Himachal Pradesh High Court
Indresh Dhiman vs Hindustan Times And Others on 7 March, 2019
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
OMP Nos. 388 and 394 of 2017 in Civil
Suit No. 26 of 2017
.
Date of decision: 7.3.2019
Indresh Dhiman. ...Plaintiff/non-applicant.
Versus
Hindustan Times and others. ...Defendants/applicants.
Coram
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1 Yes.
For the Plaintiff/Non-applicant: Mr.Bhuvnesh Sharma, Advocate.
For the Defendants/Applicants: Mr.Pranay Pratap Singh, Advocate, for
applicants No. 1 and 2.
Mr.B.R. Verma, Advocate, for
defendant No. 4.
Mr.Vikrant Thakur and Mr.Sushant Vir
Singh, Advocates, for defendant No. 5.
Vivek Singh Thakur, Judge (oral)
Main suit, in present case, has been filed for damages on account of acts of misfeasance, malfeasance and nonfeasance on account of false and malicious printing and publishing of defamatory material by the defendants against the plaintiff in their respective newspaper/news channel on various dates in the month of January, 2014.
2. Applications, being decided vide this common order, have been filed by defendants No.1 and 2 under Order 7 Rule 11 of the Code of Civil Procedure (herein after referred to as 'CPC' for short), before filing but reserving right to file written statement, on the ground that the suit is barred by provisions of Limitation Act, 1963 and thus plaint is liable to be rejected, for the reason that the publication, alleged to be defamatory, by which plaintiff is aggrieved, was published on 14.1.2014, whereas, present suit has been filed Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 11/03/2019 21:59:10 :::HCHP 2 OMP Nos. 388 and 394 of 2017 on 7.1.2017 after expiry of limitation period, as prescribed under Article 75 of Limitation Act.
3. In reply to these applications, there is denial simplicitor to the .
averments made in the applications with further assertion that suit is well within the period of limitation.
4. As per para 22 of the plaint, cause of action against defendants No. 1 to 3, defendants No. 4 and No. 5 and defendant No. 6 arose in favour of plaintiff respectively on 14.1.2014, 10.1.2014 and 9.1.2014, when news items were published/telecasted in respective newspaper/news channel related to these defendants and also on 22.2.2015 when Investigating Officer had filed report of cancellation of FIR No. 5 of 2014 lodged by complainant Bindiya Rani, on the basis of which news item was published/telecasted and also on 9.11.2015 when concerned Judicial Magistrate accepted the cancellation of FIR and it is further averred that cause of action is still continuing in favour of plaintiff and against the defendants, as till date plaintiff has been facing consequences of false and malicious publication/telecasting of news against him.
5. It is contended on behalf of non-applicant/plaintiff that there is nonfeasance, malfeasance and misfeasance on the part of defendants for their act and conduct as clean chit given by the Court in favour of plaintiff has not been published, whereas they have willfully published the news item on the basis of intentional incorrect action or advise and the publication/telecasting was willful and intentional action, causing injury to the plaintiff. It is further contended that limitation is a mixed question of fact and law, which is to be decided along with other issues. Reliance has been placed on a judgment passed by Full Bench of this High Court in Prithvi Raj Jhingta and another Vs. Gopal Singh and another 2006(2) Shim.LC 441 and pronouncement of the Apex Court in Ramesh B. Desai and others Vs. ::: Downloaded on - 11/03/2019 21:59:10 :::HCHP 3 OMP Nos. 388 and 394 of 2017 Bipin Vadilal Mehta & others AIR 2006 SC 3672. Further reliance has also been placed on unreported judgment of the Apex Court passed in Balasaria Construction Pvt. Ltd. Vs. Hanuman Seva Trust & others, Civil appeal .
No. 4539 of 2003, decided on 4.11.2005.
