Delhi District Court
Ms Abhinav Outsourcing Pvt Ltd vs Sudeep Jadhav Anr on 26 June, 2025
DLSE010024652016
THE COURT OF DISTRICT JUDGE-03
DISTRICT: SOUTH-EAST, SAKET COURTS, NEW DELHI
(PRESIDED OVER BY: SACHIN MITTAL)
CS DJ No. 10000/2016
In the matter of:
1. M/s Abhinav Immigration
Services Pvt. Ltd.
Through its Managing Director
307, 3rd Floor, Building No.6,
Devika Towers, Nehru Place,
New Delhi-110019. ... Plaintiff.
VERSUS
1. Sudeep Jadhav
L-46, 603, Poonam Sagar,
Mira Road (E),
Dist.- Thane, Maharashtra.
2. Icon Media Labs
Plot No.- 35,
Navodaya Colony,
Hyderabad, Andhra Pradesh-500074.
3. Mouthshut
PO Box 9818,
Bandra, Bombay-400050.
4. Consumer Complaints
Mediolex Ltd.
Smerla 3-216a,
Riga, Latvia
LV-1006. ... Defendants.
CS DJ No. 10000/2016 M/s Abhinav Immigration Services Pvt. Ltd. Page 1 of 32
v.
Sudeep Jadhav & Ors. SACHIN Digitally signed by
SACHIN MITTAL
MITTAL Date: 2025.06.27
15:14:38 +0530
SUIT FOR PERMANENT INJUNCTION, MANDATORY
INJUNCTION AND DAMAGES.
Date of Institution : 29.11.2011
Date on which arguments concluded : 25.03.2025
Date of Judgment : 26.06.2025
Result : Dismissed
JUDGMENT
1. Vide this Judgment, I shall decide the captioned suit, filed on behalf of the plaintiff, praying therein for the reliefs of permanent injunction, mandatory injunction and damages, against the defendants. The plaintiff is seeking these reliefs on the basis of its claim that the defendant no.1 published a defamatory material against it, which was hosted by the defendant no.2 to 4 on their websites/portals.
Plaint:
2. The necessary facts, as pleaded in the plaint, upon which the suit of plaintiff is based, can be summarized as under:
(a) The plaintiff is a private limited company incorporated under the Companies Act, 1956 and it is engaged into the business of providing services relating to immigration to Canada. It is engaged in the said business since 1994;
(b) The plaintiff has filed the present suit through its Managing Director, Mr. Ajay Sharma, who has been duly authorized to do so by the Board of Directors;
(c) The defendant no.1 is an individual, who is a permanent resident of Thane, Maharashtra. The defendant no.2, 3 & 4 are the companies, which own the URLs/portals/websites, CS DJ No. 10000/2016 M/s Abhinav Immigration Services Pvt. Ltd. Page 2 of 32 v. Digitally signed by Sudeep Jadhav & Ors. SACHIN SACHIN MITTAL MITTAL Date: 2025.06.27 15:14:46 +0530 http://www.complaints-india.com, http://www.mouthshut.com and http://www.consumercomplaints.in respectively;
(d) In June, 2011, the defendant no.1 approached the plaintiff for availing its services for the purpose of immigration to Canada;
(e) The plaintiff quoted a one-time fee of Rs. 55,000/- to the defendant no.1;
(f) On 30.06.2011, the defendant no.1 executed a contract with the plaintiff. As per the terms of contract, the defendant no.1 was required to qualify the English language test, IELTS before his application for immigration to Canada could be processed;
(g) On 25.08.2011, the defendant no.1 took the IELTS test.
However, he could not qualify the said test;
(h) When the defendant no.1 contacted the plaintiff, he was advised to take the test again after improving his English language skills;
(i) On 06.11.2011, the defendant no.1 through an email to the plaintiff demanded the return of fees of Rs.55,000/- and a sum of Rs.7,600/- paid for the IELTS test;
(j) The plaintiff through telephone and email explained to the defendant no.1 that there was no provision in the contract for refund of the money;
(k) On 10.11.2011, a meeting was held between the plaintiff and the defendant no.1, the minutes of which were documented in the email dated 11.11.2011;
CS DJ No. 10000/2016 M/s Abhinav Immigration Services Pvt. Ltd. Page 3 of 32v. Digitally signed Sudeep Jadhav & Ors. SACHIN MITTALby SACHIN MITTAL Date: 2025.06.27 15:14:55 +0530
(l) The defendant no.1 vide his email dated 11.11.2011 required the plaintiff to amend its contract, which email was responded on behalf of the plaintiff company;
(m) On 21.11.2011, the defendant no.1 wrote an email to various govt. agencies, police authorities, websites and newspapers etc., therein leveling false and defamatory allegations of plaintiff cheating him;
(n) On 22.11.2011, the plaintiff through an email called upon the defendant no.1 to desist from writing such false and defamatory emails against it;
(o) On 23.11.2011, the defendant no.1, however, wrote a defamatory article against the plaintiff on the website of the defendant no.2. The defendant no.1 had written a similar defamatory article on the website of the defendant no.3 on 23.11.2011 and on 08.12.2011; and on the website of the defendant no.4 on 20.11.2011. The defendant no.2, 3 & 4 have perpetuated the offence committed by the defendant no.1 by actively participating in the same as they did not check the authenticity of the information posted by the defendant no.1 before hosting the same on their websites;
(p) The Director of the plaintiff offered a detailed clarification on the website of the defendant no.2 on 23.11.2011; on the website of the defendant no.3 on 22.12.2011 and on 02.01.2012; and on the website of the defendant no.4 on 23.12.2011 and on 24.12.2011. However, the defendant no.2, 3 & 4 did not remove the objectionable content from their respective websites;
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SACHIN Digitally signed by
SACHIN MITTAL
Sudeep Jadhav & Ors.
