Delhi District Court
M/S Jmd Ltd vs Yatish Kumar Goel on 7 June, 2024
IN THE COURT OF SH. SACHIN MITTAL
DISTRICT JUDGE-03, DISTRICT: SOUTH-EAST,
SAKET COURTS, NEW DELHI
CS DJ No. 11952/16
In the matter of :
M/s JMD Ltd.
(Through its Authorised Signatory)
Regd. Office: 6, UGF, Devika Tower,
Nehru Place, New Delhi - 110019
... PLAINTIFF
VERSUS
1. Yatish Kumar Goel
2. Darshan Goel
(Both residents of B-254-I, Florence Marvel,
Sushant Lok-III, Sector-57, Gurugram,
Haryana - 122002)
... DEFENDANTS
SUIT FOR COMPENSATION FOR DEFAMATION,
MANDATORY INJUNCTIONS AND PERMANENT
INJUNCTION
Date of Institution : 21.12.2016
Date on which arguments concluded : 18.04.2024
Date of Judgment : 07.06.2024
Result : Dismissed
JUDGMENT
1. Vide this Judgment, I shall decide the suit filed on behalf of the plaintiff seeking therein several reliefs of injunction and the CS DJ No. 11952/16 M/s JMD Ltd. v. Yatish Kumar Goel & Anr. Page 1 of 21 relief of recovery of damages of Rs. 1,99,00,000/- on account of defamation caused by the defendants.
2. The case of the plaintiff is based upon following main pleadings: (a) the plaintiff, a company incorporated under the provisions of the Companies Act, 1956, is filing the suit through its GM (Sales & Marketing), Mr. P. K. Saxena, who has been authorised vide Board Resolution dated 02.11.2016, to sign, verify and institute this suit; (b) the plaintiff company is a reputed real estate group, which has completed and delivered various residential and commercial complexes and it enjoys tremendous goodwill and reputation; (c) the plaintiff has been awarded with various awards for its achievements and high quality services; (d) the defendant no. 1 is the son of the defendant no. 2; (d) the defendant no. 2 had purchased a unit bearing no. 1214 in the complex, JMD Megapolis, Gurugram, developed by the plaintiff, which unit was originally allotted to Mrs. C.P. Bedi and Mr. A.S. Bedi; (f) the defendants made baseless, malicious and defamatory statements against the plaintiff: (i) in the press conference held on 04.11.2016, (ii) in national news channels, Khabar Fast, ETV Haryana, News World India, and (iii) in the national print media/ news papers, e-papers, Am ar Ujala, Human India, Punjab Kesari, Dainik Bhaskar & Dainik Jagran; (g) the defendants have also filed various false, frivolous and baseless complaints against the plaintiff before the police, other investigating agencies and authorities; (h) the said complaints are going to affect the future business prospects and interest of the plaintiff; (i) the baseless allegations made by the defendants against the plaintiff have injured the reputation and goodwill of the plaintiff and has also lowered the image of the plaintiff in the eyes of the general public; (j) the plaintiff got a legal notice dated 05.11.2016 through its Counsel CS DJ No. 11952/16 M/s JMD Ltd. v. Yatish Kumar Goel & Anr. Page 2 of 21 issued to the defendants therein calling upon the them to withdraw the allegations, tender a public apology and refrain from making false allegations against the plaintiff in future; and (k) the said legal notice sent through registered post and courier was duly served upon the defendants, but they neither met with the demands of the plaintiff, nor did they reply the said notice. It is on the basis of aforesaid facts as pleaded in the plaint that the Plaintiff has sought following reliefs:
"a) Pass a decree of mandatory injunction thereby directing the defendants to withdraw all the above said allegations made against the Plaintiff and destroy all such alleged defamatory material as mentioned in detail in the plaint;
b) Pass a decree of mandatory injunction thereby directing the defendants to tender an unconditional public apology to the Plaintiff for the malicious, fallacious and scandalous publications as mentioned in detail in the plaint;
c) Pass a decree of permanent injunction restraining the defendants and their servants/ agents etc. from making any such false and baseless defamatory allegations against the Plaintiff in future as mentioned in detail in the plaint;
d) Pass a decree of compensation awarding damages of Rs.
1,99,00,000/- (Rupees One Crore Ninety Nine Lakh Only) for the injury and loss of the reputation and goodwill suffered by the Plaintiff on account of the defamatory publications made by the defendants as mentioned in detail in the plaint;
e) Cost of suit be paid to the Plaintiff;
f) Grant any other relief which the Hon'ble Court may
deems fit."
