Delhi District Court
Mrs. Akhtar-Un-Nisa vs Contd on 17 March, 2007
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IN THE COURT OF SH. RAJ KUMAR CHAUHAN :
ADDITIONAL DISTRICT JUGE : DELHI
Date of Institution : 26.10.2005.
Date of Decision : 17.3.2007.
In the matter of: -
Suit No. 67/2006/2005.
1.Mrs. Akhtar-un-Nisa W/o Late Sh. Maulna Syed Asrar Ul Haque
2.Ms. Shahina Asrar W/o Late Sh. Maulna Syed Asrar Ul Haque
3.Ms. Nilofar Asrar W/o Late Sh. Maulna Syed Asrar Ul Haque
4.Ms. Mehtab Asrar W/o Late Sh. Maulna Syed Asrar Ul Haque All R/o B-49, Joshi Colony, Mandawali Fazalpur, I.P. Extn., Delhi-93. ... Plaintiffs.
Vs. Contd... ... ...
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Sh. R.C. Jain Sole Proprietor/Principal Officer/ Incharge of M/s Jain Electricals, at Shops No. 8 & 9, Ground Floors, Part of B-49, Joshi Colony, I.P. Extn., Mandawali Fazalpur, Delhi-92. ... Defendant.
- : JUDGMENT : -
1.The plaintiffs have instituted the present suit for recovery of damages inter alia alleging that the defendant was inducted as tenant in respect of two shops bearing private no. 8 and 9, part of premises no. B-49, Ground Floor, Joshi Colony, I.P. Extension, Delhi-92 at the rate of Rs. 1,430/- per month excluding wanter and electricity charges;
the plaintiffs through their counsel, have sent a legal notice dated 27.9.2004 to the defendant to vacate the said two shops for getting the same repaired and reconstructed; the said notice was Contd... ... ...
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duly served upon the defendant and instead of filing reply, the defendant has made false allegations against the plaintiffs to the effect that the plaintiffs through gunda elements, anti-social elements, were threatening him with forcible dispossession from the said two shops; the said allegations were made by the defendant before the judicial officer, police etc. are false to the own knowledge of the defendant; the said allegations have been made by the defendant in his plaint before the Ld. Civil Judge and has been made just to harass the plaintiffs and to make out a false case of permanent injunction; the intention of the defendant was to harass, cause hardships, mental shock and agony to the plaintiffs without any reason; by making such false accusations, insinuations, allegations and adverse remarks against the plaintiffs, the Contd... ... ...
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defendant has tarnished, dis-reputed the image, social status, reputation and dignity, creditability of the plaintiffs in the eyes of judicial officer, police, public, neighbours, society, friends, relations etc.; for these false allegations and accusations against the plaintiffs, the defendant has committed offences punishable u/s 499/500 IPC and is also liable to pay damages.
2.It is further alleged that plaintiffs through their counsel had sent a notice dated 8.8.2005 to the defendant calling him to withdraw his said adverse remarks, publically and tender a written apology to the plaintiffs publically, either by communicating the same to the plaintiffs, through registered post or by way of public notice in leading newspapers and a copy thereof be sent to the plaintiffs within 15 days of Contd... ... ...
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the receipt of the said notice; the said notice was duly served upon the defendant who has sent a vague reply and has refused to withdraw the said statement or to apologies for the false statement made in the pleadings of the said injunction suit. Hence, the present suit instituted for recovery of damages to the tune of Rs. 5 lakh from the defendant for making false defamatory and derogatory remarks, accusations, allegations against the plaintiffs.
3.In the written statement, the defendant has taken the preliminary objections that the plaintiffs have not approached the Court with clean hands and has suppressed the material facts; the plaintiffs are not the landlord of the tenanted premises as the plaintiff no. 4 only had given the tenanted premises to the defendant on rent and Contd... ... ...
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she is issuing the rent receipts being landlady of the premises; there is no cause of action to institute the present false case; the suit is bad for non-joinder and mis-joinder of necessary parties. The averments made in the plaint have been controverted and denied on merits stating that he has not made any false allegations against the plaintiffs before judicial officer, police etc. It is reiterated that on 1.10.2004, the plaintiff no. 4 had refused to receive the rent and at that time some gunda elements came to the shops of the defendant and threatened him to vacate the shops, as a result the defendant had no option but to file a civil suit for permanent injunction. It is further stated that the defendant is aged about 65 years and is a heart patient and has suffered heart attack and remained in the hospital for months and, therefore, it is unbelievable that Contd... ... ...