6. Learned counsel for the applicants/defendants has submitted that Article 75 of the Limitation Act provides that a suit for compensation for libel, has to be filed within one year from the date of publication of libel and there is no other provision for extension of limitation period provided under Article 75 of the Limitation Act and keeping in view the language of Article 75 of Schedule of Limitation Act, there can be no continuous cause of action with respect to publication of defamatory material on one date and Section 22 of the Limitation Act, providing extension of period of limitation for continuing breach and torts, is not applicable in present case. Reliance has been placed upon the pronouncement of Delhi High Court in case N.N.S Rana Vs. Union of India and others, RFA No. 757 of 2010, decided on 16.9.2011 and Khawar Butt Vs. Asif Nazir Mir & others, CS (OS) No. 290 of 2010, decided on 7.11.2013.
7. Plea of non-applicant/plaintiff that issue of limitation is to be decided along with other issues involved in the suit is based upon the judgment of Full Bench passed by this High Court in Prithvi Raj Jhingta's case, wherein provisions of Order 14 Rule 2 CPC providing to pronounce the judgment by the Court on all issues, has been explained. Rule 2 of Order 14 C.P.C. reads as under:-
"2. Court to pronounce judgment on all issues.--(1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues.
(2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be ::: Downloaded on - 11/03/2019 21:59:10 :::HCHP 4 OMP Nos. 388 and 394 of 2017 disposed of on an issue of law only, it may try that issue first if that issue relates to--
(a) the jurisdiction of the Court, or
(b) a bar to the suit created by any law for the time being in .
force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue."
8. In Prithvi Raj Jhingta's case, it has been held as under:-
"9. Based upon the aforesaid reasons therefore, and in the light of legislative background of Rule 2 of the legislative intent as well as mandate based upon such background, as well as on its plain reading, we have no doubt in our minds that except in situations perceived or warranted under sub-rule (2) where a Court in fact frames only issues of law in the first instance and postpones settlement of other issues, under sub-rule (1), clearly and explicitly in situations where the Court has framed all issues together, it is not open to the Court in such a situation to adopt the principle of severability and proceed to decide issues of law first, without taking up simultaneously other issues for decision. This course of action is not available to a Court because sub-rule (1) does not permit the Court to adopt any such principle of severability and to dispose of a suit only on preliminary issues, or what can be termed as issues of law. Sub-rule (1) clearly mandates that in a situation contemplated under it, where all the issues have been framed together and have also been taken up for adjudication during the course of the trial, these must be decided together and the judgment in the suit as a whole must be pronounced by the Court covering all the issues framed in the suit."
9. From the aforesaid findings returned by the Full Bench, it is unambiguously clear that in a situation where the Court frames only issue under sub-rule (2), related to the jurisdiction of the Court or a bar to the suit created by any law for the time being in force and postpone the settlement of other issues under sub-rule (1) of Order 14 Rule 2, the Court is empowered to deal and determine that suit in accordance with the issues so framed under sub-rule (2) instead of pronouncing the judgment on all issues.
::: Downloaded on - 11/03/2019 21:59:10 :::HCHP 5 OMP Nos. 388 and 394 of 201710. From perusal of judgment in Prithvi Raj Jhingta's case, it is evident that the situation involved in that case is not similar to the present case. In that case the Full Bench, dealing with a situation where all the issues .
were framed together and were also taken up for adjudication during the course of the trial, has held that all issues framed and adjudicated must be decided together and the judgment in the suit as a whole must be pronounced by the Court covering all such issues. In present case that situation has not arrived yet. Some of defendants have preferred to file written statement, whereas applicants/defendants No. 1 and 2, before filing the written statement, have opted to file present applications under Order 7 Rule 11 CPC.
11. Order 7 Rule 11 CPC reads as under:-
"11. Rejection of plaint.---The plaint shall be rejected in the following cases:--
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provisions of rule 9;"
12. The Apex Court in Popat and Kotecha Property Vs. State Bank of India Staff Association (2005) 7 SCC 510, while dealing with the ambit and scope of order 7 Rule 11 CPC has held that the law ostensibly does not contemplate any stage when the objections can be raised and also does not say in express terms about the filing of a written statement and instead the word 'shall' is used clearly implying thereby that it casts a duty on ::: Downloaded on - 11/03/2019 21:59:10 :::HCHP 6 OMP Nos. 388 and 394 of 2017 the Court to perform its obligations in rejecting the plaint when the same is hit by any of the infirmities provided in the four clauses of Rule 11, even without intervention of the defendant. In the said judgment legal ambit of Order 7 .
