Delhi District Court
Harender Mudgal vs Ajit Kar on 28 January, 2023
IN THE COURT OF MOHINDER VIRAT
ADDITIONAL DISTRICT JUDGE - 05 (SOUTHWEST)
DWARKA COURTS : NEW DELHI
Civil Suit No: 515190/2016
CNR No. DLSW01 0000022009
IN THE MATTER OF:
1. Harender Mudgal
2. Sangeeta Mudgal
W/o Shri Harender Mudgal
Both R/o 1186, Pocket3, Sector 19,
Dwarka, New Delhi110075 ....... Plaintiffs
VERSUS
Ajit Kar
Flat No. 1185, Pocket 3,
Sector19, Dwarka, New Delhi
Also at House No. 99 Ist Floor,
Satya Niketan, New Delhi ........Defendant
Suit for Recovery of damages
Date of filing of main suit : 08.07.2009
Arguments concluded on : 28.01.2023
Date of decision : 28.01.2023
Counterclaim No: 3/23
CNR No. DLSW010009972023
Ajit Kar
R/o House No. 99,
Satya Niketan, New Delhi .... Counterclaimant
Vs.
Suit no. 515190/2016
Harender Mudgal Vs. Ajit Kar page no. 1 of 28
1. Harender Mudgal
2. Sangeeta Mudgal
Both R/o 1186/1187, Pocket3,
Sector 19, Dwarka,
New Delhi110075 .... Noncounterclaimants
Counterclaim for Recovery of damages
Date of filing of counterclaim : 17.09.2009
Arguments concluded on : 28.01.2023
Date of decision : 28.01.2023
JUDGMENT
1. Vide this composite judgment I shall dispose of the present suit filed by the plaintiffs and counterclaim filed by the defendant wherein the parties to the suit/counter claim have prayed for recovery of damages incurred on account of defamation vice versa.
2. The main suit has been filed by the plaintiffs against the defendant for damages to the tune of Rs.19,00,000/ (Rupees Nineteen Lacs only) along with pendentlite and future interest @ 24% from the date of filing of this suit till its realization.
3. The case of the plaintiffs in brief is that the plaintiffs are law abiding citizen of India. The plaintiff no.1 has been academically a meritorious and distinction holder in his school and college and is an Engineer by profession who has been carrying on business as an authorized channel Suit no. 515190/2016 Harender Mudgal Vs. Ajit Kar page no. 2 of 28 partner of a Multinational Company, namely Ricoh India Ltd., having a turnover of more than 80 lac in the financial year 200607. Plaintiff no.1 is an income tax assessee and in the assessment year 200708, he filed Income Tax return of more than Rs.9 lacs and is also General Secretary of DEHS (Delhi Expandable Housing Society). The plaintiff no. 2 is wife of plaintiff no. 1 and is a graduate from Delhi University and is a housewife. The plaintiffs are residing in Flat No.1186, Pocket3, Sec19, Dwarka, New Delhi 110075.
4. The defendant is carrying on his business at Flat No. 1185, Pocket3, Sec19, Dwarka and is also residing at House No. 99, 1st Floor, Satya Niketan, New Delhi. The defendant made patently false, defamatory, slanderous allegation against the plaintiffs and circulated the same to the residents of Pocket3, Sec19, Dwarka and intentionally caused harm to the reputation and esteem of the plaintiffs.
5. The plaintiff no.2 was constructing her expandable Flat No. 1186 but the defendant in one way or other created hurdles in construction work of the house of the plaintiff's.
6. The defendant, on 30.06.2008 at about 18:00 hours, was taking photographs of Flat No. 1186 for complaining Suit no. 515190/2016 Harender Mudgal Vs. Ajit Kar page no. 3 of 28 to concerned authorities. The plaintiff no. 2 when objected, the defendant in fit of anger, pulled the hairs of the plaintiff no. 2 and pushed her on the floor and outraged her modesty. The plaintiff no.2 shouted and neighbours gathered, called the police and an FIR No. 414/2008 u/s 354 IPC was lodged in PS Dwarka on 01.07.2008 against the defendant. The material eye witnesses of the alleged incident were Sh. Kamal Singh, Sh. A.K. Yadav, Sh. S.K. Sinha and Sh. Attar Singh Meena.
