Orissa High Court
Sri Navin Das And Another vs Smt. Ranjita Singh on 29 January, 2016
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
HIGH COURT OF ORISSA: CUTTACK
FAO NO. 75 OF 2015
From the order dated 27.12.2014 passed by the learned 2nd Addl.
Senior Civil Judge, Bhubaneswar in I.A. No. 496 of 2014 arising out
of C.S. No. 7240 of 2014.
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Sri Navin Das and another ...... Appellants
-Versus-
Smt. Ranjita Singh ...... Respondent
For Appellants : Mr.D.C. Mohanty, Sr. Advocate
M/s. D.R. Mohapatra,
S.R. Mohapatra
& K.K. Jena.
For Respondent : M/s. A.K. Mohapatra,
S.J. Mohanty,
A.K. Mahana, A Mishra
& A. Parija
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Date of Judgment: 29.01.2016
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P R E S E N T:
THE HONOURABLE SHRI JUSTICE K.R. MOHAPATRA
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K.R. Mohapatra, J.Order dated 27.12.2014 passed by the learned 2nd Addl. Senior Civil Judge, Bhubaneswar in I.A. No. 496 of 2014 allowing an application under Order 39 Rules 1 and 2 read with Section 151, C.P.C. and restraining the opposite party-appellants from publishing any statement with malice, which is defamatory in nature, against the petitioner-respondent's husband and father-in- 2 law in their newspaper "Satya-ra Swara Nirbhay" till final disposal of the suit, is under challenge in this appeal.
2. Civil Suit No. 7240 of 2014 has been filed claiming punitive and compensatory damages amounting to Rs.10.00 crores and to declare the news items published in the newspaper, namely, "Satya-ra Swara Nirbhay" tarnishing the image of the plaintiff's father-in-law and her husband to be defamatory and libelous and for permanent injunction. The plaintiff (respondent herein) in the plaint contended that she is the wife of Sri Pranab Kumar Balabantaray, a sitting Member of Odisha Legislative Assembly (M.L.A.) and is also the daughter-in-law of Kalpataru Das (now dead), a former Member of Parliament (Rajya Sabha). The said Kalpataru Das was also the former Cabinet Minister being a member of the Odisha Legislative Assembly during the period from August, 2012 to 12.02.2014. Both of them are social workers and tried their level best to work for welfare of the public at large. Both of them also hold high reputation in the State of Odisha as well as in the political domain of the State. The defendant No.1 is the Editor, Printer and Publisher and defendant no.2 is the owner of the newspaper, namely, "Satya-ra Swara Nirbhay". While the matter stood thus, there were some news reports regarding illegal allotment of lands and houses under discretionary quota by the Development Authorities of Cuttack and Bhubaneswar against plaintiff's father in-law and her husband. After 3 publication of such news items, plaintiff's husband surrendered the flat allotted in his name on moral ground. Taking such advantage, the defendants published various offending news items by giving a different colour to it which grossly damaged the social reputation, prestige and dignity of her family including her father-in-law and husband. The news items and articles were portrayed in a way which were extremely derogatory in nature and were deliberately added with colour so as to create a negative image of the plaintiff's father- in-law, husband and other family members. Those were also deliberately worded and designed to give negative slant to the truth so as to present a completely distorted image of plaintiff's father-in- law and husband. She also gave certain illustration of such news publication in the plaint. Hence, the suit was filed for the aforesaid relief. Along with the plaint, the plaintiff filed a petition under Order 39 Rules 1 and 2 C.P.C. with a prayer to restrain the defendants (appellants herein) from publishing any defamatory news items on libelous material which would tarnish the image of plaintiff's husband, father-in-law as well as other family members.
3. The defendants filed their objections refuting the allegations made in the plaint as well as in the interim application. They contended that the petition is not maintainable both in fact and law. They also contended that the plaintiff has no locus standi to file the suit as well as the interim application as there has been no 4 defamatory and libelous imputation against her. A person who is alleged to have been defamed has only the right to maintain such a petition and the suit as well. It is a right in personam and not in rem. They further contended that no defamatory articles were published in the newspaper against the husband and father-in-law of the plaintiff. The news items published are based on fact. When Sri Pranab Balabanta Ray and Sri Kalpataru Das had not filed any suit, it can be said that they are not aggrieved of such news publication. Thus, the suit at the instance of a third person is not maintainable so also the interim application. Not a solitary condition for grant of temporary injunction has been satisfied in the case. Thus, the interim application is not maintainable and the same is liable to be dismissed.