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such a person would give any threat; the defendant has not caused any harm to the reputation of the plaintiffs in any way. It is, therefore, stated that the suit of the plaintiffs is liable to be dismissed.
4.In replication, the plaintiff has reiterated and reaffirmed the stands taken in the plaint while controverted and denied the averments made in the written statement.
5.On 25.4.2007, from the pleadings of the parties following issues were framed: -
1. Whether the suit of the plaintiff is not legally maintainable as alleged in preliminary objection no. 1 of the written statement by the defendant? OPD.
Contd... ... ...
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2. Whether the plaintiff is entitled to the relief of damages as claimed for in the plaint, if so, to what extent. OPP.
3. Whether the plaintiff is entitled to the interest as claimed in the plaint? OPP.
4. Relief.
6.The plaintiffs have examined Ms. Mehtab Asrar as PW1 in support of their case whereas the defendant has examined himself as DW1 in support of his case. I have heard the learned counsels for parties. My findings on the issues are as under: -
7.Issue No. 1 : Whether the suit of the plaintiff is not Contd... ... ...
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legally maintainable as alleged in preliminary objection no. 1 of the written statement by the defendant? OPD.
In the preliminary objections in the written statement, it is stated that the plaintiffs have not approached the Court with clean hands as they have suppressed the material facts and have filed the suit on false and fabricated grounds. Nothing has been stated in the affidavit of DW1 in support of the averments in the preliminary objections in the written statement. The present suit is suit for recovery of damages due to defamation at the hands of the defendant contained in imputation, allegations made in civil proceedings by him. The suit for defamation on the basis of the allegations made in the written is legally maintainable as per Section 9 of Contd... ... ...
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the CPC whether the relief claimed therein can be granted or not is the subject matter of the trial. Hence, the issue no. 1 is decided in favour of the plaintiffs and against the defendant.
8.Issue No. 2 & 3 : Whether the plaintiff is entitled to the relief of damages as claimed for in the plaint, if so, to what extent. OPP.
Whether the plaintiff is entitled to the interest as claimed in the plaint? OPP.
The onus of these issues was upon the plaintiffs. The plaintiffs have reiterated the same facts as averred in the plaint alleging that the allegations imputation, accusations are made by the defendant against the plaintiffs before judicial officer, police etc. It is further stated that such Contd... ... ...
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allegations are false to the knowledge of the defendant and the allegations made in the plaint before the Ld. Civil Judge are self created, after thought, a made up story and without substance; the same has been made by the defendant just to harass the plaintiffs and make out a false case of permanent injunction. It is further stated that the credibility, reputation and social status and image of the plaintiffs have been lowered in the eyes of judicial officer, police, public, neighbours, society, friends, relations etc. In support of its case, the PW1 has proved the plaint of suit filed by the defendant for permanent injunction as Ex PW1/3 and replication to the written statement of the plaintiff (defendant herein) in that suit has been proved as Ex PW1/4. The legal notice of the plaintiffs to the defendant dated 27.9.2004 has Contd... ... ...
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been proved as Ex PW1/2. The legal notice dated 8.8.2005 has been proved as Ex PW1/5. The reply of the defendant to the said legal notice has proved as Ex PW1/6. The complaint dated 12.1.2005 made by the defendant against the plaintiff no. 4 has been proved as Ex PW1/8. In cross examination, the PW1 deposed that the suit of permanent injunction was filed by the defendant against her only. It is also admitted that the complaint to the police was also made by the defendant against her only. It is further deposed that the payment of the rent was made by the defendant during the pendency of the suit for permanent injunction and it was not exactly known if the eviction petition was filed after the decisions of suit for permanent injunction filed by the defendant. The PW1 further admitted in cross examination that "It is Contd... ... ...