MITTAL 15:15:03 +0530
Date: 2025.06.27
(q) On 24.11.2011, the defendant no.1 wrote yet another
defamatory email against the plaintiff to various news channels, members of the press and police departments;
(r) The cause of action arose: in June, 2011, when the contract between the plaintiff and the defendant no.1 was executed; in November, 2011, when the defendant no.1 demanded the refund; on 20.11.2011 & on 23.11.2011, when the defendant no.1 wrote defamatory posts on the websites of the defendant no.2, 3 & 4; on 23.11.2011, on 02.01.2012 & on 04.02.2012, when the plaintiff offered clarifications on the websites of the defendant no.2, 3 & 4; and on every such date when the defendant no.1 wrote defamatory emails to news channels, police and other agencies etc. The cause of action is still continuing;
(s) The reliefs of permanent injunction and mandatory injunction have been valued at Rs.200/- each, on which a Court fees of Rs.20/- each has been affixed. The relief of damages of Rs.1 crore has been valued at the said amount and an ad-valorem Court fees of Rs.99,993/- has been paid;
(t) The defendant no.1 had approached the plaintiff at its head office in Delhi; all communications on behalf of the plaintiff have taken place from Delhi; and the contract with the defendant no.1 was executed in Delhi. This Court, therefore, has the territorial jurisdiction; and (u) The plaintiff seeks following reliefs:
"In view of the aforesaid, it is most respectfully prayed before this Hon'ble Court that:CS DJ No. 10000/2016 M/s Abhinav Immigration Services Pvt. Ltd. Page 5 of 32
v. Digitally signed
Sudeep Jadhav & Ors. SACHIN by SACHIN
MITTAL
MITTAL Date: 2025.06.27
15:15:12 +0530
A. Pass a decree for Permanent Injunction thereby permanently restraining the defendant(s), individually and/or collectively from writing any article, mail, letter and/or any other document thereby defaming or maligning the name/reputation of the plaintiff company;
B. Pass a decree of Mandatory Injunction thereby directing defendant no.2, 3 and 4, to remove the objectionable article dated November 23, 2011; November 20, 2011 and November 23, 2011 respectively, written by defendant no.1 on their sites and/or any article which defendant no.1 may have written on the site of 2, 3 and 4;
C. Pass a decree for a sum of Rs.1,00,00,000/- (Rupees One Crore) of damages as suffered by the plaintiff company payable by the defendant nos. 1 to 4 jointly and/or severally;
D. Award the cost of the suit.
E. Pass any other or further order as this Hon'ble Court deems fit and proper."
The ex-parte proceedings and setting aside of the same qua the defendant no.3:
3. The Court vide Order dated 03.09.2013 ordered to proceed ex-parte against all the defendants. The Court then vide an ex-parte Judgment dated 06.05.2015 decreed the suit of the plaintiff in terms of prayers A, B & C of the plaint. On 09.10.2015, the defendant no.3 filed an application under Order IX Rule 13 CPC for seeking setting aside of the aforesaid ex-parte Judgment alongwith an application for condonation of delay. This Court vide Order dated 03.01.2018 allowed the said applications of the defendant no.3, subject to a cost of Rs.20,000/-; set aside the ex-parte Judgment dated 06.05.2015 and also gave an opportunity to the defendant no.3 for filing the written statement to contest the suit. The Revision Petition, CRP 61/2018 filed by the plaintiff against the Order dated 03.01.2018 was dismissed by the Hon'ble Delhi High Court and an SLP filed by CS DJ No. 10000/2016 M/s Abhinav Immigration Services Pvt. Ltd. Page 6 of 32 v.Digitally signed
Sudeep Jadhav & Ors. SACHIN by SACHIN
MITTAL
MITTAL Date: 2025.06.27
15:15:21 +0530
the plaintiff against the dismissal of its Revision Petition was also dismissed by the Hon'ble Supreme Court.
Written Statement on behalf of defendant no.3:
4. The defence of the defendant no.3 as pleaded in its written statement can be summarized as under:
(a) The defendant no.3 is an online website, based in Mumbai, which allows consumers to post their reviews about the products/ services and also allows the sellers/ service providers to post their comments/ clarifications etc. about consumers' reviews;
(b) The defendant no.3 vide resolution dated 02.01.2013 has authorized its CEO, Mr. Faizal I. Farooqui to defend the present suit on its behalf;
(c) Neither the reliefs have been properly valued, nor has the requisite Court fees been paid thereupon;
(d) The plaintiff has not filed any resolution passed by the Board of Directors for authorizing Mr. Ajay Sharma to file the present suit on behalf of the plaintiff company. The plaintiff has also not filed any proof of appointment of Mr. Ajay Sharma as a Managing Director of plaintiff;
(e) The defendant no.3 is based in Mumbai and this Court lacks the territorial jurisdiction to entertain and try the present suit;
(f) The defendant no.3 is an 'intermediary' as defined in Section 2(w) of the Information Technology Act, 2000 and is, thus, also protected from liability for third party content under Section 79 of the said Act. The defendant no.3 was not the CS DJ No. 10000/2016 M/s Abhinav Immigration Services Pvt. Ltd. Page 7 of 32 v. Digitally signed by Sudeep Jadhav & Ors. SACHIN SACHIN MITTAL MITTAL Date: 2025.06.27 15:15:29 +0530 'Originator' as defined under Section 2(za) of the IT Act with respect to the alleged defamatory material posted by the defendant no.1. Further, there is no specific averment qua the defendant no.3 in the plaint. The defendant no.3 merely provides an online platform for consumers to post their views, which are not endorsed or recommended by the defendant no.3.
In view of the Judgment of the Hon'ble Supreme Court in Shreya Singhal v. Union of India, (2015) 5 SCC 1 the obligation of the defendant no.3 as an 'intermediary' to remove/ take down any unlawful content posted by a third party would arise only upon receiving a Court Order to this effect. The plaint, therefore, is without any cause of action against the defendant no.3; and
(g) The defendant no.3 has already removed the offending post from its website in accordance with the Judgment dated 06.05.2015 passed by the Court.
Plaintiff's replication to the written statement of the defendant no.3:
5. The plaintiff in his replication has denied all the allegations/averments made in the written statement of the defendant no.3 and has re-affirmed those made in his plaint. It has been stated that the Board Resolution in favour of Mr. Ajay Sharma has been filed with the plaint. It has further been stated that the defendant no.3 even after communication of Judgment dated 06.05.2015 to it on 06.08.2015 did not remove the defamatory article. It has then been stated that it was only on 09.01.2016 that the defamatory article was removed by the defendant no.3.CS DJ No. 10000/2016 M/s Abhinav Immigration Services Pvt. Ltd. Page 8 of 32
v.
Sudeep Jadhav & Ors. SACHIN Digitally signed by
SACHIN MITTAL
MITTAL Date: 2025.06.27
15:15:38 +0530
Other Miscellaneous/Interim Applications:
6. Plaintiff's application under Order VI Rule 17 CPC for amendment in the plaint was allowed vide Order dated 25.05.2012, pursuant to which the plaintiff in the amended plaint impleaded defendant no.3 & 4 and also sought an enhanced damages of Rs.1 crore, instead of Rs.20,10,000/- as were sought initially in the original plaint. Vide Order dated 14.09.2021, this Court allowed an application of defendant no.3 for filing additional documents.