4. The learned trial court considering the rival contentions of the parties allowed the application restraining the opposite party- respondents from publishing any statement with malice, which is defamatory in nature, against the plaintiff-respondent's husband and father-in-law in their newspaper "Satya-ra Swara Nirbhay" till disposal of the suit. Being aggrieved by the said order, this appeal has been filed.
5. Mr. D.C. Mohanty, learned Senior Advocate appearing on behalf of the appellants submitted that a relief of interlocutory injunction can be granted subject to satisfaction of three golden 5 principles which include the question of maintainability. Thus, the plaintiff-respondent has to establish a prima facie case that gives rise to a triable issue. In the instant case, the suit being one of defamation, a person who is alleged to have been defamed, has the right to file a suit claiming damages. This is a right in personam and not in rem. Thus, the person aggrieved has only locus standi to maintain a suit for defamation. It affords no right to any relative, friend of family members, as the case may be, to step into the shoes of the person, who is alleged to have been defamed. None else other than the person aggrieved can maintain a suit in the representative capacity. The nature of pleadings and the relief sought for clearly reveal that the plaintiff has filed the suit for compensation for publication of news items and articles against her husband as well as father-in-law in the newspaper of the defendants-appellants, which were allegedly defamatory and libelous in nature. Thus, she claims compensation for the alleged defamation of her husband and father-in-law. Neither of them has filed any suit or complaint against such publications. None of the news items published relates to the plaintiff-respondent. Thus, she is no way aggrieved or defamed by such publications. In support of his case, he relied upon the case of Ratinand Balved Education Foundation Vs. Alok Kumar, reported in AIR 2007 Delhi 9 and submits that before granting an order of injunction, the trial court ought to have gone into the question of maintainability of the suit to 6 satisfy itself with regard to existence of a prima facie case. As respondent has no locus standi to maintain the suit nor there is any cause of action for the plaintiff-respondent to file the suit, no prima facie case is made out. In addition to the above, this being a suit for damages and the damage having been quantified, the plaintiff- respondent cannot be said to suffer irreparable loss, if the prayer for injunction is not granted. As the first two ingredients to get an order of injunction are not satisfied, balance of convenience does not lean in favour of the plaintiff-respondent. The learned trial court has miserably failed to appreciate the same which resulted in gross miscarriage of justice. The defendants-appellants being the owner and editor of a newspaper have the freedom of speech, expression and profession. Any order of injunction would amount to curtailment and infringement of such constitutional right. In view of the impugned order passed, the defendants-appellants have suffered irreparable loss as their constitutional right of freedom of speech, expression and profession has been curtailed. Thus, the impugned order is per se bad in law.
Referring to the decision in the case of Maria Margarida Sequeria Fernandes and Others Vs. Erasmo Jack de Sequeria(Dead) through L.Rs., reported in 2012 SC 1727, Mr. Mohanty submitted that grant or refusal of an injunction in a civil suit is the most important stage in the civil trial. Due care, caution, 7 diligence and attention must be bestowed by the judicial officers and judges while granting or refusing injunction. In most cases, the fate of the case is decided by grant or refusal of an injunction. Experience has shown that once an injunction is granted, getting it vacated would become a nightmare for the defendant. In order to grant or refuse injunction, the judicial officer or the judge must carefully examine the entire pleadings and documents with utmost care and seriousness.
Relying upon the decision in the case of Smt. Laxmi Dei and another etc. Vs. Shyam Sundar Hans and etc., reported in AIR 2005 Orissa 78, Mr. Mohanty submitted that discretion vested in the court like any other discretionary power can be exercised in accordance with reasons and sound judicial principles. It requires the highest degree of satisfaction of the Court before exercising discretion of granting an order of injunction. Further, referring to the decision in the case of Xavier Institute of Management, BBSR Vs. Swapna Harrison, reported in 2010 (1) ILR-CUT-713, it is submitted that the main prayer and the interim prayer being the same, the learned Court has erred in law in granting such an interim prayer. The impugned order lacks adherence of basic principles of law laid down/settled as above and it has been passed in a routine manner and in excess of jurisdiction vested in the learned trial court and that too in favour of a person, who does not have any semblance 8 of right or locus standi to file a suit. He also referred to several other decisions which canvas the ratio that an action for defamation can only be instituted by a person who is defamed and not by others, including family members, relatives and friends etc. He further submitted that the news items contextually are statement of facts and pressed as a canvas to portray a picture and serve the people by bringing the facts to their knowledge for public good in the matters of public importance without fear or favour. Thus, he prayed for setting aside the impugned order.
