Andhra HC (Pre-Telangana)
T.N. Seshan, Chief Election ... vs Dr. M. Karunanidhi, President Of ... on 22 August, 1995
Equivalent citations: 1995(3)ALT108
ORDER Krishna Saran Shrivastav, J.
1. This order shall also govern the disposal of Application No. 202 of 1995 in C.S.No.2 of 1995. Application No. 203 of 1995 in C.S.No.3 of 1995 and Application No. 204 of 1995 in C.S.No.4 of 1995 for revoking the leave granted to sue the defendants as also the Application No. 48 of 1995 in unregistered suit C.S. (SR) No. 5319 of 1995 for grant of leave to sue the defendants because of commonality of questions of law and similarity of facts.
2. It is a matter of record that Dr. M. Karunanidhi for himself and as the President of Dravida Munnetra Kazhagam Party (for short 'DMK Party') filed suit GS.No.4519 of 1994 against Sri T.N. Seshan, Sri K. Govindan Kutty and Konark Publishers in the High Court of Judicature at Madras, having ordinary original jurisdiction, for permanent injunction restraining them from publishing, releasing, circulating, selling, marketing and distributing the book titled as "Seshan- an Intimate Story", after obtaining leave of the Court to sue them. On transfer of this suit by the Supreme Court of India, it has been registered as C.S. No. 1 of 1995 in this Court.
3. Suit of similar nature, after obtaining permission to sue, has been filed by Sri V. Gopalswamy, General Secretary, Marumalarchi Dravida Munnetra Kazhagam Party (for short 'MDMK Party') against the said three persons for similar relief. This suit was registered as C.S.No. 1528 of 1994 in the High Court of Judicature at Madras and on transfer to this Court it was registered as C.S.No.2 of 1995.
4. Suit of similar native for similar relief, after obtaining leave of the Court, was also filed by Smt. Rani Annadurai and three others against the said three defendants. This suit was registered as GS.No.1539 of 1994 in the High Court of Judicature at Madras and on transfer to this Court it was registered as GS.No.3 of 1995.
5. All India Anna Dravida Munnetra Kazhagam (for short 'AIADMK') through its General Secretary also filed a suit of similar nature for similar relief against the aforesaid three defendants, after obtaining leave from the Court. This suit was registered as C.S.No. 1635 of 1994 and on transfer to this Court it is registered as C.S.No.4 of 1995.
6. This suit has been filed on the ground that the book titled as "Seshan - an Intimate Story" contained Chapter No. 10 under the caption "An Affair with MGR" and contained defamatory allegations against him. While the aforementioned three suits had been filed on the allegation that Chapter No. 9 of the said book-"Seshan- an Intimate Story" under the caption "Report on a "Bully" contained references to Sri C.N. Annadurai by connecting him with the C.I.A.
7. AIADMK through its General Secretary also filed another suit against Sri K.Govindan Kutty and Sri T.N. Seshan for similar relief on the allegation that the aforesaid book - "Seshan-an Intimate Story" contained passages with reference to late Sri CN.Annadurai by connecting him with the C.I.A. Along with the plaint she filed an application for permission to sue the aforesaid two defendants. This has also been transferred by the Supreme Court to this Court from the High Court of Judicature at Madras and it is registered as C.S.(SR) No. 5319 of 1995.
8. The facts which are no longer in dispute before me, in short, are that Sri T.N. Seshan narrated his experiences to Sri K. Govindan Kutty and on the basis of the narration of events by Sri T.N. Seshan to Sri K. Govindan Kutty, he wrote the book titled as "Seshan - an Intimate Story" which purports to be a biography of the life of Sri T.N. Seshan. This book was printed and published by Konark Publishers Private Limited and the copies of the book were sold to distributors and others on or about 12th October, 1994. However, prior to that date, excerpts of the said book appeared in the newspapers and magazines in circulation all over India including the State of Tamil Nadu. Copies of the said book were also sent to Madras book distributors for sale. The formal function of release of the book had been arranged for Monday, the 17th October, 1994. Before that, the aforementioned suits had been filed and interim injunction was granted by the Madras High Court restraining the defendants from releasing the said book in the State of Tamil Nadu.
