Bangalore District Court
Sri. A. Mallikarjun vs Sri. Suresh Babu on 11 February, 2015
IN THE COURT OF THE VIII ADDL. CITY CIVIL &
SESSIONS JUDGE(CCH-15), BENGALURU CITY
DATED THIS THE 4TH DAY OF JUNE, 2014
PRESENT:
SHRI.MASTER R.K.G.M.M. MAHASWAMIJI,
M.A., LL.B.,
VIII Additional City Civil & Sessions Judge,
Bengaluru.
ORIGINAL SUIT NO. 810/2010
PLAINTIFF: SRI. A. MALLIKARJUN, M.A. B.Ed.,
S/o. A. Basappa,
Aged about 44 years,
Working as Teacher (K.V.S.),
R/at No.1562, 2nd Cross,
Suggappa Layout, Gandhinagar
Extension,
Yelahanka,
Bengaluru-560 064.
(By S. Basavaraj Poojar,
Advocate)
/VS/
DEFENDANT: SRI. SURESH BABU,
S/o D. Ramachandraiah
Aged about 57 years,
Principal,
Kendriya Vidyalaya,
Ponda,
Goa.
2
O.S.810/2010
(By Sri. Vishnu Bhat, Advocate)
Date of institution of the 04.02.2010
suit:
Nature of suit: Suit for damages for
defamation
Date of commencement of -
Recording the evidence:
Date on which the judgment 04.06.2014
Was pronounced:
Total Duration : 4-Years, 4-Months & 0-Days.
*****
ORDER ON (PRELIMINARY) ISSUE DTD. 28.02.2014
The plaintiff has filed this suit against the defendant to
direct the defendant not to make any future representations
or other propaganda defaming the plaintiff and his
reputation in the society and further to direct the defendant
to pay a sum of Rs.3,50,000/- for having defamed the
plaintiff i.e. his reputation in the society amongst his
co-workers, staff, employees and police and for further
direction to the defendant to submit an unconditional
apology with cost.
3
O.S.810/2010
2. The case of the plaintiff in brief is as under :
It is averred that the Plaintiff is a teacher in Kendriya
Vidyalaya, Bangalore and he has put up unblemished
service in the said Institution. On certain false complaints
by some of the staff members alleging that plaintiff has lent
them money and receiving interest, the defendant has sent a
confidential letter dtd. 26.10.2007 to S. Vijaykumaran, Asst.
Commissioner, Kendriya Vidyalaya Sangatana, Bangalore
alleging that the plaintiff is in habit of lending money to others
for interest, initially at the rate of 2% and subsequently 5% per
Rs.100/- and that four employees of Vidyalaya had
approached him for want of money and once he got
transferred to Yelahanka, employees did not pay him interest
and plaintiff approached the court by filing blank stamped
paper and white papers and the defendant has also given
names of said four employees. In the course of representation,
the defendant has even made allegations against the plaintiff
that plaintiff has purchased both the lawyers of parties and
agreed to pay 20% of settlement amount.
This fact came to the knowledge of plaintiff unofficially
and it is too much on the part of defendant to put in writing
officially seeking action against the plaintiff without knowing
the truth of transactions.
4
O.S.810/2010
Further, the defendant has made allegation stating
that plaintiff has 2nd wife, who is working in Kendriya
Vidyalaya at Yelahanka Branch and he has been wantonly
transferred to Kendriya Vidyalaya, Okha, Gujrat State from
Yelahanka Branch.
It is further averred that said imputation made by the
defendant has caused severe mental agony and
disreputation not only in the society but also before the
colleagues particularly, who have started looking down at
plaintiff and plaintiff has been undergoing trauma treatment
in NIMHANS, at Bangalore.
It is pleaded that the plaintiff has lodged complaint
before Asst. Commissioner, K.V.S., Bangalore, but he has
failed to take action against the defendant. As such, the
plaintiff has constrained to file another representation
through proper channel to the Commissioner, K.V.S., New
Delhi, but no action was taken against the defendant.
The defendant without making investigation into the
matter, sent letter dtd. 26.10.2007 to the Higher officials
making highly defamatory allegations. The plaintiff as a
5
O.S.810/2010
power of attorney holder filed suits for recovery of amounts
due from the borrowers on behalf of his mother.
On account of said defamatory allegations, the plaintiff
involved in severe health problem. The cause of action arose
in the month of October 2007.
Therefore, the plaintiff has constrained to file this suit
against the defendant.
3. On receipt of suit summons, the defendant
entered appearance through his counsel and filed the
written statements contending inter alia as under :
4. The defendant has denied the all the plaint
averments except specifically admitted.
It is contended that the plaint is false, frivolous and
vexatious and not maintainable in law. The defendant is
working as principal at present at Goa.
He stated that it is true that he has sent a written
report to Asst. Commissioner, K.V.S., Bangalore on
26.10.2007 as a Controlling authority of all the teachers,
based on written complaint given by three staff members
i.e. G. Suresh, Chinnatirupati, Chandrashekar, Rajanna.