Similarly, on 28.04.2023, an application filed by the plaintiff for additional documents was also allowed. Vide the same Order, an application under Order VII Rule 11 CPC for rejection of the plaint as filed by the defendant no.3 was dismissed.
Issues:
7. On 18.03.2019, this Court framed following issues for trial:
Issue no.1: Whether the plaintiff is entitled for a decree of permanent injunction as claimed? OPP Issue no.2: Whether the plaintiff is entitled for a decree of mandatory injunction as claimed? OPP Issue no.3: Whether the plaintiff is entitled for recovery of damages as claimed? OPP Issue no.4: Whether the defendant no.3 is not liable being a third party agency as per Section 79 of the Information and Technology Act for any liability? OPD Issue no.5: Whether the defendant no.3 has removed the content of the alleged defamatory allegations as stipulated in the Section 79 or CS DJ No. 10000/2016 M/s Abhinav Immigration Services Pvt. Ltd. Page 9 of 32 v.
Sudeep Jadhav & Ors. SACHIN Digitally signed by SACHIN MITTAL MITTAL Date: 2025.06.27 15:15:46 +0530 the other provisions of the Information and Technology Act and if not, its effect? Onus on the parties 7.1. This Court vide Order dated 28.04.2023 framed the following additional issues:
Issue no.6: Whether this Court lacks the territorial jurisdiction to adjudicate the present suit, as alleged? OPD Plaintiff's Evidence:
8. The plaintiff, in order to prove its case, examined four witnesses.
8.1. The first witness was the Director of the plaintiff company, namely, Ajay Sharma as PW-1. He tendered his affidavit, Ex.PW-1/A towards his examination-in-chief, whereby he also tendered in evidence: the Board Resolution as Ex.PW-1/1; brochure of the company as Ex.PW-1/2; the contract with the defendant no.1 as Ex.PW-1/3; various emails written by the plaintiff and the defendant no.1 as Ex.PW-1/4 to Ex.PW-1/10, Ex.PW-1/18 & Ex.PW-1/19; the alleged defamatory articles posted by the defendant no.1 on the websites of the defendant no.2, 3 & 4 as Ex.PW-1/11 to Ex.PW-1/14; and the clarifications offered by the plaintiff on the websites of the defendant no.2, 3 & 4 as Ex.PW-1/15 to Ex.PW-1/17. The witness, PW-1 in his affidavit has deposed in line with the averments pleaded in the plaint. He was cross-examined on behalf of the defendant no.3 and then he was discharged. The testimony of the witness, PW-1 will be dealt with wherever relevant while dealing with the issues.
8.2. The plaintiff's second witness was Mr. Sanjay Datta, who claimed to be a Director in a company M/s Airborne Travels Pvt. Ltd. He tendered his affidavit, Ex.PW-2/A towards his examination in chief. He in his affidavit stated that his company was engaged in the business of travel agency and that it used to refer clients to the CS DJ No. 10000/2016 M/s Abhinav Immigration Services Pvt. Ltd. Page 10 of 32 v. Digitally signed Sudeep Jadhav & Ors. SACHIN by SACHIN MITTAL MITTAL Date: 2025.06.27 15:15:56 +0530 plaintiff company for services relating to immigration to Canada. He further deposed that several clients referred by him to the plaintiff company refused to avail its services due to defamatory article posted about it online and that due to this he suffered business loss of several lakhs of rupees. He was cross-examined on behalf of the defendant no.3 and then he was discharged. The testimony of the witness, PW-2 will be dealt with wherever relevant while dealing with the issues.
8.3. The third witness plaintiff examined was Mr. Neeraj Gulati as PW-3. He tendered his affidavit, Ex.PW-3/A towards his examination in chief. He stated therein that at the relevant time period he was running a Chartered Accountancy firm by the name of M/s K.N.A Associates; that the plaintiff was one of his clients; that he had referred various clients to the plaintiff; that he had also referred his friend's son to the plaintiff, who had refused to avail its services due to its bad reputation online; and that upon coming to know about the defamatory article about the plaintiff, its reputation got lowered down in his eyes. He was cross-examined on behalf of the defendant no.3 and then he was discharged. The testimony of the witness, PW-3 will be dealt with wherever relevant while dealing with the issues.
8.4. The plaintiff also examined its COO, namely, Rohit Kumar Sharma as PW-4. He tendered his affidavit, Ex.PW-4/A towards his examination in chief, whereby he also tendered in evidence the financial statements of plaintiff for the year 2011-12, 2012-13 and 2013-14 as Ex.PW-4/1, Ex.PW-4/2 and Ex.PW-4/3 respectively. He deposed that during the financial year 2011-12, the plaintiff earned a profit of Rs.7,48,063/-; that during the financial year 2012-13, the profit of the company was expected to be around Rs.1 crore, but the same remained only Rs.63,33,327/-; and that during the financial year 2013-14, the plaintiff incurred losses of Rs.2,41,40,599/-. He was cross-examined on behalf of the defendant CS DJ No. 10000/2016 M/s Abhinav Immigration Services Pvt. Ltd. Page 11 of 32 v.
Sudeep Jadhav & Ors. SACHIN Digitally signed by
SACHIN MITTAL
MITTAL Date: 2025.06.27
15:16:04 +0530
no.3 and then he was discharged. The testimony of the witness, PW-4 will be dealt with wherever relevant while dealing with the issues.
Defendant No.3's evidence:
9. The defendant no.3 in its defence examined its Head of HR-Recruitment & Legal Affairs, Mr. Jummal Mohammed Irfan as DW-1. He tendered his affidavit, Ex.DW-1/A towards his examination in chief, whereby he also tendered in evidence: Board Resolution as Ex.DW-1/1; the user agreement and terms & conditions as Mark 1; the blog deletion report as Ex.DW-1/2; the deletion instructions as Ex.DW-1/3; and Certificate under Section 65B of Evidence Act as Mark 2. The witness, DW-1 in the evidence affidavit deposed more or less in line with the averments pleaded in the written statement of the defendant no.3, except that it was also deposed that the alleged defamatory content was removed by the defendant no.3 from its website on 15.10.2012 itself. He was cross-examined on behalf of the plaintiff and then he was discharged. The testimony of the witness, DW-1 will be dealt with wherever relevant while dealing with the issues.
Plaintiff's rebuttal evidences:
10. The plaintiff company in its rebuttal evidences again examined its first witness, Ajay Sharma, who tendered his affidavit, Ex.PW-1/B towards his examination-in-chief. He also tendered in evidence print out of two internal emails exchanged between the employees of the plaintiff, both, dated 24.09.2015, alongwith screenshot of defamatory article as Ex.PW-1/20 & Ex.PW-1/21 respectively. He also tendered another internal email dated 24.09.2015 in response to the aforesaid two emails as Ex.PW-1/22. A Certificate under Section 65B of the Evidence Act was also tendered as Ex.PW-1/23.
