Delhi District Court
Mst. Uzma Sajid vs Sh. Joginder Dev on 6 April, 2018
IN THE COURT OF SH. JOGINDER PRAKASH NAHAR, ADDITIONAL
DISTRICT JUDGE-04, CENTRAL, TIS HAZARI COURTS, DELHI
CS No. 612355/16
MST. UZMA SAJID
W/O SH. MOHD. SAJID
D/O LATE SH.SHEIKH MOHD. YOUNUS
R/O 988, HAVELI HISSAMUDDIN HAIDER
BALLIMARAN, CHANDNI CHOWK
DELHI-110006 ......Plaintiff
Versus
SH. JOGINDER DEV,
S/O LATE SH. JEEWAN LAL
1204, CHANDNI CHOWK
DELHI-110006 ......Defendant
Date of Institution : 02.04.2013
Date of judgment reserved on : 27.03.2018
Date of judgment : 06.04.2018
JUDGMENT
SUIT FOR THE RECOVERY OF RS. 7,00,000/- (RUPEES SEVEN LAKHS) BEING DAMAGES ALONGWITH PENDENTE-LITE AND FUTURE INTEREST WITH COSTS
1. The present suit was filed by the plaintiffs for recovery of Rs. 7,00,000/- against the defendant. The plaintiff belongs to a very reputed business family who are associated with sale/purchase and export/import of readymade garments and carpets etc and has acquired lot of goodwill and reputation. The defendants are tenant of late father of the plaintiff in property no. 1204, ground floor, Chandni Chowk, 110006 on monthly Rs. 150/-. The father of the plaintiff has expired on 05.11.2003 who had executed a Will and testament dated 22.08.1999 bequeathing the property no. 1207 in the same area to the plaintiff. Now plaintiff is owner of property no. 1204 to 1207, Chandni Chowk, 110006. Plaintiff is daughter by blood of late Sheikh Mohd. Younus. Plaintiff has filed recent petition against the defendant at Tis Hazari Courts and pleaded that plaintiff is not daughter of late Sheikh Mohd. Younus and plaintiff is not part of family of late Sheikh Mohd. Younus. The above allegations of the defendant is false which is defamatory imputation, caused heavy injury in body, mind and reputation of the plaintiff and lowered morally and integrity, character of plaintiff in estimations of others. A legal notice dated 22.05.2012 was served on the defendants to tender unconditional apology which defendant did not comply. In last week of February, 2013, the defendant has distributed the copy of said application and affidavit to people where the plaintiff resides on which several people have asked the plaintiff for explanation which made the life of the plaintiff hell and unlivable resulted her into civil dead. Plaintiff has two sons, aged about 16 and 7 years and one daughter aged about 14 years. Due to above false allegations, it has become difficult for the children of the plaintiff to go to school and play as other children and friends are teasing them. It has become difficult to the plaintiff to explain to her guests the above false imputations. Accordingly, the plaintiff has prayed for damages for a sum of Rs.7,00,000/- for the such defamation caused by the defendant with interest at the rate of interest 18% per annum along with cost of the suit.
2. It is submitted by the defendant that plaintiff has filed false suit only to dis-possess the defendant from the tenanted premises by adopting illegal means. The issue as to such validity of plaintiff being daughter of late Sheikh Mohd. Younus is sub-judice before the Ld. ARC in eviction petition no. 39/2012. It is denied by the defendant that in February, 2013, defendant has distributed alleged copies of his leave to defend application and affidavit to the people. It is denied that defendant gave circulation to his application.
