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That such abusive and insulting language, unless excused or protected by any other rule of law, is in itself a substantive cause of action and a civil injury, apart from defamation and that malice is an element of liability for abusive and insulting language, and that such malice will be presumed or inferred, unless the contrary is shown.

5. In that case a witness referring to the plaintiff stated. "Iske ma bap men faraq hai; aur is wajah se khana pina nahin hai." The trial Court had dismissed the suit but the District Judge on appeal held that the words were actionable and remanded the case for the decision of the remaining issues. The matter came to this Court in appeal and one of the learned Judges Broadhurst J. held that assuming that the expression attributed to the defendant was used it was privileged because the defendant was a witness and as the statement complained of was made by the witness while deposing in the witness-box it was absolutely privileged. Mahmud J. however took a different view and upheld the order of remand passed by the learned District Judge. In the result the appeal was dismissed and the order of the District Judge was upheld. Mahmud J. followed the view of Turner C.J. expressed in Parvathi v. Mannar (1885) 8 Mad. 175. In that case it was held that the rule of English law which prohibits, except in certain cases, an action for oral defamation unless special damage is alleged, being founded on no reasonable basis, should not be adopted by the Courts of British India. In Harakh Chand v. Ganga Prasad Rai (1925) 12 A.I.R. All. 371 Lindsay and Kanhaiya Lal JJ. observed: