Bombay High Court
Charandas S/O Narayan Nagrale vs Yashwant Tulsiram Nimje And Another on 21 November, 2018
Author: Rohit B. Deo
Bench: Rohit B. Deo
sa369.18.J.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.369 OF 2018
Charandas s/o Narayan Nagrale,
Aged 68 years,
Occupation: Editor,
Resident of Shivaji Nagar Ward,
Rajura, Tahsil Rajura,
District Chandrapur. ....... APPELLANT
...V E R S U S...
1] Yashwant Tulsiram Nimje,
Aged 67 years,
Occupation: Service.
2] Ghanshyam Baburao Wandalkar,
Aged 67 years.
Both resident of Gouri Open Cast
Exposition (WCL), Gouri,
Tq. Rajura, Dist. Chandrapur. ....... RESPONDENTS
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Shri R.D. Wakode, Advocate for Appellant.
Shri M. Anilkumar, Advocate for Respondents.
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CORAM: ROHIT B. DEO, J.
DATE: st
21 NOVEMBER, 2018.
ORAL JUDGMENT
1] Admit. 2] Heard finally by consent of the learned counsels ::: Uploaded on - 22/11/2018 ::: Downloaded on - 23/11/2018 01:33:31 ::: sa369.18.J.odt 2 appearing for the parties. 3] This appeal is heard on the following substantial questions of law: (1) The trial Court after considering the news
item at Exhibit-22 having recorded a specific finding in paragraph No.7 of its judgment that the names of the plaintiffs were not included in the said news item, whether the appellate Court was legally correct in decreeing the suit without reversing that finding?
(2) Whether the appellate Court has applied correct legal principles while decreeing the suit? 4] I have heard the learned Counsel Shri Wakode for the appellant and the learned Counsel Shri M. Anilkumar for the respondents. The reasons recorded by the Appellate Court for reversing the judgment and decree of the Trial Court are perused. 5] The bone of contention is a news item published in the weekly "Pratikar" on 19.12.2004. The relevant portion, which is allegedly defamatory is reproduced below:
uks O gs a c j rs fMls a c j 2004 e/khy vkW b Z y ?kks V kGk ! ;kap {ks=kr ;sr vlysY;k /kksiVkGk vksiu dkLV [kk.khr uksOgsacj rs fMlsacj 2004 e/;s LVksvlZ fdij mjdqMs] ::: Uploaded on - 22/11/2018 ::: Downloaded on - 23/11/2018 01:33:31 ::: sa369.18.J.odt 3 eksfgrdj] oaMyokj] fyets] ,l-ds- flax rFkk lc ,fj;k eWustj ;kaP;k laxuerkauh 5000 fyVj fM>yph pksjh >kyh dh dk; ! letk;yk ekxZ ukgh- lkscrp 3 cWjy 20 Mcyq 15 baftu vkWbZy ;kph pksjhps jgL; dk; ! fl-th-,e- nsrhy dka y{k ! dkexkjkapk loky- toGikl 2]23]000 #i;sP;k eky yaikl izdj.k lkojklkoj dj.;kpk iz;Ru-
6] The respondents - plaintiffs instituted Special Civil Suit 24/2005 seeking damages of Rs.1,10,000/- against the appellant - defendant. The plaintiffs contended that the reference to Wandalwar and Limje, was clearly to the plaintiffs and the publication was malicious and defamatory and therefore a libel. The suit came to be dismissed by the Civil Judge, Senior Division, Chandrapur by judgment and decree dated 28.07.2008. The learned Trial Court recorded a finding that the plaintiffs were not able to prove that the news item concerned them. This finding, and the judgment and decree, is reversed by the District Judge-3, Chandrapur by judgment dated 19.06.2017 in Regular Civil Appeal 123/2008.
7] The first substantial question of law which is framed clearly does not arise in as much as the Appellate Court has, as a fact, reversed the finding that the news item does not concern the plaintiffs. The Appellate Court has, on the basis of evidence on ::: Uploaded on - 22/11/2018 ::: Downloaded on - 23/11/2018 01:33:31 ::: sa369.18.J.odt 4 record, recorded a finding that notwithstanding the slight variation in the names appearing in the news item, the reference is clearly to the plaintiffs.
8] The written statement is of denial and all that is said in paragraph 13 thereof is that the publication does not concern the plaintiffs and that there was no intention to defame the plaintiffs. Be it noted, that it is not the defence that the persons who are named as Wandalwar and Limje do exist as a fact and are working in the Stores Department of the Western Coalfields Limited. No evidence is led by the defendant to suggest that persons by name Wandalwar and Limje are working in the Stores Department of the Western Coalfields Limited and that the publication did not concern the plaintiffs. The contents of the publication and the evidence on record clearly establishes libel and that the defendant - editor of the weekly "Pratikar", on his own admission, did not exercise due diligence in as much as he made no effort either to verify the identity of the persons named or the correctness of the serious allegations levelled. In all fairness to the learned Counsel Shri Wakode it is not even argued that the ::: Uploaded on - 22/11/2018 ::: Downloaded on - 23/11/2018 01:33:31 ::: sa369.18.J.odt 5 publication per se is not defamatory. The thrust of the submission is that the name Wandalwar and Limje did not refer to the plaintiffs.