6. Mr. Mohapatra, learned counsel for the respondent, on the other hand, supporting the impugned order submitted that the impugned order is just and proper and the same does not call for any interference by this Court. The trial court has taken note of all aspects of the matter involved while passing the impugned order. All the three ingredients required for granting an order of injunction have been satisfied in this case. A bare perusal of the news items as well as the pleadings of the parties would go to show that the news reports which were filed along with the plaint are scandalous, libelous and defamatory in nature. It can be safely said that the plaintiff-respondent has a prima facie case since the suit has been admitted for trial. The learned trial court while passing the impugned order has ensured two aspects, firstly to ensure that no other libelous or defamatory news items are published against the plaintiff- 9 respondent and secondly to ensure that the right of publishing news items by the defendants-appellants are not curtailed to uphold their freedom of speech and expression as guaranteed under Article 19(1)(a) of the Constitution of India. While assessing the principle of comparative mischief caused to the plaintiff, the learned trial court found that the comparative mischief would be more and there would be damage to the reputation of the plaintiff-respondent's family, if the defamatory and libelous news items are allowed to be published against them. Loss or damage of such reputation cannot be compensated in terms of money. Thus, the trial court has not completely restrained the defendants-appellants from publishing any news item against the plaintiff-respondent's husband, father-in-law and family members. It has only restrained them from publishing any defamatory and libelous news items. The impugned order has been rightly passed to have an orderly and civilized society and to ensure that the rule of law prevails in the society, which is one of the prime objectives of the whole legal system in the country. The defendants-appellants are not completely restrained from publishing news items against the plaintiff-respondent's husband, father-in-law and other family members, which are based on facts and evidence.
7. Replying to the question of maintainability of the suit, Mr. Mohapatra submitted that the contention raised to that effect is not correct and the same is baseless. The plaintiff-respondent herself 10 is a person aggrieved and has approached the Court for certain relief which she is entitled to under law. The news items published would give a definite impression that the image and reputation of the plaintiff-respondent's family as a unit as well as the members of the family as individuals, has been tarnished and imputed by publication of such news. Relying upon a decision in the case of Padmalochan Choudhury Vs. Nirakar Patel, reported in 36(1970) CLT 940, Mr. Mohapatra submitted that by virtue of the mortal relationship, the husband and the wife acquire such a status in the society that defamation against one necessarily has its effect on the other.
Mr. Mohapatra further submitted that the main thrust of the argument of the learned counsel for the appellants was with regard to locus standi of the plaintiff for filing of the suit and maintainability of the suit. The appellants had filed a separate application under Order 7 Rule 11 C.P.C. raising such question, which was rejected. Against the said order, a Civil Revision is at present pending before this Court. Thus, the same should not be a subject matter of adjudication in this appeal. The right to freedom of speech and expression which flows from Article 19 (1)(a) of the Constitution of India is not an absolute right and the same is subject to the rider as provided under Article 19(2) of the Constitution of India which provides that nothing in sub-clause (a) of Clause-1 of Article 19 shall affect the operation of existing law, or prevent the 11 State from making any law insofar as such law imposes reasonable restrictions on the exercise of the right conferred under the said sub- clause in the interest amongst other, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. Thus, no fault can be found with the impugned order. He further submitted that the decision cited with regard to locus standi of the plaintiff-respondent for filing of the suit is not applicable to the present case. Thus, he prayed for dismissal of the appeal with cost.