6
O.S.810/2010
Wherefore, the defendant has prayed to dismiss the
suit with exemplary cost.
5. On perusal of plaint of the plaintiff, I find that it
is necessary to frame preliminary issue regarding
limitation for consideration and decision: it is as under :
PRELIMINARY ISSUE
1. Whether this suit is barred by law of
limitation as per plaint averments?
Thereafter, I heard on Preliminary issue regarding
maintainability of the suit and perused relevant documents
on record.
6. My findings on the aforesaid preliminary issue No.1
is as under:
Preliminary issue No.1 - Affirmative
(Suit is barred by time and
not maintainable)
As per final order for the following:
REASONS
7
O.S.810/2010
7. Preliminary issue No.1: In this case, in support of
the Preliminary issue, the defendant' counsel urged that this
suit is not maintainable, vexatious and frivolous and it is
barred by time.
8. On reading of the plaint, it is seen that the
plaintiff has filed this suit only 04.02.2010, but the letter is
dtd. 26.10.2007, which is alleged to be contained defamatory
imputations against the plaintiff. The law of Limitation Act,
prescribes one year to file a suit for damages for defamation
from the date of publication of such defamatory statement.
9. At this juncture, it is useful to extract Article 75 of
Limitation Act, 1963, which reads as under
Description of suit Period of Time from which
limitation period begins to run
75. For Compensation One year When the libel is
for libel published.
From the supra noted provision, it is manifestly clear
that there is one year limitation for compensation for libel
and the period of limitation start to run from the date of
publication of said libel.
8
O.S.810/2010
10. In this instant case, it is more than one year from
the date of publication of alleged libel or written allegations.
Publishing is meant by knowing the written allegations
by third persons or knowledge of third person regarding
libel/written allegations. Therefore, the date of confidential
letter dtd.26.10.2007 is to be taken into account to consider
the date of publication.
As such, this suit is beyond the period of limitation.
Hence it is barred by law.
11. In this context, it is profitable to refer a decision
reported in 2007 AIR SCW 3456 in between Hardesh Ores
Pvt. Ltd. Vs. Hede & Co. with Sociedade de Fomento Industrial
Pvt. Ltd., Vs. M/s.Hede & Co., Wherein the Hon'ble Apex
Court of India is held that
(A) Civil P.C. (5 of 1908), O.7, R.11 - Rejection of
plaint - Suit to enforce negative covenant in
agreement -Suit dismissed as barred by limitation
- Appeal against - Question whether suit
agreement required registration cannot be gone
into.
9
O.S.810/2010
(B) O.7 Rule 11 of CPC - Rejection of plaint -
barred by law - law includes law of limitation.
It is held at para-21 that "the language of order
7 Rule 11 CPC is quite clear and unambiguous.
The plaint can be reject on the ground of limitation
only where the suit appears from the statement in
the plaint to be barred by any law. The law within
the meaning of clause(D) of order 7, Rule 11 must
include the law of limitation as well.
It is well settled that whether a plaint discloses a
cause of action is essentially a question of fact
but whether it does or does not must be found out
from reading the plaint itself. For the said
purpose the averments made in the plaint in their
entirety must be held to be correct. The test is
whether averments made in the plaint if taken to
be correct in their entirety a decree would passed.
The averments made in the plaint as whole have
to be seen to find out whether clause (D) Rule
11(d) Order 7 is applicable.
At para 32 of the judgment it is held that - We
are of the view that the respondent is right in
contending that enforcement of the negative
covenants presupposes the existence of a
10
O.S.810/2010
subsisting agreement. As noticed earlier, the law
in well settled that the renewal of an agreement or
lease requires execution of a document in
accordance with law evidencing the renewal. The
grant of renewal is also a fresh grant. In the
instant case, the appellant-plaintiff did exercise
their option and claimed renewal. The
respondents denied their right to claim renewal in
express termed and also unequivocally stated
that the agreement did not stand renewed as
contended by the appellants. Having regard to
these facts it must be held that a cause of
action accrued to the appellant-plaintiff
when their right of renewal was denied by
the respondents. This happened in December,
2001 and, therefore, within three years from
that date they ought have taken appropriate
proceedings to get their right of renewal
declared and enforced by a court of law
and/or to get a declaration that the agreement
stood renewed for a further period of 5 years
upon the appellants' exercising their option to
claim renewal under the original agreement. The
appellants-plaintiffs have failed to do so.
However, the plaint proceed on the assumption
that the original agreement stood renewed
11
O.S.810/2010
including the negative covenants contained in
clauses 15 and 20 of the original agreement which
authorised only the appellants to extract ore from
the mine with an obligation cast on the
respondents-defendants not to interfere with the
enjoyment of their rights under the agreement.
In the absence of a document renew the original
agreement for a further period of 5 years and in
the absence of any declaration from a court of law
there is no question of enforcing the clauses of
agreement. Having not done so they cannot be
permitted to camouflage the real issue and claim
an order of injunction without establishing the
subsistence of a valid agreement. In the instant
suit as well they could have sought a declaration
that the agreement stood renewed automatically
but such a claim would have been barred by
limitation. Since more than 3 years had lapsed
after a categoric denial of their right claiming
renewal or automatic renewal. Therefore we are
satisfied that trial court as well as High Court
were justified in holding that plaint deserved to
be rejected under Order 7 Rule 11 of CPC
since suit appeared from the statements in
12
O.S.810/2010
the plaint to be barred by the law of
limitation.