3. Upon service of summons for settlement of issues, the defendants entered the appearance before this Court and filed a common written statement. The defence of the defendants as pleaded in the said written statement is based upon following pleadings: (a) the suit has not been filed by the duly authorised person and the CS DJ No. 11952/16 M/s JMD Ltd. v. Yatish Kumar Goel & Anr. Page 3 of 21 Board Resolution authorising Mr. P.K. Saxena is bad in the eyes of law; (b) this Court does not have the territorial jurisdiction to try and decide the present suit; (c) the present suit is bad for misjoinder and non-joinder of parties as the plaintiff in the plaint has pleaded that various news channels and newspapers published the defamatory statement/report against the plaintiff, but the said newspapers and news channels have not been impleaded as defendants in the suit; (d) the defendant No. 2, an old lady of 75 years of age, had invested her entire savings in purchasing the unit, TF-1214 in the JMD Megapolis, the commercial space, developed by the Plaintiff; (e) the defendant upon getting possession of the said unit realised that she had been cheated as the plaintiff had handed over lesser carpet area than the one mentioned in the declaration dated 07.02.2014 filed before the Sub-Registrar, Gurgaon; (f) the plaintiff in connivance and in collusion with the concerned officials of the local administration has made blatant violation of law; (g) as per the Supreme Court directions, the builder/developer has no right to sell the parking space, however, the plaintiff extorted Rs. 2 lakhs from the defendant no. 2 in the name of parking. Further, the defendant no. 2 was entitled to 3 parking spaces. As per the relevant law, parking space is part of common area and the plaintiff has no right to sell the same; (h) Mr Sunil Bedi, the managing director of the plaintiff company, has floated a company, JMD Maintenance Services Private Limited, wherein his family members, Karan Bedi and Pinky Bedi are the other directors. The said company exploit the unit holders in the JMD Megapolis and extort arbitrary and unjustified huge amount every month in the name of maintenance without rendering true and fair account of expenses and profit; (i) Mr Sunila Bedi, the Managing Director of plaintiff company, has also floated various benami/ shell CS DJ No. 11952/16 M/s JMD Ltd. v. Yatish Kumar Goel & Anr. Page 4 of 21 companies, which exist only on papers and the directors in all these benami/ shell companies are the employees, friends and relatives of Mr. Sunil Bedi; (j) the plaintiff is compelling the defendant no. 2 to sign a Conveyance Deed containing illegal clauses and recitals in blatant violation of the Haryana Apartment Ownership Act, 1983 and the rules framed thereunder; (k) it is denied that the defendants have levelled false, baseless and defamatory allegations against the plaintiff or that they have filed false, frivolous and baseless complaints against the plaintiff; (l) this suit is premature till the complaints filed by the defendants or not finally adjudicated and disposed off by the last court; (m) it is denied that the plaintiff has suffered any loss of reputation or that the plaintiff is entitled to the damages of Rs. 1,99,00,000/-; (n) it is denied that the defendants were served with the legal notice dated 05.11.2016; and (o) the plaintiff has filed the present suit with a view to pressurise and terrorise the defendant no. 2 to withdraw her complaints and cases filed against the plaintiff and to not to prefer any legal remedy to protect her rights, interest and entitlements.
4. The Plaintiff filed replication, which is more or less in denial of the allegations/averments made in the written statement and in confirmation of those made in the plaint. Additionally, the plaintiff has pleaded that the defendant no. 1, as a practising Advocate, has the history of blackmailing and extortion of money from people and that there are several FIRs pending against him.
5. An application under Order I Rule 10, CPC was filed on behalf of the defendants, therein seeking the impleadment of various news channels and news papers, on the ground that they were necessary parties as there are allegations in the plaint that they published the defamatory statement/ report against the plaintiff. The CS DJ No. 11952/16 M/s JMD Ltd. v. Yatish Kumar Goel & Anr. Page 5 of 21 Learned Predecessor vide order dated 11.01.2018 dismissed the said application with the reasoning that it is for the plaintiff to choose as to against whom he seeks relief and to impleaded them as defendants.
