Delhi District Court
Dr. Naipal Singh vs Raj Kumar on 25 May, 2016
Page 1 of 17
IN THE COURT OF MS. NAVITA KUMARI BAGHA, ADJ-01 (SOUTH),
SAKET COURTS, NEW DELHI
CS No.11/15
Unique Case ID No.02406C0075802015
Dr. Naipal Singh
S/o Late Sh. Ram Sahai
Pragya Niwas, Flat No.31,
Nav Jagriti Apartments,
Vasundhra Enclave,
Delhi-110096
............. Plaintiff
Vs.
Raj Kumar
S/o Sh. Ram Swaroop
R/o H.No.122B/14A,
Gautam Nagar,
New Delhi-110049
............. Defendant
Suit for Recovery of Damages for causing loss and injury by
Defamation of the Plaintiff
O R D E R :-
1. Vide this order, I shall dispose of the application of defendant filed on 03.06.2015 U/O.7 R.11 CPC.
2. The present suit was filed by the plaintiff against the defendant on 05.03.2015 for recovery of damages on account of defamation. The brief facts of the case are as follows:-
2.1 The plaintiff and defendant are members of the Nav Jagriti Co-operative Group Housing Society Ltd., Plot No. CS No.11/15 Dr. Naipal Singh Vs. Raj Kumar Page 2 of 17 C-11, Vasundhra Enclave, Delhi-96 (hereinafter referred to as 'the Society'). The plaintiff is a retired Additional District & Sessions Judge, Delhi who has been practicing as an Advocate after retirement and has enjoyed an esteem reputation, respect and prestige in the society.
On 20.01.1991, he was unanimously elected as President of the Society till 1996 and thereafter, he remained its Vice-President till 2004. 2.2 O.P. Kaim, the then Vice President of the Society, and other office bearers of the Society misused their position and committed various illegal and irregular acts and embezzled crores of rupees of the Society. The plaintiff took the course of legal actions against them before the competent authorities and the Courts. As a result of such legal course of actions, the Registrar of Co-operative Societies superseded the managing committee of the Society under Sec.37 of Delhi Co-operative Societies Act, 2003.
2.3 Vide notice dated 24.05.2013, the Returning Officer displayed the list of eligible, disqualified and defaulter members of the Society for the election purpose wherein CS No.11/15 Dr. Naipal Singh Vs. Raj Kumar Page 3 of 17 it was stated that any discrepancy in the list might be brought to his notice by 10.06.2013. The defendant and above-said office bearers, in reply to said notice, wrote a letter/complaint dated 08.06.2013 to the Returning Officer stating therein that the plaintiff was defaulter in making payment of dues of the Society. The said complaint was marked by the Returning Officer to the Administrator since the objections were pertaining to the list prepared by the latter. In the order dated 02.07.2013, the Administrator stated that as per copy of Arbitration Award dated 03.10.2006, the plaintiff was directed to pay a sum of ₹11,792/- to the Society, but it was not clear to him if the said amount was paid by the plaintiff and therefore, he called for explanation in this regard from the plaintiff. Meantime, the defendant and other ex-office bearers gave another representation dated 12.07.2013 to the Administrator levelling again therein the allegations against the plaintiff with respect to non-payment of dues of the Society.
2.4 In his order dated 01.10.2013 on the above-said letters/complaints, the Administrator held that the earlier CS No.11/15 Dr. Naipal Singh Vs. Raj Kumar Page 4 of 17 Management Committee of the Society had not handed over the records of the Society to the previous Administrator Sh. A.K. Kaushal and consequently the previous Administrator could also not handover the said record to him and therefore in the absence of records, he was left with no other option but to follow the earlier practice of holding elections on the basis of records maintained by the then Administrator w.e.f. 01.01.2012. Thus, on the basis of said record, the plaintiff was permitted to contest the election of the Society. 2.5 As per the plaintiff, the defendant had made imputations in letters dated 08.06.2013 and 12.07.2013 with malafide motive and dishonest intention to harm his reputation and that the said imputations have lowered his reputation in the Society. Hence, the present suit for damages on account of defamation was filed by the plaintiff.
