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Delhi District Court

Shri Kuldeep Singh S/O Late Shri Karam ... vs Shri Harinder Singh S/O Shri Kuldeep ... on 22 February, 2011

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                      IN THE COURT OF SHRI SURINDER S. RATHI
                    ADJ:ROOM NO.32:TIS HAZARI  COURTS :DELHI
                                                                               CS NO: 0632/04
                                                                      ID NO: 02401C5686092004
SHRI KULDEEP SINGH S/O LATE SHRI KARAM SINGH.
R/O HOUSE NO.9, ROAD NO. 13,
PUNJABI BAGH EXTENSION 
New Delhi­110026                                            .......Plaintiff
Vs.
1. SHRI HARINDER SINGH  S/O SHRI KULDEEP SINGH
   R/O HOUSE NO.9, ROAD NO.13,
   PUNJABI BAGH EXTENSION,
   NEW DELHI­110026
2. SHRI JATINDER SINGH S/O SHRI KULDEEP SINGH
   R/O B­3/37, GROUND FLOOR, SECTOR­16,
   ROHINI, DELHI­110085                             ......Defendant


                     SUIT FOR COMPENSATION OF Rs. 10,00,000/­


DATE OF INSTITUTION              :       09.09.2004
DATE OF FINAL HEARING :                  14.02.2011
DATEOF FINAL ORDER               :       22.02.2011


JUDGMENT

1. The suit has been filed by plaintiff against his two defendants son for seeking compensation of Rs.10 lacs on account of defamation apart from interest @ 9% p.a.

2. Case of the plaintiff is that he is a reputed transporter and is a Sr. Citizen aged over 65 years and has unimpeachable character. He is income tax contd/.........

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payee and is a religious person. He earned goodwill and fame in his business and acquired various movable and immovable property. His defendants son brought his transport business down owing to their financial mismanagement and irregularities. This led to filing of various litigation between him, his wife on one side and his defendant sons on the other side. Plaintiff had allowed the defendant to join his business as partners in his firm M/s. Nanak Roadways Crop (Regd.) They were also made partners in another firm M/s SBC Roadways in which instead of him his wife was a partner. Lately, both these firms were dissolved and a civil suit qua their dissolution is pending. Plaintiff also made the defendant sons shareholders and Directors in a finance company namely M/s. Gurusevak Motors and General Finance Pvt. Ltd. While the plaintiff and his wife were away in the year 2000, defendants sold several trucks leaving behind only 10 trucks and committed other irregularities. In this backdrop defendants filed a injunction suit against the plaintiff restraining him from selling the remaining trucks having number 198/2006 before Ld. Civil Judge. This suit had several defamatory allegations against the plaintiff contd/.........

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which were not only false but were also malicious and were aimed at maligning plaintiff's personal character. Those allegations were irrelevant to the subject matter of the defendant's suit. Plaintiff was alleged to be indulging in liquor consumption gambling and having illicit relations with other women. All this caused mental agony and pain to the plaintiff. These allegations were repeated by defendants in their replication dated 8.10.2003 as well. This is first cause of action

3. Defamatory allegations were repeated in defendant's reply dated 22.8.2003 to the notice of the plaintiff's wife date 5.8.2003. This is second cause of action.

4. The third cause of action against defendants IS sought from WS of the defendants dated 06.12.2003 to the suit filed by plaintiff's wife for injunction having no.48/2003 before Ld. Civil Judge.

5. Fourth cause of action is defamatory allegations repeated in reply dated 22.09.03 to notice of plaintiff dated 01.09.2003 U/s 138 N.I. Act.

6. Fifth cause of action was sought on defendant application Dated 18.5.2004 moved before Ld. MM for recalling of their summoning order U/S 138 of contd/.........

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N.I.Act. Copies of previous pleading containing defamatory allegation were annexed with the application.

7. Sixth cause of action is sought from WS of the defendant dated 31.5.2004 filed in suit no.178/2004 of plaintiff's wife before Ld. Civil Judge where identical defamatory allegations were repeated. While refuting the allegations plaintiff claimed that he is entitled for compensation of Rs.1 crore but he filed the suit for seeking recovery of damages of Rs.10 lacs against his sons.

8. Upon service of the summons of the suit it was contested by the defendants by filing a detailed WS wherein dismissal of the suit was prayed on a plea that plaintiff has no cause of action to file this suit for it being premature. It is pleaded that plaintiff is himself is a wrong doer and he has malafiedly filed several baseless suits against his own sons. Objection of suppression of facts was also taken and this suit has been termed to be an act of revenge by owing to arrogant and hot tampered nature of the plaintiff. It is objected that since all the suit referred to in the plaint are pending trial, the suit in hand cannot continue and it was prayed to be contd/.........