Rule 11 CPC has been discussed as under:-
"13. Before dealing with the factual scenario, the spectrum of Order 7 Rule 11 in the legal ambit needs to be noted.
14. In Saleem Bhai Vs. State of Maharashtra (2003) 1 SCC 123 it was held with reference to Order 7 Rule 11 of the Code that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plant. The trial court can exercise the power at any stage of the suit---before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Order 7 Rule 11 of the Code, the averments in the plaint are the germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage.
15. In I.T.C. Ltd. Vs. Debts Recovery Appellate Tribunal (1998) 2 SCC 70 it was held that the basic question to be decided while dealing with an application filed under Order 7 Rule 11 of the Code is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order 7 Rule 11 of the Code.
16. The trial court must remember that if on a meaningful and not formal reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise the power under Order 7 Rule 11 of the Code taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, it has to be nipped in the bud at the first hearing by examining the party searchingly under Order 10 of the Code. (See T. Arivandandam Vs. T.V. Satyapal (1977) 4 SCC 467.)
17. It is trite law that not any particular plea has to be considered, and the whole plain has to be read. As was observed by this Court in Rioop Lal Sathi Vs. Nachhattar Singh Gill (1982) 3 SCC 487 only a part of the plain cannot be rejected and if no cause of action is disclosed, the plaint as a whole must be rejected.
18. In Raptakos Brett & Co. Ltd. Vs. Ganesh Property (1998) 7 SCC 184 it was observed that the averments in the plaint as a whole have ::: Downloaded on - 11/03/2019 21:59:10 :::HCHP 7 OMP Nos. 388 and 394 of 2017 to be seen to find out whether clause (d) of Rule 11 of Order 7 was applicable.
19. There cannot be any compartmentalization, dissection, segregation and inversions of the language of various paragraphs in .
the plaint. If such a course is adopted is would run counter to the cardinal cannon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time it should be borne in mind that no pedantic approach should be adopted to defeat justice on hair-splitting technicalities.
20. Keeping in view the aforesaid principles the reliefs sought for in the suit as quoted supra have to be considered. The real object of Order 7 Rule 11 of the Code is to keep out of courts irresponsible law suits. Therefore, Order 10 of the Code is a tool in the hands of the courts by resorting to which and by searching examination of the party in case the court is prima facie of the view that the suit is an abuse of the process of the court in the sense that it is a bogus and irresponsible litigation, the jurisdiction under Order 7 Rule 11 of the Code can be exercised.
21...... ... ... ....
22...... .... ... ...
23. Rule 11 of Order 7 lays down an independent remedy made available to the defendant to challenge the maintainability of the suit itself, irrespective of his right to contest the same on merits. The law ostensibly does not contemplate at any stage when the objections can be raised, and also does not say in express terms about the filing of a written statement. Instead, the word "shall" is used clearly implying thereby that it casts a duty on the court to perform its obligations in rejecting the plaint when the same is hit by any of the infirmities provided in the four clauses of Rule 11, even without intervention of the defendant. In any event, rejection of the plaint under Rule 11 does not preclude the plaintiffs from presenting a fresh plaint in terms of Rule 13."
::: Downloaded on - 11/03/2019 21:59:10 :::HCHP 8 OMP Nos. 388 and 394 of 201713. Plea of non-applicant/plaintiff that issue of limitation cannot be decided as an abstract principle of law, divorced from the facts, is based upon the judgment of Apex Court in Ramesh B. Desai's case. The said observation .
in that case has been clarified in para 16, wherein it has been held that in every case the starting point of limitation has to be ascertained which is entirely a question of fact. Referring its pronouncement in Balasaria Construction Pvt. Ltd. case, the Apex Court has quoted that suit in case, under consideration therein, could not be dismissed as barred by limitation without proper pleadings, framing of an issue of limitation and taking of evidence, as in that case, ex facie, on the reading of the plaint it cannot be held that the suit is barred by time. This pronouncement does not propound that even if, ex facie, on reading of plaint, it can be ascertained that the suit is barred by time, the Court is not empowered to exercise its jurisdiction under Order 7 Rule 11 C.P.C, rather it envisages that where from plain reading of the plaint, it can be said to be barred by limitation without addition or substitution anything thereto, the provisions of Order 7 Rule 11 C.P.C. shall be applicable in that case. The observation made in para 25 of Popat and Kotecha Property's case are of the similar nature. Judgment in Balasaria Construction Pvt. Ltd. case also propounds the same ratio of law.