3. It is submitted by the defendant that the tenanted property was initially let out to Sh. Kishan Kishore and Sh. Joginder Dev and after death of Sh. Kishan Kishore in the year 2000, the defendant along with LR of Sh. Kishan Kishore are in use and possession of the tenanted premises on same terms and conditions and paid rent to late Sh. Sheikh Mohd. Younus and after him making payment of rent to Sh. Sheikh Mohd. Iliyas who is son of Late Sh. Sheikh Mohd. Younus. The alleged Will dated 22.07.1999 in favour of the plaintiff is denied and it is denied that plaintiff is daughter of Late Sh. Sheikh Mohd. Younus. It is submitted that Late Sh. Sheikh Mohd. Younus had only one son namely Sh. Sheikh Mohd. Iliyas. It is submitted that plaintiff's husband Mohd. Sajid was tenant of Late Sh. Sheikh Mohd. of first and second floor of the tenanted property and he was paying rent to Late Sh. Sheikh Mohd. Younus. Now, plaintiff has turned dishonest by taking the advantage of the fact that Sh. Sheikh Mohd. Iliyas is permanent resident at property no. 9-B, Mehar Ali Road, Calcutta and occasionally comes to Delhi to collect rent from tenants. Other avernments of the plaintiff are denied by the defendant and it is submitted that the legal notice date 22.05.2012 is false and frivolous which was duly replied vide reply dated 08.06.2012. It is submitted that the avernement of the plaintiff are false and they are not defamatory. It is submitted that the suit of the plaintiff is false and frivolous and the suit of the plaintiff may be dismissed.
4. On the pleadings of the parties following issues were framed on 14.07.2014:
1. Whether the plaintiff has been defamed by the defendant as alleged in the plaint? OPP
2. If the issue no. 1 is answered in affirmative, what should be the quantum of damages? OPP
3. Whether the plaintiff is entitled to interest on the quantum of damages? If so, at what rate and for which period?
4. Relief.
5. Plaintiff has got examined PW-1 Ms. Kalpana Umakant, PW-2 Sh.
Amit Bansal, PW-3 Sh. Bharat Bhushan Sharma and closed its evidence on 06.08.2014. The defendant got examined DW-1 Sh. Sanjeev Kumar Singh whose cross examination was deferred. The defendant sought to change his AR and witness as DW-1 as recorded in order dated 27.07.2016 which was thereafter not examined
6. Parties heard and record perused.
7. Parties have relied upon the following citations:
(i) State (NCT of Delhi) v. Pratap Singh @ Krishna in Crl. A. 254/2016, 25.05.2016 of Hon'ble High Court of Delhi and;
(ii) Edward v. Inspector of Police, Aandimadam Police Station in Crl. A. 707 of 2007 of Hon'ble Supreme Court.
8. The issuewise findings are as follows:
9. ISSUE NO. 1Whether the plaintiff has been defamed by the defendant as alleged in the plaint? OPP
9.1 PW-1 has deposed in same terms of her pleadings. The income tax returns are filed as Ex.PW-1/A. In her evidence by way of affidavit the plaintiff is writing name of her father as Sh. Sheikh Mohd. Younus. In the legal notice Ex.PW-1/D-2 issued by the plaintiff to the defendant at para no.2 mentions name of her father as Sh. Sheikh Mohd. Yunus. In the same legal notice at para no.3 it is declared by plaintiff that she is real daughter of Sh. Sheikh Mohd. Yusuf. Hence, plaintiff herself has mentioned three different surnames of her father at three different places. The statement at para no.3 of legal notice Ex.PW-1/D-2 is in the form of declaration that the name of father of the plaintiff is Sh. Sheikh Mohd. Yusuf.
9.2 The defendant after receipt of such legal notice, in his leave to defend application under Section 25-B of DRC Act, 1958 has stated that plaintiff is not daughter of late Sheikh Mohd. Younus (expired on 05.11.2006). In cross examination PW-1 has admitted as correct that she has gone through the contents of notice Ex.PW-1/D-2. PW-1 has denied suggestion that defendant has not distributed copies of his leave to defend application and affidavit in the locality where PW-1/plaintiff lives. It is admitted by PW-1 that she does not have any documentary proof of such distribution of such leave to defend application by the defendant in absence of which the deposition of distribution of leave to defend application made by the plaintiff/PW-1 is controverted by oral suggestion thereto by the defendant. Hence, oral averments of the plaintiff in this regard is no evidence. Therefore, the plaintiff has failed to prove publication of averments made by the defendant in course of legal proceedings. Plaintiff has no other evidence with her regarding such publication or any other publication made by the defendant.
9.3 In any action for libel, the plaintiff is required to satisfy that there has been
(a) A defamatory statement,
(b) The defamatory statement is published.
(c) If there had been publication, then such publication was not privileged.