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stayed.

9. On merits defendants conceded that plaintiff is their father and they were partners in his firm as mentioned in the plaint apart from the shareholders and Directors in the company.

10.They denied selling the trucks or forging the accounts as alleged by the plaintiff. As per them they had no authority to spent even a single penny without the consent of their plaintiff father. In case any truck is sold it was sold under the instructions and direction of the plaintiff. Defendant admit filing of Civil Suit as mentioned in the plaint apart from the fact that their pleading contained the specific allegations. Defendants denied any leveling of any false scandalous or defamatory allegations against the plaintiff. As far as text of their plaint and replication as well in Suit no. 198/2003 containing a mention that plaintiff is in bad habit of consuming liquor, gambling and having illicit relations with other women, is concerned, defendants have not denied this fact by claiming it to be a matter of record. Similarly text of other correspondences and litigations is also not denied but it is claimed that suit is premature. It is pleaded that plaintiff is not contd/.........

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entitled to any compensation. With these pleas dismissal of suit is prayed. Separate replications were filed wherein plaintiff repeated his pleaded case and denied the contentions of the defendants.

11.Upon completion of pleading following issues were identified by Ld. Predecessor on 24.01.2005 :­ ISSUES

1) Whether the defendant have not committed any act/caused any type of infringement which effect upon the reputation of the plaintiff ? (OPP)

2) Whether the plaintiff is entitled to a decree for a sum of Rs.10 lacs against the defendants jointly and severally as compensation and damages alongwith pendentelite and future interest @ 9% per annum ? OPP

3) Relief.

12.To prove his case plaintiff examined himself as P.W.1 apart from examining his wife Smt.Tarsem Kaur as P.W.2. On the other hands defendant no.2 examined himself as D.W.1 while defendant no.1 examined himself as D.W.2.

13.I have heard arguments of Ld. Counsel for plaintiff Sh. Ravi Bassi and Ld. Counsel Sh. M.K.Malhotra & Ld. Counsel for defendant no. 2 Ms. Babita Sethfor Defendant no.2 apart from hearing defendant no.1 in contd/.........

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person and have perused the case file carefully.

14.In his deposition as PW­1 vide affidavit Ex. P­1 plaintiff reiterated his pleaded case and proved copy of plaint having suit no.198/03 filed by the defendants, copy of the WS filed by the present plaintiff in the said plaint as Ex. PW­1/2, copy of the replication filed by the defendant in that suit as Ex. PW­1/3, copy of the plaint in suit no.368/2003 pending in the Court of Ld. Civil Judge as Ex .PW­1/4 and copy of the WS filed in suit no.368/2003 as Ex. PW­1/5, copy of the plaint filed in suit no.367/2003 filed by wife of the plaintiff is Ex. PW­1/6 and the WS filed in this suit is proved as Ex. PW­ 1/7, copy of the reply filed by defendant no.1 in the suit filed by plaintiff in this case is Ex.PW1/8, copy of the suit of the plaintiff having suit no.47/2003 is proved as Ex.PW1/9 and copy of the WS filed in that case is proved as Ex.PW1/10, copy of the affidavit dated 23.3.2004 filed by defendant no.1 in suit no.47/2003 s proved as Ex.PW1/11, copy of the reply dated 22.8.2004 given on behalf of defendant no.2 to notice dated 5.8.2003 issued by wife of the plaintiff in the present case is proved as contd/.........

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Ex.PW1/12, copy of the plaint filed in suit no. 48/2003 filed by wife of the plaintiff as Ex.PW1/13 and WS filed in that suit is proved as Ex. PW1/14, copy of affidavit filed by defendant no.2 in suit no.48/2003 is proved as Ex.PW1/15, the copy of reply dated 22.9.2004 given on behalf of Defendant no.1 to the notice dated 1.9.2003 in said suit is proved as Ex.PW1/16, copy of reply dated 22.9.2003 to notice dated 1.9.2003 in suit no. 286/01 filed by the plaintiff against the defendant is proved as Ex.PW1/18 , a copy of the complaint filed in P.S.Punjabi Bagh has been lodged by defendant no.1 against the plaintiff and the same is proved as Ex.PW1/19, copy of the plaint filed in suit no. 178/2004 by the wife of the plaintiff is proved as Ex.PW1/20 and WS to that plaint filed by defendant in that suit has been proved as Ex.PW1/21.