The plaintiff filed an application under section 151, CPC therein seeking the substitution of its previous authorised representative, Mr P.K. Saxena with the new authorised representative, Mr Kuldeep Narota, who was authorised vide Board Resolution dated 04.02.2017. The said application was allowed by the Learned Predecessor vide order dated 06.10.2017. The Plaintiff filed an application under Order 7 Rule 14 read with Section 151 CPC therein seeking permission for filing additional documents, which included the complaint filed by the defendants, newspaper report, a copy of Order dated 21.12.2017 passed by the Learned Additional Chief Judicial Magistrate, Gurugram upon defendants' petition under Section 156(3) Cr.P.C. and copies of FIRs against the defendant no. 1. The defendants had also filed two separate applications seeking permission to file additional documents, which included the SDM report and a petition for initiation of contempt proceedings against the police officials. The Learned Predecessor vide Order dated 17.03.2021 allowed the applications filed on behalf of both the parties for permission to file the additional documents and the documents additionally filed on behalf of both the parties were taken on record.
6. The Learned Predecessor, on the basis of pleadings and documents on record, framed following issues vide order dated 21.12.2021:
1. Whether the suit is maintainable in its present form against the defendants? OPD
2. Whether the suit is bad for mis-joinder or non-joinder of necessary parties? OPD CS DJ No. 11952/16 M/s JMD Ltd. v. Yatish Kumar Goel & Anr. Page 6 of 21
3. Whether the requisite Court fees has been or has not been affixed as per the value of the suit? Onus on parties
4. Whether the plaintiff is entitled for a decree of mandatory injunction thereby directing the defendants to withdraw all the allegations made against the plaintiff and destroy all alleged defamatory material as mentioned in the plaint? OPP
5. Whether the plaintiff is entitled for a decree of mandatory injunction thereby directing the defendants to tender an unconditional public apology to the plaintiff for the malicious, fallacious and scandalous publications as mentioned in the plaint? OPP
6. Whether the plaintiff is entitled for permanent injunction thereby restraining the defendants and their agents etc. from making any false, baseless and defamatory allegations against the Plaintiff in future? OPP
7. Whether the plaintiff is entitled for compensation of Rs.
1,99,00,000/- for the injury and losses of the repetition and goodwill? OPP The Learned Predecessor vide the same Order also appointed a Local Commissioner for the purpose of getting the evidence recorded.
7. The plaintiff in order to prove its case examined its Director, Mr Sunil Bedi as PW-1. Mr Sunil Bedi/ PW-1 tendered his affidavit-in-evidence, Ex. C-1 towards his examination-in-chief. Pertinent to note here is that not even a single document was tendered in evidence by Mr Sunil Bedi/ PW-1. Mr Sunil Bedi/ PW-1 in his affidavit-in-evidence has deposed in line with the submissions made in the plaint as explained hereinabove and, therefore, the same are not being reiterated herein again for the sake of brevity. Mr Sunil Bedi/ PW-1 was cross-examined on behalf of the defendants on 20.10.2022, 25.01.2023, 06.02.2023 and 01.03.2023 and then the plaintiff closed its evidence vide a separate statement of the Ld. Advocate of the plaintiff recorded to this effect on 31.03.2023.
CS DJ No. 11952/16 M/s JMD Ltd. v. Yatish Kumar Goel & Anr. Page 7 of 218. The defendants did not lead any evidence and in this regard a statement of defendant no. 1 was recorded before the Local Commissioner on 02.06.2023.
9. I have heard Mr Arjun Sawhney, Mr Rohan Bhambri and Ms Mansi Srivastava, Learned Counsels appearing on behalf of the plaintiff and the defendant no. 1, who addressed the oral arguments in person. During the course of oral arguments, certain judgements were filed on behalf of both the parties in support of their respective cases. The said judgments shall be dealt with while returning findings upon the issues herein below.
FINDINGS ON ISSUES
10. Issue No. 1: Whether the suit is maintainable in its present form against the defendants? OPD 10.1 The burden of proving this issue was upon the defendants.
10.2 However, neither any evidence was led, nor was any argument addressed, on behalf of the defendants in support of the captioned issue.
10.3 Therefore, this issue is determined against the defendants and in favour of the plaintiff.
11. Issue No. 2: Whether the suit is bad for mis-joinder or non-joinder of necessary parties? OPD 11.1 The burden of proving this issue was upon the defendants.
11.2 The defendants in their written statement had pleaded that the present suit is bad for misjoinder and non-joinder of parties as the plaintiff in the plaint has pleaded that various news channels and CS DJ No. 11952/16 M/s JMD Ltd. v. Yatish Kumar Goel & Anr. Page 8 of 21 newspapers published the defamatory statement/report against the plaintiff, but the said newspapers and news channels have not been impleaded as defendants in the suit.
