Meghalaya High Court
Maj Gen Retd Bhim Singh Verma vs Col Yatendra Kumar Yadav And Ors on 11 August, 2015
Author: T Nandakumar Singh
Bench: T Nandakumar Singh
1
THE HIGH COURT OF MEGHALAYA
CRP. No. 4 of 2015
1. Maj Gen. (Retd.) Bhim Singh Verma
S/o Shri C.R.Verma
R/o H.No. 193, Sector-9, Faridabad,
Haryana.
... Petitioner
-Versus-
1. Col. Yatendra Kumar Yadav
No. MR 05659-X
Army Medical Corps,
Now posted as Senior
Registrar and Officer Commanding Troops,
Military Hospital, Shillong
Shillong Cantonment, Meghalaya.
.....Respondent
2. The Union of India Through the Secretary to the Govt. of India, Ministry of Defence, South Block, New Delhi.
3. The Directorate General of Medical Services, Directorate General of Medical Services(Army)/ DGMS-1 (b) Adjutant General‟s Branch Integrated Head Quarters of the Ministry of Defence (Army) „L‟ - Block, New Delhi, PIN - 110001.
4. The Major General Medical Head Quarters Northern Command (Medical) PIN - 908545 C/o 56 APO.
....Proforma Respondents BEFORE THE HON'BLE MR JUSTICE T NANDAKUMAR SINGH For the petitioner : Mr. K.Paul, Adv.
Ms. R.Dutta, Adv.
For the respondents : Mr. S. Chakravarty, Sr. Adv.
Ms. M.Mahanta, Adv.
Mr. N.Mozika, Adv.
2Date of hearing : 30-07-2015
Date of Judgment : 11-08-2015
JUDGMENT AND ORDER
Heard Mr. K. Paul, learned counsel appearing for the petitioner/defendant No.1 and Mr. S. Chakravarty, learned Sr. counsel, assisted by Ms. M. Mahanta, learned counsel appearing for the respondent No.1/plaintiff and also Mr. N. Mozika, learned CGC appearing for the respondents No. 2, 3 and 4.
2. This revision petition is against the order of the learned Assistant District Judge, Shillong dated 21-11-2014 passed in Misc Case No. 21 (H) of 2014 (reference Money Suit No. 2 (H) of 2014) rejecting the application under Order VII Rule 11 of the CPC read with Section 151 CPC filed by the petitioner/defendant No.1. The respondent No.1/plaintiff filed the Money Suit No. 2 (H) of 2014 in the Court of the Assistant District Judge, Shillong for damages for tortious act of defamation valued at ` 50 Crores against the present petitioner (defendant No.1) and the proforma respondents No. 2, 3 and 4.
The relief sought for in the said Money Suit No. 2 (H) of 2014 read as follows:
―i. To declare that the defendant numbered 1 has committed a very grievous and injurious act of character assassination and defamation of the plaintiff by writing the DO letter in his capacity as the Major General (Medical) at the Head Quarters of the 3 Northern Command of the Indian Army to the Director General of Medical Services (Army) at New Delhi, on the basis of which letter the plaintiff was wrongfully removed from his post as the Commanding Officer of the 425 Field Hospital;
ii. To declare that the said wrongful defamatory DO letter written by the defendant numbered 1 against the plaintiff has caused extreme, grievous irreparable injuries to the plaintiff by grossly degrading his dignity, character and honour which form the very pivot of the plaintifff's existence and performance as an upright and committed senior officer of the Indian Armed Forces;
iii. To declare that the defendant numbered 1 is liable to pay unliquidated damages to the plaintiff for the wrongs perpetrated by the former to the latter and to levy the exact amount of such damages payable by the defendant numbered 1 to the plaintiff as may be found suitable by this Honourable Court;
iv. To direct the defendant numbered 1 to pay damages to the tune of Rupees 50 Crores to the plaintiff;
v. To direct the defendant numbered 1 to pay the costs of this suit to the plaintiff;
vi. To grant such other relief/reliefs to which the plaintiff may be found entitled.
-AND-
Your humble plaintiff further prays that your Honour may further be pleased to make such other order/orders as may be deemed fit and proper.‖
3. The pleaded case of the respondent No.1/plaintiff in the plaint of the Money Suit No. 2 (H) of 2014 is briefly noted. The respondent No.1/plaintiff was posted as the Commanding Officer 425 Field Hospital of the Indian Army under the Northern Command located near the Line of Control in Jammu & Kashmir w.e.f. 16-03-2010 till 15-07-2015, when he came 4 out on transfer and joined his new place of posting at the Military Hospital, Shillong. The said 425 Field Hospital is under the immediate command of the Medical Branch of the Head Quarters of the 25 Infantry Division, which in turn is under the command of the Medical Branch of the Head Quarters of the Northern Command of the Indian Army headed by Major General (Medical) which post was held by the applicant/defendant No.1 during the respondent No.1/plaintiff‟s tenure at the said hospital.
4. In keeping with the prevalent practice of the higher Head Quarters directing units to attach personnel on temporary duty for limited periods, on 10-04-2011 at 21.20 hours, the 425 Field Hospital received a log message from the Head Quarters 25 Infantry Division (Medical) recorded at Serial No. 56 in the log message book asking to send one Ambulance Assistant on temporary duty to the Medical Branch of the Head Quarters of the Northern Command, for the period from 10-04-2011 to 25- 05-2011 and for immediate dispatch of the individual, whereupon No. 15418003 M Sepoy Ambulance Assistant G. Maity was forthwith detailed. As the said Sepoy Ambulance Assistant G.Maity had to be sent on leave from 25-05-2011, due to some serious domestic problem, to complete the remaining said period of temporary duty attachment, No. 15422103 Y, Sepoy Ambulance Assistant D.K.Choubey was detailed to the Medical Branch of the Head Quarters of the Northern Command by the Movement Order dated 18-05-2011.