3. In application filed U/O.7 R.11 CPC, the defendant has sought rejection of the plaint on the following grounds:-
(i) The allegations leveled by the plaintiff against the defendant touches the management, constitution, CS No.11/15 Dr. Naipal Singh Vs. Raj Kumar Page 5 of 17 business and affaires of the society which can be challenged before the appropriate authority constituted under the Delhi Co-operative Societies Act, 2003 and hence the suit is not maintainable before this Court;
(ii) The statements made by the defendant in the letters dated 08.06.2013 and 12.07.2013 are covered under the defence of qualified privilege; and
(iii) The suit is barred by limitation.
4. In reply to this application, the plaintiff has stated that the Delhi Co-operative Societies Act, 2003 is not applicable to the present suit as neither has he sued defendant as a member of any society nor any society has been made party nor any relief has been claimed against any society. He has stated that the present suit is covered under Sec.9 of CPC and the Civil Court has jurisdiction to take cognizance of the same. He has further stated that the application of the defendant is not maintainable as many triable issues of facts are involved which can be decided only on the basis of evidence. He has further stated that the issue of limitation for any suit is always an issue of facts and not issue of law which has to be decided on the basis CS No.11/15 Dr. Naipal Singh Vs. Raj Kumar Page 6 of 17 of evidence.
5. I have heard the arguments from plaintiff and Counsel Sh.
Vinay Rathi for defendant and perused the record.
6. So far as the first ground mentioned in para 3 above is concerned, the same is totally devoid of merits. The present suit is not filed for adjudication of any dispute concerning the management, constitution, business or affairs of the Society, rather the same has been filed by the plaintiff for damages on account of defamation. Hence the suit is not barred under Sec.70, 129 or 132 of the Delhi Co-operative Societies Act, 2003 as alleged in the application.
7. Regarding the ground of qualified privilege, the counsel for defendant, during the arguments, said that he was not pressing for the said ground as the application was filed mainly on the ground of suit barred by limitation. So far as the point of limitation is concerned, the plaintiff has contended that the issue of limitation is an issue of facts which can be decided only after the evidence is led by the parties. But I do not concur with his viewpoint as the evidence is required only if there are disputed facts pertaining to limitation issue. If it becomes CS No.11/15 Dr. Naipal Singh Vs. Raj Kumar Page 7 of 17 apparent from the reading of the plaint only that the same is barred by limitation, then there is no requirement for leading any evidence. It has also been held by Hon'ble High Court of Delhi in Sangita Rehan Vs. Surinder Kishan Grover, 2015(218) DLT 305, "It is settled law that an issue of limitation is not always a mixed question of law and fact. Where a suit, from statement in the plaint, can be said to be barred by time, thus, a case for rejection under Order 7, Rule 11 CPC is made out. The Supreme Court in N.V. Srinivasa Murthy Vs. Mariyamma, (2005) 5 SCC 548 has held that if on a critical examination of the plaint, the suit seems to be clearly barred on the facts stated in the plaint itself, the plaint is liable to be rejected."
8. The counsel for defendant has vehemently argued that as per Article 75 of Limitation Act, the limitation of one year for filing a suit for damages on account of defamation starts running from the date of publication of the libel and since in the present case, the alleged libel was published on 08.06.2013 & 12.07.2013 whereas the suit was filed on 05.03.2015, the same is barred by limitation. But the plaintiff has contended that in letters dated 08.06.2013 and 12.07.2013, the imputations were made CS No.11/15 Dr. Naipal Singh Vs. Raj Kumar Page 8 of 17 against him that he was the defaulter in making payment of the dues of the Society whereas in fact he was not the defaulter at all and until and unless the proceedings pertaining to that issue finally came to an end, the period of limitation could not have started. While placing reliance upon the case-law titled as Im- tiaz Ahmad Vs. Durdana Zamir, 2009(3) AD (Delhi) 703, he has contended that the cause of action for filing the present suit has arisen only when competent authority held that the com- plaint filed by the defendant was false. In the case of Imtiaz Ahmad (supra), the plaintiff (Imtiaz Ahmad) had filed a suit for damages on account of defamation on the ground that the de- fendant had filed a complaint before the Crime Against Women (CAW) Cell allegedly making defamatory allegations against him. His case was that he was a professor of Sociology at JNU and was a highly reputed person who was internationally known and the defendant had defamed him by portraying him as a per- petrator of dowry demand in her complaint to the police. The FIR lodged by her was under investigation and it had not been held by any Court that the allegations made by the complainant (defendant therein) were false. The Hon'ble High Court of Delhi in the said case has held as follows:
CS No.11/15
Dr. Naipal Singh Vs. Raj Kumar Page 9 of 17 "The defendant had a right to make complaints of her grievances to the authorities. 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 publicly 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 inference of the plaintiff in the family affairs of the defendant cannot amount to a defamatory imputation per se and even if it is published, it does not tend to show that the defendant had intended to lower the reputation of the plaintiff."