8. On perusal of the news items reproduced in the plaint, it is apparent that most of the news items/publications are relating to either the husband and/or the father-in-law of the plaintiff- respondent. But, there are some publications, more particularly, the news items published on 2nd August, 2014 as referred to in paragraph-24 of the plaint, publication dated 3rd August, 2014 referred to in paragraph-25 of the plaint as well as publication dated 5th August, 2014 referred to in paragraph-27 of the plaint, relate to the family members of the plaintiff-respondent. In that view of the matter, it cannot be said that the publication in the news paper was only relating to the husband and father-in-law of the plaintiff- respondent. Mr. Mohanty, learned Senior Advocate submitted that the plaintiff has not prayed for any damages for the alleged libelous and defamatory news published against her. She has only sought for 12 compensation/damages for publication of libelous and defamatory news items against her husband and father-in-law. Thus, she has no locus standi to seek for such a relief. In support of his contention, he relied upon a decision in the case of Ratinand Balved Education Foundation (supra). The said decision is not applicable to the case at hand, because, the purported defamatory statements were allegedly made against some members of the Executive Board of the plaintiff- society and there was no such statement published against the plaintiff-society. In the instant case, the purported news items were published against the husband, father-in-law and family members of the plaintiff. Thus, I feel that the ratio decided in the case of Padmalochan Choudhury (supra) as relied upon by Mr. Mohapatra, learned counsel for the respondent will throw some light to address the issue involved. In paragraph 4 of the said decision, this Court held as under:-
"4. There seems to be consensus of judicial opinion that in a case where the wife is defamed particularly touching upon her character, the husband is the aggrieved person. This is more or less on the basis that by marital relationship the husband and the wife have such a status in the society that defamation against one necessarily has its effect on the other...."
As rightly pointed out by Mr. Mohanty, learned Senior Advocate, the issue involved in the decision referred to (supra) relates to the maintainability of a complaint filed by the husband of the victim-wife for alleged commission of offence under Section 500 IPC. 13 But, I don't find any reason to confine the principles decided in criminal proceedings only. The principle laid down is equally applicable to the Civil Suits filed for damages and compensation for defamation. Be that as it may, when the question of maintainability is sub-judice before this Court, I don't want to delve into that issue further. Undoubtedly, there are pleadings in the plaint which suggest that the plaintiff has reasons to be defamed for the news publication. However, the veracity of such contention cannot be gone into at this stage, which can only be adjudicated by adducing cogent and convincing evidence by the parties to this suit. At this stage, therefore, it can be unhesitatingly said that the plaintiff-respondent has a prima facie case, as she has a fair question to be raised at trial.
9. The next question, therefore, arises for consideration is whether the plaintiff-respondent would suffer irreparable loss, if the order of injunction is not granted. Mr. Mohanty, learned Senior Advocate submitted that the suit is for damages and the same is quantified. Thus, it cannot be said that the plaintiff-respondent would suffer irreparable loss, if the order of interim injunction is not granted. She can be adequately compensated if she succeeds in the suit. On the other hand, the defendants-appellants would suffer irreparable loss, if the impugned order is not set aside and is allowed to continue. He strenuously urged that the fundamental right of freedom of speech and expression guaranteed under Article 19 (1)(a) 14 of the Constitution of India has been curtailed without any justifiable reason. Hence, the impugned order is not sustainable.
10. Mr. Mohapatra, on the other hand, submits that the news items published have already tarnished the image and reputation of the husband and father-in-law as well as the family members of the plaintiff-appellant and she has already sought for damages for such publication. In the event, the impugned order is set aside, it would amount to give a license to the appellant to publish defamatory and libelous news items which would cause irreparable loss to the respondent and her family members. Moreover, learned Civil Judge has not prevented the appellants from publishing any statement which is true and fair. The appellants are also not prohibited from making any bona fide comments as well as statements for the interest of the public. They are only restrained from publishing any statement, which is defamatory and libelous in nature. The right guaranteed under Article 19(1)(a) of the Constitution of India has its own limitation and always subject to the restrictions of Article 19(2) of the Constitution. Thus, the defendants- appellants would not suffer any loss, much less any irreparable loss, if the impugned order is allowed to continue.
The reputation and public image of a person cannot be weighed or compared with amount of compensation or damage. The relief of damage and/or compensation has been claimed for the 15 alleged tort committed by the defendant by publishing defamatory or libelous news items. Thus, it is very difficult to accept the submission of Mr. Mohanty to the effect that the plaintiff-respondent would not suffer irreparable loss if the order of injunction is refused, as she (the plaintiff) has claimed compensation in terms of the damages. If the submission of Mr. Mohanty is accepted, then it would result in issuing a license to the defendants-appellants to publish defamatory and libelous news items and articles by making payment of compensation for the injury she has suffered to her reputation and public image. Thus, while endorsing the findings of learned Civil Judge, I am of the view that the plaintiff-respondent would suffer irreparable loss, if the impugned order is set aside.