The respondent No.1/plaintiff wrote a letter dated 03-12-2011 to the Medical Branch of the Head Quarters of the Northern 5 Command requesting for individual to be reverted back to the unit immediately, with copies of the letter endorsed to the Medical Branch of the Head Quarters of the two other intermediate higher formations above the hospital itself namely those of the HQ 25 Infantry Division (Medical) and the HQ 16 Corps (Medical). On 13-01-2012, the Director General of Medical Services (Army) gave an order posting the respondent No.1/plaintiff out from the post of Commanding Officer, 425 Field Hospital to the post of Senior Registrar at the Military Hospital, Shillong which was quite unexpected because generally the policy was to retain officers of the Army Medical Corp at the place of their posting for at least two and half years vide Directorate General of Medical Services (Army) letter No. B/67001/Policy/DGMS-1 (b), dated 03-01-2012, but the respondent No.1/plaintiff had completed only about one year ten months as Commanding Officer of the 425 Field Hospital.
5. It is further the pleaded case of respondent No.1/plaintiff in the plaint that being in the dark about the reason as to why he was prematurely transferred out to Shillong, upon being apparently removed from the Command of 425 Field Hospital, the respondent No.1/plaintiff after joining the post at Shillong filed a RTI application dated 16-08-2012 addressed to the CPIO Indian Army at New Delhi, seeking the relevant information, inter alia, as follows:
―i. A copy of the noting on which the application of another officer and the plaintiff were processed in the Directorate General of the Medical Services (Army).
6ii. Reasons for issuing this premature posting out, in contravention of policy guidelines on postings for Army Medical Corps officers referred to above, when posting order of none of the colleagues of the undersigned, posted as Commanding Officers along with the undersigned in/around March 2010, or even several months before, have been issued even till date and there is no other instance of an Army Medical Corps officer getting posted out from intense CI/CT Operations in Jammu and Kashmir to North East or vice versa.
iii. Details of Army Medical Corps officers of the rank of Colonel, commanding medical units in CI Ops who were posted out before completing 2½ years of tenure, in the 01 years preceding the issue of policy guidelines on postings referred to vide paragraph numbered 3 to the RTI application dated 16-08-2012 (i.e. starting with effect from 01-01-2011 till 13-01-2012, when new policy guidelines came into effect).
iv. Details of Army Medical Corps officers of the rank of Colonel, commanding medical units in Counter Insurgency Operations, posted out in less than 03 years, after the issue of the policy guidelines on postings referred to the paragraph numbered 3 to the RTI application dated 16-08-2012, till date.‖ The applicant/defendant No.1 was also transferred from the post of Major General (Medical) at the Head Quarters of the Northern Command and posted as Major General (Medical) at the Head Quarters of Eastern Command at Kolkata and soon after the said Sepoy Ambulance Assistant D.K.Choubey was released from the Head Quarters Northern Command (Medical) and reverted back to his parent unit at 425 Field Hospital by the Movement order dated 17-09-2012.
76. In reply to the said RTI application dated 16-08-2012, the respondent No.1/plaintiff received the letter No. A/810027/RTI/10659, dated 23-10-2012, from the office of the CPIO of the Indian Army and enclosed therewith were some of the different documents which the plaintiff had asked for. To the utter shock, disbelief and great anguish of the respondent No.1/plaintiff he learnt from the annexed documents that the applicant/defendant No.1 had written a DO letter to the Director General of Medical Services (Army) alleging very falsely that the plaintiff during his posting as Commanding Officer of the 425 Field Hospital was unable to get along with the local commanders creating unnecessary ill will and friction in day to day functioning, that the respondent No.1/plaintiff was in the habit of writing in-subordinate letters to the higher formations including the Head Quarters of the Northern Command and that efforts to counsel the respondent No.1/plaintiff had failed to bear desirable effects, whereupon the continued presence in his current appointments was likely to vitiate the atmosphere even further and to prevent escalation of the situation to an embarrassing level it is considered prudent to remove the respondent No.1/plaintiff from the current sensitive appointment at the earliest, but the copy of the said DO letter written by the applicant/defendant No.1 was not enclosed with the said reply dated 23-10-2012, nor even provided to the respondent No.1/plaintiff.
7. A copy of the noting sheet on which the said application of the respondent No.1/plaintiff was processed at the office of the Directorate General of Medical Services (Army) containing 8 the noting No.10, dated 04-02-2012 and the noting No. 11, dated 06-02-2012 clearly indicates that the posting order to the Military Hospital Shillong had been issued on the recommendation of the Major General (Medical) Northern Command through DO letter to the DGMS Army on basically performance related/disciplinary grounds.
8. The respondent No.1/plaintiff also filed another application dated 06-11-2012 under the RTI Act 2005 to the CPIO, Indian Army and asking inter alia as follows:
―I. To enable the undersigned to plan/prepare his further course of action, you are kindly requested to provide the following information, in relation to the input received from Major General (Medical), Head Quarter Northern Command, which formed the basis for premature removal of the undersigned from command of 425 Field Hospital.
a. The first allegation of the Major General (Medical) is that ‗the offr is unable to get along with local Cdrs, creating unnecessary ill will and friction in day to day functioning.' In relation to this allegation kindly provide the following information:
i. Names and designations of the local Commanders with whom undersigned did not get along well resulting in ill will and friction in day to day functioning.
ii. Did these local Commanders with whom undersigned did not get along well, report the matter in writing to Major General (Medical)? If yes, then kindly provide the details of the same. In case it was not given in writing, then kindly intimate as to through what means and what channels this issue was reported to the Major General (Medical)?
iii. It is obvious that at least some of these local Commanders must be in the channel of reporting for ACR, for the undersigned. Undersigned, 9 served as Commanding Officer, 425 Field Hospital, with effect from 16-03- 2010 till 14-07-2012. Has any authority endorsing the ACR of the undersigned, ever brought out this aspect in their pen picture or otherwise, in the ACRs initiated during this period?