11.3 The defendants to this effect had also moved an application under Order I Rule 10 CPC seeking therein the impleadment of the various news channels and newspapers on the ground that they were necessary parties in the suit as the plaintiff in the plaint has alleged that the defamatory statements against it were published by those news channels and newspapers.
11.4 The Learned Predecessor vide order dated 11.01.2018 dismissed the aforesaid application of the defendants with the reasoning that it is for the plaintiff to choose as to against whom he seeks relief and to impleaded them as defendants. There is no infirmity in the said reasoning. This issue having been finally heard and decided vide Order dated 11.01.2018; the said decision shall operate as res judicata in terms of Section 11 of the CPC. It is a settled law that the principles of res judicata apply in different stages of the same proceedings so that if an issue has been decided at an earlier stage against a party, it cannot be allowed to be reagitated by him at a subsequent stage in the same suit or proceedings. Reliance in this regard is placed upon the judgments in Bhanu Kumar Jain v. Archana Kumar, (2005) 1 SCC 787; Chabbil Das v. Pappu, (2006) 12 SCC 41; and C.V. Rajendran v. N.M. Muhammed Kunhi, (2002) 7 SCC 447.
11.5 Notwithstanding the above, I shall proceed to examine as to whether the news channels and news papers which allegedly published the defamatory statements against the plaintiff were necessary parties and whether the present suit is liable to be dismissed for non impleadment of necessary parties.
CS DJ No. 11952/16 M/s JMD Ltd. v. Yatish Kumar Goel & Anr. Page 9 of 2111.6 The general rule is that the plaintiff, being the dominus litis/master of his suit, has right to decide as to against whom he needs relief and whom to implead as defendant in his suit. Ordinarily, the court should not compel the plaintiff to litigate against a person whom he does not desire to fight and from whom he claims no relief. [Ramesh Hirachand Kundanmal v. Municipal Corpn. of Greater Bombay, (1992) 2 SCC 524; Kasturi v. Iyyamperumal, (2005) 6 SCC 733; and Mumbai International Airport (P) Ltd. v. Regency Convention Centre and Hotels (P) Ltd., (2010) 7 SCC 417]. However, the aforesaid general rule is not absolute, rigid and inflexible one. This general rule is subject to the law contained under the provision of Order 1 Rule 10 CPC, which confers wide and extensive power upon the Court to substitute, strike out and add parties to the suit. The Superior Courts have evolved the doctrine of necessary party and proper party for the purpose of determining the question of joinder/ non-joinder of parties under Order 1 Rule 10(2) CPC. If a person is not found to be a proper or necessary party, the court does not have the jurisdiction to order his impleadment against the wishes of the plaintiff (Vidur Impex & Traders (P) Ltd. v. Tosh Apartments (P) Ltd., (2012) 8 SCC 384). In Kasturi supra, the Apex Court laid down two tests for determining the question whether a particular party is a necessary party to a proceeding: (i) there must be a right to some relief against such party in respect of the matter involved in the proceeding in question; and (ii) it should not be possible to pass an effective decree in absence of such a party. A proper party, on the other hand, is a person whose presence would enable the court to completely, effectively and properly adjudicate upon all matters and issues, though he may not be a person in favour of or against whom a decree is to be made (Vidur Impex & Traders (P) Ltd. supra).
CS DJ No. 11952/16 M/s JMD Ltd. v. Yatish Kumar Goel & Anr. Page 10 of 2111.7 If the issue at hand is examined in the light of the law as explained herein above, neither the plaintiff has sought any relief against the news channels and news papers, nor can it be said that an effective decree can not be passed in the absence of the said news channels and news papers. Thus, I am of the considered view that the said news channels and news papers are not the necessary parties.
11.8 Further, as per Order I Rule 9 CPC, no suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it:
provided that nothing in this rule shall apply to non-joinder of a necessary party. I have already held herein above that the news channels and news papers were not the necessary parties in the present suit and therefore, this suit is not liable to be dismissed for non joinder of them.
11.9 This issue is, therefore, determined against the defendants and in favour of the plaintiff.
12. Issue No. 3: Whether the requisite Court fees has been or has not been affixed as per the value of the suit? Onus on parties
12.1 The onus of proving this issue was fixed upon both the parties.
12.2 Neither of the parties, either led any evidence, or addressed oral arguments upon this issue. Therefore, I am proceeding to decide this issue on the basis of pleadings on record.