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correct that in the complaint dated 12.1.2005 as well as in the suit for permanent injunction, the allegations were not leveled against any of the plaintiffs. Voluntarily, it is alleged that we had sent the gunda elements."
9.The defendant in his affidavit has reiterated the same facts as alleged in the written statement specifically denying the allegations made in the suit. He has further deposed that he never made any imputation and allegations in order to disrepute the plaintiffs or to lower their reputation in the eyes of public etc. In cross examination, the DW1 admitted his signatures on Ex PW1/6. It is further deposed that on 11.1.2005, some gunda elements came to his shop who were 4-5 persons. It is further stated that at that time he was sitting alone at his shop and they have Contd... ... ...
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threatened him. It is further deposed that on 23.2.2005, some other gunda elements came to the shop for threatening, but, no one came to him before 11.1.2005 to 23.2.2005 for threatening.
It is further stated that he did not tell the police about the incident on 23.2.2005. The witness clarified that he did not lodge the complaint to the police as he was having heart problem and has gone to hospital. It is further stated that he has not called the police even on 11.1.2005.
10.The learned counsel for plaintiff argued that there is contradiction in deposition of DW1 with regard to his approaching to the police. The contradiction are with regard to the facts mentioned in the plaint of the suit for permanent injunction which shows that no such alleged gunda elements were ever visited the shops of Contd... ... ...
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the defendant and he has cooked up a false story. It is further stated that in that way, he has imputed false accusations against the plaintiffs for sending gunda elements to his shops.
11.The learned counsel for defendant on the other hand argued that the plaintiff in cross examination admitted that the allegations made in the plaint of the suit for permanent injunction were not against any of the plaintiffs. It is simply stated that the defendant has alleged in the plaint that some gunda elements were sent by the plaintiffs. It is also argued that no such public person or police official has been examined in whose eyes the reputation of the plaintiffs have been lowered down. It is further argued that it is admitted case of the plaintiffs that suit for permanent injunction was instituted by the Contd... ... ...
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defendant against the PW1 only whereas there are four plaintiffs which shows that the suit is bad for mis-joinder of necessary parties and is, therefore, not maintainable in the eyes of law.
12.I have gone through the evidence as well as submissions made at bar and also read the plaint of the defendant in the suit for permanent injunction. In the plaint Ex PW1/3, it is simply alleged that about two weeks back, some gunda elements came to the shops of the plaintiff (defendant herein) and threatened him to vacate the aforesaid shops and on 11.1.2005, some 4-5 persons again came to the shops, at the instance, of the defendant (plaintiff no. 4 herein). The defendant who was plaintiff in the said suit has also filed his affidavit in support of averments made therein. In reply to the para no.
Contd... ... ...
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5 of the plaint of the suit for permanent injunction, the plaintiff no. 4 who was defendant in that suit, simply stated that para no. 5 of the plaint, as alleged, is wrong and denied. It is further stated that the alleged apprehension of the defendant, if any, is malafide, self created, unfounded and without substance. The defendant (plaintiff no. 4 herein) has no intention to dispossess the plaintiff (defendant herein) without due process of law.
13.I have also read the complaint Ex PW1/8 to the SHO made by the defendant wherein it is stated that "Now, for the past one week, some gunda elements came to the shops of the complainant and threatened to vacate the shops and on 11.1.2005, 4-5 persons came to the shops of the complainant again and threatened that they are Contd... ... ...
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point to make the complainant understand for the past one week but the complainant is not adhering to their advices and now the complainant had to face the consequences for not vacating the shops. The complainant is senior citizen and is in occupation of the premises since more than 12 years and the landlady is trying to get evict the shop with the help of gunda elements by hook of by crook and the complainant has every apprehension that the landlady alongwith gunda elements may cause any loss and injury to the complainant any time." During the proceedings of the suit for permanent injunction, on 10.3.2005, the plaintiff no. 4 has accepted a cheque of Rs. 8,580/- as rent for the period October 2004 to March 2005. The application u/o 39 r 1 & 2 CPC was disposed of in favour of the plaintiff (defendant herein) Contd... ... ...
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vide order dated 11.4.2005. The issues in the said suit were framed on 4.5.2005. On 25.5.2005, the preliminary issue was framed with regard to the maintainability of the suit as under: - "Whether the suit has become infructuous in view of the contention of the defendant that she would not dispossess the plaintiff without due process of law? OPD."