7. Thereafter, the defendant interfered in the investigation and criminally intimidated the witnesses in the aforesaid FIR. Further, the defendant publicly used slander and libel against the plaintiffs and has defamed them and caused serious damage to their reputation.
8. On 25.07.2008, when the plaintiff no.1 returned from abroad, noticed a letter on the Notice Board of the Residents Welfare Association, Pocket3, Sec19, Dwarka, wherein the defendant inter alia has written, "If I never get scared for a simple false case made when a dirty woman vomits lies selling her chastity in the open market". In the last para of the said letter, the defendant has written, "If a husband uses his wife's chastity naked before the public falsely implicating the others then he may be termed half pimp even for his own wife who seeks client and if a woman voluntarily does so she is a half prostitute and I Suit no. 515190/2016 Harender Mudgal Vs. Ajit Kar page no. 4 of 28 know how to teach lesson to pimp and prostitute and their accomplices."
9. Further, in para2 under the subheading some evidence of litigation, the defendant has written "Recent absolute FIR no. 414/2008 under section 354 IPC PS Dwarka has been lodged on 01.07.2008, false imputations of lady owner of house no. 1186 against house owner house No. 1185, the applicant himself as her house and the complaint under section 156(3) Cr.P.C. is pending disposal in the court due to her husband faults and illegal acts (although the applicant is not worried for himself for he knows how to proceed against false informant) yet he is much worried for innocent khancha flat owners without knowledge of law how might not they be suffering facing such type of problems made by unchaste woman or tuning to other heinous offences.
10. The defendant further tried to intimidate witnesses and has also written on the notice board of the Residents Welfare Association of Pocket 3, Sector 19, Dwarka"He whoever stands false witness, I shall prosecute each and everyone.".
11. The defendant not only displayed the letter on the notice board of Resident Welfare Associate of PocketIII, Sector 19, Dwarka but also circulated the said letter by Suit no. 515190/2016 Harender Mudgal Vs. Ajit Kar page no. 5 of 28 post to the other residents of PocketIII, Sec19, Dwarka. The letter which was false and defamatory was published and circulated to the residents of pocket III, Sector 19, Dwarka with the sole object of maligning and scandalizing the image and status of the plaintiffs thereby causing serious harm to the reputation of the plaintiffs.
12. Plaintiff no.2 issued a legal notice dated 30.07.2008 to the defendant. The said notice was duly served on the defendant. While sending reply to said notice, defendant also sent legal notice to the plaintiff on 30.09.2008 wherein the defendant has used slander and libel against the plaintiffs.
13. The another notice dated 07.10.2008 was issued by the defendant to the material witnesses namely Kamal Singh, A.K.Yadav, Attar Singh Meena and Madhav Krishan of FIR no. 414, calling upon the witnesses to pay Rs.100/ to the defendant else legal action will be taken against them. In the para19 of the said legal notice, the defendant further intimated the material witnesses. It is stated that the legal notice dated 07.10.2008 is false, defamatory and malicious and was sent with the object of lowering the image of plaintiffs in the eyes of public. Various defamatory, malicious and false allegations have been made in the notices dated 06.07.2008, 30.09.2008 and 07.10.2008 by the defendant.