b. The second allegation of the Major General (Medical) is that ‗he is in the habit of writing insubordinate letters to higher fmns, incl HQ Northern Comd.' From the language of the allegation it is obvious that apparently undersigned had written several such insubordinate letters, over a period of time. In relation to this allegation kindly provide the following information;
i. Details of these insubordinate letters written by the undersigned, including photocopy of the same, written to the various higher formation Head Quarters.
ii. Under the Army Act, insubordination is an offence and there are provisions in the Army Act to deal with the same. Kindly intimate if ever any disciplinary action (or even counseling in writing) was initiated against the undersigned for these acts of ‗repeated' insubordination? If yes, kindly provide details of the same.
iii. If writing insubordinate letters was part of the habit of the undersigned, it can be safely assumed that this kind of letters must have been written by the undersigned in previous assignments also. Kindly intimate if in the last 05 ACRs of the undersigned, has any of the authorities endorsing the ACR of the undersigned, ever brought out this aspect in the pen picture of the undersigned or otherwise?
c. The third allegation of the Major General (Medical) is that ‗efforts to counsel the offr have failed to bear desirable effect.' In relation to this allegation kindly provide the following information:
i. Photocopy of the
counseling letters given to the
undersigned, as undersigned never received any such counseling letters, 10 either from the Major General (Medical) or any other authority in the chain of command.
ii. In case counseling was done verbally by the Major General (Medical) or any other authority then in that case was it done telephonically or undersigned was summoned to the office of the concerned authority?
Kindly provide the details of the same, with dates and any record maintained of the same.
II. Vide paragraph 1 (b) of note No.10 of the noting sheet, on which the application of the undersigned was processed in the Directorate General of Medical Services (Army), Director MS (P) has stated that this posting order of the undersigned to Military Hospital, Shillong, has been issued on basically performance related/disciplinary grounds. As per the note above under reference, this input was provided by the Major General (Medical) through DO letter to the Director General Medical Services (Army). Keeping in view the serious nature of allegations against a Colonel (Select) rank officer, who had been selected to command a unit in sensitive CI/CT Ops area on the Line of Control, you are kindly requested to provide the following information:
a. Vide paragraph (c) of DGMS - 1(b) note No. B/71535/RTI/DGMS - 1 (B)/11, dated 04-09-2012, forwarded vide our letter referred to above vide paragraph 1, it has been stated that ‗ reasons for posting out Col Yatendra Kumar Yadav are unique to the offr himself.' In view of the above, before initiating drastic action in the form of prematurely removing from command, based on input received in the form of only a DO letter, without details of any administrative actions taken on the allegations leveled against the undersigned, was any effort made by the Directorate General of Medical Services (Army) to verify the facts from the immediate formation commanders, in this case GOC, 25 Infantry Division? In case, yes, then kindly provide the details of the same.
b. Was any action, administrative or otherwise (even a written counseling), initiated by the Directorate General of Medical Services (Army) against the undersigned?
11After all Military Hospital Shillong is not a reformatory, where undersigned was posted to undergo some correctional therapy. It is a 247 bedded hospital and ‗Senior Registrar & OC Troops', the appointment on which undersigned was posted, is an important administrative appointment.
III. From the nature of allegations leveled by the Major General (Medical), Head Quarters Northern Command, against the undersigned, it is obvious that he has bias against the undersigned. Being the head of medical services in Northern Command, he was in the channel of reporting for ACR of the undersigned. Keeping in view the tough competition for selection for the next rank at this level, adverse remarks even by one endorsing authority can ruin the further career of any officer, not only in regard to his next promotion, but also the kind of appointments he can be posted to. To enable the undersigned to take timely corrective action, you are kindly requested to provide copy of the remarks and grading endorsed by the concerned Major General (Medical) on all the ACRs/Early CRs of the undersigned.
IV. You are kindly requested to provide copy of the complete input provided by the Major General (Medical) Head Quarters Northern Command, based on whose input undersigned was prematurely removed from the command of 425 Field Hospital.‖
9. Para 35, 36 and 42 of the plaint in the said Money Suit read as follows:
―35. That the said defamatory DO letter was written by the defendant numbered 1 from his erstwhile post as a Major General (Medical) at the Head Quarters of the Northern Command to the Director General of Medical Services (Army) at New Delhi, but the same came to the knowledge of the plaintiff only when he was already posted and residing at Shillong, upon receiving the letter dated 23-10-2012, in reply to his application dated 16-08-2012, under the RTI Act, 2005, whereupon the grievous wrong of defamation has been done to the plaintiff at Shillong in the territory of the Shillong Cantonment within the territorial jurisdiction of this Honorable 12 court, when he received the said reply dated 23-10-2010, sometime in the last part of October, 2012, or early part of November, 2012.
36. That as the wrong to the plaintiff by the defendant has been caused within the territorial jurisdiction of this Honourable court, so therefore this Honourable court is fully vested with the jurisdiction to try this instant suit under the provisions of section 19 of the Code of Civil Procedure, 1908, as amended up-to-date and the other relevant provisions of law.
42. That the cause of action for this suit arose in December 2011, or January 2012, when the defamatory DO letter was written by the defendant numbered 1, on 13-
01-2012, when the plaintiff was ordered to be posted out/removed from the command of 425 Field Hospital, on 04-02-2012 and 06-02- 2012 when the office of the Directorate General of Medical Services (Army) took the erroneous view that the plaintiff had been posted out on basically performance related/ disciplinary grounds, on 23-10-2012, when the reply to the plaintiff's application dated 16-08-2012, under the RTI Act, 2005 was given and thereafter the day the same was received by the plaintiff when he was posted and residing at Shillong, and everyday thereafter within the jurisdiction of this Honourable court.‖
10. From the pleadings of the respondent No.1/plaintiff in the plaint, it is crystal clear that the applicant/defendant No.1 send the said defamatory DO letter while he was posted as Major General (Medical) at the Head Quarters of the Northern Command to the Directorate General of Medical Services (Army) at New Delhi, and at that time the respondent No.1/plaintiff was posted as Commanding Officer of the 425 Field Hospital in the Indian Army under the Northern Command located near the Line of Control in Jammu and Kashmir, and he, 13 respondent No.1/plaintiff came to know about the said letter when he was posted at Shillong.
