Calcutta High Court
Nandalal Rathi vs The Kamalalaya Centre Shops & Office ... on 14 March, 2014
Author: Soumen Sen
Bench: Soumen Sen
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
Present :
The Hon'ble Justice Soumen Sen
C.S. NO. 174 OF 2002
With
G.A. NO. 2343 OF 2013
Nandalal Rathi
Vs.
The Kamalalaya Centre Shops & Office Owners Association & Ors.
For the plaintiff : Mr. Jayanta Banerjee,
Ms. Amrita Pandey,
Mr. S.R. Saha,
For the defendants : Mr. Raja Basu Chowdhury,
Heard on : 13.02.2013, 27.02.2013, 13.03.2013,
12.04.2013, 03.06.2013, 01.07.2013,
08.08.2013, 30.08.2013, 14.02.2014, 28.02.2014
Judgment on : 14th March, 2014
Soumen Sen, J.:- The defendants have filed this application for rejection
of the plaint on the ground of limitation.
The petitioners-defendants in the petition have stated that the plaintiff
had alleged in the plaint that the letter containing the defamatory statement
was published on 3rd February, 2001. Accordingly, in terms of Article 75 of the
limitation Act, 1963, the period of limitation for compensation for libel is one
year from the date when the libel was published. The plaintiff has filed the suit
on 5th April, 2002. The plaintiff in paragraph 16 of the plaint has stated that
the cause of action of the suit arose as on February 03, 2001 when the
defendant No.2 issued the letter by which the membership of the plaintiff from
the Executive Committee was ceased without assigning any good or valid reason
and is continuing day to day.
The action for libel is based on the letter dated 3rd February, 2003. The
defendant states that on the own showing of the plaintiff there was no other
letter or communication apart from the letter dated February 03, 2001
containing alleged defamatory statement. The cause of action for alleged libel
is, accordingly, complete with the issuance of the said letter and the suit for
compensation for such alleged libel is to be filed within a period of one year
from the date of such publication.
Ms. Amrita Pandey led by Mr. Raja Basu Chowdhury submitted that in
view of Article 75 of the Limitation Act the suit is expressly barred by the laws of
limitation and the plaint is to be dismissed on that ground alone. The learned
Counsel has relied upon the following decisions:-
1) (2013) 198 DLT 35 (Brig. B.C. Rana (Retd.) Vs. Ms. Seema
Katoch & Ors.);
2) (2001) 3 CHN 767 ( Dr. vijay Pahwa Vs. Bratati Mukherjee);
3) (2012) 195 DLT 20 (Prem Peyara Vs. Kamla Sinha Alias
Kamala Prem & Anr.);
4) RFA No.757 of 2010 (N.N.S. Rana Vs. Union of India & Ors.)
It is submitted on the basis of the aforesaid decisions that it has been
consistently held by different High Courts including our Court that when the
statement is defamatory, the plaintiff would be required to file the suit within
one year from the date of publication and is entitled to general damages if the
plaintiff could establish the same at trial. The defamatory statement and/or
words are actionable per se and in such a case, general damages will be
presumed.
Per contra Mr. Jayanta Banerjee, learned Counsel appearing on behalf of
the plaintiff submits that on a bare reading of the plaint it would appear that it
is a continuing wrong and as such the suit is not barred by limitation. Mr.
Banerjee has referred to Sections 22 and 23 of the Limitation Act, 1963 and the
averments made in paragraphs 10 to 13 of the plaint. It is submitted that the
plaintiff has claimed special damage in paragraph 13 and has stated in the
plaint that the cause of action is continuing. It is submitted that the letter
containing defamatory statement dated 3rd February, 2001 has been circulated
amongst the members and this itself is sufficient to constitute a continuing
wrong giving rise to continuing cause of action. It is submitted that the suit is
for damages suffered due to termination of membership and the financial loss
suffered by the plaintiff as a consequence of the said letter issued by the
defendant No.2. Mr. Banerjee has relied upon a text book by G.P. Agarwal on
the Law of Limitation and Prescription, 4th Edition, Pages 566 to 662 and
Pages 673 to 680 and the definition of libel in P.Ramanatha Aiyar's Concise
Law Dictionary (4th Edition). The learned Counsel has relied upon the
decisions reported in AIR 1940 Patna 561 (Gaya Prasad Vs. Jagadish
Chandra) and AIR 1972 Bombay 252 (Abdul Hussain Vs. B.M. Syndicate).
The plaintiff has instituted the suit for declaration, recovery of damages
and permanent injunction. The cause of action in the suit appears to be a letter
dated 3rd February, 2001 issued by the defendant No.2 terminating the
membership of the plaintiff from the Executive Committee without assigning
any valid reason. The letter, according to the plaintiff, contains defamatory
words.
