Calcutta High Court (Appellete Side)
M/S. Mustak Hossain & Ors vs Dr. Akbar Ali Khan on 20 January, 2017
Author: Siddhartha Chattopadhyay
Bench: Siddhartha Chattopadhyay
IN THE HIGH COURT AT CALCUTTA
(CIVIL REVISIONAL JURISDICTION)
(Appellate Side)
C.O. No. 2248 of 2009
M/s. Mustak Hossain & Ors.
-Vs.-
Dr. Akbar Ali Khan
With
C.O. No. 2249 of 2009
M/s. Nishka Properties Pvt. Ltd & Ors.
-Vs.-
Dr. Akbar Ali Khan
With
C.O. No. 2250 of 2009
M/s. Eureka Properties Pvt. Ltd & Ors.
-Vs.-
Dr. Akbar Ali Khan
With
C.O. No. 2251 of 2009
M/s. Subarnarekha Properties Pvt. Ltd & Ors.
-Vs.-
Dr. Akbar Ali Khan
With
C.O. No. 2252 of 2009
M/s. Pataka Industries Pvt. Ltd & Ors.
-Vs.-
Dr. Akbar Ali Khan
With
C.O. No. 2253 of 2009
M/s. Pataka Industries Pvt. Ltd & Ors.
-Vs.-
Dr. Akbar Ali Khan
With
C.O. No. 2254 of 2009
M/s. Pataka Industries Pvt. Ltd & Ors.
-Vs.-
Dr. Akbar Ali Khan
With
C.O. No. 2255 of 2009
M/s. Pataka Industries Pvt. Ltd & Ors.
-Vs.-
Dr. Akbar Ali Khan
With
C.O. No. 2256 of 2009
M/s. Pataka Industries Pvt. Ltd & Ors.
-Vs.-
Dr. Akbar Ali Khan
Present : The Hon'ble Mr. Justice Siddhartha Chattopadhyay
For the Petitioner : Mr. Shaktinath Mukherjee, Sr. Adv.,
Mr. S. P. Roychowdhury, Sr. Adv.,
Mr. Bhaskar Ghose, Sr. Adv.,
Mr. Milon Mukerjee, Sr. Adv.,
Mr. Saptangshu Basu, Sr. Adv.,
Mr. P. C. Motilal, Adv.,
Mr. R. P. Motilal, Adv.
For the Opposite Party : Mr. Syed Nasim Aejaz.
Heard On : 21.09.2016, 22.09.2016.
C.A.V. On : 22.09.2016
Judgment Delivered On : 20.01.2017.
Siddhartha Chattopadhyay, J.:
Challenging the order No.1 dated 17.05.2008 and all subsequent orders including order No.9 dated 17.04.2009 passed by the Civil Judge, Senior Division, 2nd Court Alipore in Money Suit No.340 of 2008, the petitioner has filed this revisional application under Article 227 of the Constitution of India. The petitioner has prayed for quashing of the proceedings of the suit filed by the opposite party/plaintiff bearing Money Suit No. 340 of 2008, as the same is vexatious and frivolous.
2. According to the petitioner, the plaint does not disclose a specific cause of action in its real sense. On the contrary, the plaintiff/opposite party has concealed some vital issues to fetch a favourable order from the Trial Court.
3. Before delving into the merit of the application, the plaint is required to be looked into. According to the plaintiff, he being an I.P.S. Officer held a prestigious post and he also received medal from the President of India. At the relevant point of time, he was Deputy Inspector General of Police (Home guards) West Bengal. Many people of his native place (Ghazipur) reposed trust upon him and gave him a considerable amount in cash in the year 2004 for purchasing landed properties in the name of several persons. He and his wife then contacted a land broker Abdur Rahim Gazi, son of Late Rustam Ali Gazi, for purchasing land in his neighbouring village of Hathisala. The plaintiff's wife, through the plaintiff, had given a huge amount to Abdur Rahim Gazi by instalments in between 25.02.2004 to 01.09.2004 on good faith. But the said Abdur Rahim Gazi, in connivance with the Chairman-cum-Managing Director of the first defendant (who used to be a family friend), and his brother fraudulently and deceitfully used their money by purchasing 76 bighas of land in the names of the three Pvt. Ltd. Companies by investigating Rs.69,70,425/- and also misappropriated the balance amount of Rs.32,79,750/-. Against these so called acts, the plaintiff filed complaint case bearing No.C8738 of 2007 against the first defendant and seven others in September 2007 in the learned Court of C.J.M. Alipore, who in turn, had sent the complaint to the Judicial Magistrate, 8th Court, Alipore for inquiry. The learned Judicial Magistrate concerned had issued summons and pursuant to their summons all the defendants appeared therein and obtained bail. The plaintiff has also filed a suit praying for a declaration that they are the real owners of the landed properties which were fraudulently purchased by the defendants in the names of three Pvt. Ltd. Companies. He was also favoured with an order of status quo in respect of possession of the suit property. The defendant retaliated such act of the plaintiff by publishing a scandalised, mischievous and defamatory advertisement in 'Ananda Bazar Patrika' on 05.03.2008. According to him, the said publication, on behalf of the M/s. Pataka Industries Pvt. Ltd., is defamatory