9. According to the plaintiffs, the book contained certain adverse comments regarding late Sri C.N. Annadurai and late Sri M.G. Ramachandran. According to the plaintiffs,these adverse remarks are defamatory in character and the remarks have hurt the feelings and sentiments of the people of Tamil Nadu.
10. On the other hand, according to the defendants the allegations are incorrect and the averments made in the plaint are the result of misleading of the relevant chapters relating to Sri late C.N. Annadurai and late Sri M.G. Ramachandran. There is no offending passage in the aforesaid book. Sri T.N. Seshan while narrating his experience has expressed his fair comments on the situation prevailing at that time. The defendants allege that they are residents of Delhi and the book was printed and published in Delhi and no cause of action arose within the jurisdiction of the original side of Madras High Court and, therefore, leave granted to file the aforementioned civil suits should be revoked and Application No. 48 of 1995 filed by AIADMK for permission to sue the defendants in C.S.SR.No.5319 of 1995 should be rejected.
11. Sri K. Parasaran, the learned Counsel appearing on behalf of the AIADMK has contended that from the extracts from the said book published in newspapers in Madras it is evident that late Sri C.N. Annadurai and late Sri M.G. Ramachandran have been defamed because it contained defematory and blasphemous allegations against them. Because the copies of the book - "Seshan-an Intimate Story" were sent to Madras for sale and excerpts of the said book containing defamatory allegations were published in newspapers, therefore, it is established that a part of cause of action arose in Madras. Clause 12 of the Letter Patent, High Court of Madras provides that if the cause of action partly arises within the jurisdiction of the High Court of Judicature of Madras, leave of the Court should first be obtained by the plaintiff for trial of the suit in exercise of its ordinary original civil jurisdiction. Leave to sue was, therefore, rightly granted by the Madras High Court in the aforementioned circumstances, though the defendants may be residing outside Madras. In the alternative, it has been submitted by him that at the instance of the defendant Sri K. Govindan Kutty all the cases have been transferred from Madras High Court to this Court for trial and disposal and, therefore, the question of rejection of the leave does not arise. This Court should try the suits as per the direction of the Supreme Court and all the applications for revocation of the permission to sue the defendants should be rejected.
12. Sri K.V. Venkatapathi the learned Counsel of the plaintiff- Dr. M. Karunanidhi and DMK Party, Sri P. Srinivas the learned Counsel of the plaintiff V. Gopalaswamy, General Secretary, MDMK party and Sri K. Pratap Reddy the learned Counsel of the plaintiffs Smt. Rani Annadurai and two others have adopted the arguments of Sri K. Parasaran, Advocate.
13. On the other hand, Sri C.P.Sarathy, the learned Counsel of the defendants Sri K. Govindan Kutty and Konark Publishers Private Limited, has argued that no part of cause of action has ever arisen in Madras. Mere publication of excerpts of the said book in Madras newspapers would not give cause of action to the plaintiffs to sue the defendants who are residing in Delhi because the defendants are not responsible for such newspaper publication. Although certain copies of the aforesaid book were despatched to Madras book-seller for its sale but the books have been brought back after the issuance of the temporary injunction. Under these circumstances, it cannot be said that the alleged defamatory allegations were ever published in Madras. The Supreme Court of India has transferred the civil suits for disposal and, therefore, all the interlocutory applications are to be decided by this transferee Court including the application for revocation of the leave to sue the defendants. The Madras High Court had no inherent territorial jurisdiction to try the suits and, therefore, the permission to sue which was granted exparte deserves to be revoked and on similar reasoning no permission should be granted to the plaintiff to sue the defendants in C.S.(SR) No. 5319 of 1995.