The plaintiff claims to be one of the founder members of the defendant
No.1. The plaintiff alleged that the Executive Committee constituted during the
year 2000-2001 acted illegally and detrimental to the interest of the defendant
No.1. The plaintiff approached the promoter/lessee of the building Kamalalaya
Centre Shops to let out on hire the open car parking space on the ground floor
excepting the reserved open car parking space to the plaintiff as sanctioned by
the CMC for effectively managing the same on behalf of the defendant No.1
against which the plaintiff would collect parking fee from the vehicles parked
inside the building from those unit holders who have no parking space and from
the visitors w.e.f. 1st October, 2000. The plaintiff alleged that the said
defendants created difficulties for the plaintiff from collecting parking fees. The
defendant No.1 issued a circular dated February 5, 2001, informing the
members not to pay car-parking fees to the plaintiff thereby causing financial
loss to the plaintiff. The said defendant No.1 on 3rd February, 2001, affixed a
notice at the outer wall of the shop room of the plaintiff to the effect that certain
actions of the plaintiff was found to be prejudicial to the interest of the
Association and, accordingly, the plaintiff would be debarred from representing
the ground floor members in the Executive Committee as per paragraph 21(2)(c)
of the Memorandum & Articles of Association.
This letter triggers of the filing of the present suit. The plaintiff states
that the plaintiff was shocked to go through the contents of the said notice. The
said notice was posted at a conspicuous place deliberately with the motive to
malign the plaintiff and to lower him in the estimation of right thinking
members of the society in general and in particular to cause him to be regarded
with feelings of ridicule, dislike and disesteem. The notice is invalid in law and,
in fact, the said letter dated 3rd February, 2001 caused mental harassment and
financial loss to the plaintiff. The plaintiff by a legal notice dated 6th February,
2001 called upon the defendant No.1 to withdraw the notice dated 3rd February,
2001 and pay a sum of Rs.5,00,000/- on account of loss suffered by the
plaintiff both financially and mentally within 15 days from the date of receipt of
the letter. The defendants failed and neglected to remedy the breach. The
plaintiff claims that by reason of such wrongful act on the part of the
defendants in not withdrawing the said letter and compensating the plaintiff for
the loss suffered, the plaintiff has filed the suit claiming various reliefs
including general and special damages. The basis of the claim in the suit
appears to be the letters dated 3rd February, 2001 and 15th February, 2001. It
is alleged that in spite of giving opportunity to the defendants to withdraw the
letter and compensate the plaintiff for the loss and damage suffered by the
plaintiff as a consequence of such letters, the defendants refused to do so giving
rise to the plaintiff's claim for a special damage of Rs.5,00,000/- and general
damage of Rs.10,00,000/-. The relevant averments made in the Plaint in
support of such claim as stated in Paragraph 12 are reproduced below:-
"12. That the plaintiff's Advocate on Record thereafter received another
reply from Sri Sobhan Kumar Pathak, Advocate by his letter dated 3.3.2001
again denying all the facts stated in the letter dated 15.2.2001 and
denying to withdraw the notice dated 3.2.2001 and paying Rs.10,00,000/-
as damages. The fact remains that the plaintiff was assigned the car
parking space by the promoter of Kamalalaya Centre i.e. Kamalalaya
Centre Pvt. Ltd. for valuable consideration. The plaintiff was paying to the
promoter the hiring charges and in its true use to collect parking fee from
the vehicle owners i.e. the Unit holders and Visitors of Kamalalaya Centre
and due to disturbance created by the defendant Nos. 1 and 2, the plaintiff
faced serious financial loss to the tune of Rs.5,00,000/-. That the plaintiff
further suffered damages as he is defamed by the defendant No.1 as his
membership from the Executive Committee was ceased and the prestige of
the plaintiff was lowered in the eye of the inmates of the Kamalalaya
Centre. The plaintiff has been exposed to public contempt and ridicule and
his reputation has been adversely affected. Thus, for the said defamation,
the plaintiff is entitled to damages which the plaintiff has reasonably
assessed at Rs.10,00,000/-. Thus, the total claim of the plaintiff is
Rs.15,00,000/-. The plaintiff further states that the notice dated 3.2.2001
is bad in law and suffers from legal infirmity and is liable to be set aside.
The plaintiff further states that the defendant No.1 be restrained to take
further action in terms of the letter dated 3.2.2001 issued by the defendant
No.1."
The contention of the defendant that the cause of action is complete with
the issuance of the letter dated 3rd February, 2001 as regards the reliefs claimed
by the plaintiff are not acceptable to me at this stage.
The expression "cause of action" refers to "every fact which it would be
necessary for the plaintiff to prove, if traversed, in order to support his right to
the judgment of the Court" (Cook Vs. Gill; 1873 LR CP 107).