The said ingredients are well laid down in citation titled Pullman & Anr. v. Walter Hill & Co. Ltd. (QB) C.A. 1890 December 18, 19 ---1891.
9.4 The plaintiff has relied on the statement submitted by the defendant in his leave to defend application under Delhi Rent Control Act, 1958. However, to the variation in surname in legal notice Ex.PW-1/D-2 during the course of final arguments, it is explained as typographical error by the plaintiff. Therefore, the error is admitted on behalf of the plaintiff herself claiming that it is a typographical error. However, there is difference in spelling of Younus, Yunus and Yusuf. In the same legal notice at three different places, the plaintiff is mentioning three different surnames of her father and the surname Yusuf in para no.3 of the above exhibit is in the form of self declaration, thereby the defendant can believe such declaration by the plaintiff. On the basis of which the defendant has a right to submit reply before Court of competent jurisdiction of which notice is received by him. It is incumbent on the defendant to file his reply taking all his pleas. The defendant has filed reply on the basis of error committed by the plaintiff herself. Therefore, error committed by the defendant if any is only a consequence of prior error committed by the plaintiff. If plaintiff is taking shelter under typographical error, then the same shelter is also available to the defendant.
9.5 According to the plaintiff the objection of typographical has to be taken by the defendant in reply dated 08.06.2012 and reply dated 10.07.2013. However, the said replies are not exhibited by the plaintiff in her evidence. Further, the plea of the plaintiff is that defendant could have referred in his reply such error as typographical error. It is difficult to see that how an error committed by the plaintiff could be affirmed and claimed by the defendant as typographical error when the error itself is only claimed by the plaintiff. Hence, in such view of the matter, it cannot be said that the defendant has made a defamatory statement against the plaintiff.
9.6 The defamatory statement should have been published. Submitting reply in legal proceedings by parties against each other is not a publication as such, but it is a privileged statement. The said statement is not available to parties other than parties to the litigation. The said statement is privileged statement which was so laid down in citation titled as under:
In the case titled Raj Nath Khosla Versus Acharya Dr. John R Biswas & Ors I (2013) CLT 28 (CN) wherein it is held as under:-
12. Now, for deciding the present application on the basis of the averments made in the plaint, let us first look into the law on defamation. It would be relevant to reproduce the observations of the Apex Court in the case Pandey Surendra Nath Sinha v. Bageshwari Pd. AIR 1961 Pat 164 which had discussed the law on defamation in full length. The court observed as under:
A defamatory statement is one which has a tendency to injure the reputation of the person to whom it refers; which tends, that is to say, to lower him in the estimation of right-thinking members of society generally and in particular to cause him to be shunned or avoided or regarded with feelings of hatred, contempt, ridicule, fear, dislike or disesteem, or to convey an imputation on him disparaging or injurious to him in his office, profession, calling, trade or business. Defamation, therefore, is the wrong done by a person to another's reputation by words, signs, or visible representations.
A wrong of defamation, as such, consists in the publication of a false and defamatory statement concerning another person without lawful justification.
The word 'defamation' is the generic name for the wrong; libel and slander are particular forms of it. Defamation, therefore, is of two kinds, namely, libel and slander. In libel the defamatory statement is made in some permanent and visible form in writing or otherwise recorded, such as, printing, typing, pictures, photographs, caricatures, effigies. In slander the defamatory statement or representation is expressed by speech or its equivalents, that is, in some other transitory form, whether visible or audible, such as, a nod, wink, smile, hissing, the finger-language of the deaf and dumb, gestures or inarticulate but significant sounds.
The actions of libel and slander are thus private legal remedies, the object of which is to make reparation for the private injury done by wrongful publication to a third person or persons of defamatory statements concerning the plaintiff. The defendant in these actions may prove the truth of the defamatory matter and thus show that the plaintiff has received no injury. For though there may be damage accruing from the publication, yet, if the facts published are true, the law gives no remedy by action.
In an action for libel the plaintiff should prove that the statement complained of (1) refers to him; (2) is in writing, (3) is defamatory, and, (4) was published by the defendant to a third person or persons.