The applicant/defendant No.1 filed the application under Section VI Rule 11 of the CPC for rejection of the plaint on the inter alia ground that any part of the cause of action does not arise within the territorial jurisdiction of the Assistant District Judge at Shillong and also the suit is barred by Section 33 of the Armed Forces Tribunal Act, 2007, which read as follows:
―33. Exclusion of jurisdiction of civil courts. - On and from the date from which any jurisdiction, powers and authority becomes exercisable by the Tribunal in relation to service matters under this Act, no Civil Court shall have, or be entitled to exercise, such jurisdiction, power or authority in relation to those service matters.‖
11. The learned trial court, the Assistant District Judge, Shillong by the impugned order dated 21-11-2014 held that the said Money Suit No. 2 (H) of 2014 for damages for the defamation of the respondent No.1/plaintiff by writing the said DO letter by the applicant/defendant No.1 in his capacity as Major General (Medical) at the Head Quarters of the Northern Command of the Indian Army to the Directorate General of Medical Services (Army) at New Delhi is not barred by Section 33 of the Armed Forces Tribunal Act, 2007 inasmuch as the Money Suit No. 2 (H) of 2014 does not sought for any relief relating to service matter of the respondent No.1/plaintiff, and this Court is in complete agreement with such finding of the Assistant District Judge, Shillong.
1412. It would be profitable to see the meaning of defamation as defined under Section 499 of the IPC and Explanations of Section 499 and also the Seventh Exception - Censure passed in good faith by person having lawful authority over another of Section 499 of the IPC. Under explanation 4 of Section 499, no imputations is said to harm a person‟s reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the morale or intellectual character of that person. Section 499 of the IPC is quoted hereunder:
―499. Defamation.--Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.
Explanation 1.--It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives.
Explanation 2.--It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.
Explanation 3.--An imputation in the form of an alternative or expressed ironically, may amount to defamation.
Explanation 4.--No imputation is said to harm a person's reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.15
Illustrations
(a) A says--―Z is an honest man; he never stole B's watch‖; intending to cause it to be believed that Z did steal B's watch. This is defamation, unless it fall within one of the exceptions.
(b) A is asked who stole B's watch. A points to Z, intending to cause it to be believed that Z stole B's watch. This is defamation unless it fall within one of the exceptions.
(c) A draws a picture of Z running away with B's watch, intending it to be believed that Z stole B's watch. This is defamation, unless it fall within one of the exceptions.
First Exception.--Imputation of truth which public good requires to be made or published.--It is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact.
Second Exception.--Public conduct of public servants.--It is not defamation to express in a good faith any opinion whatever respecting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no further.
Third Exception.--Conduct of any person touching any public question.--It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct, and no further.
Illustration It is not defamation in A to express in good faith any opinion whatever respecting Z's conduct in petitioning Government on a public question, in signing a requisition for a meeting on a public question, in presiding or attending a such meeting, in forming or joining any society which invites the public support, in voting or canvassing for a particular candidate for any situation in the efficient discharges of the duties of which the public is interested.
16Fourth Exception.--Publication of reports of proceedings of Courts.--It is not defamation to publish substantially true report of the proceedings of a Court of Justice, or of the result of any such proceedings.
Explanation.--A Justice of the Peace or other officer holding an inquiry in open Court preliminary to a trial in a Court of Justice, is a Court within the meaning of the above section.
Fifth Exception.--Merits of case decided in Court or conduct of witnesses and others concerned.--It is not defamation to express in good faith any opinion whatever respecting the merits of any case, civil or criminal, which has been decided by a Court of Justice, or respecting the conduct of any person as a party, witness or agent, in any such case, or respecting the character of such person, as far as his character appears in that conduct, and no further.
Illustrations
(a) A says--―I think Z's evidence on that trial is so contradictory that he must be stupid or dishonest‖. A is within this exception if he says this is in good faith, in as much as the opinion which he expresses respects Z's character as it appears in Z's conduct as a witness, and no further.
(b) But if A says--―I do not believe what Z asserted at that trial because I know him to be a man without veracity‖; A is not within this exception, in as much as the opinion which he express of Z's character, is an opinion not founded on Z's conduct as a witness.
Sixth Exception.--Merits of public performance.--It is not defamation to express in good faith any opinion respecting the merits of any performance which its author has submitted to the judgment of the public, or respecting the character of the author so far as his character appears in such performance, and no further.
Explanation.--A performance may be substituted to the judgment of the public expressly or by acts on the part of the author which imply such submission to the judgment of the public.
17Illustrations
(a) A person who publishes a book, submits that book to the judgment of the public.
(b)A person who makes a speech in public, submits that speech to the judgment of the public.
(c) An actor or singer who appears on a public stage, submits his acting or signing in the judgment of the public.
(d) A says of a book published by Z--―Z's book is foolish; Z must be a weak man. Z's book is indecent; Z must be a man of impure mind‖. A is within the exception, if he says this in good faith, in as much as the opinion which he expresses of Z respects Z's character only so far as it appears in Z's book, and no further.
(e) But if A says--―I am not surprised that Z's book is foolish and indecent, for he is a weak man and a libertine‖. A is not within this exception, in as much as the opinion which he expresses of Z's character is an opinion not founded on Z's book.
Seventh Exception.--Censure passed in good faith by person having lawful authority over another.--It is not defamation in a person having over another any authority, either conferred by law or arising out of a lawful contract made with that other, to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates.
Illustration A Judge censuring in good faith the conduct of a witness, or of an officer of the Court; a head of a department censuring in good faith those who are under his orders; a parent censuring in good faith a child in the presence of other children; a school-master, whose authority is derived from a parent, censuring in good faith a pupil in the presence of other pupils; a master censuring a servant in good faith for remissness in service; a banker censuring in good faith the cashier of his bank for the conduct of such cashier as such cashier--are within this exception.