14. Smt. C. Jayasree Sarathy, the learned Counsel of Sri T.N. Seshan, has urged that by dictating the aforesaid book the role of Sri T.N. Seshan came to an end and, thereafter, it was for the other defendants to write and print the book and sell it. Under these circumstances, there remained nothing for Sri T.N. Seshan to do with the writing of his biography or publishing and selling the book and, therefore, no cause of action has arisen against him to be sued.
15. Section 120 of the Code of Civil Procedure excludes the applicability of Sections 16,17 and 20 of the Code of Civil Procedure in cases of trial by Madras, Calcutta and Bombay High Courts which were exercising ordinary original civil jurisdiction at the time of introduction of amendment in the year 1951. Clause 12 of the Letters Patent of High Court, Madras reads as under:
"12. Original jurisdiction as to suits - And we do further ordain that the said High Court of Judicature at Madras, in exercise of its ordinary original civil jurisdiction, shall be empowered to receive, try, and determine suits of every description if, in the case of suits for land or other immovable property, such land or property shall be situated, or, in all other cases, if the cause of action shall have arisen, either wholly, or in case the leave of the Court shall have been first obtained, in part, within the local limits of the ordinary original jurisdiction of the said High Court; or if the defendant at the time of the commencemnt of the suit shall dwell or carry on business or personally work for gain, within such limits; except that the said High Court shall not have such original jurisdiction in cases falling within the jurisdiction of the Small Cause at Madras, in which the debt or damage, or value of the property sued for does not exceed one hundred rupees."
16. A bare perusal of Clause 12 abid provides that if a part of cause of action has arisen in the High Court of Judicature at Madras, a suit may be tried in exercise of its original civil jurisdiction subsequent to the grant of leave of the Court to sue the defendants who may be residing out of the jurisdiction of that High Court.
17. Order III (1) of the Rules of the High Court, Madras provides that "an application for leave to institute a suit in the Court shall be made by Judge's summons entitled in the matter of the intended suit, and shall be supported by an affidavit stating the residence and occupation of the defendant, and the reason for instituting the suit in the Court. The application shall be accompanied by the plaint in the intended suit, or a copy thereof."
18. It is a matter of record that the plaintiff; in C.S.(SR) No. 5319 of 1995 along with an application supported with an affidavit for permission to sue the defendants has also filed the plaint. This appears to be so because the Court should after going through the allegations in the plaint may be in a better position to decide the application. Therefore, even if the proposed plaintiff has not specifically mentioned in her affidavit that the plaint should be read as part of the affidavit would be of little consequence. Justice should not be lost in technicalities. The procedural ponderables and technical troubles such as non-mentioning of the fact in the affidavit that the plaint should be read as a part of the affidavit in no way appears to be a ground for rejection of the application for permission to sue the defendants and, therefore, the contention of Sri C.P. Sarathy, the learned Counsel of the defendants Sri K. Govindan Kutty and Sri T.N. Seshan, that the application for permission to sue the defendants should be rejected on this ground has no force.
"A cause of action means every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded. It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything which if not proved would give the defendant a right to immediate judgment must be part of the cause of action. But it has not relation whatever to the defence which may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff." (see A.B.C. Laminart Pvt. Ltd. v. A.P.Agencies, Salem, ).
19. As noted above Clause 12 of the Letters Patent of High Court, Madras provides that if a part of cause of action has arisen within the jurisdiction of the High Court of Judicature at Madras a suit may be instituted and tried in the exercise of its ordinary original civil jurisdiction, after obtaining leave of the Court to sue the defendants.
20. The main point that falls for determination is whether a part of cause of action for the suit has arisen within the jurisdiction of the High Court of Judicature at Madras?