14.The Ld. Trial Court vide order dated 25.5.2005, disposed of the suit having become infructuous and confirming the interim order dated 11.4.2005 stating that "Since the contention of the defendant is in consonance with the prayer of the plaintiff, in my view the suit of the plaintiff has become infructuous being satisfied, without prejudice to the rights and contentions of the Contd... ... ...
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parties. Taking into consideration totality of the facts and circumstances as also the averments of the defendant in the written statement, since the purpose of filing the suit has been served, no useful purpose would be served by keeping the matter pending any more. In the result the order dated 11.4.2005 is confirmed and the suit of the plaintiff is dismissed having become infructuous being satisfied. Parties are left to bear their own cost. File be consigned to the record room."
15.Admittedly the plaintiff has not changed the said judgment at any forum. It is admitted fact that the plaintiff has accepted the rent during the proceedings of the said suit. The plaintiff has not filed any application u/o 340 CrPC against the defendant who was plaintiff in the said suit for false affidavit which was filed in support of the Contd... ... ...
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averments in the plaint.
16.Now the question is whether the averments made in the plaint in the suit for permanent injunction filed by the defendant or the fact stated in the complaint to the police that the landlady is trying to dispossess him through some gunda elements, amounts to defamation for which the plaintiffs are entitled to damages? In support of its case, the learned counsel for plaintiff has referred and relied upon 23 (1983) DLT 27 wherein it was held that: -
"16. An early decision on the question is Satish Chandra Chakrawarti Vs. Ram Dayal De, (1920) ILR 48 Cal. 388 (425). Five judges of the Calcutta High Court considered this question. Ausotosh Mookerjee, Acting C.J. delivering the opinion of the Special Bench said: -
"If party to a judicial proceeding is Contd... ... ...
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prosecuted for defamation in respect of a statement made therein on oath or otherwise, his liability must be determined by reference to the provisions of section 499 IPC. Under the Letters Patent the question must be solved by the application of the provisions of the Indian Penal Code and not otherwise; the Court cannot engraft thereupon exceptions derived from Common Law of England or based on grounds of public policy. Consequently, a person in such a position is entitled only to the benefit of the qualified privilege mentioned in Section 499 IPC."
18. With the authoritative pronouncement by Supreme Court the law may be said to be well settled and indisputable. A party to a judicial proceeding enjoys only qualified privilege because that is what is statutorily enumerated in the nine exceptions to Section 499. No absolute privilege can be claimed. That is available in the Common law. The law of crimes in India is not a mosaic of statute and common law. It is pure and unalloyed codified law. The court cannot engraft, on the provisions of the Code, exceptions derived from the common law of England which are based on public policy. We have now the high authority of the apex court that under section 499 the "immunity is a qualified one and is not absolute as it is in English law."
Contd... ... ...
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19. What is the nature of this qualified privilege? When an occasion of qualified privilege exists a person (provided he is not actuated by malice) is entitled to make defamatory statements about another. The statement must be made honestly and without any indirect or improper motive. The principle is that the statement is protected if it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned (Toogood Vs. Spyring, (1834) 40 RR 523). The exceptions to section 499 afford examples of this qualified privilege. These occasions are called occasions of qualified privilege, for the protection which the law, or grounds of public policy affords is not absolute but depends on the honesty of purpose with which the defamatory statement is made. If the freedom of speech is abused and the liberty is made the cloak of maliciousness, the maker of the statement will not be able to rely on the privilege.
20. Qualified privilege is a conditional defence. It affords immunity to those alone who use the privileged occasion for the purpose which the law deems of sufficient social importance to defeat the countervailing claim to protection of reputation. In other words the immunity is forfeited by the abuse of occasion."
Contd... ... ...
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17.In AIR 1926 Lahore 278 it was held that: -
"The petitioner thambu made a report at the police station that some property of his had been stolen from his threshing-floor, and that the suspected Amir Singh, Bhagwana and another man, as tracks of the thieves went towards their village. Amir Singh prosecuted Thambu for defamation in respect of that report, and Thambu has been convicted, the Courts below finding that he has failed to show that his report against Amir Singh was justified.