A cause of action may be either single or continuing. When an Act is final
and complete and becomes a cause of action for injury to the plaintiff, it is
single, arises once and for all and the plaintiff is entitled to sue for
compensation at one time. But if there is a repetition of a wrongful act or
omission, it will comprise a continuing cause of action.
In Hole Vs. Chard Union reported in 1894(1) Ch. 293 Lord Justice
Lindley held:-
"What is a continuing cause of action? Speaking accurately, `there is no
such thing; but what is called a continuing cause of action is a cause of
action which arises from the repetition of acts or omissions of the same
kind as that for which the action was brought."
What is emphasized is that there has to be repetition of acts or omissions
in respect of repeated wrongs.
The wrong of defamation consists in the publication of a false and
defamatory statement respecting another person without lawful justification or
excuse (Salmond, 15th Edition, Page 179). A "libel" is only a particular form
of "defamation". It is a defamatory statement in writing or otherwise recorded
(e.g. by printing, typing etc.) in such a way as to be more or less permanence so
that after one act of publication, it still retains its capacity of expressing the
defamatory meaning by subsequent acts of publication. Slander is spoken
defamation. A statement is not actionable as a libel unless it is made and
published. Publication would include a subsequent republication of the
libellous matter and a suit will lie for every such publication. The starting
point of limitation under Article 75 of the Limitation Act is the date on which
the particular alleged libel is published. Every publication of a libel will give a
cause of action.
In order to ascertain when a defamatory statement would be regarded as
a continuing breach or a continuing wrong thereby giving a fresh period of
limitation, the test appears to be to see whether the wrongful act produces a
state of affairs, and every moment's continuance of which is a new wrong and is
of such a nature as to render the doer of it responsible for the continuance.
Section 22 of the Limitation Act provides that in case of a continuing tort, a
fresh period of limitation begins to run at every moment of the time during
which the tort continues. If the defamatory statement causes an injury which is
complete, there is no continuing tort even through the damage resulting from
the act may continue. The continuance of the effect of a wrong is itself not a
continuing wrong. (Balakrishna Savalram Pujari Waghmare & Ors. Vs.
Shree Dhyaneshwar Maharaj Sansthan; AIR 1959 SC 798). A definition of
tort has been inserted in the present Limitation Act in Section 2 (m) which
means a civil wrong which is not exclusively the breach of contract or the
breach of trust. The word tort has been included by replacing the word "wrong"
occurring in Section 23 of the Repel Act of 1908. The word "tort" in Section 22
of the present Limitation Act to be understood in the light of the aforesaid
definition. The words "continuing tort" have been substituted in the present
Section for the word "continuing wrong the independent of Contract" occurring
in Section 23 of the Repel Act and a definition of tort "has been inserted" in
Section 2(m) as stated above.
However, at this stage on a reading of the plaint it does not appear to me
that the cause of action is only confined to recovery of damages for libel.
In view of the aforesaid discussion, it is not necessary for me at this stage
to deal with the cases cited by the parties. If the letter dated 3rd February, 2001
would at all constitute a libel is a matter that has to be decided at the trial.
In deciding the application for rejection of plaint, the Court has to see on
a reading of the plaint as to whether any or all of the conditions under Order 7
Rule 11 of the Code of Civil Procedure are attracted.
It would be worthwhile to refer to a decision of the Supreme Court in
Popat and Kotecha Property v. State Bank of India Staff Assn., (2005) 7
SCC 510: [2006(1) ICC (S.C.) 390]. In paragraphs 19 and 25 of the said report
it was observed:-
"19. There cannot be any compartmentalization, dissection, segregation
and inversions of the language of various paragraphs in the plaint. If
such a course is adopted it would run counter to the cardinal canon
of interpretation according to which a pleading has to be read as a
whole to ascertain its true import. It is not permissible to cull out a
sentence or a passage and to read it out of the context in isolation.
Although it is the substance and not merely the form that has to be
looked into, the pleading has to be construed as it stands without
addition or subtraction of words or change of its apparent
grammatical sense. The intention of the party concerned is to be
gathered primarily from the tenor and terms of his pleadings taken
as a whole. At the same time it should be borne in mind that no
pedantic approach should be adopted to defeat justice on hair-
splitting technicalities.
..........
25. When the averments in the plaint are considered in the background of the principles set out in Sopan Sukhdeo case 10 the inevitable conclusion is that the Division Bench was not right in holding that Order 7 Rule 11 CPC was applicable to the facts of the case. Diverse claims were made and the Division Bench was wrong in proceeding with the assumption that only the non-execution of lease deed was the basic issue. Even if it is accepted that the other claims were relatable to it they have independent existence. Whether the collection of amounts by the respondent was for a period beyond 51 years need evidence to be adduced. It is not a case where the suit from statement in the plaint can be said to be barred by law. The statement in the plaint without addition or subtraction must show that it is barred by any law to attract application of Order 7 Rule 11. This is not so in the present case."
