Himachal Pradesh High Court
Parmodh Sharma vs Onkar Singh Thakur on 31 May, 2019
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A. No. 521/2006 Reserved on: 29.5.2019 Decided on: 31.5.2019 .
Parmodh Sharma ...Appellant
Versus
Onkar Singh Thakur ....Respondent
Coram
Whether approved for reporting ?1
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
yes For the appellant: Mr. B. S. Ranjan and Mr. H. C. Sharma, Advocates.
For the respondent: Mr. Vinod Kumar Gupta, Advocate.
Tarlok Singh Chauhan, Judge Denigratio alienae famae, in the Latin of the medieval schoolmen. A good name is better than great riches.
2 Since this case relates to question of defamation, therefore, this court would also like to quote from the famous othello by Shakespeare book Act II, Scene 3 pp. 167:
"Good name in man and woman, dear my lord, 1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes ::: Downloaded on - 31/05/2019 21:59:51 :::HCHP 2 Is the immediate jewel of their souls:
Who steals my purse, steals trash; 'tis something, nothing;
.
'T was mine, 'tis his, and has been slave to thousands;
But he that filches from me my good name, Robs me of that which not enriches him, And makes me poor indeed."
3 Aggrieved by the judgment and decree, dated, 26.8.2006, passed by the learned first appellate court, whereby suit filed by the plaintiff/respondent for defamation came to be decreed, the defendant/appellant has filed the instant appeal.
The parties shall be referred to as the "plaintiff"
and "defendant".
4 Briefly stated the facts leading to filing of the present appeal are that the plaintiff filed a suit for recovery of Rs.2,00,000/ as damages on account of defamation against the defendant. It was averred that the plaintiff was posted as Additional Assistant Engineer, Investigation, Sub Division, Chirgaon. He was being held in high esteem by his superior authorities, staff serving under him, his colleagues and general public. He was known for his integrity and honest dealings in his public and official dealings. The plaintiff was ::: Downloaded on - 31/05/2019 21:59:51 :::HCHP 3 a religious man and used to take part in religious functions organized at various places at Rohru and Hatkoti as 'Bhajan .
Gayak' with out any charges. It was further averred that the defendant, who was owner of printing press known by the name and style of M/s Sharma Press Printing, Upper Bazaar was living in the adjoining building known as Bir Singh Building in Nagar Panchayat Office, Rohru and was immediate neighbour of the plaintiff. In the month of June 2004, the defendant went to the shop of one Babu Ram Sharma, who also lived in Bir Singh building at Rohru, and told him in presence of other persons present in the shop that his wife was having illicit relations with the plaintiff. On acquiring knowledge about the same, the plaintiff was not only astonished but became depressed. The intention of the the defendant to make such false allegations against the plaintiff was to hamper his reputation in the estimation of the general public, relatives, staff members, subordinates and neighbours and thereafter every body in the neighbourhood started looking on the plaintiff with suspicious and disgraceful eyes which caused mental agony as well as physical sufferings to the plaintiff. Hence, the suit.
::: Downloaded on - 31/05/2019 21:59:51 :::HCHP 45 The suit was resisted and contested by the defendant by filing written statement, wherein preliminary .
objections regarding locus standi and the plaint being liable to be rejected under Order 7 Rule 11 CPC were taken. It was averred that the defendant had not conveyed anything to Babu Ram regarding illicit relations of the plaintiff with his wife. As a matter of fact, the defendant and some other persons had sent a complaint against the plaintiff to different authorities and as a counter blast, the plaintiff in connivance with Babu Ram and his wife had concocted a false story and instituted the suit against the defendant.
6 The plaintiff filed replication to the written statement, wherein averments made in the written statement were denied and the averments made in the plaint were re affirmed and reasserted.
7 On the pleadings of the parties, the learned trial court on 25.11.2004 framed the following issues:
1. Whether the plaintiff is entitled for the recovery of amount, as alleged ? OPP
2. Whether the plaintiff has no locus standi to file the present suit? OPP
3. Whether the plaintiff has no cause of action against the defendant? OPD ::: Downloaded on - 31/05/2019 21:59:51 :::HCHP 5
4. Relief.
8 After recording the evidence and evaluating the .
same, the learned trial court vide judgment and decree dated 30.3.2005 dismissed the suit filed by the plaintiff. However, in appeal preferred by the plaintiff, the suit was decreed by the learned first appellate court vide judgment and decree dated 26.8.2006, constraining the defendant to file the instant appeal.