18Eighth Exception.--Accusation preferred in good faith to authorised person.--It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation.
Illustration If A in good faith accuse Z before a Magistrate; if A in good faith complains of the conduct of Z, a servant, to Z's master; if A in good faith complains of the conduct of Z, and child, to Z's father--A is within this exception.
Ninth Exception.--Imputation made in good faith by person for protection of his or other's interests.--It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interests of the person making it, or of any other person, or for the public good.
Illustrations
(a) A, a shopkeeper, says to B, who manages his business--―Sell nothing to Z unless he pays you ready money, for I have no opinion of his honesty‖. A is within the exception, if he has made this imputation on Z in good faith for the protection of his own interests.
(b) A, a Magistrate, in making a report of his own superior officer, casts an imputation on the character of Z. Here, if the imputation is made in good faith, and for the public good, A is within the exception.
Tenth Exception.--Caution intended for good of person to whom conveyed or for public good.--It is not defamation to convey a caution, in good faith, to one person against another, provided that such caution be intended for the good of the person to whom it is conveyed, or of some person in whom that person is interested, or for the public good.
19COMMENTS Imputation without publication.
In section 499 the words ―makes or publishes any imputation‖ should be interpreted as words supplementing to each other. A maker of imputation without publication is not liable to be punished under that section;
Bilal Ahmed Kaloo v. State of Andhra Pradesh, (1997) 7 Supreme Today 127.‖
13. The respondent No.1/plaintiff did not plead in the plaint that the said defamatory DO letter of the applicant/defendant No.1 which was said to have been received by him at Shillong was made known to any person or any officers posted at Shillong. The place where the wrong is done to the person is undoubtedly also the place where the cause of action arises, but the fact that provision of Section 19 of the CPC to some extend override the provision of Section 20 does not lead to the affirmance of the contention that Section 19 is an explanation of Section 20. For easy reference, Section 19 and 20 of the CPC are quoted hereunder:
―19. Suits for compensation for wrongs to person or movables. -
Where a suit is for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one Court and the defendant resides, or carries on business, or personally works for gain, within the local limits of the jurisdiction of another Court, the suit may be instituted at the option of the plaintiff in either of the said Courts.
Illustrations
(a) A, residing in Delhi, beats B in Calcutta. B may sue A either in Calcutta or in Delhi.20
(b) A, residing in Delhi, publishes in Calcutta statements defamatory of B. B may sue A either in Calcutta or in Delhi.
20. Other suits to be instituted where defendants reside or cause of action arises.
Subject to the limitations aforesaid, every suit shall be instituted in Court within the local limits of whose jurisdiction-
(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the commencement of the suit actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.
1[* * *] 2[Explanation].-A corporation shall be deemed to carry on business at its sole or principal office in [India] or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place.
Illustrations
(a) A is a tradesman in Calcutta, B carries on business in Delhi. B, by his agent in Calcutta, buys goods of A and requests A to deliver them to the East Indian Railway Company. A delivers the goods accordingly in Calcutta. A may sue B for the price of the goods either in Calcutta, where the cause of action has arisen or in Delhi, where B carries on business.
(b) A resides at Simla, B at Calcutta and C at Delhi. A, B and C being together at Benaras, B and C make a joint promissory note 21 payable on demand, and deliver it to A. A may sue B and C at Benaras, where the cause of action arose. He may also sue them at Calcutta, where B resides, or at Delhi, where C resides; but in each of these cases, if the non-resident defendant objects, the suit cannot proceed without the leave of the Court.
COMMENTS
(i) Facts pleaded which have no bearing with the lis or the dispute involved in the case, do not give rise to a cause of action so as to confer territorial jurisdiction on the Court concerned. For that fact pleaded must have relevance to the lis/dispute; Union of India v. Adani Exports Ltd., AIR 2002 SC 126.
(ii) Where the agreement stated that jurisdiction regarding all disputes is at Delhi where the agreement has been signed and executed while the agreement by parties was not signed at Delhi but at some other place, then the agreement cannot be said to be conferring exclusive jurisdiction to Civil Court at Delhi. Party can file a suit under section 20(c) at place where cause of action wholly or partly arose; Jabalpur Cable Network Pvt. Ltd. v. E.S.P.N. Software India Pvt. Ltd., AIR 1999 MP 271.
(iii) Where the agreement was an agreement for sale of movable property then sections 16 and 19 would not govern the cause of action in such case but section 20 of the Code would be attracted for determining jurisdiction of Court; Jabalpur Cable Network Pvt. Ltd. v. E.S.P.N. Software India Pvt. Ltd., AIR 1999 MP 271.‖
14. The illustration (b) of Section 19 clearly states that - A, residing in Delhi, publishes in Calcutta statements defamatory of B. B may sue A, either in Calcutta or in Delhi. In the present case, the applicant/defendant No.1 wrote the said defamatory DO letter as Major General (Medical) under the Northern Command to the Directorate General of Medical Services (Army) at New Delhi and at that time the respondent No.1/plaintiff 22 was posted as Commanding Officer of 425 Field Hospital of Indian Army under the Northern Command located near the Line of Control in Jammu and Kashmir. The said defamatory DO letter was started from the Head Quarters of the Northern Command (not located at Shillong) to the office of the Directorate General of Medical Services (Army) at New Delhi and admittedly at that time the respondent No.1/plaintiff was posted at Jammu and Kashmir. For the sake of repetition, it is reiterated that the respondent No.1/plaintiff never pleaded in his plaint that the said defamatory DO letter was known to any person or any officer at Shillong; and for taking the said defamatory DO letter of the applicant/defendant No.1 is an imputation which lower the morale or intellectual character of respondent No.1/plaintiff to any person at Shillong, it is to be made known to the person staying at Shillong.