12. At this juncture, it is also relevant to mention
that the remarks made by superior officer regarding
conduct of his subordinate or privileged remarks and not
covered by defamation.
13. In this regard, it is helpful to refer a ruling in
Radhakrishen Pratap singh Vs. H.S. Bates
(MANU/UP/0131/1953), wherein, the Hon'ble Allahabad
High Court is held as under :
"The cause of action for defamation arises only
when others get to know of the defamation of a
person - merely hurting of feelings of a person is
not defamation. The remarks made by a superior
officer regarding conduct of his subordinate are
privileged remarks - not covered under defamation
unless intentions are bad - Publication of
defamatory remarks about working of a
subordinate made by a superior officer are
privileged remarks and hence not actionable -
Defamation of rival - by retaliating not to be
allowed - in order to justify the defamatory
13
O.S.810/2010
remarks, it is the duty of defendant to prove the
truth behind the defamatory remarks by leading
evidence.
It is further held that the essence of a cause of
action for defamation lies in the fact that the person
defamed is lowered in the estimation of others. If
none else has heard the defamatory remarks, no
suit is maintainable for damages for defamation. It
is immaterial that plaintiff's feeling's were hurt by
the said remarks - The superior officer had a
qualified privilege to comment on the conduct of his
subordinate.
If the defamatory remarks are made in performance
of their duty or it is on official Act, naturally, it must
necessarily pass through the hands of
subordinates. Publication to such subordinates is
always privileged.
In this regard, the following passage has been
reproduced from Gatley on Libel and Slander Edn.
3 288:
Defamatory but privileged words do not lose their
privilege by being dictated to a typist or copying
clerk in the reasonable and ordinary course of
business. If a business communication is
14
O.S.810/2010
privileged, as being made on a privileged occasion,
the privilege covers all the incidents of the
transmission and treatment of that communication
which are in accordance with reasonable and usual
course of business for a businessman to dictate his
business letters to a typist even though these
letters contain statements defamatory of third
person.
If the remarks were through, action will fail even if
the publication was malicious but plea of
justification must always be raised in the written
statement. Not only should justification be
specifically pleaded but should be strictly proved
(C.M.G. Ogivie. Vs. Punjab Akhbarat and Press Co.
Ltd., Lahore A.I.R. 1929 Lah 561.)
But it must be remembered that the onus to prove
justification always lies on the defendant; he has to
lead evidence to prove that defamatory statements
made about the plaintiff were true.
From the principles laid down in the supra noted
authorities, it is crystal clear that if the defamatory remarks
are made by the superior officer about the conduct of his
subordinate, it is qualified privilege and it is not actionable;
15
O.S.810/2010
further as plaint averments, this suit is barred by law of
limitation. There it should be rejected at threshold itself.
14. I find no force or substance in the argument of
learned counsel appearing for plaintiff.
15. In view of aforesaid reasons and observations made
in the light of rulings and relevant provisions of law, under
the given set of facts and circumstances of this case, I am of
the considered view and constrained to hold that this suit is
hopelessly barred as per Article 75 of law of limitation, 1963.
16. Hence, I hold and record my findings on this
preliminary issue No.1 in Affirmative (as barred by law).
Accordingly, I proceed to pass the following:
ORDER
In the result, therefore, the plaint filed by the plaintiff U/O VII Rule 1 & 2 R/W Sec. 26 of CPC is hereby rejected as barred by time or law of limitation; along with this, all the I.A's if any, filed/pending are also disposed off accordingly.
16O.S.810/2010 ii. Consequently, this suit filed by the plaintiff is also liable to be dismissed; accordingly it is dismissed as barred by law.
iii. Under the facts and circumstances of present case, no order as to costs.
iv. Draw decree accordingly.
(Dictated to the Stenographer, directly over computer, typed matter, corrected and then pronounced by me in open Court on this the 4th day of June, 2014.) (MASTER R.K.G.M.M. MAHASWAMIJI) VIII Addl. City Civil & Sessions Judge, Bengaluru.
17O.S.810/2010 04.06.2014 P- BPS D - VB For Orders (The following order is pronounced in the open court vide separate) ORDER In the result, therefore, the plaint filed by the plaintiff U/O VII Rule 1 & 2 R/W Sec. 26 of CPC is hereby rejected as barred by time or law of limitation; along with this, all the I.A's if any, filed/pending are also disposed off accordingly.
ii. Consequently, this suit filed by the plaintiff is also liable to be dismissed; accordingly it is dismissed as barred by law.
iii. Under the facts and circumstances of present case, no order as to costs.
iv. Draw decree accordingly.
VIII Additional City Civil and 18 O.S.810/2010 Sessions Judge, Bengaluru.