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Digitally signed Sudeep Jadhav & Ors. SACHIN by SACHIN
MITTAL
MITTAL Date: 2025.06.27
15:16:12 +0530
Arguments:
11. I have heard Sh. Siddharth Yadav, Ld. Senior Counsel for the plaintiff and Mr. Syed M. Haroon, Ld. Counsel for the defendant no.3. I have carefully perused the judicial record, including the written submissions filed on behalf of the parties as well.
12. Mr. Yadav, Ld. Senior Counsel for the plaintiff argued that the defendant no.3 is liable for the defamation on two counts:
firstly, because it published on its website the defamatory articles dated 23.11.2011 and 08.12.2011 posted by the defendant no.1 and did not delete the same upon being informed by the plaintiff; and secondly, because it failed to expeditiously delete the defamatory article upon becoming aware on 06.08.2015 about the Judgment dated 06.05.2015 passed by the Court.
13. I will deal with the aforesaid first plea of Mr. Yadav while returning findings on the issues. I am taking up the aforesaid second plea herein below first because I am of the considered view that the plaintiff cannot be allowed to raise this plea in this suit.
14. Plaintiff in its plaint has sought following three reliefs:
(a) injunction to restrain the defendants from writing any defamatory material against the plaintiff; (b) injunction to direct the defendant no.2, 3 & 4 to remove the alleged defamatory articles from their website; and (c) damages of Rs.1 crore against defendant no.1 to 4.
These three reliefs were decreed by the Hon'ble High Court vide its ex-parte Judgment dated 06.05.2015 against all the four defendants. Then, pursuant to allowing of an application under Order IX Rule 13 CPC filed by the defendant no.3, the said ex-parte Judgment qua the defendant no.3 was set aside and it was granted an opportunity to contest this suit. Upon completion of pleadings, both parties led evidences to prove their respective claim and defence. Now, the CS DJ No. 10000/2016 M/s Abhinav Immigration Services Pvt. Ltd. Page 13 of 32 v.
Sudeep Jadhav & Ors. SACHIN Digitally signed by SACHIN MITTAL MITTAL Date: 2025.06.27 15:16:21 +0530 question that needs to be determined is whether the plaintiff is entitled to the aforesaid three reliefs against the defendant no.3.
15. Here, the scheme laid down in the CPC for disposal of a suit, is relevant. Plaintiff pleads in his plaint material facts and cause of action in support of reliefs sought by him. The defendant, then, is given an opportunity to contest this suit by filing written statement. Upon completion of pleadings from both the sides, issues are struck. Pertinently, an issue arises when a material proposition of fact and/or law is affirmed by one party and is denied by the other party. Parties from both the sides then lead oral and/or documentary evidences to prove their respective claim/ defence. Finally, Court is required to return its findings upon issues framed in the suit. Important to note here is that a case cannot be decided on the issue(s) which was not framed.
16. Now, coming to the present case, it is relevant to notice as to what is the cause of action pleaded in the plaint qua the defendant no.3. It is noted that plaintiff's case is based upon the claim that it was the defendant no.1, who posted defamatory articles on the websites of the defendant no.2, 3 & 4. The averments qua the defendant no.2, 3 & 4 which are relevant have been made in para 22 & 24, which are reproduced herein under:
"22. It is submitted that the defendant no.2, 3 and 4 appears to be websites wherein people can put their comments/blog. It is the duty of the websites to check the authenticity of the information being posted by defendant no.1, before posting the same on their site. Hence, the defendant no.2, 3 and 4 have perpetuated the offence committed by defendant no.1 by actively participating in the same.
24. It is submitted that a detailed clarification on the defamatory statements of the defendant no.1 was offered by the Director of the plaintiff company on the site of the defendant no.2 on November 23, 2011, and on CS DJ No. 10000/2016 M/s Abhinav Immigration Services Pvt. Ltd. Page 14 of 32 v. Digitally signed Sudeep Jadhav & Ors. SACHIN by SACHIN MITTAL MITTAL Date: 2025.06.27 15:16:29 +0530 the site defendant no.3 on December 22, 2011, and January 2, 2012 and on the site of defendant no.4 on December 23, 2011 and December 24, 2011. However even then the defendant no.2, 3 & 4 have not removed objectionable content from their respective sites."
17. Thus, from the above two paragraphs, it is clear that the cause of action pleaded qua the defendant no.2, 3 & 4 was that they had perpetuated the offence committed by the defendant no.1 by posting his defamatory article on their website and that the said defendants failed to remove the defamatory articles of the defendant no.1 after the plaintiff had posted its detailed clarifications on their websites.
18. It was vide the ex-parte Judgment dated 06.05.2015 that the defendant no.2, 3 & 4 were inter alia directed to remove the defamatory article of the defendant no.1 from their websites. Mr. Yadav, argued that the defendant no.3 had become aware about the said ex-parte Judgment on 06.08.2015, however, the defamatory articles of the defendant no.1 were removed by the defendant no.3 from its website only on 09.10.2015 as stated in para 4 of affidavit- evidence, Ex.PW1/B of plaintiff's witness, Ajay Sharma, which was tendered in rebuttal of defendant no.3's evidences. This plea was not pleaded in the plaint and replication of the plaintiff, obviously for the reason that the said development had taken place subsequent to filing of the said plaint and replication. The proper cause of action for the plaintiff for pleading this new cause of action against the defendant no.3 was to seek amendment in the plaint under Order VI Rule 17 CPC, which, the plaintiff, however, did not do. No issue on this alleged fresh cause of action qua the defendant no.3 was struck because it was neither pleaded in the pleadings of the plaintiff, nor any relief was sought. In this regard, the observations made by the Hon'ble Supreme Court in Bachhaj Nahar v. Nilima Mandal and Ors., AIR 2009 SC 1103, are relevant:
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Sudeep Jadhav & Ors.Digitally signed by
SACHIN SACHIN MITTAL MITTAL Date: 2025.06.27 15:16:36 +0530 "16. The observation of the High Court that when a plaintiff sets forth the facts and makes a prayer for a particular relief in the suit, he is merely suggesting what the relief should be, and that it is for the court, as a matter of law, to decide upon the relief that should be granted, is not sound. Such an observation may be appropriate with reference to a writ proceeding. It may even be appropriate in a civil suit while proposing to grant as relief, a lesser or smaller version of what is claimed. But the said observation is misconceived if it is meant to hold that a civil court may grant any relief it deems fit, ignoring the prayer. It is fundamental that in a civil suit, relief to be granted can be only with reference to the prayers made in the pleadings. That apart, in civil suits, grant of relief is circumscribed by various factors like court fee, limitation, parties to the suits, as also grounds barring relief, like res judicata, estoppel, acquiescence, non-joinder of causes of action or parties etc., which require pleading and proof. Therefore, it would be hazardous to hold that in a civil suit whatever be the relief that is prayed, the court can on examination of facts grant any relief as it thinks fit. In a suit for recovery of Rs.one lakh, the court cannot grant a decree for Rs. Ten lakhs. In a suit for recovery possession of property `A', court cannot grant possession of property `B'. In a suit praying for permanent injunction, court grant a relief of declaration or possession. The jurisdiction to grant relief in a civil suit necessarily depends on the pleadings, prayer, court fee paid, evidence let in, etc."1 1 The reliance is also placed upon the decisions, A. Parasakthi and Ors. V. Gurusamy and Ors., MANU/TN/2876/2020; Kalyan Singh Chouhan v. C.P. Joshi, AIR 2011 SC 1127; Biswanath Agarwalla v. Sabitri Bera and Others, (2009) 15 SCC 693; and Kaniz Fatima and Ors. V. Shah Naim Ashraf, AIR 1983 ALL450 for the proposition that the decision of a Trial Court should not be based upon finding on the plea over which the issue was not framed.CS DJ No. 10000/2016 M/s Abhinav Immigration Services Pvt. Ltd. Page 16 of 32
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Digitally signed bySudeep Jadhav & Ors. SACHIN SACHIN MITTAL MITTAL Date: 2025.06.27 15:16:45 +0530
