Patna High Court
Mahender Ram vs Harnandan Prasad on 28 February, 1958
Equivalent citations: AIR1958PAT445, AIR 1958 PATNA 445
JUDGMENT N.L. Untwalia, J.
1. This appeal by the defendant raises an interesting question of law. The plaintiff-respondent filed a suit for realisation of Rs. 500/- as damages for defamation of the plaintiff by the defendant. The case of the plaintiff is that he is a respectable man and a man of substantial means and is held in esteem and regard by the public. He lived in a rented house belonging to the defendant who mostly resides at Sultanpur in U. P. The plaintiff's son had purchased a house contiguous south of the defendant's house and was constructing the same. The defendant filed Title Suit No. 366 of 1948 with regard to some disputes which crept up between the defendant and the plaintiff's son while the latter was constructing his house. The defendant sent a registered notice in Urdu from Sultanpur to the plaintiff at Siwan.
The plaintiff, it was said, is not conversant with Urdu script and he, therefore, got the notice read over by one Kurban Ali in presence of several other persons. The notice contained defamatory and false allegations against him and he was very much Pained and surprised at them. The defamatory statement lowered the plaintiff in the estimation of the public and harmed his reputation. He suffered both, mental and physical injuries and, therefore, filed a suit claiming damages, as stated above.
2. The defence taken by the defendant was that the plaintiff had instituted the suit in order to harass the defendant in all possible ways and since this defendant had filed Title Suit No. 366 of 1948, the present suit was filed to put pressure on the defendant. His further case was that the notice in question was a forged and fabricated document and that the plaintiff had not been lowered in the estimation of the public due to the alleged recitals contained in the notice. The suit was not maintainable and was barred by limitation.
3. The learned Additional Munsif, First Court, Siwan, who tried the suit at the first instance, held that the notice (Ext. 1) was sent by the defendant and was addressed to the plaintiff, that the sequence in which the words in question had been used in the notice did not connote defamation, that the circumstances under which the notice had been sent did not go to show that the defendant intended to defame the plaintiff and that the plaintiff himself was responsible for giving publication to the contents of the notice. In that view of the matter he held that the defendant was not liable for the alleged publication and the suit was dismissed.
4. On appeal, the learned Subordinate judge, Second Court, Chapra, has reversed the decision of the trial court & has awarded a sum of RS. 250/- by way of damages to the plaintiff. The learned Subordinate Judge has held that the notice (Ext. 1) was written by the defendant and contained defamatory statement and that the plaintiff was defamed by the defendant by sending a notice in a registered cover from Sultanpur in U. P. to Siwan.
On the question of publication he seems to be of the opinion that since the letter or the notice in question was sent by the defendant in Urdu script to the plaintiff who does not know Urdu, therefore, he had to get the notice read over by a person who was examined as P. W. 5 in the case in the court premises in presence of several persons. He held -- "It is a well known principle of Torts that the publication of the defamation is complete as soon as the letter containing it is posted in a post office." On these findings the court of appeal below seems to be of the opinion that the publication of the defamatory words was there and the defendant was, therefore, liable to pay damages to the plaintiff.
5. Learned counsel for the appellant did not challenge before me, and rightly, the finding of the courts below that the letter or the notice in question had been written by the defendant-appellant and in Urdu script to the plaintiff-respondent. The finding of the lower appellate court that the plaintiff does not know Urdu could not also be questioned in Second Appeal. But the learned counsel urged three points before me --(1) that the words in question, in the context, were not defamatory, (2) that there was no publication of the defamatory words by the defendant nor had he reasons to believe that the letter in question would get publication, and (3) that the amount of damages awarded by the lower appellate court was high as only a nominal damage ought to have been awarded.
6. Mr. K.N. Moitra appearing for the plaintiff-respondent contested each and every proposition of the learned counsel for the appellant and faintly pressed his cross-objection on the quantum of damages. I am unable to accept the first contention put forward on behalf of the appellant, but I think the second contention must prevail and in that view of the matter it will not be necessary for me to go into the third? contention as respects the quantum of damages.
7. Ext. 1, the letter, contains the following words:
"Tum log to jalia ho. Mokadama bahut larte do. Mokadama larne ko bharose hardam jabar-dasti karte ho. Ham aise dhokhabaz admi ke mokan kiraya dena nahin passand karte hain."