15.In his cross­examination plaintiff stated that he is matriculate and belongs to Distt. Jalandhar, Punjab. Plaintiff was initially a helper on a truck and thereafter he became a driver in 1958. From their modest background he started a transport company and increased it up to 10 trucks in the year contd/.........

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1979. His share in the finance company was 60% while defendants had 20% share each. The Company was founded in the year 1980. He conceded that he was not checking the account of the firm as well as of the bank regularly. He conceded that most of the cheques were signed by defendants and very occasionally he used to issue and sign the cheques. He denied that defendant were working under his full control and supervision. He used to remain in Delhi for 15 days in a month while used to spent remaining time in Punjab from 1995 onwards. In Delhi he used to attend the office.

16.He and his firm are separate assessee with the Income Tax Authorities. He is an income tax assessee since 1968. He stated that he had a separate bank account with Bank of Punjab and Punjab & Sind Bank having Passbook Ex.PW1/DX1 to Ex.PW1/DX3. The accounts were operated by him as well as by his defendants son as per instructions on duly signed cheques. He also had a bank account with Vijaya Bank, Kamla Nagar. In 1985 when defendants were made partners in M/s Nanak Roadways the firm had 20 trucks which were increased up to 45 truck contd/.........

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around 2000 when disputed started between them. He conceded that all the partners had authority to get a vehicle registered. Consent of all the partners was required for sale of the truck although written consent for sale was not required. But the sale proceeds were to be deposited in the account of the firm which owns the truck. He was not shown account between 1999 to 2004 by the defendants. But he signed the income tax returns for this period. In case defendants could not have sued him he would not have taken civil and criminal action against them.

17.He never showed the plaint or documents of litigations between him and his sons to any relative or friend. However, he told his relative Sh. Kashmera Singh and Sh. Sharen Singh and one other friend about the allegations levelled against him by the defendants. He conceded that his wife cannot read or write English. But the allegations of the defendants were read over to her by her counsel. He conceded that defendant had never made any allegations verbally against him. He stated that he was a member of All India Motor Congress for last about 15­20 years due to his reputation on the basis of his firm M/s. Nanak Roadways. He is also contd/.........

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remained vice President of Gurudwara Punjabi Bagh Ext. for several years since 1976. His earing was around 3 lacs per year apart from his wife earning of Rs.2 to 3 lacs a year. He filed 18 cases against his defendant sons and he contemplating for filing two more.

18.In her deposition as PW2 Smt. Tarsem Kaur supported the case of the plaintiff, her husband vide Ex.P­2. In his cross­examination she stated that th she is educated upto 5 Class and do not know English. Plaintiff was a truck driver when they got married. By the time defendants were born plaintiff had four trucks. In 1999­2000 M/s Nanak Roadways had 35 trucks. Even though she was a Director of the Finance Company but she never dealt with the business and always remained in the house. The office was attend by her plaintiff husband and her defendant sons. Dispute between them started in 2003 when her defendant sons whey they unauthorisdly withdrew money from their account and took possession of the truck and opened a new office at some other place. Defendants informed the neighbours and other persons about the bad character of their father in the locality. These allegations were leveled by the defendant contd/.........

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because plaintiff demanded accounts from them. She however conceded that she never personally heard defendants making defamatory allegation against the plaintiff . She denied that she and plaintiff have filed cases against her defendant sons to spoil their future.

19.On the contrary defendant no.2 Sh. Jitender Singh examined himself as D.W.1. He deposed on the lines of WS and his statement vide affidavit th Ex.D1. In his cross examination he stated that he is educated upto 12 . He conceded that his plaintiff father was a truck driver and he purchased his first truck in 1974 and established M/s. Nanak Roadways in 1979 with 5­7 truck. He accepted filing of a injunction suit in the Court of Ld. Civil Judge with Ex.PW1/1 being its plaint. He accepted filing of affidavit Ex.DW1/DX1 and replication Ex.PW1/3. He also accepted other pleading filed by him and his brother. He accepted his WS as Ex.PW1/4 stating that it was prepared on his instruction. He stated that his reply to legal notice dated 1.9.2003 Ex. PW1/17 was prepared by his counsel on his instructions. He accepted Ex.DW1/DX and DW1/DX­1 as copy of plaint and affidavit of first contd/.........

