Delhi District Court
Sh. Gopinder Chawla vs M/S Star News on 29 November, 2012
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IN THE COURT OF MAN MOHAN SHARMA ADDITIONAL
DISTRICT JUDGE (CENTRAL) 01, TIS HAZARI COURTS,
DELHI.
C.S. No. 454/2009
Unique ID no. 02401C1196082005
Sh. Gopinder Chawla
S/o Sh. H. R. Chawla,
R/o H1/126, 3rd Floor,
Lajpat NagarI, New Delhi.
....Plaintiff
Versus
1. M/s Star News
Through its General Manager/Director,
D.L.F. Centre, 7th Floor,
Connaught Circus, New Delhi110001.
2. M/s B. A. G. Films
Through its General Manager/Director,
Sector16 A, Film City,
Gautam Budh Nagar, Noida, U. P.
....Defendants
Date of institution of the suit : 22.12.2005
Reserved for judgment on : 29.11.2012
Date of pronouncement of judgment : 29.11.2012
C.S. No. 454/2009 (Gopinder Chawla Vs. Madhu & Ors) 1 of 9
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Suit for recovery of Rs. 8,00,000/
J U D G M E N T
This is a suit for recovery of Rs. 8 lacs on account of damages/compensation for causing defamation of plaintiff.
2. The case of the plaintiff is that he is a law abiding citizen; a graduate of Delhi University and enjoying high status and good reputation in the society. He had been engaged in running a coaching institute at Lajpat Nagar. Being in teaching profession, he was highly respected by the society at large.
3. The plaintiff was married to one Smt. Madhu in 1993 and blessed with a daughter. However, the marriage turned sour. The plaintiff has alleged various acts and omissions on the part of his wife. On 31.12.2004, when he went to fetch his wife at her parental home, there was altercation at his in law's house and the plaintiff came back sans his wife. Thereafter, his wife hatched a conspiracy with her brothers to involve the plaintiff and his brother in a case U/s 376 IPC vide an FIR No. 02/2005 at PS Lajpat Nagar, New Delhi. The plaintiff was shocked when he saw a team of defendant no. 2 of the program "Sansani". He was posed various questions of scandalous nature by C.S. No. 454/2009 (Gopinder Chawla Vs. Madhu & Ors) 2 of 9 3 reporters of defendant no. 2. They did not listen to the clarifications offered by plaintiff.
4. The plaintiff came to know from the reporters of the defendant no. 1 that the false and scandalous allegations of rape against the elder brother of plaintiff namely Sh. Dinesh Chawla, who is an Advocate had been levelled by his own wife Smt. Madhu. The reporters of defendant no. 1 disclosed that she had stated that she was compelled to dance in short clothes in front of the plaintiff's friends on the first night of the marriage. She also stated that the plaintiff was impotent. The same was repeatedly broad casted on their channel on 05.01.2005 to 07.01.2005. Defamatory allegations have been made by her in a complaint to CAW Cell. The programs telecast by defendant no. 1 gave a huge set back to the status, profession and reputation of the plaintiff and his family in the eyes of relations, neighbours and students of plaintiff. The defendant no. 3 is liable as it has recorded the said program without the knowledge, permission or consent of the plaintiff. The defendant no. 2 had telecast the same without verifying the truth and in contravention of all norms and ethics. The plaintiff served a notice dated 17.06.2005 to his wife calling upon her to pay C.S. No. 454/2009 (Gopinder Chawla Vs. Madhu & Ors) 3 of 9 4 the damages of Rs. 50 lacs.
5. The notice of the suit had been sent to the defendants. Earlier the plaintiff had impleaded his wife as defendant no. 1 and other defendants as defendants no. 2 and 3 respectively. On 27.11.2006, the minutes of proceeding record that a joint application U/o 23 Rule 3 CPC has been filed by the plaintiff and defendant no. 1 reporting compromise and accordingly the suit against defendant no. 1 was dismissed as withdrawn. Vide proceedings 06.06.2006, the defendant no. 2 & 3 were proceeded as exparte. These are now defendant no.1 and 2 respectively as the defendant no. 1 Smt. Madhu's name stands deleted.
6. In his exparte evidence, the plaintiff has examined himself as PW1 and deposed orally in terms of the averments of his plaint. PW 2 is Sh. Yaspal Singh Rawat, who states that he has known the plaintiff for the last more than 16 years and th at he was shocked on seeing the telecast by "Sansani". He has alleged the telecast to be false and defamatory.
7. PW3 Sh. Kamal Saxena had deposed that people still talk of the said telecast and see the plaintiff with eyes of suspicious and plaintiff C.S. No. 454/2009 (Gopinder Chawla Vs. Madhu & Ors) 4 of 9 5 is being constantly humiliated. On the same lines Sh. Bal Kishan Sharma has deposed as PW4. The evidence of PW5 Sh. Vijay Kumar Sharma also sails in the same boat. PW6 Sh. Dinesh Chawla is the brother of the plaintiff. He has deposed in terms of the averments in plaint.