Suit no. 515190/2016Harender Mudgal Vs. Ajit Kar page no. 6 of 28
14. It is stated that the plaintiffs are high moral character persons and hold good reputation in the society. The aforesaid imputations are false without lawful justifications and with intent to discredit the plaintiffs. It is stated that out of malice, the defendant has further lodged complaints and frivolous suits against the plaintiffs and residents supporting the plaintiffs and criminally intimated the plaintiffs. He had filed complaint before the court of Sh.D.K.Sharma, Ld. MM and had himself issued a legal notice of that complaint to the plaintiffs. He had informed the plaintiffs over phone that plaintiffs will be arrested soon in that case. The defendant has also sent publication to Khancha Flat Owner and pasted the same on the notice board of RWA. The defendant also lodged complaint before Inspector Vigilance, District SouthWest in which plaintiffs were called for interrogation on 07.11.2008 and on other occasions.
It is further stated that the defendant has many times filed false and frivolous complaints/cases against the plaintiffs due to which the plaintiffs suffered mental pain, defamation and agony which cannot be compensated in terms of money. Still, considering the status of the defendant, the plaintiffs have quantified the damages for defamation as Rs.19 lacs. Hence, the present suit.
15. On receipt of summons of the suit, the defendant Suit no. 515190/2016 Harender Mudgal Vs. Ajit Kar page no. 7 of 28 appeared and filed an application under Order 8 Rule 1 CPC seeking condonation of delay in filing written statement, which was allowed vide order dated 17.09.2009 passed by Ld. Predecessor of this court. An application under Order 7 Rule 11 CPC alongwith counterclaim was also filed by the defendant. Vide order dated 31.10.2009 of Ld. Predecessor, application under Order 7 Rule 11 CPC of the defendant, was dismissed with cost.
16. The stand of the defendant in his written statement are as under:
(i) The plaintiffs have not disclosed any cause of action to file the present suit which is gross abuse of the process of court contrary to justice and public policy and hence, the defendant deserves damages and exemplary cost.
(ii) The plaintiff has approached this court on the issues which are purely executive decisions in which the courts should not interfere.
(iii)The suit of the plaintiff is hit by waiver of provision of order 8 Rule 6A CPC as the plaintiffs could have filed counterclaim in suit no. 03/08 tilted as Ajit Kar Vs. Harender Mudgal & Ors. or in suit 61/09 bearing title Ajit Kar Vs. Kamal Singh & Ors., filed by the defendant/ counterclaimant.
Suit no. 515190/2016Harender Mudgal Vs. Ajit Kar page no. 8 of 28
(iv)The suit is not maintainable under Order 7 Rule 11 (b,c & d) CPC, Order 7 Rule 7 CPC, Order 7 Rule 5 CPC, Order 6 Rule 9 and Order 14A, 15 & 16 CPC.
(v) Further, under Order 2 Rule 13 CPC, suit is bad for misjoinder for parties and hence, hit under Order 1 rule 10 CPC.
(vi) Suit for malicious prosecution is contrary to Article 72 of Limitation Act.
(vii) The defendant has never tried to trespass in any portion of plaintiff's property. The plaintiffs have deliberately and dishonestly used false, defamatory language harming the reputation of the defendant with willful design and in a vindictive fashions.
(viii) The suit is also hit by section 35A CPC as the claim of the plaintiffs is false and with malafide intentions.
17. Vide order dated 11.01.2010, following issues were framed by the Ld. Predecessor in the main suit: (1) Whether the suit is hit by Order 7 Rule 11 CPC and several other provisions of CPC as noted in preliminary objections of written statement?OPD (2) Whether the suit is bad for misjoinder of parties?OPD (3) Whether the suit is hit by Section 35 A of IPC?OPD Suit no. 515190/2016 Harender Mudgal Vs. Ajit Kar page no. 9 of 28 (4) Whether the suit is time barred?OPD (5) Whether the plaintiff has suffered any defamation and if yes, whether the plaintiff is entitled to a decree for recovery of Rs. 19 lacs alongwith interest @ 18% per annum as pendente lite and future interest as damages from the date of suit till the date of actual realization of the decreetal amount in favour of the plaintiff and against the defendant?OPP (vide order dated 03.02.2010 the onus was to be read as OPP in place of OPD)
18. Defendant has also filed counterclaim which has been registered separately and has relied on the documents filed alongwith the written statement in the main suit. Alongwith the counterclaim, an application u/s 151 CPC stating that the documents filed alongwith WS are the same documents to be taken up for the counterclaim.