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injunction suit filed by him against his father which was annexed in Misc. Application moved in the suit U/s 138 of N.I.Act. He denied that all these documents contained defamatory allegations. He impressed that he had leveled correct allegations against his father in his affidavit. Both their partnership firm and company had 70 trucks. As per him he was only an employee of the plaintiff in the company. They were living as a joint family till 2003­2004. He accepted that their parents established Guru Granth Sahib at their house in 1981­82 and Kirtan function as was organized from time to time. He was not aware as to whether his mother has filed any complaint against his father and they are living together since their marriage. He was not aware, if his father's bank balance between 2003­ 2004 was 50 lacs. He has never seen his brother going to Punjabi Bagh Club. As per him he does not know whether his father was a gambler, drunkard or a womanizer. He explained that these allegations were not read over by his advocate to him. But he accepted that this is not mentioned in his affidavit. He never filed any complaint against his counsel. He accepted that he got education in English Medium apart from part contd/.........

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graduation from Khalsa College of Delhi University.

20.Defendant no.1 Harinder Singh examined himself as D.W.2. In his deposition as D.W.2 and proved as evidence by way of affidavit as Ex.D.W.2/A. He also deposed on line of WS vide affidavit Ex.DW2/A. In his nd cross­examination he stated that he is educated upto B.A 2 Year. He accepted that his father was initially a truck driver and firm M/s. Nanak Roadways was established in 1979 with 5­6 trucks. He replied to other questions of the plaintiff on the lines of D.W.1 his brother. He stated that he and his brother are tea totalers and his father never brought liquor at home. However, he used to drink liquor. His father had lodged 5­6 FIRs against him and he had to remained in Jail for three and a half months in a criminal case for cheating and forgery. As per him his share in M/s Nanak Roadways was 30% apart from his father's share of 50% and brother having 20%. He was living with his parents in Punjabi Bagh upto 2007 and vacated the house on a Court decree. He accepted that allegations levelled by him against his father in the various cases were duly told by him to his advocate before he signed those pleadings. He accepted contd/.........

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that he can read or write English, but claimed that he cannot understand it properly. He denied having made defamatory allegations against his father. The injunction suit filed by him against his father was first litigation between them.

21.Now I shall decide individual issues framed in this matter. ISSUE NO.1 :

Whether the defendant have not committed any act/caused any type of infringement which effect upon the reputation of the plaintiff? (OPP)

22.Plain reading of this issue shows that the way it has been drafted, the onus of proving this issue should have been laid upon on the defendants. However, primary onus of proving the defamation remains over the plaintiff.

23.At the onset it is observed that there is no statutory law of Civil defamation in our country although criminal aspect of it is covered under Section 499­500 IPC. Civil defamation is divided into two types i.e. Libel and Slander. Since the suit in hand pertains to a defamation done by Libel, plaintiff is supposed to prove following four ingredients:­ contd/.........

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(i) That it refers to him

(ii) That it is in writing

(iii) That it is defamatory

(iv) That it was published by the defendant to a third person

24.As detailed supra, in the case in hand, defendants who are sons of plaintiff have admittedly made allegations on as many as six occasions stating therein that, " defendants (plaintiff herein) is however indulged in all kinds of bad habits including consuming of liquor, gambling and having illicit relationship with other women........ Not only this the defendant has been involved in certain criminal cases."

25.Another such publication done on behalf of defendant reads that, "The father of my client is a man of bad character and engaged in immoral activities such as drinking liquor, gambling and had developed hatred & enemity with my client."

26. Another similar obligations reads that, "Sh. Kuldeep Singh is a person of bad character and he is heavy drunkard and has illicit relation with females."

27.All these publications, stands duly admitted by the defendants not only during the pleadings but also during course of evidence. As such out of the four requisites required to prove lible case, pre requisite no.1 and 2 contd/.........

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stands satisfied by way of admission. As far as prerequisite no. 4 qua publication of defamation of third person is concerned, since these publications were made in plaints, writing statements and legal notices preceding the plaints, they were apparently meant to be read by third party persons. As regards pre requisite no. 3, plain reading of these insinuations shows that they are per se defamatory on their face when seen & evaluated in the light of under mentioned case laws. The factual part of the case of the plaintiff is primarily admitted by the defendants in its entirety. The only point to be decided by this court, for decision of this case, is as to whether these above publication on six different occasions, tantamounts to such a civil defamation which entitles plaintiff to seek damages.

28.As far as definition of defamation is concerned, " Park B in Parmiter V. Coupland (1840) 6 M & W 105 at 108, defamation by Libel is defined as , "A publication... which is calculated to injure the reputation of another by exposing him to hatred, contempt or ridicule."