It will be noticed that the sentence -- "Mokadama bahut larte ho. Mokadama larne ke bharose hardam jabardasti karte ho" -- is not such which could be held to be defamatory with reference to the context in which it was used. But, the use of the expressions -- "Turn log to jalia ho ...... Ham aise dhokhabaz admi ko.............." are clearly defamatory unless they are brought within any of the exceptions as enumerated in section 499, Indian penal Code.
In this particular case the defendant did not succeed in bringing his case within any of the exceptions and I, therefore, in agreement with the learned Subordinate Judge hold that Ext. 1 contained defamatory words and would certainly harm the reputation of the person to whom they were written if the words get publication. But, this is not all. In order to succeed in the case the plaintiff has to establish that the defendant knew or ought to have known that the letter would probably be read by some person other than the plaintiff.
In other words, the plaintiff must prove that the defamation had been published, i.e., communicated to some person or persons' other than the plaintiff himself and that such publication was either by the defendant himself or as a result of such action on his part which to his knowledge was likely to lead to publication. Learned counsel for the appellant relied upon the cases of Queen Empress V. Taki Husain, ILB 7 All 205 (A), Queen-Empress v. Sadashiy Atmaram, ILR 18 Bom 205 (B) and Abdul Aziz v. Mohammad Arab Saheb, AIR 1935 Cal 736 (C), and submitted on the basis of these authorities that sending of the letter by registered post addressed to the plaintiff was not such a making or publishing of the matter complained of as to constitute an offence within the terms of Section 499, Indian Penal Code, and, therefore, the defendant was not liable for damages in a Civil action also.
The above cases relied upon by the learned counsel do support him in his contention. It seems well settled that mere writing of words howsoever defamatory they may be, to a person intended to be read by him & not intended to be read by a third person, does not constitute an offence of defamation and does not make a man liable to pay damages in a Civil action. It is necessary to show that the writer intended his defamatory writing to be read by person or persons other than the addressee or at least he ought to have known that they were likely to be so read by a third person or persons. In absence of such a proof it cannot be held that the writer would be liable for defamation simply because the writing got publication. In this connection I would quote a passage from the case of Komul Chunder Bose v. Nobin Chunder Ghose, 10 Suth WR 184 (D), (Civil Rulings) which runs as follows :
"It appears to me that the plaintiff's case is deficient in several respects. In the first place it is not proved that there was any publication, for it is admitted that the letter was addressed to the plaintiff himself, and it was not proved that the letter was read by anybody excepting the plaintiff. It is now said that it might have been proved that the letter was in fact received in the first instance and opened by the nephew of the plaintiff. 'Admitting however, that the plaintiff could have proved this, the fact of the letter being opened by the nephew or by any one else would not constitute publication by the defendant unless the Plaintiff could have gone further and also proved that the defendant, when he despatched the letter, knew that in the ordinary course of business in the plaintiff's house the letter would toe opened and read by the nephew or by some one else other than the plaintiff himself ".
Though in the facts of the said case it may be said that the observations underlined (here in ' ') by me are obiter, yet I respectfully agree with the view propounded therein and adopt the same.
8. The law is succinctly stated in Clark and Lindsell on Torts (11th Edition) paragraph 1267, at Page 759, which runs as follows :
"When a letter is addressed to a particular person the writer is not as a general rule responsible except for a publication to that person. If it were stolen and published by the thief the writer would not be liable. But if the sender knows or ought to know that the letter will probably be read by some person other than the addressee, as for instance a clerk in the latter's service, he will be responsible in the event of its being so read. If he wants to protect himself he should write 'private' on the envelope."
"If, however, the defendant has no knowledge of the possibility of such a publication he is not liable if it should take place. Thus, where a libellous letter was addressed to the plaintiff at his office and in his absence was opened by his partner, it was held that the defendant was not liable for the publication, the jury having found that he did not know such a thing was possible. And where the libel was sent in an unsealed envelope and the plaintiff's butler read it out of curiosity, it was held that there was no evidence of publication by the defendant, for there was no evidence that he knew of the likelihood of his letter being opened by the butler or any one else but the plaintiff."
9. Coming to the facts of the case under consideration it will be noticed that there was no allegation by the plaintiff that the defendant while writing the letter in question in Urdu script knew that the plaintiff did not know Urdu which would necessitate reading of the letter by a third person. The parties had previous correspondence between them and it has not been shown in the courts below that the defendant was writing letters in another script on previous occasions and intentionally wrote a letter in Urdu on the occasion in question.