9 On 30.7.2007, the appeal was admitted on the following substantial question of law:
1. Whether the judgment of the learned Appellate Court can be sustained when there is no evidence on the record to show that the reputation of the plaintiff had in any manner harmed/damaged,with casts of omission and commission, if any, relatable to the appellant?
10 I have heard the learned counsel for the parties and have also gone through the records of the case carefully.
11 Law of defamation is based on the principle that every man has a right to have his reputation preserved inviolate. The wrong of defamation may be committed either ::: Downloaded on - 31/05/2019 21:59:51 :::HCHP 6 by way of writing, which is referred to as "Libel" or by way of speech, which is referred to as "Slander".
.
12 Under English Law, it must be proved that the words complained off are
1) False;
2) defamatory;
3) published by the defendant, and in addition to that
4) some special damage resulted from their use. 13 Under Indian Law, the common law rule that slander is not actionable per se has not been followed. Both libel and slander are criminal offences under Section 499 of Indian Penal code and both are actionable in civil court without proof of special damage.
14 Winfield on torts gives the following definition:
"Defamation is the publication of statement which tends to lower a person in the estimation of right thinking members of society generally or which tends to make them shun or avoid that person.
15 A statement which disparages a man in his reputation in relation to his office, profession, calling trade or business may be defamatory, e.g. the imputation of some quality which would be detrimental to the absence of some quality which is essential to the successful carrying on of his ::: Downloaded on - 31/05/2019 21:59:51 :::HCHP 7 office, trade or profession, such as want of ability, incompetence and, of course, dishonest or fraudulent .
conduct. Injurious statement which do not reflect on a person's reputation (e.g., that he has ceased to trade) are not defamatory but may be actionable if made maliciously.
16 The addition according to the author, of "Tending to shun or avoid" is necessary, for false imputation against a person of insanity or insolvency is defamation though instead of exciting hatred and contempt, or ridicule, it would rouse pity and sympathy in the minds of reasonable man who would like to shun his society. The standard is of an ordinary citizen, an average man or a reasonable man and not of a touchy or hasty or cynical, as laid down by Lord Atkin, "would the words tend lower the plaintiff in the estimation of rightthinking members of society generally? We have to consider the personclass of persons whose reaction to the publication is the test of the wrongful character of the words used".
17 Lord Hailsham remarked if the plaintiff proves that the statement discredit him to only one special class it is ::: Downloaded on - 31/05/2019 21:59:51 :::HCHP 8 not defamatory unless a reasonable man in general takes the same view.
.
18 In the book The Law of Defamation, by Richard O'Sullivan, Q.C. and Roland Brown, it is stated thus:
"Defamation may be broadly defined as a false statement of which the tendency is to disparage the good name or reputation of another person."
19 Park, B. said of defamation "A statement made without just cause or excuse which is calculated to injure the reputation of another by exposing him to hatred, ridicule, or contempt."
20 Fraser on Libel and Slander defined it as "a defamatory statement is a statement concerning any person which exposes him to hatred, ridicule or contempt or which causes him to be shunned or avoided or which has a tendency to injure him in his office, profession or trade."
21 This definition was approved by McCardie, J., in Myroff v. Sleight, (1921) 37 T.L.R. 646 at p. 647.
::: Downloaded on - 31/05/2019 21:59:51 :::HCHP 922 Scrutton, L. J., observed: "I myself have always preferred the language which Mr. Justice Cave has used: a .
false statement about a man to his discredit."
23 The essence of the offence of defamation consists in its tendency to cause that description of pain, which is felt by a person who knows himself to be the object of the unfavourable sentiments of his fellow creatures and those inconveniences to which a person, who is the object of such unfavourable sentiments, is exposed. The object of the penal law respecting libel is to reconcile freedom of writing with the right of all men of unblemished character to keep inviolate the esteem and consideration of their fellowmen, to secure the character of citizens from malicious calumny, and at the same time to respect the right of every man to express the truth when he does so without hatred or malice, and to induce individuals to refer the cognizance and reparation of injuries and insults committed against them to the law, instead of making themselves the avengers of attacks upon their characters.
::: Downloaded on - 31/05/2019 21:59:51 :::HCHP 1024 Cave, J., observed:
"The law recognizes in every man a right to have the .
estimation in which he stands in the opinion of others unaffected by false statements to his discredit."