12.3 The plaintiff has valued the relief of recovery of damages of Rs. 1,99,00,000/- as sought according to the amount claimed and has also paid the ad valorem court fees of Rs. 1,96,700/-
CS DJ No. 11952/16 M/s JMD Ltd. v. Yatish Kumar Goel & Anr. Page 11 of 21thereupon. The same is in accordance with Section 7(i) of the Court Fees Act, 1870.
12.4 Similarly, the plaintiff has valued three reliefs of injunction as sought in the plaint, for the purpose of court fees at Rs. 200/- each and has also paid the ad valorem court fees of Rs. 20 each on the said reliefs. This is in accordance with Section 7 (iv) (d) of the Court Fees Act, 1870 (as amended by the Punjab Amendment Act applicable to Delhi), which gives liberty to the plaintiff to value the relief sought as per his discretion, provided the court fees shall not be less than Rs. 13/-.
12.5 It is, thus, held that the plaintiff has paid the requisite court fees upon the reliefs valued as per the law. This issue is, accordingly, decided in favour of the plaintiff.
13. Issue No. 4: Whether the plaintiff is entitled for a decree of mandatory injunction thereby directing the defendants to withdraw all the allegations made against the plaintiff and destroy all alleged defamatory material as mentioned in the plaint? OPP;
Issue No. 5: Whether the plaintiff is entitled for a decree of mandatory injunction thereby directing the defendants to tender an unconditional public apology to the plaintiff for the malicious, fallacious and scandalous publications as mentioned in the plaint? OPP;
Issue No. 6: Whether the plaintiff is entitled for permanent injunction thereby restraining the defendants and their agents etc. from making any false, baseless and defamatory allegations against the Plaintiff in future? OPP; and CS DJ No. 11952/16 M/s JMD Ltd. v. Yatish Kumar Goel & Anr. Page 12 of 21 Issue No. 7: Whether the plaintiff is entitled for compensation of Rs. 1,99,00,000/- for the injury and losses of the repetition and goodwill? OPP 13.1 The issue no. 4, 5, 6 & 7 are being taken up together as they can be decided on the basis of common findings. The onus of proving all these issues was fixed upon the plaintiff.
13.2 These issues were framed on the basis of the several reliefs as sought by the plaintiff. The determination of all these issues depend upon the determination of the primary issue as to whether or not the defendants are guilty of causing defamation of the plaintiff. Though no separate issue as to whether or not the defendants are guilty of causing defamation of the plaintiff was framed, from the respective pleadings and evidence recorded, it is clear that both the parties were well aware about this issue and they have tried to prove their respective case on this primary issue during trial of the suit.
13.3 I deem it appropriate here to deal with the law of defamation first. Defamation is a public/ criminal wrong as well as a civil wrong. Defamation as a public/ criminal wrong has been defined under Section 499 and made punishable under Section 500 of the Indian Penal Code, 1860. As against this, the civil law of defamation in India is not codified and it is based upon the common law, which is applicable to India also. The defamation as a civil wrong is a tort. The law of defamation, be it a public/ criminal wrong, or the civil wrong, protects the reputation. Every person has a right to maintain and preserve his reputation un-assailed. Reputation is not what a person thinks of himself/ herself; it is what others think of him/ her. The test whether a person has been defamed or not is the viewpoint of a right thinking member of the society. The wrong of defamation is distinct from insult caused by words, signs or representations, in that in the CS DJ No. 11952/16 M/s JMD Ltd. v. Yatish Kumar Goel & Anr. Page 13 of 21 former the defendant injures the plaintiff's estimation of reputation by others or what others think about him, while in the letter the defendant hurts the dignity or self-esteem of the plaintiff or what the plaintiff thinks about himself. The former requires publication while in the latter it is not necessary. The former is an actionable wrong while the latter is not so actionable unless accompanied by defamatory words. Reliance in this regard is placed upon the judgments in Chenna Basappa v. Sankara, AIR 1929 Mad 493 and Strigineedi v. Srimal Tirumala, 52 MLJ 87.