21. In para-4 of the counter-affidavit in C.S.No.4 of 1995 the defendantNo.3 K.P.R. Nair has stated that on 12-10-1994,200 copies of the aforesaid book were sent by him to his book distributor M/s. Affiliated East West Press, Madras and the said 200 copies of the book were returned to him unsold by the said book distributor on 25-11-1994. This establishes that 200 copies of the aforesaid book were available with M/s. Affiliated East West Press, Madras and ready for sale. This defendant had sworn an affidavit before the Supreme Court in the transfer petition and in para-1 of the affidavit he has stated that it was not possible for him to totally prevent sale or transfer of the said book since the various dealers with whom he had in contact may have further transferred the books to their sub-dealers or vendors for sale. It is pertinent to note that in the counter- affidavit filed in C.S.No.4 of 1995, this defendant has not categorically stated that he had despatched the books only to the said book distributor at Madras. Therefore, the possibility of sale by other book distributors at Madras cannot be ruled out, particularly, in the light of para-3 of the affidavit sworn by Dr. J. Jayalalitha, the plaintiff in C.S.No.4 of 1995, that the defendants have surreptitiously distributed the books for sale in the market and in fact the books are available throughout the country and are sold in various shops; but in view of the publicity given to injunction orders, the book is being sold without invoices and she has also filed a copy of the said book in the Court. In para-8 of the affidavit sworn by this defendant before the Supreme Court in transfer petition it is stated that there is substantial demand for copies of the book from various corners of the country and even from abroad. Under these circumstances, this possibility cannot be ruled out that the book distributor at Madras to whom 200 copies of the said book were supplied, as also its partners, family members and friends, had not availed the opportunity of reading the said book including chapters 9 and 10 of it.
22. For the limited purpose of disposing of these applications, on the basis of the plaint allegations, it is presumed that the impugned allegations are defamatory.
23. Publication of defamatory matter is communicated the moment the same is received by some person other than the person for whom it has been written. Publication of defamatory matter includes communication to third party. Defamatory matter printed in books and distributed for whatever purpose constitutes publication. All the three defendants must have known that the aforesaid books and, particularly, the contents of chapters 9 and 10 may be read atleast by the book sellers immediately on their receipt by them because of their curiosity. In the ordinary course of business the sending of books containing defamatory matter by post or otherwise from the place where it is published to book distributor of another place is publication of that matter at latter place, particularly/when it is read by themand/or others. Under these circumstances, it can be safely presumed that the importance of the aforesaid book containing chapters 9 and 10 would have aroused the curiosity of atleast the book-seller to go through it immediately on its receipt and, therefore, this type of communication amounts to publication at Madras.
24. As noted above, the excerpts of chapters 9 and 10 of the aforesaid book in local newspapers is a distinct publication. Much publicity was given for the sale of the book as is evident from the affidavits of the defendants. Therefore, a presumption regarding awareness of the contents of the concerned newspapers can be raised against all the defendants because out of these defendants only the concerned matter would have been passed on to the newspapers concerned and thus all of them, prima facie, appeartobe responsible alike for the publication of the alleged defamatory news item in the local newspapers.
25. The case of Oil & Natural Gas Commission v. Utpal Kumar Basu, . is distinguishable on facts. In this case, the Apex Court has held that the mere fact that the petitioner company, having its registered office at Calcutta, had read in Calcutta newspaper the ONGC's advertisement inviting tenders at Delhi for works to be executed in Gujarat and their sending tender to the Delhi address from Calcutta and making representations from Calcutta against non- consideration of its offer on the ground of its ineligibility etc. does not constitute integral part of cause of action, particularly, when the averments in the petition did not disclose that even a part of cause of action arose within the territorial jurisdiction of Calcutta High Court. Whereas, in the case in hand, as shown above, a part of cause of action appears to have arisen within the jurisdiction of the High Court of Judicature at Madras because not only it can be presumed that a tleast the book distributors would have read the said book including the said chapters 9 and 10 but the excerpts were also published in newspapers giving rise to cause of action and which news item has been alleged to be defamatory of the concerned Ex-Chief Ministers.