8. I have heard the arguments as advanced by the Ld. counsel for the plaintiff. It is submitted that the evidence of the plaintiff is un controverted and unchallenged and therefore, the plaintiff has been able to prove his case and the suit is liable to be decreed.
9. I have considered the submissions, the pleadings and evidence on record.
10. The settled position of law is that even in cases which are ex parte, the propounder does not get absolved of his duty to establish the relevant facts, which constitute the genesis of his claim, by some credible evidence.
11. The burden of proof always remain constant. It is enshrined in the rule of law 'actori incumbit onus probandi' i.e. the burden of proof lies on the plaintiff or the prosecution.
12. Mere absence of the adversary does not ipsofacto means that he C.S. No. 454/2009 (Gopinder Chawla Vs. Madhu & Ors) 5 of 9 6 or she has acquiesced in the existence of or the veracity of the facts pleaded in the plaint. Such absence of defendant does not by itself justify a presumption that the plaintiff's case is true.
13. The summons which had been directed to the defendant only put him on a caveat that in the default of his appearance the matter would proceed exparte. It did not state that his nonattendance would invite the presumption of the truth of the plaintiff's version.
14. It is on the touchstone of this settled position of law that the evidence of this case has to be appreciated, notwithstanding the fact that the defendant has preferred to remain exparte.
15. For plaintiff to succeed in his case, he has to prove that the defendants have committed certain wrongs on account of which his estimation in the eyes of others, who used to keep him in good reputation, has fallen. For claiming damages, the plaintiff has to put the defendants to notice as to the claim of damages.
16. There is a distinction between 'insult' and 'defamation'. Insult is a feeling when a person feels humiliation in his own eyes. Defamation is when one's reputation is lowered in the eyes of third persons who keep in high esteem.
C.S. No. 454/2009 (Gopinder Chawla Vs. Madhu & Ors) 6 of 9 7
17. In the present case, whatever has been avered by or deposed by the PW1 and PW 6 is pertaining to insult. Some general averments about defamation and some inferences have also been deposed. PW2 to PW 5 are witnesses from general public. All these witnesses have stated that plaintiff has good reputation in the society and in their estimation. They have found the telecast by defendants to be derogatory and defamatory. They have however not specified what was derogatory or contrary to the truth. Their evidence is mostly in the nature of opinion and inferences without furnishing the facts. They are judgmental while giving their deposition. They have also made a general remark that people still talk of the telecast and see the plaintiff with eyes of suspicious and the plaintiff is constantly being humiliated. No specific facts or incidents have been narrated by these witnesses and their evidence is of general and bald allegations. None of them has specified as to how and to what extent the plaintiff has suffered in the loss of reputation. On the other hand, their evidence shows that they have identified with the cause of plaintiff and his reputation has not fallen in their estimation.
18. The evidence is to be led as to the facts and not as to the C.S. No. 454/2009 (Gopinder Chawla Vs. Madhu & Ors) 7 of 9 8 opinions, inferences etc. Only an expert witness can give opinion evidence U/s 45 of the Evidence Act. For all other witnesses, it is their duty to give evidence as to facts and it is the prerogative of the Court to draw inferences or opinions.
19. One striking feature of the case is that in para 17 of his plaint, the plaintiff has served a notice of damages only to his wife who was earlier the defendant no. 1 in the suit. No notice has been served upon the present defendant no. 1 and 2. It was incumbent upon the plaintiff to serve a notice upon the defendant no. 1 and 2 to put them to notice regarding his claim and afford them an opportunity to meet the same.
20. The plaintiff has already reported settlement with his wife Smt. Madhu. As per the averments of the plaint, she was primarily responsible for the false statement and allegations against the plaintiff and his brother. She is the prime wheel and it was only what was stated by her that was reported by the defendants. The plaintiff has let her go scotfree.
21. The plaintiff has not summoned or brought before the Court the recordings of the telecasts. Thus, whatever has come before the Court is the version of the plaintiff visavis the telecasts. For want of the C.S. No. 454/2009 (Gopinder Chawla Vs. Madhu & Ors) 8 of 9 9 same, it can not be inferred if the telecasts were defamatory.
22. The media enjoys freedom of speech and expression. There is nothing to suggest in concrete terms that the defendants no. 1 & 2 have acted in a reckless manner. It is the duty of the Press to inform the public of the contemporary events and happenings in the society. The plaintiff has not written even a single letter or notice to the defendants no. 1 and 2 about his version of the case or to record his anguish. The plaintiff has himself pleaded that the Reporters of defendant no. 1 had approached him to get his version. Thus, it can not be said that the defendant no.1 did not observe the professional ethics. If the plaintiff has not cooperated with them despite having an opportunity, he can not saddle the defendants with responsibility or liability.
23. For the aforesaid reason, the suit of the plaintiff is dismissed.
24. Decree sheet be drawn accordingly.
25. File be consigned to Record Room.
Announced in the Open Court today on : 29.11.2012 (MAN MOHAN SHARMA) ADJ (Central)01, Delhi C.S. No. 454/2009 (Gopinder Chawla Vs. Madhu & Ors) 9 of 9