The only point that seems arguable in revision is whether the petitioner can be said to have made an "imputation" concerning Amir Singh within the meaning of S. 499 of the Indian Penal Code, as an imputation ordinarily implies an accussasion, or something more than an expression of a suspicion, which was all that the petitioner's report contained. It is however, rather difficult to draw the line. An expression of a suspicion may have the same effect on the mind of the person to whom the suspicion is communicated as an accusation would have, and in his case the report resulted in the police searching Amir Singh's house. I think, therefore, that the conviction was right. But the petitioner's statement in his report that he Contd... ... ...
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suspected Amir Singh does not call for a heavy fine, and the fine of Rs. 100/- which has been imposed is excessive. I reduce the fine to one of ten rupees which will be paid to the complainant."
18.In AIR 1966 Madras 363 it was held that "Where the plaintiff has made a statement in the plaint that an unmarried brahmin woman aged 30 years is the concubine of PW2, the said statement is clearly defamatory. There can be no doubt that the petitioner has unnecessarily made the defamatory allegations in a suit for recovery of money and it shows lack of good faith."
19.In the present case, the alleged false accusations giving rise to the cause of action to the plaintiff are contained in a complaint to the police and suit filed by the defendant before the Contd... ... ...
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Court for permanent injunction. In the complaint to the police, it is specifically alleged that the landlady is trying to evict the defendant through gunda elements. The same fact is alleged in the plaint so as to make out a cause of action to file a suit for permanent injunction. It is admitted that both the parties in the present suit are in the capacity of landlady and tenant. It is known fact that the relations between the landlord and tenant are not always good. It is admitted case of the plaintiffs that they have sent a legal notice to the defendant to vacate the tenanted premises. This fact shows that the defendant has every apprehension in his mind that the plaintiffs/landlady may try to take the possession of the tenanted premises either by lawful or unlawful means. The incident of 4-5 gunda elements visiting the shops of the defendant has Contd... ... ...
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been mentioned in his complaint to the police as well reiterated in the plaint. Admittedly, the suit for permanent injunction was not adjudicated upon finally as parties did not lead evidence and the suit was disposed of on the grounds that relief claimed in the plaint has been admitted in the written statement. Therefore, the averments made in the plant were duly considered by the Ld. Trial Court which disposed of the matter as satisfied and suit having become infructuous due to averments made in the written statement. The interim application was also decided in favour of the plaintiff (defendant herein) meaning thereby the Ld. Trial Court has duly considered the averments made in the plaint and was prima facie satisfied about the averments made in the plaint as well as in the written statement and accordingly adjudicated upon the matters Contd... ... ...
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disposing the same having become infructuous and the relief being satisfied. The interim order was duly confirmed by the Ld. Trial Court. The plaintiffs herein has not challenged the said order of the Ld. Trial Court. In these facts and circumstances, the allegation that the landlady (plaintiff no. 4 herein) was trying to dispossess the defendant from the tenanted premises through gunda elements as stated in the complaint to the police and in the plaint of that suit will fall in the category of qualified privilege. The same seems to have been made by the defendant without any bad intention and while exercising his legal rights of protecting his possession on the tenanted premises from which he cannot be dispossessed without due process of law. Since the suit for permanent injunction was filed, the alleged assertions made in the plaint regarding Contd... ... ...
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threat of dispossession are usually made which generally form part of pleadings of such like cases. There was nothing unusual in the suit of the defendant for permanent injunction against which the present plaintiff may have grievances, giving rise to the cause of action seeking the relief of damages. For these reasons the plaintiff has failed to discharge the onus of issue no. 2 and 3 and the same are accordingly decided against the plaintiffs and in favour of the defendant.
20.Issue No. 4 : Relief.
In the light of my findings on the above issues no. 2 and 3, the suit of the plaintiff is dismissed. No order as to costs. Decree sheet be prepared accordingly. File be consigned to record room Contd... ... ...
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after due compliance.
Announced in the open Court on 17.3.2007.
(RAJ KUMAR CHAUHAN) ADDITIONAL DISTRICT JUDGE, DELHI Contd... ... ...