15. Section 19 of the CPC clearly speaks that, firstly, it governs a suit seeking restitution relief of compensation on the basis of wrong done to the person or to the movable property.
Secondly, it offers and furnish an option or choice if two conditions indicated by qualifying clause are satisfied, that wrong complain was done within the local limit of one court while the defendant in fact resides or carries on business within the local limit of the jurisdiction of another court.
Unless both these conditions are together available, no question of opinion or choice for forum can conceivably arise.
In the case in hand, the wrong complain i.e defamatory DO letter of the applicant/defendant No.1 was neither written at Shillong nor addressed to the authority located at Shillong, nor 23 the respondent No.1/plaintiff was stationed at Shillong at the time the said defamatory DO letter against him was sent to Directorate General of Medical Services (Army) at New Delhi. In the given case, it cannot be said that the wrong for which the present suit for damages is filed was done within the local limit of the jurisdiction of the Assistant District Judge, Shillong. If the case of the respondent No.1/plaintiff in his plaint that the cause of action arose at Shillong simply because he received the said defamatory DO letter of the applicant/defendant No.1 confidentially at Shillong is accepted, there shall be chaotic results inasmuch as in case he quietly came to know or receive the said defamatory DO letter of the applicant/defendant No.1 at Bombay, a suit can be filed in the Court having the local limit of jurisdiction at Bombay. This proposition is fallacious.
16. The Apex Court in Liverpool & London S.P. & I Association Ltd vrs M.V. Sea Success I and Anr: (2004) 9 SCC 512 para 140 held that:
―CAUSE OF ACTION:
140. A cause of action is a bundle of facts which are required to be pleaded and proved for the purpose of obtaining relief claimed in the suit. For the aforementioned purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence.‖
17. The respondent No.1/plaintiff in para 42 of his plaint clearly stated that the cause of action of the suit arose in December, 2011 or January 2012 where the defamatory DO 24 letter was written by the applicant/defendant No.1 and on 13- 01-2012, when the respondent No.1/plaintiff was ordered to be posted out/removed from the Command of 425 Field Hospital, on 04-02-2012 and 06-02-2012 when the office of the Directorate General of Medical Services (Army) took the erroneous view that the respondent No.1/plaintiff had been posted out on basically performance related/disciplinary grounds. It is clear from the relief sought for in the plaint of the Money Suit No.2 (H) of 2014 that no relief had been sought for relating to the service of the respondent No.1/plaintiff. The relief sought for in the plaint was for the damages for the defamatory DO letter which started from the Head Quarters of the Northern Command (not located at Shillong, Meghalaya) and reached the office of the Directorate General of Medical Services (Army) at New Delhi, and respondent No.1/plaintiff was removed from the Command of 425 Field Hospital located at Jammu and Kashmir. The Gauhati High Court in Kedutso Kafpo vrs Keneingulie: (1994) 1 GLR 145 held that a suit in damages for alleged defamation and libel in respect of an alleged defamation letter written by the appellant at Mysore to the Joint Commissioner, Ministry of Agriculture and Rural Development, Government of India, New Delhi cannot be filed in the Court at Kohima only on the ground that the plaintiff is resident of Kohima. The fact of the case in Kedutso Kafpo‟s case (Supra) is similar with the case in hand. Para 1, 2, 3, 4, 8 and 9 of the GLR in Kedutso Kafpo's case (Supra) read as follows:
25―1. This appeal has been preferred against Judgment and order passed by Shri L.K. Achumi, learned Additional Deputy Commissioner (Judicial) Kohima in Civil Suit No. 1 of 1991 filed by the present Respondent for damages for alleged defamation and libel. The said suit was filed in respect of an alleged defamatory letter dated 7th August, 1990 written by the Appellant/Defendant to the Joint Commissioner, Ministry of Agriculture and Rural Development, Govt. of India, New Delhi. The said alleged defamatory letter was written by the Appellant at Mysore and the destination was Delhi where it was received by Shri V.P. Singh, Joint Commissioner, Soil and Water Conservation Division, Department of Agriculture and Rural Development.
2. It appears the Appellant while on a visit in Nagaland received some complaint from some farmers of Phek District. As the Appellant was of the view that although he was incompetent to take any action from his end since the matter appeared to be important this matter was brought to the notice of the Joint Commissioner. The concluding line of the letter dated 7-8-1990 is as follows:
―And I would like to request you to kindly look into it and safeguard the interest of the farmers if you find any merit in it.‖
3. The Appellant contested the suit and raised an issue as regards territorial jurisdiction of the Court of Addl. Deputy Commissioner (Judicial) at Kohima. The main ground taken in the written statement filed on behalf of the Appellant was that the Appellant could not have been sued at Kohima inasmuch as he wrote the letter at Mysore and the destination of the letter was Delhi where the content of the letter referred to above was known to the Joint Commissioner at Delhi. After hearing learned Counsel of both sides, the learned court of Addl. Deputy Commissioner (Judicial) Kohima over ruled the objection taken on behalf of the Appellant as regards the territorial jurisdiction of the Court at Kohima.26
Being aggrieved the Appellant has approached this Court.
4. The reason why the Appellants contention was rejected by the learned Court of Additional Deputy Commissioner (Judicial) at Kohima is because the learned Addl. Deputy Commissioner (Judicial) came to the conclusion that the alleged defamatory letter was published in Delhi as well as at Kohima.
This conclusion was arrived at because of the fact that consequent upon the letter written by the Appellant to the Joint Commissioner bringing to his notice certain complaints made by some farmers of Phek District as stated above, a letter was written by one Y.P. Yadav on 11-9-90 to the Chief Secretary, Nagaland informing him that certain complaints had been received from the farmers of one of the projects in Phek District of the State of Nagaland. As such a request was made to take immediate action and to intimate the Department to provide redressal. On receipt of the aforesaid letter from Delhi, the Commissioner & Secretary, Govt. of Nagaland, Agriculture Department was requested to take necessary action at an early date. This letter was written by one G.V. V. Sarma, Under Secretary on 19th October, 1990.