13. Deciding the issue whether statements made to the lawful authorities can be made ground for defamation, in the case of Pandey Surendra Nath V. Bageshwari Pd. (supra), it was observed that "If a person who makes the statements has an interest or duty, legal, social or moral to make it to the person to whom it is made, and the person to whom it is so made has as corresponding interest or duty to receive it such statement commands a privilege and cannot be made basis of an action for defamation."
14. The above principle was reiterated in the case of The Punjabi Bagh Cooperative Housing Society Limited v. K.L. Kishwar And Anr, 95 (2002) DLT 573 in which the court also placed reliance on various English court judgments which are reproduced as under In Stuart v. Bell (1891) 2 Q.B. 354 and Smythson v. Cramp, 1943 1 All E.R. 326, it was held that the occasion is privileged where the defendant has an interest in making the communication to the third party, and the third party has a corresponding interest in receiving it. Reciprocity of interest is essential. In Hebditch v.
Macllwaine, (1894) 2 Q.B. 54, it was observed that the interest must exist in the party to whom the communication is made as well as the party making it. It is sufficient that the defendants honestly and reasonably believe that the person whom he made communication had an interest in the subject matter thereof.
15. It has been held in Shri Ram Singh Batra v. Smt. Sharan Premi, 133 (2006) DLT 126, that "A complaint to a lawful authority is not actionable if it is not defamatory per-se unless it is established that the complaint is false and defamatory. Thus, till before the court of law it is not established that the FIR in question is based on a false allegation, no action is even maintainable."
16. Same has been held in the case of Prof. Imtiaz Ahmad v. Durdana Zamir, 2009 (109) DRJ 357 , wherein it was observed that:-
"Whenever a person makes a complaint against someone to the lawful authorities and in that complaint he makes imputations against the person complained of, it cannot be considered that the person has publicized or publically made defamatory averments against a person. If a prosecution is initiated against the person on the basis of such averments and the person is acquitted holding that the complaint was false, then only a cause of action arises against the complainant for launching a case for false prosecution or for damages on other grounds. Until and unless a competent court holds that complaint was false, no cause of action arises. Approaching a competent authority and praying that the authority should come to the rescue of the complainant and prevent the interference of the plaintiff (in the family affairs of the defendant) cannot amount to defamatory imputation per-se and even if it is published, it does not tend to show that the defendant had tend to show that the defendant had intended to lower the reputation of the plaintiff."
9.7 Since the above statement is privileged statement and not publication as such in a litigation between the parties, thereby the defendant is entitled to protection of such privileged statement made bonafide by him on such declaration of plaintiff at para no.3 of her legal notice Ex.PW-1/D-2 though the same is claimed by plaintiff as typographical error. Hence, it is held that the plaintiff has failed to substantiate case of defamatory statement against the defendant. Accordingly, present issue is decided in favour of the defendant and against the defendant.
10. ISSUE NOS. 2 & 3If the issue no.1 is answered in affirmative, what should be the quantum of damages? OPP.
AND Whether the plaintiff is entitled to interest on the quantum of damages? If so, at what rate and for which period?
10.1 The findings under issue no. 1 above, which are equally applicable under the present issue and be read as part of the present issue. The same are not repeated herein for the sake of brevity.
10.2 Since it is already held that the defendant has not defamed the plaintiff as alleged in the plaint, therefore, the plaintiff is not entitled to damages for the quantum claimed by her in the paint and for the same reason, the plaintiff is not entitled to interest, if any, on such quantum of damages. Accordingly, issues no. 2 and 3 are decided against the plaintiff and in favour of the defendant.
RELIEF
11. The plaintiff has failed to prove that defendant has defamed her and it is held that defendant has made communication in leave to defend application under DRC Act, 1958 as a privileged statement. In view of this, the suit of the plaintiff is dismissed. No order as to costs.
Decree sheet be prepared accordingly. File be consigned to Record Room. JOGINDER Digitally signed by JOGINDER Announced in the open Court PRAKASH PRAKASH NAHAR Date: 2018.04.07 on 6th April 2018 NAHAR 16:30:36 +0530 (JOGINDER PRAKASH NAHAR) ADDL. DISTRICT JUDGE-04 CENTRAL/TIS HAZARI COURT/DELHI