However this definition was not considered to be sufficient. In Tournier V. contd/.........

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National Provincial and Union Bank of England (1924)1 KB 461 Scrutton LJ said:

"I do not myself think this ancient formula is sufficient in all cases, for words may damage the reputation of a man as a business man, which no one would connect with hatred ridicule or contempt."

Lord Atkin too, not only in Tornier's case (supra) but in Sim v. Stretch (1936) 2 All ER 1237, also expressed the view that the definition of Parke B seemed to be too narrow.

The Faulks committee in their report have recommended that for purposes of civil cases the following definition of defamation may be adopted "Defamation shall consist of publication to a third party of matter which in all the circumstances would be likely to affect a person adversely in the estimation of reasonable people generally."

28.As per Hon'ble Delhi High Court in case titled , " Ram Jethmalani Vs. Subramaniam Swamy" 2006 AIR (Delhi)300 observed , "Defamation is a public communication which tends contd/.........

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to injure the reputation of another. What statements are defamatory and the span of defences varies from jurisdiction to jurisdictions but there is common agreement in all jurisdiction that statements that are unflattering, annoying, irksome, embarrassing or hurt one's feelings are not actionable. Common element in all jurisdictions is the potential to injure the reputation."

29.Applying the text of all six publication on above definitions, it is evident that they are defamatory in nature & have potential to injure the reputation of plaintiff.

30.It is again settled legal preposition that in a Civil suit for damage under defamation the defendant primarily has two defences i.e. (i) Truth or Justification & (ii) Privilege. The pleas of Ld. Counsel for both the parties on these defences shall be dealt with separately.

31. As far as defence of Truth is concerned, it is conceded by Ld. Counsel for defendant that they have neither placed any documentary evidence on record nor have led any oral evidence to show that their allegations contd/.........

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contained in the above statements are Truth or Justified. Mere reassertion or reproduction of these allegations by the defendants in their evidence does not tantamount proof thereof. As such in the absence of any iota of evidence to show that those allegations were true or correct , I have no hesitation in concluding that defendants have failed to justify either of these six allegatious defamatory statements .

32.As far as Privilege is concerned, it was vehemently argued by Ld. Counsel for defendant that since these allegations were made in relation to judicial proceedings, there is an Absolute Privilege available to defendants. In support of her plea she has relied on "Ashok Kumar Vs. Radha Kishan Vij & Ors. " 1983 (1) R.C.R.(Criminal) 321. In this judgment single Judge Bench of Hon'ble High Court while dealing with complaint under Section 499/500 IPC it was observed , " Defamation is and has always been, regarded as both a civil injury and a criminal offence. The person defamed may pursue his remedy for damages or file a criminal prosecution. Or he may concurrently both sue for damages and prosecute, as the petitioner has contd/.........

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done. The petitioner brought a civil suit for recovery of damages. He also filed this criminal complaint under section 500 IPC. Both in civil law and crime the person defamed can vindicate his honour. Harm to the reputation is the common ground. In civil action the defendant pays compensation for vilification of the plaintiff. In criminal prosecution the law punishes him for the offence of defamation. Many people think that the civil law is simply inadequate to deal effectively with same of the most obnoxious types or defamation:

in particular poison­pen campaigns by cranks, and character assassination' purposeful attempts to harm people by spreading deliberate lies about them to the police, their family or their acquaintances (Reshaping the Criminal Law by P.R. Glazebrook (1978) . Anomalous as it may seem, the law of tort of defamation is different from the criminal law of defamation in this country. In the law of tort we follow the English Law. The civil liability for defamation to pay damages is not governed by any statue law but is determined with reference to the principles of justice, equity and good conscience which have been imported into this country from the English Law."

"In civil actions for damages there is what has been called "judicial privilege". Neither party, witness, counsel nor judge can be sued civilly for words spoken or written in the course of any proceeding before any court or tribunal recognised by law, and thus though the words written or spoken were written or spoken maliciously without any justification or excuse, and from personal ill­will and anger against the person defamed. This absolute privilege has been contd/.........

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conceded on the grounds of public policy to ensure freedom of speech where it is essential that freedom of speech should exist. The freedom of communication is of such paramount importance that civil suits for defamation cannot be entertained at all."

33. Another judgment relied by him is AIR 1918 Allahabad 69 Full Bench wherein it was held that " So far as Civil Suit for damages is concerned, defamatory words used by a party in complaint to a Criminal Court are absolutely privileged and are not actionable."