25 According to Clark and Lindsell:
"Reputation depends on opinion, and opinion in the main on the communication of thought and information from one man to another. He, therefore, who directly communicates to the mind of another matter untrue and likely in the natural course of things substantially to disparage the reputation of a third person is, on the face of it, guilty of a legal wrong, for which the remedy is an action of defamation - a remedy, however, by no means commensurate with the damage, that in every case may arise, but limited by many considerations of convenience and public policy."
26 The question whether an imputation or accusation is defamatory or not is a mixed question of law and fact.
27 To succeed in a claim for defamation be it based on libel or slander, the plaintiff has to establish the nature of the imputations; the person or person to whom they were ::: Downloaded on - 31/05/2019 21:59:51 :::HCHP 11 addressed, or spoken, and the likelihood of injury caused to his or its reputation.
.
28 In an action for defamation, the wrongful act is damage to the plaintiff's reputation. The injuries that he sustains may be classified under two heads:
(i) the consequences of the attitude adopted to him by other persons as a result of the diminution of the esteem in which they hold him because of the defamatory statement, and
(ii) the grief or annoyance caused by the defamatory statement to the plaintiff himself.
29 It is of the essence of defamation that the words tend to be injurious to a person's character or reputation.
The standard to be applied in determining whether a statement is defamatory or not is that of a right minded citizen, a man of fair average intelligence. The standard to be applied is not that of a special class of persons whose values are not shared or approved by fairmended members of the society generally. An imputation is defamatory, if it exposes one to disgrace and humiliation, ridicule or contempt.
::: Downloaded on - 31/05/2019 21:59:51 :::HCHP 1230 It is now well settled law that in the following cases, slander is actionable per se without proof of special .
damages:
a) An imputation that the plaintiff has committed a criminal offence;
b) An imputation that the plaintiff suffers from an existing contagious or infectious disease;
c) An imputation of unchastity against a woman;
d) An imputation against the plaintiff in the way of his business or office.
(See Salmond and Heuston on the law of torts' 12th edition by R.F.V. Heuston and R.A.Buckley, page 192) 31 It is not necessary to prove that the plaintiff directly or indirectly suffered from the scandalous imputations. Proof of intention, knowledge or reasonable belief on the part of the defendant regarding the possible harm to reputation is sufficient. Whether harm was actually caused or not is immaterial. Even the intention to cause harm to the reputation is not a necessary factor to be proved.
It is enough, if it is shown that the defendant had reason to ::: Downloaded on - 31/05/2019 21:59:51 :::HCHP 13 believe that the imputations are likely to harm the reputation.
.
32 Freedom of speech and expression is not unfettered to allow defamatory statements injuring reputation and is subject to a reasonable restriction on freedom of speech and expression.
33In Kiran Bedi and Jinder Singh vs. Committee of Inquiry, AIR 1989 SC 714, the Hon'ble Supreme Court held that loss of reputation is worse than death.
34 In State of Bihar vs. Lal Krishna Advani, AIR 2003 SC 3357, the Hon'ble Supreme Court held as under: "Right to reputation is a facet of right to life of a citizen under Article 21 of the Constitution of India and is entitled to have and preserve it."
35 Now, adverting to the facts after bearing in mind the aforesaid exposition of law, it would be noticed that case of the plaintiff was that he was being held in high esteem by his superior authorities, staff serving under him as well as his colleagues and general public. Not only this, he was known for his integrity and honest public and official ::: Downloaded on - 31/05/2019 21:59:51 :::HCHP 14 dealings. The plaintiff was a religious man and used to take part in religious functions organized at various places at .
Rohru and Hatkoti as 'Bhajan Gayak' without any charges.
The defendant, who was the owner of printing press known by the name and style of M/s Sharma Printing Press and was living in the adjoining building known as Bir Singh Building, had defamed him as in the month of June, 2004, the defendant went to the shop of one Babu Ram Sharma, who also lived in Bir Singh Building and told him that his wife was having illicit relations with the plaintiff. This was stated in the presence of some persons present in the shop. The plaintiff on acquiring knowledge about the same, was not only astonished, but became depressed and hence, the suit.
36 In this background, whether there has been loss of reputation of the plaintiff or not, one needs to understand the meaning of reputation.
37 Even though, this word has not been defined, however the same came up for consideration before the Patna High Court in Sardar Amar Singh vs. K. S. Badalia, (1961) 2 Cr. L.J. 693, wherein it was held as under: ::: Downloaded on - 31/05/2019 21:59:51 :::HCHP 15 "Thus, reputation has been used to denote the estimation in which a person is held by others, the character imputed to him in the community or the .
society to which he belongs. A person may not possess property, but still he have have a good character and respectability."