19. This Court, therefore, cannot entertain the aforesaid second plea2 of the defendant no.3.
Findings On Issues:
20. Issue no.6: Whether this Court lacks the territorial jurisdiction to adjudicate the present suit, as alleged? OPD 20.1. The burden of proving this issue was fixed upon the defendant no.3.
20.2. The defendant no.3 has pleaded that it being based in Mumbai this Court lacks the territorial jurisdiction qua it. Mr. Haroon, Ld. Counsel for the defendant no.3, in this regard, relied upon the Judgment of the Hon'ble Delhi High Court in Banyan Tree Holding (P) Limited v. A. Murali Krishna Reddy & Anr., 2009 SCC OnLine Del 3780, and contended that in case of dispute involving internet, plaintiff is required to show that the defendant's website was targeted to the users in the forum state or that some commercial transactions using the website was entered into by a user within the forum state. Per contra, Mr. Yadav, Ld. Senior Counsel submitted that the plaintiff is based in Delhi and that the publication of the alleged defamatory material on the websites of the defendant no.2, 3 & 4 has injured its reputation in the eyes of vast majority of its clients in Delhi. He further argued that in the present case the defendant no.1 had approached the plaintiff at its Head Office in Delhi and that the contract with him was also executed in Delhi. He submitted that a substantial cause of action, therefore, has taken place within the 2 The plea that the defendant no.3 failed to expeditiously delete the defamatory article upon becoming aware on 06.08.2015 about the Judgment dated 06.05.2015 passed by the Court.
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Sudeep Jadhav & Ors. SACHIN SACHIN MITTAL
MITTAL Date: 2025.06.27
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jurisdiction of this Court and as per Section 20 of the CPC this Court has the territorial jurisdiction.
20.3. Here Section 19 of the CPC is relevant, which reads as under:
"19. Suits for compensation for wrongs to person or movable-- 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.
(b) A, residing in Delhi, publishes in Calcutta statements defamatory of B. B may sue A either in Calcutta or in Delhi."
20.4. The defamation is a wrong done to a person. If the wrong of defamation is committed within the jurisdiction of one Court, and the defendant is based within the jurisdiction of another Court, the suit for compensation, as per Section 19, can be filed at the option of the plaintiff in either of the said two Courts. The illustration
(b) explains this position.
20.5. The defamation takes place when the alleged defamatory material is published. The 'publication' means making a material known to a third party. In the context of online defamation, the publication takes place when the defamatory material is read or accessed by a third party. In the case of online defamation, the alleged defamatory material may be read by a third party from any place in the world. This, however, does not mean that a suit for compensation CS DJ No. 10000/2016 M/s Abhinav Immigration Services Pvt. Ltd. Page 18 of 32 v.
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for defamation can be filed at all such places where the defamatory material is read by any person. The defamation, being an injury to the reputation, an aggrieved natural person or a company is most affected at the place where such a natural person resides or where such a company has its registered office or principal office or any branch office. In the present case, the registered office of the plaintiff is situated within the territorial limits of this Court. It, therefore, can be said that the alleged defamatory articles though uploaded by the defendant no.1 in Maharashtra, the publication of the same has also taken place within the territorial limits of this Court. It is also held that the act of defendant no.1 approaching the plaintiff at its Head Office in Delhi and execution of contract there show that a substantial part of cause of action as per Section 20 of the CPC has also taken place within the territorial limits of this Court. As regard Banyan Tree (supra), as relied upon by Ld. Counsel for the defendant no. 3, the said judgment being in the context of dispute regarding passing off/ infringement of trade mark through website, I do find the same to be relevant here.
20.6. In view of the above, it is held that this Court has the territorial jurisdiction to entertain and try the present suit. The issue no.6 is, therefore, decided against the defendant no.3 and in favour of the plaintiff.
21. Issue no.3: Whether the plaintiff is entitled for recovery of damages as claimed? OPP Issue no.4: Whether the defendant no.3 is not liable being a third party agency as per Section 79 of the Information and Technology Act for any liability? OPD CS DJ No. 10000/2016 M/s Abhinav Immigration Services Pvt. Ltd. Page 19 of 32 v.
Sudeep Jadhav & Ors. SACHIN Digitally signed by SACHIN MITTAL MITTAL Date: 2025.06.27 15:17:15 +0530 Issue no.5: Whether the defendant no.3 has removed the content of the alleged defamatory allegations as stipulated in the Section 79 or the other provisions of the Information and Technology Act and if not, its effect? Onus on the parties 21.1. These issues are being taken up together as the same can be determined on the basis of common findings.