13.4 In Dr. Nidhi Bhatnagar & Anr. v. Citi Bank N.A. & Ors., (2008) 147 DLT 349, the Hon'ble High Court of Delhi observed, as under:
"10. ...Even otherwise under law of defamation, the test of defamatory nature of a statement is its tendency to incite an adverse opinion or feeling of other persons towards the Plaintiffs. Where a person alleges his reputation has been damaged it only means he has been lowered in the eyes of right thinking people of society or his friends or relatives. It is not enough for a person to sue for words which merely injure his feelings or annoys him. Injuries to feelings of a man cannot be made a basis for claiming of damages on the ground of defamation. ..."
13.5 In Prof. Imtiaz Ahmad v Durdana Zamir, (2009) 109 DRJ 357, the Hon'ble High Court of Delhi observed, as under:
"7. Under law of defamation, the test of defamatory nature of a statement is its tendency to incite an adverse opinion or feeling of other persons towards the Plaintiff. A statement is to be judged by the standard of the ordinary, right thinking members of the society at the relevant time. The words must have resulted in the Plaintiff to be shunned or evaded or regarded with the feeling of hatred, contempt, ridicule, fear, dislike or dis - esteem or to convey an imputation to him or disparaging him or his office, profession, calling, trade or business. The defamation is a wrong done by a person to another's reputation. Since, it is considered that a man's CS DJ No. 11952/16 M/s JMD Ltd. v. Yatish Kumar Goel & Anr. Page 14 of 21 reputation, in a way, is his property and reputation may be considered to be more valuable than any other form of property. Reputation of a man primarily and basically is the opinion of friends, relatives, acquittance or general public about a man. It is his esteem in the eyes of others. The reputation spread by communication of thought and information from one to another. Where a person alleges that his reputation has been damaged, it only means he has been lowered in the eyes of right thinking persons of the society or his friends/relatives. It is not enough for a person to sue for words which merely injure his feeling or cause annoyance to him. Injury to feeling of a man cannot be made a basis for claiming of damages on the ground of defamation. Thus, the words must be such which prejudice a man's reputation and are so offensive so as to lower a man's dignity in the eyes of others. Insult in itself is not a cause of action for damages on the ground of defamation.
8. Where the words are used without giving impression of an oblique meaning but the Plaintiff pleads an innuendo, asking the Court to read the words in a manner in which the Plaintiff himself understands it, the Plaintiff has to plead that the libel was understood by the readers with the knowledge of subject or extensive facts as was being understood by the Plaintiff."
13.6 The wrong of defamation is not absolute in the sense that the defendant, apart from proving that the alleged statement was not defamatory, has no other defence. The following are the defences to the defamation: (i) truth, (ii) fair comment, and (iii) privilege (which may be either an absolute or qualified).
13.7 Now, I shall proceed to examine the facts of the present case in the light of the law as explained herein above.
13.8 I am of the considered view for the multiple reasons as discussed herein below that the plaintiff has not been able to prove the case of its defamation by the defendants.
13.9 Firstly, the plaintiff has failed to prove its case in accordance with the law. The case of plaintiff is that the defendants CS DJ No. 11952/16 M/s JMD Ltd. v. Yatish Kumar Goel & Anr. Page 15 of 21 made baseless, malicious and defamatory statements against the plaintiff (i) in the press conference held on 04.11.2016, (ii) in national news channels, Khabar Fast, ETV Haryana, News World India, (iii) in the national print media/ news papers, e-papers, Amar Ujala, Human India, Punjab Kesari, Dainik Bhaskar & Dainik Jagran, and
(iv) in the complaints before the police, other investigating agencies and authorities. The plaintiff, for the purpose of proving the alleged defamatory statements of the defendants, has relied upon photocopies of news reports of various news channels and a compact disk, which were filed with the plaint. However, the plaintiff failed to tender in evidence even a single document. Here, Rule 4 & 7 of Order XIII of the CPC are relevant, which are reproduced herein below:
"4. Endorsements on documents admitted in evidence.--
(1) Subject to the provisions of the next following sub-
rule, there shall be endorsed on every document which has been admitted in evidence in the suit the following particulars, namely:--
(a) the number and title of the suit,
(b) the name of the person producing the document,
(c) the date on which it was produced, and
(d) a statement of its having been so admitted, and the endorsement shall be signed or initialled by the Judge.
(2) Where a document so admitted is an entry in a book, account or record, and a copy thereof has been substituted for the original under the next following rule, the particulars aforesaid shall be endorsed on the copy and the endorsement thereon shall be signed or initialled by the Judge.