in nature and he has been defamed in the eyes of the people at large. According to him, there was an agreement between the Chairman- cum-Managing Director of the 1st Defendant company i.e. Mustak Hossain, for establishing a public charitable trust for education which was to be named as "Future Freedom Foundation". At the relevant point of time the defendant had an office at Salt Lake and for that reason the present plaintiff applied for registration of a trade mark for the proposed public charitable trust. But the 1st Defendant, after getting a letter from the Registrar of trade marks, improved the said authority in a negative manner and this time he came to know what has been done by the defendant. He admitted that the proposed body "Future Freedom Foundation" never came into existence. The 1st Defendant never intimated the plaintiff about the further development of the registration. As a matter of fact, the plaintiff had requested in writing to the 1st Defendant for getting an information about the advertisement but the 1st Defendant remained as a passive on-looker. According to the plaintiff, the said advertisement made by the defendant is a defamatory advertisement and was intended to wilfully cause damage to his honour and prestige to a great extent. In such circumstances, he had to file the plaint claiming of Rs.20 crores as damages for such defamation.
4. The defendant/petitioner by filing this revisional application contended that in December 2007, he received an envelope which was addressed to M/s. Pataka Industries Pvt. Ltd. On opening the said envelope, he came to know that the present plaintiff had sent a letter to Registrar of Trade Marks, Kolkata seeking registration. On perusal of the said notice it appeared that the said Registrar of Trade Mark of Kolkata had directed him to appear in the hearing which was fixed 29.11.2007. After getting such communication from the said authority, the defendant appeared there and disclosed that they had never applied for registration of any 'Trade mark' in the name "Future Freedom Foundation" nor had given any authorisation to any other person to use their name and address for getting for such trade mark. The defendant became perplexed and in order to protect his name and reputation wrote to the Officer-in-charge of Park Street Police Station and clarified before the police authority by a letter that his company was not at all in any way connected with the so called "Future Freedom Foundation".
5. Whether such act of the defendant/petitioner caused harms to the reputation and prestige of such a big shot is to be considered by this Court. This Court is under an obligation to come to a conclusion whether the alleged publication in the newspapers are at all defamatory or not. In course of hearing, learned Counsel Mr. Shaktinath Mukherjee contended that there is no real cause of action in the plaint itself. The plaintiff very cunningly omitted to mention that on the basis of his allegation against the plaintiff/respondent he (defendant/petitioner) has been dismissed from his service. He has categorically mentioned that a huge sum was collected by the plaintiff/respondent in his name as well as in the name of his wife for purchasing a huge area of 'Hathisala Mouza' on the ground of educational and charitable purpose. But he had siphoned the said amount deceitfully in his own account and he had suppressed all these things in the plaint. He has referred to his letter addressed to Home Secretary Government of West Bengal as well as to the then Chief Minister Buddhadeb Bhattacharjee about the corruption of this I.P.S. Officer (plaintiff). Thereafter, the Additional Chief Secretary (home affairs) had given a direction for causing inquiry through the vigilance commissioner. The vigilance commission had accepted the grievances and after summoning the present petitioner/defendant and the charged officer (plaintiff/respondent), and after taking their evidence and considering the documents as produced by the respective parties, the said vigilance commission found him guilty under 'Prevention of Corruption Act'. Thereafter, process was initiated for his dismissal from the service and ultimately he had been terminated from his service. All these things happened before initiation of the money suit filed by the present plaintiff/respondent. Curiously enough, in the plaint the plaintiff/respondent did not mention about the said facts.