38 As observed above, the standard to be applied in determining whether a statement is defamatory or not is that not shared r to of a right minded citizen, a man of fair average intelligence and not that of a special class of persons whose values are or approved by fairmended members of the society generally. An imputation is defamatory, if it exposes one to disgrace and humiliation, ridicule or contempt. There must be some evidence to show that the right minded citizens and persons of fair average intelligence,after coming to know about the slander or libel as the case may be, had avoided or shunned the company of the plaintiff and his reputation in their eyes had been lowered and it has to be proved that nature of the statement was such that it had tendency to excite against the plaintiff the adverse opinions or feelings of other persons and the plaintiff was brought into ridicule or contempt.
::: Downloaded on - 31/05/2019 21:59:51 :::HCHP 1639 Thus, it is not the individual's own opinion of having been defamed which matters, but it is the perspective .
of the right thinking members of the society, reasonable people of time and place, which matters. The test of defamatory nature of a statement, therefore, is its tendency to excite against the plaintiff by the the adverse opinions or feelings of other persons. The statement is judged by the standard of opinion, which prevails among ordinary, right thinking members of society, reasonable people of time and place, and not the opinion, which prevailed in another time.
Hence, the test is an objective one.
40 Now, reverting back to the facts of the case, it would be noticed that even though the plaintiff in addition to himself examined as many as seven witnesses including the lady with whom he was held to have adulterous relationship, her husband, his colleagues and subordinates and even other members of Bhajan Mandal, but surprisingly, none of the witnesses have deposed about defamation i.e. reputation of the plaintiff being lowered in their esteem.
41 What is penable is an offence, which affects a person's reputation and not a person's estimation of himself ::: Downloaded on - 31/05/2019 21:59:51 :::HCHP 17 or his reputation. The estimation has to be in which a person is held by others, character imputed to him in the community .
in which he lives because reputation is the esteem in which a person is held by the community and, therefore, harm of reputation must then be an injury which esteem suffers in the estimation of others.
42 In Imtiaz Ahmad vs. Durdana Zamir, 2010 (8) RCR (Cri) 1513, it was held by the Hon'ble Delhi High Court that the reputation of a man primarily and basically is the opinion of friends, relatives, acquittance or general public about a man. It is his esteem in the eyes of others. It shall be apposite to refer to the necessary observations in para 7, which reads thus:
"7. The defamation is a wrong done by a person to another's reputation. Since, it is considered that a man's reputation, in a way, is his property and reputation may be considered to be more valuable than any other form of property. Reputation of a man primarily and basically is the opinion of friends, relatives, acquittance or general public about a man. It is his esteem in the eyes of others. The reputation spread by communication of thought and information from one to another. Where a person alleges that his reputation has been damaged, it only means he has ::: Downloaded on - 31/05/2019 21:59:51 :::HCHP 18 been lowered in the eyes of right thinking persons of the society or his friends/relatives. It is not enough for a person to sue for words which merely injure his .
feeling or cause annoyance to him. Injury to feeling of a man cannot be made a basis for claiming of damages on the ground of defamation. Thus, the words must be such which prejudice a man's reputation and are so offensive so as to lower a man's dignity in the eyes of others. Insult in itself is not a cause of action for damages on the ground of defamation."
43 Thus, on the basis of the evidence that has come on record, it is difficult to hold that the image or reputation of the plaintiff was tarnished or lowered in the society.
44 The learned trial court had dismissed the suit on the ground that neither the lady with home the plaintiff was alleged to have adulterous relationship nor her husband had filed a separate suit for defamation, which finding obviously could not have sustained and is, therefore, rightly reversed by the learned first appellate court.
45 However, the learned first appellate court has not at all considered the fact that none of the plaintiff's witnesses have deposed regarding the reputation of the plaintiff being harmed or lowered in their estimation.
::: Downloaded on - 31/05/2019 21:59:51 :::HCHP 1946 Therefore, once there is no proof of reputation of the plaintiff being tarnished or lowered in the society, .
obviously then the suit as filed by him could not have been decreed by the learned first appellate court. The substantial question of law is answered accordingly.
47 In view of aforesaid discussion, I find merit in this appeal and the same is accordingly allowed.
Consequently, the impugned judgment and decree passed by the learned first appellate court is set aside and the judgment and decree passed by the learned trial court is restored. The parties are left to bear their own costs. Pending application(s), if any, also stands disposed of.
31.5.2019 (Tarlok Singh Chauhan)
(pankaj) Judge
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