8. In this case I am primarily called upon to decide as to the place of suing. The main contention on behalf of the Appellant is that no suit lies at Kohima in the facts and circumstances of the case. It is contended that a suit of this nature shall lie either at Mysore where the alleged defamatory letter was written or at Delhi which was the destination of the letter. In terms of Section 19 of the Code of Civil Procedure such a suit could be instituted either within the local limits of the jurisdiction of a Court where the Defendant resides or carries on business or personally works for gain. Such a suit could also be instituted within the local limits of the jurisdiction of a Court where the wrong was done. It is in this context that the learned Counsel for the Appellant submits that the 27 Respondent could sue the Appellant either at Mysore or at Delhi and not at Kohima. It is the submission of the learned Counsel for the Appellant that when there are several publications of the same libel, a separate action lies for each publication. In other words it is submitted that when defamatory words are repeated it amounts to republication giving rise to fresh cause of action for defamation. It is therefore submitted that every repetition of a libel is a new libel and each publisher is answerable for his act to the same extent as if calumny originated from him. The publisher of a libel is clearly responsible irrespective of the fact whether he is the originator of the libel or is merely repeating it. This submission is relevant from the point of view of the fact that the suit instituted at Kohima is against a lone Defendant. As stated above the different letters relied upon the Respondent in the court below were written by different persons and addressed to different persons. In para 16 of the plaint it is stated that cause of action arose for the suit on 7-8-1990 when the Appellant wrote the defamatory letter which was published when it was opened in Delhi. It is not the case of the Respondent that the Appellant had written to anyone at Kohima. What the Respondent is saying is that if the Appellant had not written to the Joint Commissioner at Delhi, there would not have been correspondence with the Chief Secretary, Nagaland. It is in this context Mr. Iralu submits that clearly there is a case of contribute publication. In other words it is the submission of Mr. Iralu that the different publications should not be taken in isolation but they should be taken as a whole.
9. It is in this view of the matter he submits that Kohima Court is competent to entertain the suit of defamation. As stated above I may state here again that the suit instituted at Kohima is against the Appellant only. In other words Appellant has been singled out. I do not say that the Respondent cannot sue the Appellant if there is cause of action to sue the Appellant. The question is if the Respondent 28 chooses to institute a suit only against Appellant, it appears, I must see whether Kohima Court is competent to entertain such a suit. As stated above the Appellant resides and carries on his work at Mysore. He is said to have written the alleged defamatory letter at Mysore. The said alleged defamatory letter was admittedly addresses/written to the Joint Commissioner at Delhi. Mr. Iralu submits that "wrong includes effect". According to him alleged defamatory letter was circulated at Kohima in Nagaland and the Appellant had contributed to such circulation. Mr. Iralu has relied on (1988) 1 GLR 117 and also (1991) 1 GLR 389 and submits that in terms of the decisions rendered in these two cases, the Court at Kohima is competent to decide the suit of defamation filed by the Respondent. On perusal of the said cases, it appears to me that the facts are different. The above two cases are related to cause and effect. As stated above the cumulative effect of the entire situation cannot be taken in the present case inasmuch as, as I have stated above, only the Appellant has been sued at Kohima. In another case (1990) 1 GLR 277 this Court held that in terms of provisions of Section 19 Code of Civil Procedure it is provided that the suit for compensation for wrong done to a person or movable property should be filed at the place where the wrong is done or at the place where the author of the wrong, viz., the Defendant resides or works for gain. It is further stated in the said case that these are the two choices available to the Plaintiff and he has to choose one of them. He cannot have a third choice.‖
18. The learned trial court had misread the ratio laid down in State of Meghalaya and Ors vrs Jyotsna Das: (1991) 1 GLR
389. The ratio laid down in Jyotsna Das's case (Supra) had been considered by the Gauhati High Court in the latter i.e. Kedutso Kafpo's case (Supra).
The Apex Court in a catena of cases held that a little difference in facts or additional facts may make a lot 29 of difference in the precedential value of a decision and also that decision in a case should be understood in the light of the fact of that case. The ratio decidendi of a judgment has to be found out only on reading the entire judgment. In fact, the ratio decidendi of the judgment is what is set out in the judgment itself. The Apex Court in Bhavnagar University v. Palitana Sugar Mill (P) Ltd.
& Ors: (2003) 2 SCC 111 held that:
"59. A decision, as is well known, is an authority for which it is decided and not what can logically be deduced therefrom. It is also well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. [See Ram Rakhi v. Union of India: AIR 2002 Del 458 (FB), Delhi Admn. (NCT of Delhi) v. Manohar Lal: (2002) 7 SCC 222: 2002 SC (Cri) 1670: AIR 2002 SC 3088, Haryana Financial Corpn. v. Jagdamba Oil Mills: (2002) 3 SCC 496: JT (2002) 1 SC 482, and Nalini Mahajan (Dr) v. Director of Income Tax (Investigation): (2002) 257 ITR 123 (Del)]."
The Apex Court in Natural Resources Allocation in RE, Special Reference No.1 of 2012: (2012) 10 SCC 1 held that:
"71. With reference to the precedential value of decisions, in State of Orissa v. Mohd. Illiyas:
(2006) 1 SCC 275: 2006 SCC (L&S) 122 this Court observed: (SCC p.282, para 12) "12. ..... According to the well-settled theory precedents, every decision contains three basis postulates: (i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts;
and (iii) judgment based on the combined effect of the above. A decision is an authority 30 for what is actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically flows from the various observations made in the judgment."
72. Recently, in Union of India v. Amrit Lal Manchanda: (2004) 3 SCC 75: 2004 SCC (Cri) 662 this Court has observed as follows: (SCC p.83, para 15) "15. ..... Observations of courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statue, it may become necessary for Judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes."