6. Therefore, this Court is under obligation to consider if any grievances were drawn to the attention of a higher authority of a public servant comes within the purview of defamation, mischief and damages or not. Every citizen has a right to ventilate his grievance against a public servant and if the said grievances are justified and accepted by the higher authority of that public servant, in that case it cannot be said that it was defamatory in nature. It seems to me that there was no agreement by and between the plaintiff/opposite party and the petitioner/defendant that there was ever any agreement reduced to writing that the plaintiff/opposite party shall use the address of the present petitioner/defendant for establishing a so-called educational/charitable trust. This apart, how a public servant could collect huge sum of money to the tune of more than crore without previous permission of his employer is also a billion dollar question. Every citizen has a right to defend his property and when his property is going to be encroached by a truant litigant he has every right to draw the attention of the administrative authorities, under whom the public servant works. Even if the said allegation was negated by the said authority, that also would not come within the mischief of 'defamation'. In support of such contention, the learned Counsel appearing on behalf of the petitioner has relied on a decision reported in Punjabi Bagh Cooperative Society -Vs.- K.L. Kishwar & Anr. reported in 95 (2002) DLT 573, 2002 (61) DRJ 594, wherein the Hon'ble Delhi High Court held that "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." Learned Counsel appearing on behalf of the petitioner submits that this case falls within the ambit of 'absolute privilege'. In support of his argument, he has relied on the decision reported in the Delhi High Court in connection with Nau Nihal Singh Rana -Vs.- Sunil Kumar reported in 2013 (202) DLT 465 wherein the Court observed that "The rule of absolute privilege exists not because the conduct of those persons ought not of itself to be actionable, but because if their conduct is actionable, action would be brought against them in cases in which they had not spoken with malice, in which they had not spoken with false word. It is not the desire to prevent action from being brought in cases where they had to be maintained that has led to the adoption of this rule; but it is the fear that if the rule were otherwise numerous actions would be brought against persons who were merely discharging their duty." In K. Daniel -Vs.- T. Hymavathy Amma AIR 1985 Kerala 233, the High Court of Kerala, held that the common law rule of absolute privilege in civil action for slander in regard to statements made in the course of judicial proceedings has been followed by Courts in India. He has also drawn my attention regarding Winfield's views. On Perusal of the same, I find Winfield in his book, "Winfield and Jolowicz on Tort", 19th Edition, South Asian Edition, 2015, page 384 which states as follows:
The Common law confers qualified privilege upon statements made by D to X about C : (1) which D is under a legal, moral or social duty to communicate to X and which X has a corresponding interest in receiving (the "duty/interest test"); or (2) where X has an interest to be protected and D has a corresponding interest or has a duty to protect the interest of X (the "common interest test")........"
"Both tests involve reciprocity and, normally, some relationship between the defendant and the recipient of the statement. Regardless of which test is in play, there must "reciprocity" and a prior relationship between the defendant and the recipient. "Reciprocity" means that, in the case of the duty/interest test, the duty corresponds to the interest and, in the case of the common interest test, the interests of both parties are aligned with each other."
7. In reply learned Counsel appearing on behalf of the opposite party has submitted that this Court has no jurisdiction to invoke its power under Order VII Rule 11 of C.P.C. because no such petition has been filed before the learned Trial Court and that the present petitioner appeared there as defendant and filed W.S. also. He has further submitted that under the garb of Article 227 of the Constitution of India, this Court cannot invoke its jurisdiction to set aside the plaint and further proceedings or to quash the order of the learned Trial Court. In support of his such contention, he has cited an unreported decision being Civil Appeal No.4453 of 2014 in Jacky
-Vs.- Tini @ Antoni & Ors. I have gone through the said judgment of the Hon'ble Apex Court and find that relying on Jai Singh and Others. -Vs.- Municipal Corporation of Delhi and Another., reported in (2010) 9 SCC 385, the Hon'ble Apex Court held :
"We have anxiously considered the submissions of the learned Counsel. Before we consider the factual and legal issues involved herein, we may notice certain well-recognised principles governing the exercise of jurisdiction by the High Court under Article 227 of the Constitution of India. Undoubtedly the High Court, under this article, has the jurisdiction to ensure that all subordinate courts as well as statutory or quasi-judicial tribunals, exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with the well-established principles of law. The High Court is vested with the powers of superintendence and/or judicial revision, even in matter where no revision or appeal lies to the High Court. The jurisdiction under this article is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India. It is, however, well to remember the well-known adage the greater the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within the well-recognised constraints. It cannot be exercised like a "bull in a china shop", to correct all errors of judgment of a court, or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice."
8. Referring this part of the quotation, learned Counsel submitted that the High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within the well-recognized constraints. It cannot be exercised like a "bull in a china shop", to correct all arrears of judgment of a Court, or tribunal, acting within the limits of its jurisdiction. But the Hon'ble Apex Court further held that this correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. Therefore a rider has been given by the Hon'ble Apex Court that if any order is passed in grave dereliction of duty or any flagrant abuse of fundamental principles of law or justice, court could exercise this jurisdiction. The Hon'ble Apex Court further held in the aforesaid decision reported in Jacky -Vs.- Tini @ Antoni "if a suit is not maintainable it was well within the jurisdiction of the High Court to decide the same in the appropriate proceedings but in no case power under Articles 226 and 227 of Constitution of India can be exercised to question a plaint.