Counterclaimant/defendant in his counterclaim has stated that cause of action for filing of the present suit arose on 07.07.2009 when the suit no. 80/09 was instituted by the plaintiffs against him. It is stated that the non counter claimants/plaintiffs have admitted their entrapment, imputed upon counterclaimant by lodging of FIR no.414/08 u/s 354 IPC. It is further stated that the main suit filed by the noncounter claimants/plaintiffs is false and frivolous. It is further stated that the counter claimant is a teacher having high social value and self esteem. It is further stated that copy of plaint and copy of turnover/income tax return of the plaintiff proves fraud, Suit no. 515190/2016 Harender Mudgal Vs. Ajit Kar page no. 10 of 28 falsehood and malice and their filing in court with certification is contrary to law. Counter claimant/defendant has prayed that suit of the plaintiffs be dismissed and a decree of damages be passed in his favour for a sum of Rs.40,000/ alongwith 18% compound interest per annum since the date of institution of the plaint on 07.07.2009, alongwith pendente lite, general cost and compensatory cost u/s 35A CPC.
19. Plaintiffs/noncounter claimants filed reply to the counterclaim denying the allegations against them. Thereafter, replication was also filed on behalf of the counterclaimant to the written statement of the non counter claimants/plaintiffs. From the pleadings of the parties, following issues were framed on 29.03.2010 in the counterclaim by the Ld. Predecessor of this court: (1) Whether the counterclaimant/ defendant is entitled to recover a sum of Rs.40,000/ with 18% compound interest per annum from the date of institution of plaint as pendente lite and future interest?OPP (2) Relief.
20. To prove their case, plaintiffs examined one witness i.e., plaintiff no.1 himself as PW1. He relied upon the following documents: S.No. Name of document Exhibit (1) FIR no. 414/08 Ex.PW1/1 (2) Photographs of the notice board where Ex.PW1/2 Suit no. 515190/2016 Harender Mudgal Vs. Ajit Kar page no. 11 of 28 notice Mark A was displayed by the defendant (3) Notice issued by Vigilance Department Ex.PW1/3 of Delhi Police to wife of PW1 (4) Legal Notice dated 30.07.2008 issued Ex.PW1/4 by plaintiff no.2 to the defendant (5) Postal receipts for sending notice dated Ex.PW1/5 30.07.2008 (6) Letter dated 30.09.2008 sent by Ex.PW1/6 defendant (7) Copy of notice dated 07.10.2008 sent by Ex.PW1/7 defendant to various residents (8) Complaint filed before Ld.MM Ex.PW1/8 (9) Original certificate given by the Ex.PW1/9 Chartered Accountant dated 01.06.2009 alongwith income tax return for the year 200708 (10) Notice dated 06.07.2010 Ex.PW1/10 (11) Copy of passport of PW1 Ex.PW1/11 (12) Certificate/appreciation letters regarding Ex.PW1/12 academic qualifications of PW1 (13) Certified copy of case file before Ld. Ex.PW1/13 ACMM (14) Copy of public notice dated 06.07.2008 Mark A and B written by defendant and sent to Sh.K.C.Patra and its envelop (15) Copy of letter dated 08.01.2009 signed Mark C by 51 residents of Pocket 3, Sector 9 (16) Other copies of letters Mark D (colly.)
21. Thereafter, plaintiffs closed their evidence.
Defendant examined himself as DW1. He relied on documents which are as under: S.No. Name of document Exhibit Suit no. 515190/2016 Harender Mudgal Vs. Ajit Kar page no. 12 of 28 (1) Certified copy of suit no. 03/08 filed in Ex.DW1/1 Hon'ble Delhi High Court (2) Certified copy of the WS filed by Ex.DW1/2 defendant no. 1,2, 7 and 9 before Hon'ble Delhi High Court in suit no.