Whether order 7 Rule 11(d) CPC can be invoked when a plea of bar of limitation pleaded also came up for consideration in a subsequent judgment of the Supreme Court in Ramesh B. Desai and others v. Bipin Vadilal Mehta and others reported in (2006) 5 SCC 638. The relevant observations can be found in paragraphs 15, 16 and 19, which reads as follows:
"15. The principle underlying clause (d) of Order 7 Rule 11 is no different. We will refer here to a recent decision of this Court rendered in Popat and Kotecha Property v. State Bank of India Staff Assn. 10 where it was held as under in para 10 of the report:
"10. Clause (d0 of Order 7 Rule 7 speaks of suit, as appears from the statement in the plaint to be barred by any law.
Disputed questions cannot be decided at the time of considering an application filed under Order 7 Rule 11 CPC. Clause (d) of Rule 11 of Order 7 applies in those cases only where the statement made by the plaintiff in the plaint, without any doubt or dispute shows that the suit is barred by any law in force."
16. It was emphasized in para 25 of the report that the statement in the plaint without addition or subtraction must show that it is barred by any law to attract application of Order 7 Rule 11 CPC. The principle is, therefore, well-settled that in order to examine whether the plaint is barred by any law, as contemplated by clause (d) of Order 7 Rule 11 CPC, the averments made in the plaint alone have to be seen and they have to be assumed to be correct. It is not permissible to look into the pleas raised in the written statement or to any piece of evidence.......
A plea of limitation cannot be decided as an abstract principle of law divorced from facts as in every case the starting point of limitation has to be ascertained which is entire a question of fact. A plea of limitation is a mixed question of law and fact. The question whether the words barred by law occurring in Order 7 Rule 11(d) CPC would also include the ground that it is barred by law of limitation has been recently considered by a two-Judge Bench of this Court to which one of us was a member (Ashok Bhan, J.) in Balasaria Construction (P) Ltd. V. Hanuman Seva Trust........................"
It would be useful to refer to the decision of the Hon'ble Supreme Court reported in 2008 (12) SCC 661 (Kamala & Ors. Vs. K.T. Eshwara Sa & Ors.) in which in Paragraphs 21, 22 and 25 the Hon'ble Supreme Court dealt with this aspect of the matter and held that Order 7 Rule 11(d) CPC has limited application. For its applicability it must be shown that the suit is barred under any law. Such a conclusion must be drawn from the averments made in the plaint. What would be relevant for invoking Order 7 Rule 11(d) CPC are the averments made in the plaint. For that purpose, there cannot be any addition or subtraction. For the purpose of invoking the said provision, no amount of evidence can be looked into. The issues on merit of the matter which may arise between the parties would not be within the realm of the court at that stage. All issues shall not be the subject-matter of an order under the said provision.
The statements made in the Plaint are to be taken as correct. The Court in considering such objections in the nature of demurrer is required to read the plaint as a whole and if on a meaningful reading it appears to the Court that the suit is ex facie bared by limitation can dismiss the suit at the threshold.
In the instant case, the plaintiff has prayed for several reliefs. The cause of action in the suit are the letters dated 3rd February, 2001 and 15th February, 2001. The plaintiff has claimed diverse reliefs on the basis of the said letters. The plaintiff alleged that the said letters contain certain derogatory and defamatory words which have affected the reputation of the plaintiff. The plaintiff also questions the manner in which the Executive Committee terminated his membership and has obstructed him from enjoying various facilities. The plaintiff has alleged financial loss and mental harassment. The plaintiff, accordingly, has claimed general and special damages.
The argument on behalf of the defendant proceeds on the basis that the suit is one for compensation for libel. In my reading it is not so inasmuch as the plaintiff has claimed a declaration that the said notice is invalid and has claimed injunction and other reliefs. A suit for declaration of this nature is governed by Article 58 of the Limitation Act, 1963. The suit has been filed claiming declaration within the period of limitation. Even if the plaintiff may not get damages for defamation, if it is proved that the damages are claimed as compensation for libel, the other claims of the plaintiff still survives. In my view, this is not a matter which can be decided in an application under Order 7 Rule 11 of the Code of Civil Procedure.
In view of the aforesaid, this application stands dismissed. The suit shall be placed under the heading "For Hearing" in the monthly list of April, 2014.
Urgent xerox certified copy of this judgment, if applied for, be given to the parties on usual undertaking.
(Soumen Sen, J.)