9. But the case of Imtiaz Ahmad (supra) is distinguishable from the present case as the defamatory statement in the said case was falling within the domain of 'qualified privilege' whereas it is CS No.11/15 Dr. Naipal Singh Vs. Raj Kumar Page 10 of 17 not so with respect to the alleged defamatory statements in the present case. In the above-said case-law, the complaint, containing the defamatory statement against Imtiaz Ahmad, was made by the defendant to the 'public authority' i.e. the police whereas in the present case, the complaints/letters dated 08.06.2013 and 12.07.2013 were not written by the defendant to any public authority.
10. In the law of defamation it is a defense that the statement was made on a privileged occasion. In certain circumstances it is excusable to publish matter which is defamatory. Such excuse is termed privilege. Privilege is of two kinds: (i) absolute and
(ii) qualified. If the occasion is one of absolute privilege, there is a complete bar to an action for defamation, however irresponsible or malicious the statement may be. A person defamed on an occasion of absolute privilege has no legal redress, however outrageous the untrue statement which has been made about him and however malicious the motive of the maker of it. If, on the other hand, the occasion is one of qualified privilege, the privilege may be defeated by proof of malice. If the maker of the statement is actuated by malice he forfeits this protection of the shield of qualified privilege. The CS No.11/15 Dr. Naipal Singh Vs. Raj Kumar Page 11 of 17 absolute privilege applies to the following statements:-
(i) Statements made during judicial proceedings;
(ii) Statements made by high government officials;
(iii) Statements made by legislators during legislative de-
bates;
(iv) Statement made during political broadcasts or speeches;
and
(v) Statement made in between spouses.
And the qualified privilege applies to the following statements:-
(i) Statements made in governmental reports of official pro-
ceedings;
(ii) Statements made by lower government officials such as members of town or local boards;
(iii) Citizen's testimony during legislative proceedings;
(iv) Statements made by a former employer to a potential employer regarding the employees; and
(v) Published book or film reviews that constitute fair criti-
cism.
11. In absolute privilege, the defendant gets absolute exemption from liability whereas in a qualified privilege, the defendant gets CS No.11/15 Dr. Naipal Singh Vs. Raj Kumar Page 12 of 17 a conditional exemption from liability. In absolute privilege, the defendant is exempted from liability even when there is malice on his part but in case of qualified privilege, the defendant is exempted from liability only when there is no malice on his part. The complaints or statements made to the police which are not a part of any judicial proceedings and particularly when the matters would go to Court are not governed by an absolute privilege; at the most the same can be covered under a qualified privilege. And in case of defence of qualified privilege, no cause of action for defamation would arise until the statement/complaint is held false by the competent Court/authority. Therefore, in the case of Imtiaz Ahmad (supra), the Hon'ble High Court has held that until and unless a competent Court holds that the complaint was false, no cause of action arises. But this finding of the Hon'ble Court could not be applied to each and every case of defamation where none of the general defences of defamation is available. As a general rule, the limitation for suit for damages on account of defamation is governed by Article 75 of Limitation Act, 1963 as per which the limitation starts from the date of publication of the libel. It is only in case of qualified privilege that the cause of CS No.11/15 Dr. Naipal Singh Vs. Raj Kumar Page 13 of 17 action to file such suit starts only when the competent Court/authority holds the statement/complaint of the defendant false (as held in case of Imtiaz Ahmad (supra)). In the present case, the complaints/letters dated 08.06.2013 and 12.07.2013 were written by the defendant to Returning Officer and the Administrator of the Society which is certainly not covered under the authorities as mentioned in para 10 of this order related to qualified privilege statements. Hence, the limitation in the present suit would be governed by Article 75 of Limitation Act, meaning thereby that the limitation in this case had started from the date of publication of the libel. Since the alleged defamatory statements were published on 08.06.2013 and 12.07.2013, so, the period of limitation of one year started from the said dates and ended at the most on 12.07.2014. But since the suit was filed on 05.03.2015, so clearly the same is time barred.