14. Judgment of Delhi High court passed in Khawar Butt's case, relied by applicants/defendants with respect to 'single publication rule', is not applicable in present case, as it is no where the case of the plaintiff that continuous publication was made by defendants.
15. Where something additional is necessary to ascertain, the limitation period, definitely Order 7 Rule 11 CPC shall be not attracted, but in case where on the basis of pleadings in the plaint, but without reference of any material including the plea taken in written statement, the limitation period ::: Downloaded on - 11/03/2019 21:59:10 :::HCHP 9 OMP Nos. 388 and 394 of 2017 can be ascertained in unambiguous terms, order 7 Rule 11(d) CPC shall have to enforceability.
16. Article 75 of part VII of the schedule of the Limitation Act .
provides as under:-
Description of suit Period of limitation Time from which period begins to run
75. For compensation One year When the libel is published.
for libel.
17. Section 22 of the Limitation Act, reads as under:-
"22. Continuing breaches and torts.---In the case of a continuing breach of contract or in the case of a continuing tort, a fresh period of limitation begins to run at every moment of the time during which the breach or the tort, as the case may be, continues."
18. Section 22 of the Limitation Act deals with a situation where defendant(s) continues to commit the tort. In present case, there is no allegation that after publication/telecasting of news item in the month of January, 2014, defendants have continued in publishing/telecasting the news item against the plaintiff. Though it is averred in para 22 of the plaint that cause of action is continuing , but there is no averments in the plaint on the basis of which, it has been claimed that there is continuing tort on the part of defendants after first publication/telecasting by them in January, 2014.
Therefore, Section 22 of the Limitation Act is not applicable. There is no other averment in the plaint entitling the plaintiff for extension of period of limitation provided under Article 75 of the Limitation Act.
19. Article 75 provides one year limitation from the date of publication of libel. Date of publication/telecasting has been specifically mentioned in the plaint as 9.1.2014, 10.1.2014 and 14.1.2014. Date of filing of plaint, as 7.1.2017, is also evident from the record and is undisputed. It is evident from the plain reading of the plaint without any external aid that last date of publication/telecasting of news item was 14.1.2014 and one year ::: Downloaded on - 11/03/2019 21:59:10 :::HCHP 10 OMP Nos. 388 and 394 of 2017 thereafter had elapsed on 14.1.2015. Therefore, suit/plaint has been filed after expiry of one year period provided under Article 75 of the Limitation Act.
Filing of cancellation report in the concerned FIR on 22.2.2015 and .
acceptance thereof on 9.11.2015 by concerned Magistrate, is also of no help to the plaintiff, as these acts are not continuation of tort on the part of defendants and further on this ground there is no provision of extension of limitation period under Article 75 of the Limitation Act. Further even if, date of last cause of action is taken from the cancellation of FIR i.e. 9.11.2015, then also, plaint has been filed on a date beyond one year from 9.11.2015. I am also in agreement with the judgment passed by Delhi High Court in N.N.S. Rana's case.
20. Plea of the plaintiff is that defendants have committed nonfeasance for failure on their part to verify the facts before publication/telecasting of the news item and misfeasance for publication/telecasting of news item on the basis of incorrect action or advise and malfeasance for committing willful and intentional act of publication of news item, causing injury to the plaintiff. As discussed supra, even if, this plea is admitted to be true in toto, it is definitely barred by the provisions of Limitation Act and thus it is hit by clause (d) of Order 7 Rule 11 C.P.C. and therefore, plaint is liable to be rejected.
21. In view of aforesaid discussion, since the suit to claim damages for libel, has not been filed within period of limitation of one year from the date when cause of action arose, i.e. date of publication/telecasting, the suit is barred by limitation. Accordingly the applications are allowed and plaint is rejected.
(Vivek Singh Thakur), th 7 March, 2019 Judge.
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