21.2. The case of the plaintiff qua the defendant no. 3 as pleaded in para 22 & 243 of the plaint is: (i) it was the duty of the defendant no.3 to check the authenticity of the information posted by the defendant no.1 before posting the same on its website; (ii) the defendant no.3 has perpetuated the offence committed by the defendant no.1 by actively participating in the same; and (iii) the defendant no.3 did not remove from its website the defamatory article of the defendant no.1 even after the plaintiff offered a detailed clarification on the website of the defendant no.3. The defendant no.3 in its defence has pleaded: (i) it being an 'intermediary' is exempted under Section 79 of the IT Act from the liability for the content posted by any third party; and (ii) it had deleted the alleged defamatory article of the defendant no.1 on 15.10.2012 itself (as evidenced by the blog deletion report, Ex.DW-1/3 and the deletion instructions, Ex.DW-1/4). The plaintiff in its rebuttal evidence tendered screenshots of the alleged defamatory articles (Ex.PW-1/20 and Ex.PW-1/21) which as per it were still online on 23.06.2015 and further stated that the same were actually deleted by the defendant no.3 only on 09.10.2015.
3The para no.22 & 24 of the plaint have been reproduced in para 16 of this Judgment.
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Sudeep Jadhav & Ors. SACHIN Digitally signed by SACHIN MITTAL MITTAL Date: 2025.06.27 15:17:24 +0530 21.3. In view of the aforesaid rival contentions of the parties, first, I will deal with the issue regarding the date of deletion of the alleged defamatory articles. It is noted here that the defendant no.3, in para 14 of its written statement, which was in response to para 24 of the plaint, had stated that it had deleted the alleged defamatory articles of the defendant no.1 in compliance of Judgment dated 06.05.2015 passed by the Hon'ble Delhi High Court. Though, the defendant no.3 did not specifically mention the date of deletion, the certain inference that can be drawn is only that the said defamatory article was removed by the defendant no.3 after 06.05.2015. The defendant no.3, however, in the evidence-affidavit, Ex.DW-1/A of its witness, Mr. Jummal Mohammed Irfan/ DW-1, while relying upon the blog deletion report and the delivery instructions (Ex.DW-1/3 and Ex.DW-1/4) deposed that the alleged defamatory article was deleted on 15.10.2012. This deposition being in clear contradiction to what was pleaded in the written statement cannot be considered. Mr. Yadav, Ld. Senior Counsel in this regard has rightly relied upon the Judgment of the Hon'ble Supreme Court in Srinivas Raghvendrarao Desai (dead) by LRs v. Kumar Vamanrao alias Alok & Ors., 2024 SCC OnLine 226 for contending that evidence beyond pleadings cannot be considered. It is, therefore, held that the defendant no.3 has not been able to prove that it had deleted the alleged defamatory articles on 15.10.2012 as deposed in evidence.
21.4. Now, it needs to be considered whether the defendant no.3 can be held liable for the defamation of the plaintiff.
21.5. There cannot be a dispute to the legal proposition that in the eyes of law, a person who publishes the defamatory material authored by other is also guilty of defamation. An act of hosting a CS DJ No. 10000/2016 M/s Abhinav Immigration Services Pvt. Ltd. Page 21 of 32 v.
Sudeep Jadhav & Ors. SACHIN Digitally signed by SACHIN MITTAL MITTAL Date: 2025.06.27 15:17:32 +0530 defamatory material on the website and allowing people at large to view the same is just like an act of distributing the pamphlets containing defamatory material or an act of uttering the defamatory words originally said by some other person. However, the defendant no. 3 has taken the defence of it being an "intermediary" protected under Section 79 of the Information Technology Act, 2000. Section 2(1)(w) of the Act defines "intermediary" as under:
"Intermediary", with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online- auction sites, online-market places and cyber cafes."
21.6. The defendant no.3 claims that it provides an online platform through its website whereupon the consumers can post their reviews about the products/services purchased by them and whereupon the sellers of products/ services can also respond to such reviews of the consumers. It is noted here that even the plaintiff has not disputed that the defendant no.3 is only an 'intermediary' as defined herein above. The dispute between the parties, however, is whether the defendant no.3 can claim exemption from liability under Section 79 of the IT Act or not. Section 79 of the IT Act reads as under:
"Section 79 - Exemption from liability of intermediary in certain cases:
(1) Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary shall not be liable for any third party information, data, or communication link made available or hosted by him.CS DJ No. 10000/2016 M/s Abhinav Immigration Services Pvt. Ltd. Page 22 of 32
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(2) The provisions of sub-section (1) shall apply if-
(a) the function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hosted; or
(b) the intermediary does not-
(i) initiate the transmission,
(ii) select the receiver of the transmission, and
(iii) select or modify the information contained in the transmission;
(c) the intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf.
(3) The provisions of sub-section (1) shall not apply if-
(a) the intermediary has conspired or abetted or aided or induced, whether by threats or promise or otherwise in the commission of the unlawful act;
(b) upon receiving actual knowledge, or on being notified by the appropriate Government or its agency that any information, data or communication link residing in or connected to a computer resource controlled by the intermediary is being used to commit the unlawful act, the intermediary fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner.
Explanation.-For the purposes of this section, the expression "third party information" means any information dealt with by an intermediary in his capacity as an intermediary."
21.7. Section 79 of the IT Act provides "safe harbour"
provision which shields an intermediary for third party content which it hosts or transmits. This means that an intermediary is generally not responsible for illegal content posted by its user. However, this immunity is limited by sub-sections (2) & (3) of Section 79, which CS DJ No. 10000/2016 M/s Abhinav Immigration Services Pvt. Ltd. Page 23 of 32 v. Digitally signed Sudeep Jadhav & Ors. by SACHIN SACHIN MITTAL MITTAL Date:
2025.06.27 15:17:47 +0530 state that such immunity applies only when the role of an intermediary is only passive and technical. Further, an intermediary cannot claim immunity if it is actually involved in the unlawful activity. Section 79(3)(b) establishes a "notice and take down"
regime, requiring an intermediary to remove infringing content upon being informed about the same. Here, the Information Technology (Intermediary Guidelines) Rules, 2011, which were in force during the relevant period of dispute in the present case, are also relevant, especially the Rule 3(2) & 3(4) in the said Rules:
"3. Due diligence to be observed by intermediary.-- The intermediary shall observe following due diligence while discharging his duties, namely:--
(2) Such rules and regulations, terms and conditions or user agreement shall inform the users of computer resource not to host, display, upload, modify, publish, transmit, update or share any information that--
(a) belongs to another person and to which the user does not have any right to;
(b) is grossly harmful, harassing, blasphemous defamatory, obscene, pornographic, paedophilic, libellous, invasive of another's privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever;
(c) harm minors in any way;
(d) infringes any patent, trademark, copyright or other proprietary rights;
(e) violates any law for the time being in force;
(f) deceives or misleads the addressee about the origin of such messages or communicates any information which is grossly offensive or menacing in nature;
(g) impersonate another person;CS DJ No. 10000/2016 M/s Abhinav Immigration Services Pvt. Ltd. Page 24 of 32
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(h) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource;
(i) threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states, or public order or causes incitement to the commission of any cognisable offence or prevents investigation of any offence or is insulting any other nation.