11. The eminent jurist, late Nani A. Palkiwala in an article 'The Fourth Estate' in his book, "We the Nation" has very nicely described the role of Press and Media. I would like to quote a few lines from the said article, which is as follows:-
"Freedom is to the press what oxygen is to the human being; it is the essential condition of its survival. To talk of a democracy without a free press is a contradiction in terms. A free press is not an optional extra in a democracy."
Our Constitution also guarantees right to freedom of speech and expression under Article 19(1) (a). But, the right conferred and the freedom guaranteed is subject to the restrictions 16 imposed under Article 19(2) of the Constitution. The same read as follows:-
19. Protection of certain rights regarding freedom of speech etc. (1) All citizens shall have the right
(a) to freedom of speech and expression;
xx xx xx (2) Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence (3) Nothing in sub clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the said sub clause (4) Nothing in sub clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub clause..."
Thus, the defendants-appellants do not have any right to publish news items and articles which is defamatory in nature and is opposed to decency and morality. In the aforesaid backdrop, the case of respective parties has to be assessed to determine the balance of 17 convenience. Every citizen including the Press has the right of freedom of speech and expression. But the right conferred and the freedom guaranteed is subject to the restriction and /or qualification provided under Article 19(2) of the Constitution. Learned Civil Judge has not completely restrained the defendant-appellants from publishing any news item relating to the husband and father-in-law of the plaintiff-respondent. He has only restrained the defendants-
appellants from publishing any defamatory and malicious news item in their newspaper against the plaintiff's husband and father-in-law. Thus, learned Civil Judge has fairly and nicely balanced the comparative inconveniences and mischief that would be caused to the parties while passing the impugned order. Thus, the impugned order needs no interference on this score.
12. A close scrutiny of the impugned order makes it clear that the learned Civil Judge has aptly addressed the issue of the right of the Press/newspaper guaranteed under Article 19(1) (a) of the Constitution and at the same time has given due weightage to the inconvenience that would be caused to the plaintiff-respondent if libelous and defamatory news items are published. Thus, learned Civil Judge without interfering with the fundamental right of speech and expression of the appellant as guaranteed under Article 19(1)(a) of the Constitution of India has only restrained them from publishing any news item which would be malicious and defamatory. 18 Accordingly, the balance of convenience has been rightly held to lean in favour of the plaintiff-respondent.
13. Injunction is an equitable relief. The Court while deciding/adjudicating an application for interim injunction must see that by grant or refusal of the order of temporary injunction, the equity is not disturbed. As rightly argued by Mr. Mohanty relying upon the decision in the case of Maria Margarida Sequeria Fernandes and Others (supra) as well as the decision in the case of Smt. Laxmi Dei and another etc. (supra), grant or refusal of an order of injunction in a Civil Suit is the most vital stage. Due care, caution, diligence and attention must be bestowed by the Judicial Officers and Judges while exercising such discretion, as it becomes a nightmare for the party against whom the order of injunction is passed to get it vacated or modified, if situation so warrants. At the same time, the Court cannot be a silent spectator to the injustice being perpetuated in the garb of adhering to the principles of law. In the case at hand, the defendants-appellants cannot certainly claim that they have freedom of expression and/or publication of news item against the plaintiff and her family members, which are defamatory or malicious in nature. Thus, the impugned order is equitable one. In a decision in the case of Magna Publishing Co. Ltd. & Ors. Vs. Shilpa S.Shetty, reported in AIR 2008 SC 681, the Hon'ble Apex Court, while dealing with a matter relating to grant of interim order of 19 injunction in a suit for defamation, held that while granting leave to appeal, the prayer for grant of interim relief was refused and the impugned order was operative. Thus, the Hon'ble Apex Court without interfering with the impugned order of injunction directed for early disposal of the suit. In the instant case, no interim order has been passed by this Court while issuing notice in the matter of admission. In other words, the impugned order continues to be operative till date. Thus, the interest of justice would be best served, if a direction is issued to dispose of the suit early.
14. Taking into consideration the discussions made above, I find no reason to interfere with the impugned order. Hence, the appeal stands dismissed. However, the learned Civil Judge (Senior Division), Bhubaneswar is directed to dispose of the suit expeditiously, if there is no other impediment. Parties are also directed to co-operate with the court for early disposal of the suit. In the circumstances, there shall be no order as to costs. L.C.R. be sent back immediately.
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K.R. Mohapatra, J.
Orissa High Court, Cuttack Dated the 29th January, 2016/bks/ss