9] Per contra, the learned Counsel for the respondents Shri M. Anilkumar would submit that notwithstanding the slight variation in the name, the intent was to refer to the plaintiffs and to damage the reputation of the plaintiffs, who are not only employees of the Western Coalfields Limited, who are the office bearers of a prominent trade union namely "Bhartiya Koyala Majdoor Sangh". Shri M. Anilkumar would urge that it is not open for the appellant to content that the publication did not concern the respondents - defendants, particularly since it is not established that there were persons actually in existence by name Wandalwar and Limje. Shri M. Anilkumar would invite my attention to a decision of a learned Single Judge of the High Court of Kerala in V Subair v. P K Sudhakaran reported in 1987 LawSuit (Ker) 31 and in particular to paragraphs 5 and 6 which read thus:
[5] Relying on Raman Namboodiri v. Govindan, 1962 Ker LT 538 : 1963 (1) Cri U 535, counsel for ::: Uploaded on - 22/11/2018 ::: Downloaded on - 23/11/2018 01:33:31 ::: sa369.18.J.odt 6 petitioner contends that the identity of the complainant should be established. The proposition is beyond reproach. But, it is not always necessary to name the person. If the description and attendant circumstances suggest with fair-certainty the identity of the person intended, that is sufficient to attract the offence. Explanation 3 to Section 499 states that an imputation in the form of an alternative or expression ironically, may also amount to defamation. Defamation by innuendo is well known. Hicks' case is illustrative in this regard. Gatley on Libel and Slander 8th Edition (para 281) states:
To succeed in an action of defamation it must not only be proved that the defendant published the words and that they are defamatory: He must also identify himself as the person defamed. No writing whatsoever, is to be esteemed a libel unless it reflects upon some particular person : It is not necessary that the words should refer by name.
The reference need not be explicit. If the description is such that a reasonable person in the context in which it is made, will understand it as a reference to a particular person, it would suffice. It is not always that a libellous statement is made with directness, nor, does it mean that as long as it is not by specific reference, so long it is not libel. A degree of indirectness or innuendo is noticed in such attempts, and is to be expected. To defame is an offence, and it is reasonable to think that he who defames is not anxious to invite legal consequences. Satire or lampoons are instances of reference by innuendo. Limericks also sometimes make veiled references, not altogether complementary. To a point, they may justify themselves.
But, transgression beyond, would attract penal consequences. The thin twilight zone is often the subject of controversy. But, it can be said with assurance that even without specific or explicit ::: Uploaded on - 22/11/2018 ::: Downloaded on - 23/11/2018 01:33:31 ::: sa369.18.J.odt 7 reference, by innuendo, defamation can arise. Gatley has noticed cases, where libel was found by reference to initial letters, by asterisks or even blanks,, and reference to fictitious or fanciful names, even where there was 'no peg or pointer for identification in the words complained of.' [6] In Morgan v. Odhama Press Ltd. (1972) 1 WLR 1239 (HL) it is stated:
It is the circumstances in which a statement is made which give it colour, meaning and thrust; they may combine to make a statement, seemingly innocuous in itself, an infamous defamation of a person who is caught and pointed to by those circumstances.
Thus viewed, it must be held that the complainant would be identified, as the doctor in Chokli in Ext. Pl(a), by those who knew of Nabeesu's complaint and of his rendering free medical aid.
Shri M. Anilkumar would argue that it is not necessary that the name of the person against whom serious and scurrilous allegations are levelled must be accurately named in the publication. It would suffice if having regard to the general description or reference in the news item and the attending circumstances that a person who come across the publication is convinced that the reference is to the plaintiffs.
10] The submission is well merited. The publication is ::: Uploaded on - 22/11/2018 ::: Downloaded on - 23/11/2018 01:33:31 ::: sa369.18.J.odt 8 clearly defamatory and constitutes libel. The defence that the defendant did not intend to defame the plaintiff or that the publication did not concern the plaintiff is not proved.
Au contraire, the evidence on record would clearly suggest that it was always intention of the defendant to refer to the plaintiff.
11] The judgment of the Appellate Court is well reasoned.
I do not see any error in the application of the principles of law and in that view of the matter substantial question (2) would also not arise for adjudication.
12] However, the learned Counsel for the respondents Shri M. Anilkumar fairly states that the respondents are more interested in vindication of their honour rather than compensation and would be satisfied if token compensation of Rs.1/- is awarded to the respondents and the balance amount of Rs.24,999/- out of Rs.25,000/- deposited in this Court is transferred to District Court Legal Aid Services Committee, Chandrapur.
13] In this view of the matter, the second appeal is partly ::: Uploaded on - 22/11/2018 ::: Downloaded on - 23/11/2018 01:33:31 ::: sa369.18.J.odt 9 allowed and while the findings are maintained in entirety the compensation is scaled down to Rs.25,000/- out of which Rs.1/-
shall be paid to the respondents - plaintiffs and Rs.24,999/- shall be transferred to District Court Legal Aid Services Committee, Chandrapur.
JUDGE NSN ::: Uploaded on - 22/11/2018 ::: Downloaded on - 23/11/2018 01:33:31 :::