(4) The intermediary, on whose computer system the information is stored or hosted or published, upon obtaining knowledge by itself or been brought to actual knowledge by an affected person in writing or through e- mail signed with electronic signature about any such information as mentioned in sub-rule (2) above, shall act within thirty-six hours and where applicable, work with user or owner of such information to disable such information that is in contravention of sub-rule (2). Further the intermediary shall preserve such information and associated records for at least ninety days for investigation purposes."
21.8. The aforesaid Rule basically set out the due diligence required to be observed by an 'intermediary' as one of the conditions for claiming immunity for third party content. Under the aforesaid Rule, an 'intermediary' is required to publish the rules and regulations, privacy policy and user agreement, thereby warning the users against uploading an unlawful information as set out under Clause (a) to (i) of Rule 3(2). Rule 3(4) then requires an 'intermediary' to remove unlawful content from its platform once it acquires knowledge of such content by itself or from an aggrieved individual.
21.9. Now, let us consider whether the defendant no.3 can claim exemption under Section 79 of the IT Act for the alleged CS DJ No. 10000/2016 M/s Abhinav Immigration Services Pvt. Ltd. Page 25 of 32 v.
Digitally signed bySudeep Jadhav & Ors. SACHIN SACHIN MITTAL MITTAL Date: 2025.06.27 15:18:05 +0530 defamatory article posted by the defendant no.1. Sub-sections (2) and (3) of Section 79 prescribes several conditions under various clauses subject to fulfillment of which an 'intermediary' can claim exemption. In the present case, the role of the defendant no.3 as an 'intermediary' was only to provide access to the defendant no.1 to its platform/website. The condition under sub-section 2(a), therefore, stands satisfied. As per the requirements of sub-section 2(b), the defendant no.3 had neither initiated the transmission of the alleged defamatory article, nor had it selected the receiver, nor had it selected or modified the alleged defamatory content posted by the defendant no.1. Sub-section 2(c) requires an 'intermediary' to observe due diligence. This aspect shall be dealt with later on. Sub-section 3(a) provides that an 'intermediary' should not have conspired or abetted or aided or induced, whether by threats or promise or otherwise in the commission of unlawful act. In the present case, merely because the defendant no.3 allowed the defendant no.1 to post its review about the services of the plaintiff, like it was allowing all its other users, it cannot be said that it is guilty of conspiracy or abetment or aiding or inducing the posting of defamatory material.
21.10. Now, comes the question of considering the compliance of sub-section 2(c) and 3(b), which was earnestly contested by both the parties. Mr. Haroon, for the defendant no.3, heavily placed reliance upon the Judgment of the Hon'ble Supreme Court in Shreya Singhal (Supra). The Supreme Court in the said Judgment has read down Section 79(3)(b) and Intermediary Rules of 2011:
"117. Section 79(3)(b) has to be read down to mean that the intermediary upon receiving actual knowledge that a court order has been passed asking it to expeditiously remove or disable access to certain material must then fail to expeditiously remove or CS DJ No. 10000/2016 M/s Abhinav Immigration Services Pvt. Ltd. Page 26 of 32 v.Digitally signed by
Sudeep Jadhav & Ors. SACHIN SACHIN MITTAL MITTAL Date: 2025.06.27 15:18:12 +0530 disable access to that material. This is for the reason that otherwise it would be very difficult for intermediaries like Google, Facebook etc. to act when millions of requests are made and the intermediary is then to judge as to which of such requests are legitimate and which are not. We have been informed that in other countries worldwide this view has gained acceptance, Argentina being in the forefront. Also, the Court order and/or the notification by the appropriate Government or its agency must strictly conform to the subject matters laid down in Article 19(2). Unlawful acts beyond what is laid down in Article 19(2) obviously cannot form any part of Section
79. With these two caveats, we refrain from striking down Section 79(3) (b).
118. The learned Additional Solicitor General informed us that it is a common practice worldwide for intermediaries to have user agreements containing what is stated in Rule 3(2). However, Rule 3(4) needs to be read down in the same manner as Section 79(3)(b). The knowledge spoken of in the said sub-rule must only be through the medium of a court order. Subject to this, the Information Technology (Intermediaries Guidelines) Rules, 2011 are valid.
119. In conclusion, we may summarise what has been held by us above:
(a) ...
(b) ...
(c) Section 79 is valid subject to Section 79(3)(b) being read down to mean that an intermediary upon receiving actual knowledge from a court order or on being notified by the appropriate government or its agency that unlawful acts relatable to Article 19(2) are going to be committed then fails to expeditiously remove or disable access to such material. Similarly, the Information Technology "Intermediary Guidelines" Rules, 2011 are valid subject to Rule 3 sub-rule (4) being read down in the same manner as indicated in the judgment.
(d) ..."CS DJ No. 10000/2016 M/s Abhinav Immigration Services Pvt. Ltd. Page 27 of 32
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21.11. Relying upon the aforesaid Judgment, Mr. Haroon argued that the defendant no.3 had no obligation at all to remove the alleged defamatory post of the defendant no.1 because till the passing of the ex-parte Judgment dated 06.05.2015 it had not received any Court Order for removing the said post/article. He further argued that the defendant no.3 in compliance of Rule 3(2) had duly published the user agreement and terms & conditions (Mark 1). Per contra, Mr. Yadav, Ld. Senior Counsel for the plaintiff argued that the Shreya Singhal Judgment having been passed on 24.03.2015 would be prospective in operation. Basis this argument, Mr. Yadav also argued that at the relevant period the defendant no.3 as an 'intermediary' was under an obligation to remove the defamatory article upon being required/ informed by the plaintiff itself. However, I am not impressed with the said contention of Mr. Yadav. A Judgment of the Constitutional Court interpreting a statute or rules would be binding upon all the Courts in the country when the question regarding the applicability of such statute or rules arises before the Courts. In view of this, it is held that the defendant no.3 was not under an obligation to remove the alleged defamatory article of the defendant no.1 and, therefore, it is also entitled to the immunity under Section 79 of the IT Act.
21.12. Nevertheless, even if the Shreya Singhal Judgment is assumed to be prospective in operation, I am of the view that the defendant no.3 would still be entitled to exemption under Section 79 of the IT Act. Even if sub-section 3(b) and rule 3(4) are literally read (ignoring for the sake of arguments the interpretation given in Shreya Singhal Judgment), it was required to be proved that an 'intermediary' had gained an actual knowledge through the aggrieved CS DJ No. 10000/2016 M/s Abhinav Immigration Services Pvt. Ltd. Page 28 of 32 v.