12. Now even if it is presumed that the qualified privilege is applicable in the present case and the limitation would have started as per the case-law of Imitaz Ahmad (supra), even then the present suit is barred by limitation, as the order on the said complaints/letters of the defendant was passed on CS No.11/15 Dr. Naipal Singh Vs. Raj Kumar Page 14 of 17 01.10.2013 by the Administrator and the limitation would have started running from that day, if not earlier. If limitation period is calculated from this date, even then the same expired on 01.10.2014 whereas the present suit was filed on 05.03.2015. The plaintiff has contended that the limitation has started running from the date when the elections were conducted on 09.03.2014 by the Returning Officer after notifying the list of valid nominations on 26.02.2014, as it was the order of the competent authority i.e. the Returning Officer who had permitted him to contest the election by holding all complaints against him as false and frivolous. But I do not find any merit in his contention. There is no reference of the complaint of the defendant in the order dated 26.02.2014 from which it could be inferred that the complaint of the defendant was finally held to be false on that date, rather it is clear from the order dated 01.10.2013 that the complaints of the defendant were effectively dealt with and disposed of vide said order i.e. dated 01.10.2013. In order to substantiate his contention, the plaintiff has placed reliance upon the case-law titled as Ashraf Kokkur Vs. K.V. Abdul Khader, AIR 2015 SC 147. Though there is no dispute with respect to the proposition of law laid down in the CS No.11/15 Dr. Naipal Singh Vs. Raj Kumar Page 15 of 17 above-said authority, but every case has its own facts and circumstances and the ratio of law laid down in a particular authority is to be applied according to the peculiar facts and circumstances of that case. The facts as well as point of consideration of this case is different from the facts and point of consideration of the above-said authority. In the said case-law, the respondent was disqualified under Article 191(1)(a) of the Constitution of India from contesting election, since he was holding the post of Chairperson of the Kerala State Wakf Board and it was held by the Hon'ble Supreme Court that the question that whether the Chairperson of the Kerala Wakf Board was an office of profit or not, was a triable issue and the petition could not have been rejected under O.7 R.11 CPC. Since the facts and point of consideration in the said case-law was entirely different from the present case, so the same is not going to render any help to the plaintiff. The contention of the plaintiff that the limitation started from the date of holding of election is totally devoid of merits and hence rejected. Thus, the limitation for filing this case had started running from 01.10.2013, if not earlier, and even from this date the suit is barred by limitation as it was filed after the expiry of limitation period of one year. CS No.11/15 Dr. Naipal Singh Vs. Raj Kumar Page 16 of 17
13. Thus, it is clear from the aforesaid analysis that the present suit is hopelessly barred by limitation. Therefore, the application of the defendant U/O.7 R.11 CPC is allowed and the Plaint is rejected being time barred.
14. Decree-sheet be prepared. File be consigned to Record Room.
(Announced in open Court on 25.05.2016) (Navita Kumari Bagha) ADJ-01, South District, Saket Courts, New Delhi CS No.11/15 Dr. Naipal Singh Vs. Raj Kumar Page 17 of 17 CS No.11/15 Dr. Naipal Singh Vs. Raj Kumar 25.05.2016 Present: None.
Vide separate order, the application of the defendant U/O.7 R.11 CPC is allowed and Plaint is rejected being time barred. Decreesheet be prepared. File be consigned to the Record Room.
(Navita Kumari Bagha) ADJ01 (South), New Delhi.
25.05.2016(Babli) CS No.11/15 Dr. Naipal Singh Vs. Raj Kumar