# 4/6 and therefore, the same cannot be said to be defamatory, Mr. Mazumder submits that the truthfulness of such allegation is a matter that can be ascertained only during the trial of the money suit.
5. Responding to the aforesaid arguments, Mr. Dutta, learned counsel for the respondents submits that if the appellant had any grievance against the documents relied upon by the plaintiffs then in that event, he ought to have challenged the same before the court of law. But instead of doing so, the appellant has gone on circulating letters making wild and baseless allegations against his clients with a view to damage their reputation in the market. Since the plaintiffs/ respondents are businessman by profession, circulation of such letters containing defamatory materials would certainly cause loss and injury to the interest of the plaintiffs. To such extent, submits Mr. Dutta, the order of temporary injunction is justified in the facts and circumstances of the present case, and hence, does not call for any interference by this Court.
6. I have considered the submission made by the learned counsel for the parties and have gone through the materials available on record. The case projected in the plaint filed in Money Suit No. 07/2017 is that the defendant had filed a complaint based on which Katlicherra P.S. Case No. 79/2016 was registered making allegation of forgery against the plaintiffs, but on completion of the investigation, the Police has submitted Final Report due to want of evidence supporting the allegation of cheating an forgery made against the plaintiffs. It has also been stated in the plaint that by addressing letters to different Govt. and Semi- Govt. authorities, the defendant has made false allegations against the plaintiffs alleging that the plaintiffs have wrongfully taken over the title of the Tea Estate which forms a part of the family property. It has also been mentioned that the plaintiffs in collusion with the Bank Page No.# 5/6 officials, by forging documents, have withdrawn huge sums of money from the Bank account standing in the name of Ramawatar Agarwal, i.e. the predecessor-in-interest of both the parties.
7. Taking note of such statement made in paragraph 15 of the plaint, the learned Trial Court has issued the order of temporary injunction. However, from a perusal of the impugned order dated 16-08-2017, I do not find any finding of the learned Trial Court as to which statement made by the defendant has been found to be defamatory for the purpose of issuing the order of temporary injunction. That apart, there is also no finding recorded by the learned Trial Court as regards the existence of prima facie case, balance of convenience and/ or the question of irreparable loss justifying the issuance of the order of temporary injunction. An order of temporary injunction imposing a blanket ban on the freedom of speech and expression of any individual guaranteed under Article 19(a) of the Constitution of India ought not to be issued by the court without recording a proper and valid reason. As such, I am of the considered opinion that the order dated 16-08-2017 is vitiated by non-application of mind and hence, is liable to be set aside by this Court. It is, however, also to be born in mind that even if there is a dispute pending between the members of the family over shares in ancestral property, one of the family members cannot be permitted to circulate letters containing derogatory comments against the others in furtherance of his claim on the family property without taking recourse to the due process of law.
8. Circulation of various letters by the appellant has not been denied. A specific query was, therefore, made by this Court as to the purpose behind circulating such letters. Responding to the same, Mr. Mazumder could not give any convincing answer as to why his client had to circulate letters before the Govt. authorities instead of approaching the Page No.# 6/6 competent court of law seeking redressal of his grievance, if any, especially when the matter complained of fell in the realm of a civil dispute triable by a civil court of competent jurisdiction. Mr. Mazumder, learned Sr. counsel for the appellant has, however, given an undertaking before this Court on behalf of his client, to the effect that the appellant would refrain from circulating or submitting any such materials in future, either orally or in writing, making any allegation against the respondents pertaining to the family property dispute, save and except, approaching the competent forum for redressal of his grievance in accordance with law.
Taking note of the submission made by the learned counsel for the parties, more particularly, the undertaking given by Mr. Mazumder, I dispose of this appeal by setting aside the impugned order dated 16-08-2017. It is, however, made clear that any violation of the undertaking given by the learned Sr. counsel appearing for the appellant would be viewed seriously and appropriate action in that regard will be initiated, if and when the occasion arises.
JUDGE GS Comparing Assistant