34.Another judgment relied by the defendants is AIR 1928 Allahabad 316 wherein it was held that:

"It is settled law that defamatory statements contained in a complaint addressed to a Magistrate cannot from the basis of a suit for damages in a civil court."

35.Defendant also relied on case titled, "Chunni Lal Vs. Narsingh Das" AIR 1918 Allahabad 69 Full Bench wherein it has held, " Statements, if defamatory, contained in a petition addressed to a Magistrate, might not be absolutely privileged for a criminal court, but the privilege was absolute in a Court of civil jurisdiction."

36. Defendant further relied on case , "AIR 1926 Madras 521" wherein it was observed, contd/.........

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" All statements made by a potential witness as a preliminary to going into the witness­box are equally privileged with the statements made when actually in the box in the court ......... The statements made in a petition presented to the Magistrate ............are absolutely privileged."

37.Defendant has also relied on case , "AIR 1971 KERALA 280 FULL BENCH" it was ruled, "Absolute privilege attaches not only to statements made coram judice but also to those made in course of proceedings so closely connected with judicial proceedings so as to constitute steps towards judicial proceeding and, therefore, forming part of administration of justice."

38.Another judgment relied by the defendant is "AIR 1962 PATNA 229"

while dealing with a case it was observed, "It may well be that if the information is found to be false and to have been actuated by malice, the informant is criminally liable for defamation under Section 499 of the Penal Code or even civilly liable under certain circumstances to pay damages for malicious prosecution but he must be held to enjoy the absolute privilege and protected from civil liability for defamation on such a statement."

contd/.........

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39.In case titled further relied by defendant "Bashir­ul­huq Vs. State of West Bengal", AIR 1953 SC 293 (295) it was observed, "With the authoritative pronouncement by Supreme Court the law may be said to be settled and indisputable. A party to a judicial proceeding enjoys only qualified privilege because that is what is statutorily enumerated in the nine exceptions to section 499. No absolute privilege can be claimed. That is available in the common law."

40.All the above judgments including Ashok Kumar case of our own Hon'ble High Court shows that they tend to follow the principle that a Civil suit of damages under defamation which lifts the cause of action out of judicial proceedings is covered under absolute privilege and is as such not actionable at all. The concept of defence of Privilege available to defendant has been interpreted and ruled differently by different High Courts. Judgments cited above by the defendant toes the line according to which it cause of action of defamation is sourced from the judicial proceedings, then as far as filing of a criminal complaint is concerned the defence available is Qualified Privilege , but as far as the civil action is contd/.........

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concerned, defence of Absolute Privilege is available to the defendants. Absolute Privilege is defined as an excuse or immunity conferred by Law to a statement so that that no action can lie against it even though it falls under defamatory and might have been maliciously with improper motives. It is primarily related to Judges, Advocates and Witnesses in the course of legal proceedings and is also terms as Judicial Privilege.

41.However , on the contrary, there are other High Courts which distanced themselves from the above analogy and principle. According to their analogy, the primary defence of Absolute Privilege available to a defendant in a civil action is not without exceptions.

42.In support of this plea Plaintiff has relied on case titled as " Ram Jethmalani Vs. Subramaniam Swamy" 2006 AIR (Delhi)300 wherein it was ruled, " Even the issue of absolute privilege has remained a subject matter of considerable debate. Is absolute privilege absolute in the sense of being infinite As late as 1998, in the decision reported as 1998(1) All ER 625, Waple v. Surrey Country Council, it was held: The absolute privilege which applies to statements made in the course of judicial or quassi­ contd/.........

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judicial proceedings and in the documents made in such proceedings, would only be entitled where it was strictly necessary to do so in order to protect those who were to participate in the proceedings from being sued themselves.

Then decision brings out that absolute privilege is not absolute in the context of being infinite. Even when the occasion is privileged one gets no license to utter irrelevant and scandalous things unrelated to the proceedings. If what is stated is necessary or relevant to the proceedings, immunity would be absolute." ( Emphasis supplied by me)

43.In another case titled , " State Vs. Shree Gopal @ Mani Gopal"

MANU/DE/1918/2009 Division Bench of Hon'ble High Court while dealing with a Death Reference made an obitor remark as under , "Absolute Privilege has been recognized as a defence, to protect witnesses to speak without fear while deposing in Court at the cost of sacrificing a complete value i.e. the dignity of an individual. Even defamatory statements made by witnesses in Court,subject to the statement being relevant to the inquiry before the Court, have been held to be non­ actionable, even if the maker of the statement cannot make good the same." (Emphasis supplied by me)

44.In case titled , "Most.