26. In the case of Arvee Industries v. Ratan Lal, the plaintiffs therein had filed a suit in the original side of the Calcutta High Court after obtaining leave under Clause 12 of the Letters Patent of the Calcutta High Court against the defend ants who were residents of Delhi. The suit was instituted in the original side of the Calcutta High Court which had, prima facie, no jurisdiction to try it because no part of cause of action had arisen there. It was urged on behalf of the plaintiffs that the Calcutta High Court may not have territorial jurisdiction to entertain the suit, but this objection can be raised by the defendants before the Calcutta High Court which will decide it after hearing the parties and, under these circumstances, the case pending before the Calcutta High Court should not be transferred to the Delhi High Court. Rejecting the plea, it has been held by the Apex Court as follows:
"It cannot be said that if a particular suit is ex facie instituted deliberately in a wrong Court, it will not have any bearing whatsoever, on the question of transfer. The Court may bear it in mind as an additional factor if there is, prima facie, on the pleadings sufficient justification for such a plea. It is, however, not necessary for us to express finally on the question of jurisdiction in this case. That on the pleadings there is a storng possibility of the High Court accepting the petitioners' objection to territorial jurisdiction is also a relevant factor in the background of this case.
On the merits, we are clearly of opinion that having an overall view of the case, the relationship between the parties, the nature of the suit, as well as the circumstances in which the suit has been filed in the Calcutta High Court, great hardship will be caused to the petitioners in defending such a suit in Calcutta. On the other hand, the plaintiff has two sons in Delhi and he had earlier instituted action in the Delhi Court against the petitioners. Convenience of the parties for a smooth and speedy trial will be more in Delhi than in Calcutta. Since the cause of action has arisen out of civil proceedings in the Delhi Court, it will add to the convenience of the parties so far as production of records and even witnesses before the trial Court is concerned;" AND in the ends of justice, the Apex Court transferred the case from the Calcutta High Court to the Delhi High Court for disposal according to law.
27. It is pertinent to note that the defendant Sri K. Govindan Kutty had filed the transfer petition before the Supreme Court of India under Section 25 of the Code of Civil Procedure and under Article 139-A of the Constitution of India for transfer of the aforementioned four civil suits and one contemplated suit from the Madras High Court to the Delhi High Court or to any other High Court in India. In this petition it has been specifically mentioned that the aforesaid book was written in Delhi, published in Delhi, based upon the life of another defendant also resident of Delhi and was to be released at a function in Delhi, with no substantial part of the cause of action arising within the ordinary jurisdiction of the Madras High Court. Thus it is evident that material was placed before the Supreme Court that the Madras High Court had no jurisdiction to try the aforementioned suits and it is only the Delhi High Court which is competent to try them. In the impugned order of transfer it has been specifically mentioned that their Lordships are aware that this Court does not have the original side but they thought that the suits should be heard expeditiously causing the least inconvenience to the parties and the suits should be assigned to a learned Judge for trial and disposal. It has also been mentioned that this is necessary having regard to the time which a suit on the original side of the High Courts of Delhi and Bombay take for disposal.
28. It would be useful to reproduce Article 142 of the Constitution of India:
"142. Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc.-
(1) The Supreme Court in exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and until provision in that behalf is so made, in such manner as the President may by order prescribe.
(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery of production of any documents, or the investigation or punishment of any contempt of itself."
29. For the foregoing reasons, even if it is assumed for the sake of argument that the Madras High Court had no territorial jurisdiction to try the aforementioned suits, all the aforementioned suits have been transferred for trial and disposal to this Court finding it necessary having regard to the time which a suit on the original side of the High Courts of Delhi and Bombay take for disposal as also not expressing anything on the question of jurisdiction of the Madras High Court.
30. The order of transfer by the Supreme Court is a judicial order and is binding under Article 142 of the Constitution of India. Under these circumstances, in pursuance of the order of the Supreme Court all the aforementioned suits are to be tried and disposed of expeditiously, by this Court.
31. In result, the Application Nos. 201 to 204 of 1995 in C.S.Nos. 1 to 4 of 1995 respectively, filed for revocation of the leave granted to sue the defendants, have no force and they are all rejected, while the Application No. 48 of 1995 in C.S.(SR) No. 5319 of 1995 for grant of leave to sue the defendants is allowed. However, in the circumstances of the case, I leave the parties to bear their own costs.