9. Naturally, it becomes peremptorily incumbent upon this Court to see if the suit is at all maintainable or not. Learned Counsel appearing on behalf of the petitioner/defendant contended that it is a sketchy and crafty drafting of plaint and some illusions have been created only to create a smog before the Court. He further added that the plaint does not disclose that on the basis of the allegation of the petitioner/defendant before the appropriate authority, the plaintiff/opposite party has been terminated from his coveted post and service. The plaint was filed in 2009 and that decision was of 2007 by the Vigilance Commissioner. Therefore, according to him, the important part has not been indicated in the plaint. He has referred to the decision reported in (2003) 1 SCC 557 Saleem Bhai and Others -Vs.- State of Maharashtra and Others, AIR 1977 Supreme Court 2421, and the said decision of Hon'ble Apex Court has been followed in M/s. Pepsi Foods Ltd. It has been followed by this Hon'ble Court in the case of Mira Banik versus Smita Bhattacharyya reported in 2004 (1) CHN page 261 (paras 11, 12 and
13) wherein it was held that "The instrumentality under Article 227 is an essential weapon, provided to the High Court through wisdom of the founding fathers of the Constitution, to be used whenever it is needed according to the need of the hour. It can be used and utilized to defend as a shield or offend as a sword, if necessary, even to the extent of calling for records, which are not even challenged before the High Court, whenever it comes to its notice that it is necessary so to do, and if situation warrants, in order to keep the Courts within its bounds, in order to prevent abuse of process, in order to preserve the sanctity, restore the dignity, maintain the faith and inspire confidence of the people in it, the High Court may even quash the plaint or the proceeding in appropriate cases." On a close scrutiny of the said decisions along with the decisions relied on by the Hon'ble Apex Court, while dealing with that case, I find that the plaint should not be read formally but a meaningful reading of the same is the urgent desideratum. Not only that Hon'ble Apex Court held in the decision reported in AIR 1998 SCC Page 634 that the moot question is if a real cause of action has been set out in the plaint or something illusory has been stated to avoid the mischief of Order 7 Rule 11 of the Civil Procedure Code has been set out in the plaint or not. If there is any clever drafting creating illusions of cause of action are not permitted in law and a clear right to sue should be shown in the plaint. Learned Counsel appearing on behalf of the opposite party did not challenge the legal position, which set at rest by the Hon'ble Apex Court. He, however, contended the plaint should not bear every nitty-gritty of the plaintiff's case and absence of one does not mean that the whole plaint is liable to be rejected.
10. Learned Counsel appearing on behalf of the opposite party/plaintiff contended that no application under Order VII Rule 11 has been filed before the Trial Court and that is why this Court cannot invoke its jurisdiction under Order VII Rule 11 of the Court.
11. Before coming to the conclusion in regard to the rejection of the plant the first question to be answered :- (1) Do these disputes involve any question (whether legal or factual) on which the existence or extent of a legal right of the plaintiff depends? If it does, then the next question is :- (2) whether the raising of such disputes is barred by any law. If the aforesaid questions' answers are affirmative, then the plaint must be rejected as a whole. Where truth is covered under a thin layer of mystery and falsehood, the duty of the Court is to unveil the mystery and to explore the truth.
12. This apart, this Court wants to keep it on record that I may rely on the judgment reported in Pepsi Food Ltd. -Vs.- Special Judicial Magistrate reported in AIR 1998 SCC 128, wherein it was held that the Court cannot allow itself to aid or abate a party to abuse its process, it cannot allow itself to be misled. The Court is not supposed to look into the apparent. It has to look into the real. It is the duty to pierce the veil and peep into the materials placed before it so as to come to a conclusion that a prima facie case has been made out. It is the duty of the Court to give an anxious consideration over the matters. If the situation warrants, in order to keep Court within its bounds, in order to prevent abuse of process, in order to preserve sanctity, restore the dignity, the High Court may quash the plaint or the proceedings in appropriate case. In this case, the Court is of the opinion that the power of superintendence required to be activated in a given situation that come to its notice. It can be done without any application made by the parties. This Court is unable to permit abuse of process of Court which caused accumulation of cases. Therefore, by invoking the jurisdiction under Article 227 of the Constitution of India, this Court rejects the plaint.
13. The same question of law and fact are involved in the similar revisional application and accordingly this common judgment shall cover those revisional applications also.
14. Let a copy of this judgment be sent to the learned Court below for his information and taking necessary action in accordance with law.
15. Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(SIDDHARTHA CHATTOPADHYAY, J.) A.F.R./N.A.F.R.