Sudeep Jadhav & Ors. SACHIN Digitally signed by SACHIN MITTAL MITTAL Date: 2025.06.27 15:18:29 +0530 person about the unlawful content. In the present case, however, the plaintiff has utterly failed to lead any evidence to prove that it ever requested the defendant no.3 (much less than requesting in writing or through an email signed with electronic signatures, as required under rule 3(4)) to remove the alleged defamatory articles of the defendant no.1. The plaintiff merely offering clarifications (Ex.PW-1/15 to Ex.PW-1/17) on the websites of the defendant no.2, 3 & 4, does not amount to bringing it into the knowledge of an 'intermediary' that an unlawful content has been posted on its website and that the same is required to be removed.
21.13. There is yet another reason as to why an 'intermediary' cannot be fastened with a legal obligation to remove a third party content, especially the defamatory material, upon being required (without Court Order) by an aggrieved person. The defamation is an injury to reputation. However, the wrong of defamation is not an absolute in the sense that there cannot be any defence to it. The following are the defences to the defamation: (i) truth, (ii) fair comment, and (iii) privilege (which may be either an absolute or qualified). In the case of defamation, a balance is required to be struck between the right to reputation and freedom of speech. A statement does not become defamatory merely because a person thinks so. Such a person, therefore, cannot require an 'intermediary' to remove the alleged defamatory statement without first getting an Order from the Court. The question whether a material is defamatory or not cannot be left to the Judgment of an 'intermediary'.
21.14. In view of the above, it is held that the defendant no.3 is entitled to exemption from liability under Section 79 of the IT Act. The issue no.4 is, accordingly, decided in favour of the defendant CS DJ No. 10000/2016 M/s Abhinav Immigration Services Pvt. Ltd. Page 29 of 32 v. Digitally signed Sudeep Jadhav & Ors. SACHIN by SACHIN MITTAL MITTAL Date: 2025.06.27 15:18:37 +0530 no.3 and against the plaintiff. It is also held that the defendant no.3 as per Section 79 and 2011 Rules was not under an obligation to remove the alleged defamatory content. The issue no.5 is, therefore, decided in favour of the defendant no.3 and against the plaintiff. In view of the determination of issue no.4 and 5 in favour of the defendant no.3 and against the plaintiff, it is also held that the plaintiff is not entitled for recovery of damages. The issue no.3 is, thus, decided against the plaintiff and in favour of the defendant no.3.
22. Issue no.1: Whether the plaintiff is entitled for a decree of permanent injunction as claimed? OPP 22.1. The burden of proving this issue was fixed upon the plaintiff.
22.2. This issue was framed in terms of relief 'A' sought by the plaintiff in its plaint. The said relief reads as: "Pass a decree for Permanent Injunction thereby permanently restraining the defendant(s), individually and/or collectively from writing any article, mail, letter and/or any other document thereby defaming or maligning the name/reputation of the plaintiff company". 22.3. As per Section 38 of the Specific Relief Act, 1963, a prohibitory injunction can be granted when there is an apprehension of the defendant making breach of an obligation existing in favour of the plaintiff. Every person has an obligation to not to defame another person. Having said this, there has to be some material for the apprehension that the defendant is likely to make breach of such obligation. There may be a case when a person is consistently defaming another person over a particular subject and in such case the Court if satisfied that the defamation has taken place can injunct the defendant from repeating such publication.
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22.4. Now, coming to the present case, it has to be kept in mind that the defendant no.3 being an 'intermediary' is entitled to exemption under Section 79 for the third party contents provided it fulfills all the requirements of Section 79 and relevant Rules. It has already been held herein above that the defendant no.3 is not liable for the defamation of the plaintiff and is rather entitled to the exemption under Section 79 for the defamation, if any, committed by the defendant no.1. Therefore, this is not a fit case for granting the injunction as sought against the defendant no.3.
22.5. Moreover, the Court cannot assume that the future publication of the defendant would be defamatory. The cause of action for the plaintiff would arise only upon the defendant making a publication and plaintiff proving the same to be defamatory. Such a broadly worded injunction as sought by the plaintiff would have chilling effect upon the freedom of speech of the defendants.
22.6. In view of the above, the issue no.1 is decided against the plaintiff and in favour of the defendant no.3.
23. Issue no.2: Whether the plaintiff is entitled for a decree of mandatory injunction as claimed? OPP 23.1. The burden of proving this issue was fixed upon the plaintiff.
23.2. This issue was framed in terms of relief 'B' sought by the plaintiff in its plaint. The said relief reads as: "Pass a decree of Mandatory Injunction thereby directing defendant no.2, 3 and 4, to remove the objectionable article dated November 23, 2011; November 20, 2011 and November 23, 2011 respectively, written by defendant no.1 on their sites and/or any article which defendant no.1 may have written on the site of 2, 3 and 4".
23.3. It is an admitted case of the plaintiff that the defendant CS DJ No. 10000/2016 M/s Abhinav Immigration Services Pvt. Ltd. Page 31 of 32 v. Digitally signed Sudeep Jadhav & Ors. SACHIN by SACHIN MITTAL MITTAL Date: 2025.06.27 15:18:52 +0530 no.3 has already deleted from its website the alleged defamatory content of the defendant no.1 on 09.10.2015 as stated in para 4 of affidavit-evidence, Ex.PW1/B of plaintiff's witness, Ajay Sharma, which was tendered in rebuttal of defendant no.3's evidences. This issue has, therefore, become infructous.
23.4. In view of the above, no finding is being returned upon the captioned issue.
Conclusion:
24. As a net result of determination of the issues, the present suit is dismissed with costs, as per rules, against the plaintiff and in favour of the defendant no.3.
25. Decree sheet be prepared accordingly. File be consigned to Record Room, after due compliance.
Digitally signed
SACHIN by SACHIN
Announced & dictated in MITTAL
MITTAL Date: 2025.06.27
the open Court on 26.06.2025 15:19:00 +0530
(Sachin Mittal)
District Judge-03/South-East District Saket Courts, New Delhi/26.06.2025 Certified that this Judgment contains 32 pages and each page bears my signatures.
(Sachin Mittal) District Judge-03/South-East District Saket Courts, New Delhi/26.06.2025 Digitally signed SACHIN by SACHIN MITTAL MITTAL Date: 2025.06.27 15:19:07 +0530 CS DJ No. 10000/2016 M/s Abhinav Immigration Services Pvt. Ltd. Page 32 of 32 v.
Sudeep Jadhav & Ors.