The bare fact that plaintiff does not know Urdu which necessitated his getting the letter read by some one else, is not sufficient to fasten the responsibility of publication directly or constructively on the defendant. As a matter of fact, the trial court did not seem inclined to accept the plaintiff's version that he did not know Urdu. The court of appeal below has reversed that finding of the trial Court, rightly or wrongly, but surely by passing strictures which were not warranted in the facts and circumstances of the case.
Be that as it may, I have assumed for the purposes of deciding the point at issue that it had been Proved to the satisfaction of the final Court of fact that the plaintiff does not know Urdu. Nonetheless, as stated above, the defendant, in my opinion, is not liable to pay any damages in this case because it has not been pleaded and proved that the defendant knew that the plaintiff did not know Urdu. Mr. Moitra relied upon the case of the Duke of Burnswick v. Harmer (1850) 14 QB 185: 117 ER 75 (E) wherein it has been held that the plaintiff may rely on a publication to his own agent, and the fact that such agent invited and procured the publication will not affect the defendant's liability.
It will be noticed that in that case the libel was published several years ago, in the year 1830 in a newspaper called the 'Weekly Dispatch' and under the Statute of Limitations action, could be brought within six years of the last publication. In 1848 a copy of the newspaper was sold at the newspaper office of the defendant to a witness who, on cross-examination, stated that he had been sent by the plaintiff to make the purchase, and had handed the paper, when purchased, to plaintiff.
In those circumstances the argument On behalf of the defendant was that the sale of a copy of the newspaper in 1848 was to the plaintiff himself, and, therefore, not a sufficient publication to sustain a civil action for damages. Repelling that argument Coleridge J. held as follows at page 189:
"The defendant, who, on the application of a stranger, delivers to him the writing which libels a third person, publishes the libellous matter to him, though he may have been sent for the purpose of procuring the work by that third person. So far as in him lies, he lowers the reputation of the principal in the mind of the agent, which, although that of an agent, is as capable of being affected by the assertions as if he were a stranger. The act is complete by the delivery: and its legal character is not altered, either by the plaintiff's procurement or by the subsequent handing over of the writing to him. Of course that this publication was by the procurement of the plaintiff is not material to the question we are now considering".
10. It will thus be noticed that the defendant handed over an open libellous matter to a third person purchaser and the publication was thereby complete. It mattered little whether that third person purchaser was an agent of the plaintiff sent at his instance to procure a copy of the libellous matter. In my opinion, therefore, this case is entirely a different one than the present case and on principle, rather supports the contention on behalf of the appellant.
I would make a reference to one of the cases noticed in the foot note of the passage quoted above from Clark and Lindsell on Torts, namely, the case of Sharp v. Skues, (1909) 25 TLR 336 (F). In that case a letter containing the words complained of was sent to the plff. by the defendant to his office address and was delivered on a Saturday when the plaintiff was absent from his office. The letter on delivery was opened and read by the plaintiff's partner according to his usual practice and was placed on the plaintiff's desk to await his arrival on Monday. In those circumstances the argument on behalf of the defendant was that there was no publication by the defendant. Accepting that argument Cozens-Hardy M. R., with whom Pletcher Moulton and Buckley. L. JJ. agreed, sitting in Court of Appeal, held as follows :-
'It would be a publication if the defendant intended the letter to be opened by a clerk or some third person not the plaintiff, or if to the defendant's knowledge it would be opened by a clerk; but the jury had negatived this in the clearest terms, and under these circumstances it was impossible to hold that some act done by a partner or a clerk of the plaintiff by his direction and for his own convenience when absent from the office could be a publication by the defendant under circumstances which the jury have found, in answer to question 2, the defendant knew could not possibly happen."
In the present case the letter was addressed to the plaintiff to his home address, The view taken in some of the English Cases that the letter should be marked "private" is not applicable to this case as those are cases where the letters are addressed to the office address of a person where there is every likelihood, in ordinary course of business, of the letter being opened by some third person.
The only facts pleaded in paragraph 6 of the plaint are that the plaintiff on opening the envelope found that the letter was in Urdu character which the plaintiff did not know and hence he got the Contents read by Kurban Ali in the presence of some other persons. AS stated above, nowhere it was pleaded nor has it been found that the defendant wrote the letter in Urdu character knowing that the plaintiff did not know Urdu and therefore, it would necessitate his asking somebody to read the letter to him. In absence of a pleading and finding of this important fact, it must be held that the defendant was not responsible for the alleged publication of the libellous matter.
11. In the result I hold that the appeal succeeds and it is allowed. The plaintiff's suit is dismissed but in the facts and circumstances of this case I direct that the parties will bear their own costs throughout. The cross-objection is accordingly dismissed, but without costs.