73. It is also important to read a judgment as a whole keeping in mind that it is not an abstract academic discourse with universal applicability, but heavily grounded in the facts and circumstances of the case. Every part of a judgment is intricately linked to others constituting a larger whole and thus, must be read keeping the logical thread intact. In this regard, in Islamic Academy of Education v. State of Karnataka: (2003) 6 SCC 697, this Court made the following observations: (SCC p.719, para 2) "2. ..... The ratio decidendi of a judgment has to be found out only on reading the entire judgment. In fact, the ratio of the judgment is what is set out in the judgment itself. The answer to the question would necessarily have to be read in the context of what is set out in the judgment and not in isolation. In case of any doubt as regards any observations, reasons and principles, the other part of the judgment has to be looked into. By reading a line here and there from the 31 judgment, one cannot find out the entire ratio decidendi of the judgment."
Revisonal jurisdiction of the High Court under Section 115 of the CPC and its limitation.
19. For considering the revisional jurisdiction of the High Court, it would be profitable to quote Section 115 of the CPC, which reads as follows:-
―115. Revision.- (1) The High Court may call for the record of any case which has been decided by any court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate court appears --
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit:--
[Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings.] [(2) The High Court shall not, under this section vary or reverse any decree or order against which an appeal lies either to the High Court or to any court subordinate thereto.] [(3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court.] 32 [Explanation .- In this section, the expression ―any case which has been decided‖ includes any order made, or any order deciding an issue, in the course of a Suit or other proceeding.]‖
20. While exercising the jurisdiction under Section 115 of the CPC, it is not competent to the High Court to correct errors of fact however gross or even errors of law unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. The words "illegality" and "with materials irregularity" as used in Clause (c) do not cover either errors of fact or of law; they do not refer to the decision arrived at but merely to the manner in which it is reached. The errors contemplated by this clause may relate either to breach of some provision of law or to material defects of procedure affecting the ultimate decision, and not to errors whether of fact or of law, after the prescribed formalities have been complied with. (Ref:- M/s D.L.F. Housing and Construction Co. (P) Ltd. Vs. Sarup Singh & Ors: AIR 1971 SC 2324 ).
Para 8 of the M/s D.L.F. Housing and Construction Co. (P) Ltd. case (Supra) reads as follows:-
‖8. The position thus seems to. be firmly established that while exercising the jurisdiction under s. 115, it is not competent to the High Court to correct errors of fact however gross or even errors of law unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. Clauses (a) and (b) of this section on their plain reading quite clearly do not cover the present case. It was not contended, as indeed it was not possible to contend, that the learned Additional District Judge had either exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction so vested in him, in recording the order that the proceedings under reference be stayed till the decision of the appeal by the High Court in the proceedings for specific 33 performance of the agreement in question. Clause (c) also does not seem to apply to the case in hand. The words "illegally" and "with material irregularity" as used in this clause do not cover either errors of fact or of law; they do not refer to the decision arrived at but merely to the manner in which it is reached. The errors contemplated by this clause may, in our view, relate either to breach of some provision of law or to material defects of procedure affecting the ultimate decision, and not to errors either of fact or of law, after the prescribed formalities have been complied with. The High Court does not seem to have adverted to the limitation imposed on its power under s. 115 of the Code. Merely because the High Court would have felt inclined, had it dealt with the matter initially, to come to a different conclusion on the question of continuing stay of the reference proceedings pending decision of the appeal, could hardly justify interference on revision under s. 115 of the Code when there. was no illegality or material irregularity committed by the learned Additional District Judge in his manner of dealing with this question. It seems to us that in this matter the High Court treated the revision virtually as if it was an appeal.‖
21. Revisonal jurisdiction - Erroneous decision on a question of fact or of law having no relation to question of jurisdiction of Subordinate Officer cannot be corrected. It is well settled that the revisional jurisdiction of the High Court is confined to cases of illegal or irregular exercise or non-exercise or illegal assumption of the jurisdiction by the subordinate courts. If a subordinate court is found to possess the jurisdiction to decide a matter, it cannot be said to exercise it illegally or with material irregularity even if it decides the matter wrongly. In other words, it is not open to the High Court while exercising its jurisdiction under Section 115 of the CPC to correct errors of fact howsoever gross or even errors of law unless the errors have relation to the jurisdiction of the court to try the dispute itself. (Ref:- Sher Singh (dead) through LRs 34 Vs. Joint Director of Consolidation & Ors: AIR 1978 SC 1341). Para 6 of the Sher Singh case (Supra) reads as follows:-
―6. As the above section is in pari materia with S.115 of Civil P.C., it will be profitable to ascertain the scope of the revisional jurisdiction of the High Court. It is now well settled that the revisional jurisdiction of the High Court is confined to cases of illegal or irregular exercise or non-exercise or illegal assumption of the jurisdiction by the subordinate courts. If a subordinate court is found to possess the jurisdiction to decide a matter, it cannot be said to exercise it illegally or with material irregularity even if it decides the matter wrongly. In other words, it is not open to the High Court while exercising its jurisdiction under section 115 of the Code of Civil Procedure to correct errors of fact howsoever gross or even errors of law unless the errors have relation to the jurisdiction of the court to try the dispute itself.‖
22. For the foregoing discussions, it is clear that the learned trial court had committed material irregularities and illegalities in passing the impugned order dated 21-11-2014 coming to the finding that the learned trial court has the territorial jurisdiction to entertain the suit by misreading Section 19 and 20 of the CPC. The learned Assistant District Judge, Shillong has no territorial jurisdiction to entertain the Money Suit No. 2 (H) of 2014 inasmuch as cause of action does not arise/or no wrong was done within the territorial jurisdiction of the Assistant District Judge, Shillong. Therefore, the learned trial court while passing the impugned order dated 21-11-2014 had acted in exercise of her jurisdiction illegally with material irregularities. Thus, the impugned order dated 21-11-2014 is set aside 35
23. The revision petition is allowed. Parties are to bear their own costs.
JUDGE S.Rynjah