7. Recording of admitted and return of rejected documents.--
(1) Every documents which has been admitted in evidence, or a copy thereof where a copy has been substituted for the original under rule 5, shall form part of the record of the suit.
CS DJ No. 11952/16 M/s JMD Ltd. v. Yatish Kumar Goel & Anr. Page 16 of 21(2) Documents not admitted in evidence shall not form part of the record and shall be returned to the persons respectively producing them.
The plaintiff in order to prove its case examined its Director, Mr Sunil Bedi as PW-1. Mr Sunil Bedi/ PW-1 tendered his affidavit- in-evidence, Ex. C-1 towards his examination-in-chief. However, not a single document was relied upon in the said affidavit-in-evidence of the plaintiff's witness, Mr Sunil Bedi/ PW-1. In the absence of any document having been admitted in evidence, no endorsement as per aforesaid Rule 4, was made by the Ld. LC/ Ld. Judge. No document, as per aforesaid Rule 7, became part of the record. The Court, thus, can not even consider the documents basis which the plaintiff has filed the present case.
13.10 Secondly, even if the aforesaid first reason is ignored, the plaintiff has not proved the fact in issue and relevant facts as per the rules of evidence. The plaintiff is seeking to prove the alleged defamatory statements of the defendants through the news reports allegedly published by the news papers and news channels. Here, Section 59 of the Evidence Act, 1872 is relevant, which provides that all facts, except the contents of documents or electronic records, may be proved by oral evidence. As per the definition of 'evidence' under Section 3 of the Evidence Act, oral evidence means all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry. Plaintiff's case is that the defendants had made defamatory statements in the press conference held on 04.11.2016. Thus, the alleged defamatory statements of the defendants, being not the contents of the document or electronic record, could be proved by oral evidence only i.e. by the statement of the witness before the Court. Section 60 of the Evidence Act requires that the oral evidence must be direct i.e. if it refers to a fact which CS DJ No. 11952/16 M/s JMD Ltd. v. Yatish Kumar Goel & Anr. Page 17 of 21 could be heard, it must be the evidence of a witness who says he heard it. However, the plaintiff has not examined any witness who allegedly heard the defamatory statements made by the defendants in the press conference held on 04.11.2016. The Hon'ble Supreme Court recently in Dinesh B.S. v. State of Karnataka, Criminal Appeal No. 851 & 852 of 2011 has held that a news paper report is only a hearsay evidence. It is well settled law that hearsay evidence is not admissible evidence.
13.11 Thirdly, even if the aforesaid first two reasons are ignored, and the plaintiff, for the sake of argument, though not permissible under the law, is allowed to prove the alleged defamatory statements of the defendants through documentary evidence, even the same has not been done by the plaintiff in accordance with the law regarding documentary evidence. As per Section 61, the contents of documents may be proved either by primary or by secondary evidence. Primary evidence, as per Section 62, means the document itself produced for the inspection of the court. Photocopy of a document, as per Section 63, is only a secondary evidence. Section 64 provides that documents must be proved by primary evidence except in the cases hereinafter mentioned. The circumstances under which the secondary evidence is permissible have been provided under Section 65. It is settled law that a party has to prove foundational facts at the time of leading secondary evidence. Now, in the case at hand, the plaintiff has utterly failed to prove the circumstances, as provided under Section 64, as to why it should be allowed to lead the secondary evidence. The plaintiff has also filed a compact disk with the plaint. However, no certificate under Section 65-B has been filed in support of the said compact disk. In view of the judgment of the Hon'ble Supreme Court in Arjun Panditrao Khotkar v. Kailash CS DJ No. 11952/16 M/s JMD Ltd. v. Yatish Kumar Goel & Anr. Page 18 of 21 Kushanrao Gorantyal, (2020) 7 SCC 1, it is a settled law that production of certificate under Section 65-B(4) is mandatory in case of secondary electronic evidence. The plaintiff has also filed photocopies of various complaints allegedly filed by the defendants before the police, other investigating agencies and authorities. The said photocopies of complaints are not permissible mode of proof as neither the plaintiff has filed primary evidence, or certified copies, nor has it examined any official witness for the purpose of proving the said complaints.
13.12 Fourthly, the plaintiff has not examined any witness to prove that its reputation has been lowered in the estimation of the right thinking members of the society. As discussed herein above, the publication i.e. making the defamatory material known to a third party and the injury to the reputation in the eyes of a right thinking member of the society, are two essential conditions for making out a case of defamation.