Kalawati Devi Vs. Ambika Bhagat "

contd/.........

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MANU/BH/0191/1999 Single Bench of Hon'ble Patna High Court observed, " On the question of defining the limits to the doctrine as regards the Statement made by the witness on oath in judicial proceedings it is made to know the statement to the privilege must be made by witness on oath in judicial proceedings, it is important to note the statement to the privileges must be made in accordance and with reference to the judicial proceedings. If the offending statement has no connection with the proceedings and is made without reference to these proceedings; the person making them cannot claim privilege."

"The statement, in order to be privileged, need to be relevant, in the sense of having a material bearing upon the matter in issue in the case. Thus, the statement of a witness is privileged, even though inadmissible as evidence, and even though so immaterial that no prosecution for perjury would be possible in respect of it. Nevertheless the statement, though it need not be relevant in this sense, must, it would seem, be made in the course of and with reference to the case in hand. A Judge who forms the bench makes a defamatory observation in respect of some entirely extraneous matter would no longer be speaking in his capacity as a Judge, and would have no privilege."

" In the present, case, the defendant without rhyme or reason or justification brought false and malicious allegation against the appellant, who was a respectable lady. The allegation was not at all relevant during the inquiry under Section 144 Cr. P.C. There is no doubt contd/.........

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divergence of views in the High Courts on the question of absolute privilege. None of the cases have dealt with the similar situation as in the present case. Here a defamatory statement was made by a party in a criminal proceeding. In the facts and circumstances of the case, the plea of absolute privilege cannot be successfully raised. I, therefore, hold that the appellate Court erred in holding that the damages could not be awarded to the plaintiff as the defamatory statement was absolutely privileged."

(emphasis supplied by me)

45.Ld. Counsel for plaintiff has also relied on case title, " Dhiro Koch & Anr. Vs. Gobinda Dev Mishra Bura Satria" MANU/WB/0019/1921. In this judgment Division Bench of Hon'ble Calcutta High Court dealt with the concept of absolute privilege at great length. While dealing with an appeal arises out of a suit for damages for defamatory statements made by the defendants against the plaintiff in their Written Statement to a Civil Suit Hon'ble High Court observed:

"There is no doubt that in England the statements would be "absolutely privileged", ....... the question is how far the principle applies in this country, so far as civil liability for damages for defamatory statements made by parties in pleadings is concerned. There is no considerable divergence of judicial opinion upon the contd/.........

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question how far defamatory statements made by the parties, or witnesses are privileged in this country."

46.While not touching the issue of statements made by the witnesses, during the course of trial, Hon'ble DB restricted itself to the defamatory allegation made in pleadings. It is further observed, "So far as defamatory statements in pleadings are concerned, the actual decisions in our Court (that the exception of only one case ) are in favour of the view that they are not absolute privilege, though there are obiter dicta in some cases to the contrary."

47.In case titled , "Shibnath Vs. Sat Cowri Deb 3 W.R. 198" where false defamatory charges were made in a transfer petition to a case against the Munsif it was ruled that " They are not privileged".

48. In Case titled, " Auguda Ram Shaha Vs. Nemai Chand Shaha 23 C 867" it was held that a defamatory statement made in a judicial proceedings are not absolutely privileged in this country.

49.In Dhiro Koch & Anr. Vs. Gobinda Dev Mishra Bura Satria"

it was also ruled that:

The present case illustrates how the privilege can be and contd/.........

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is abused. The plaintiff was not party to the suit in which defendants made a defamatory statement. The statement was absolutely irrelevant and was made out of malice. We think, however, that pleadings of parties stand on a different footing from statements made on oath by witnesses..... a witness can be compelled to give evidence and to answer any question relevant to the subject matter of the suit but the statements of a party in his pleadings are entirely within its own discretion...... we are of the opinion that defamatory statements made by parties in pleadings are not absolutely privileged. (emphasis supplied by me ).

50.The above catena of judgments indicates at different stands taken by different High Courts. The old School of thought which was inconsonance with English Law laid that no Civil Suit can be filed as against defamation emanating from judicial proceedings. This school of thought was followed by even Delhi High Court in Ashok Kumar Case as detailed supra in 1983. Even the observations of Ld. Single Judge in that judgment were obiter in so far as the matter reached the High Court as an off shot of a criminal complaint under Section 499­500 IPC. This situation remained static up to 2006 when in Ram Jeth Malani's case in another obiter Hon'ble Delhi High Court concluded that the Absolute Privilege in Civil defamation is not contd/.........

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absolute or infinite. This judgment was an obiter because it pertained to a defamation committed under Commission of Inquiries Act which is not on the same footings as a judicial proceedings.

51.The latest observation from the Delhi High Court is yet another obiter if the Division Bench Judgment in Shree Gopal @ Mani Gopal case where it was observed that the statement made during a judicial proceeding should be relevant before the defence of absolute privilege is permitted. In Ram Jeth Malani's matter Hon'ble High Court also referrred to an indicative change in the English Law in so far as in the cited 1998 Wapel Case where the English Judged ruled that only those statements are covered under absolute privilege which are strictly necessary in the facts and circumstances of that case.

52.As such it can be concluded that as far as Delhi is concerned, the last two obit ors as detailed supra shall prevent was privileged upon the obiter as contained in Ashok Kumar case of 1983 for being later in time an also for being from a larger Bench . This court will have to consider the grant of contd/.........

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absolute privilege as a defence subject to the touch stone that the six statements made on different occasion were relevant for the proper decision of the matters wherein they were so made.

53.It is evident from the record that the multiple litigations are pending between the parties and they primarily relates to property disputes. Even if defendants were desirous of establishing that their father is a spend thrift man , they could have made their plea by simply stating its plainly. Instead of confining themselves to the necessary basic pleadings defendants rather took it as an opportunity to defame their father by hurling abusive allegations even though admittedly he is self made man. Plaintiff started his life as a cleaner on a truck and by sweat and /////// he earned a fortune for himself and his family out of his hard work and grit. Despite all this his defendant sons called him a drunkard, a gambler and a womaniser having illicit relations with women. By no stretch of logic or interpretation any of the above statements incorporated by the defendants in their proceedings repeatedly can be said to be relevant for just decision of those matters. As such in my considered view as well defendants are contd/.........

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not entitled to a defence of absolute privilege as prayed for. Having so concluded since the four ingredients of a defamation under libel are already satisfied, the defendant have exposed themselves to be held financial liable to compensate their plaintiff father for defamation. It is also evident from the record that defamatory allegations made by defendants on as many as six occasion as detailed supra per see made with malice and ill will against their father. But for their hostile, hatred and enemical behaviour towards their father, they would not have included these allegations in their pleadings repeatedly.

54.ISSUE NO. 2 :

Whether the plaintiff is entitled to a decree for a sum of Rs.10 lacs against the defendants jointly and severally as compensation and damages alongwith pendent lite and future interest @ 9% per annum? (OPP)

55.As far as quantum of damages is concerned, plaintiff has pleaded in the plaint that he can claim damages of Rs. 1 crore but he is seeking the actual damage of Rs. 10 lacs alongwith 9% per annum interest. In order to show his reputation he has not made any specific plea in the plaint or in his contd/.........

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affidavit in chief apart from merely claiming that he is a man of reputation. However in his cross examination done on behalf of defendants, he stated that he has a reputation of more than one crore as he was Member of All India Motor Congress Union for last more than 15­20 yrs.

56. He was also Vice President of Gurudwara Punjabi Bagh Extn. for 7 yrs. and is Income Tax payee. He was unable to disclose his yearly income between 1999­2004 and conceded that he is not doing any business since 2004, when the suit in hand was filed. Considering the entire material available on record, I have no hesitation in concluding that as far as quantum of defamation is concerned, plaintiff simply speculated to be Rs.1 crore . His claim of Rs. 10 lacs as compensation is also a mere speculation. No doubt that being a self made business man he is entitled to compensation.

57.The situation here acquires more sentimental overtures since the wrong doers and defamers are none other than his own two sons. In the facts and circumstances, since parties are already litigating against each other in contd/.........

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various different courts in my considered view, the quantum of compensation to which plaintiff is entitled to in this case is Rs. 2 lacs i.e. Rs. 1 lac each against both the defendants.

58.In a case like one in hand quantum of money is not that important but more important thing is undoing of emotional set back . No amount of money can restore the shattered esteem of a father that too when it is emotionally injured by his own sons. Issue is answered accordingly. RELIEF: In view of the decision of above issues suit of the plaintiff is decreed for Rs. 2 lacs i.e. Rs. 1 lac each apart from commensurate cost and interest @ 9% per annum pendent lite and till date of realisation. Decree sheet be prepared accordingly and file be consigned to RR.

ANNOUNCECD AND DICTATED IN OPEN COURT ON : 22/2/2011 (SURINDER S. RATHI) ADJ­07/CENTRALDELHI contd/.........

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contd/.........