13.13 Fifthly, a mere lodging of complaints before different authorities including the police and reporting of this fact in the news papers, do not amount to defamation. In this regard, the defendant no. 1 has rightly relied upon the judgment in the case, Mahadev I. Todale v. Frankfinn Aviation Services Pvt. Ltd. & Ors., 2017 SCC OnLine Del 9135, Wherein the Hon'ble Delhi High Court, while relying upon several other judgements, has held that every person has the right to set the machinery of criminal justice in motion by filing a complaint; that publication of news regarding lodging of complaint/ FIR does not amount to defamation; that a suit for defamation based upon the lodging of complaint is pre-mature until the allegations in the complaint are not proved to be false; that filing of a defamation case for lodging of complaint is only a tactic to harass and pressurize the CS DJ No. 11952/16 M/s JMD Ltd. v. Yatish Kumar Goel & Anr. Page 19 of 21 complainant to withdraw the complaint; that filing of complaint is not actionable for defamation action, what is actionable is the malicious prosecution and that too upon the proof that the prosecution was malicious; and a defendant is entitled to the defence of privilege in a suit for damages for defamation on the basis of complaint filed before appropriate authorities. Pertinent to note here is that the plaintiff's witness, Mr Sunil Bedi/ PW-1 in his cross examination on 01.03.2023 admitted the fact of pendency of complaint case, Ex. PW-1/X filed by the defendants against the plaintiff before the Court in Gurugram.
13.14 It is also required to be noted that the plaintiff has filed the present suit seeking damages for defamation only against the defendants. Plaintiff has not impleaded the news papers and news channels which allegedly published the alleged defamatory statements of the defendants. It indicates that the only intention of the plaintiff is to harass and pressurise the defendants so that they do not pursue their legal remedy pursuant to filing of complaints and criminal cases against the plaintiff. Further, the case has been filed in Delhi on the ground that plaintiff being based in Delhi has been defamed; but no public witness to prove so has been examined by the plaintiff. For these reasons, I find the present suit to be an abuse and misuse of process of law.
13.15 The Ld. Counsel for the plaintiff has placed reliance upon the judgments, Zenit Mataplast Private Limited v. State of Maharashtra and Others, (2009) 10 SCC 388; and Subramanian Swamy v. Union of India, (2016) 7 SCC 221 for the proposition that there has to be a balance between Article 19 and 21 of the Constitution; Mahender Ram v. Harnandan Prasad, AIR 1958 Pat 445; and Gorantla Venkateshwarlu v. B. Demudu, (2002) SCC OnLine AP 686 for the purpose of contending that the defamatory CS DJ No. 11952/16 M/s JMD Ltd. v. Yatish Kumar Goel & Anr. Page 20 of 21 statement has to be published; Dr. Shashi Tharoor v. Arnab Goswami and Anr., 2017 SCC OnLine Del 12049 and Ram Jethmalani v. Subramanian Swamy, 2006 (87) DRJ 603. There can be no quarrel with the proposition of law laid down by the Hon'ble Higher Courts in the aforesaid judgments. I, however, fail to understand as to how these judgments help the plaintiff in proving its case. It is a trite law that the case of the plaintiff has to stand own its own legs. I am of the considered view that the plaintiff has not been able to make out even a prima facie case, much less than proving the same so as to be entitled to the judgment in his favour.
13.16 The issue no. 4, 5, 6 & 7 are, therefore, liable to be determined against the plaintiff and in favour of the defendants. Held so.
Conclusion:
14. In view of the findings recorded herein above qua the issues, the present suit is dismissed with costs, as per rules, against the plaintiff and in favour of the defendants.
15. After preparation of the decree sheet by the Reader, the file shall be consigned to the record room.
Digitally signed by SACHINAnnounced & dictated in SACHIN MITTAL
MITTAL Date:
the open court on 07.06.2024
2024.06.07
13:27:41 +0530
(Sachin Mittal)
DJ-03/South-East District,
Saket Courts, New Delhi/07.06.2024
Certified that this judgment contains 21 pages and each page bears my signatures. Digitally signed SACHIN MITTAL by SACHIN MITTAL Date: 2024.06.07 13:27:47 +0530 (Sachin Mittal) DJ-03/South-East District, Saket Courts, New Delhi/07.06.2024 CS DJ No. 11952/16 M/s JMD Ltd. v. Yatish Kumar Goel & Anr. Page 21 of 21