03/08.
(3) Copy of FIR no.29/10 Ex.DW1/3
(4) Copies of applications/complaints filed Mark A
by some Khancha Flat owners to the
DDA
(5) Copy of plaint case titled as AjitKar Vs. Mark DW1/4
Kamal Singh & Ors.
(6) Copy of WS filed in CS No. 61/2009 by MarkDW1/5
defendant no. 1,2, 7 and 8 therein
(7) Certified copy of examinationinchief Ex.DW1/6
and crossexamination of Mr. Sunil
Kumar, Photographer recorded in CC
No. 26/09 PS Dwarka, Sector 23
(8) The certified copy of the examination Ex.DW1/7
inchief and crossexamination of Sh.
Balwan Singh Maan, recorded in CC
No. 26/09 PS Dwarka Sector 23
(9) Certified copy of photographer shop Ex.DW1/8
(10) Certified copy of driving licence of Ex.DW1/9 photographer Sunil Kumar (11) Certified copy of application dated Ex.DW1/10 02.06.2008 of Mrs. Sangeeta Mudgal (12) Certified copy of affidavit of Mrs. Ex.DW1/11 Sangeeta Mudgal dated 02.06.2008 (3 pages alongwith conditions for desealing colly.) (13) Certified copy of application dated Ex.DW1/12 04.09.2008 of Mrs. Sangeeta Mudgal (14) Certified copy of inspection report Ex.DW1/13 (15) Certified copy of photographs filed in Ex.DW1/14 the court of Ld. ACMM (16) Certified copy of statement of Mrs. Ex.DW1/15 Sangeeta Mudgal recorded in the court of Ld. ACMM (17) Certified copy of statement of Mrs. Ex.DW1/16 Suit no. 515190/2016 Harender Mudgal Vs. Ajit Kar page no. 13 of 28 Sangeeta Mudgal recorded in the court of Ld. ACMM on 14.11.2011 (18) Certified copy of statement of Mrs. Ex.DW1/17 Sangeeta Mudgal recorded in the court (running into 8 of Ld. ACMM on different dates pages) (19) Certified copy of complaint given by Ex.DW1/18 Mrs. Sangeeta Mudgal to the SHO PS Dwarka, sector 23 (20) Relevant rules of the postal department Ex.DW1/19 (21) Certified copy of statement of Harinder Ex.DW1/20 Mudgal recorded in CS No.71/2009 (22) Copy of site plan Mark DW 1/21 (23) Certified copy of deposition of IO HC Ex.DW1/22 Ram Narayan (11 pages) (24) Copy of FIR no.517/09 PS Dwarka Mark DW 1/24 (25) Leaf let of institution Ex.DW1/23 (26) Copy of deposition of Harinder Mudgil Mark DW 1/25 (27) Copy of DD No. 38Ain FIR no. 414/08 Mark DW 1/26 (28) Application u/O 16 R 6, 21 r/w section Ex.DW1/27 151 CPC (29) Forged documents illegally inserted in Ex.DW1/28 the plaint by the plaintiff at page no.
93A (30) Four letters marked A, B, C & D Ex.DW1/29 alongwith empty envelop (31) Copy of admission form of student Mark E Khemendra Tondwal for the class of Principal in KV and NV
22. I have heard the Ld. Counsel for the plaintiffs but despite opportunity given, the defendant/counterclaimant has chosen to argue and defend his case personally. I have also heard defendant/counterclaimant in person and Suit no. 515190/2016 Harender Mudgal Vs. Ajit Kar page no. 14 of 28 perused the entire record carefully.
23. Before adverting to the facts of the present case, it is relevant to reproduce the law on a suit for malicious prosecution. Following are the essential elements which the plaintiffs are required to prove in a suit for damages for malicious prosecution: A. Prosecution by the defendant.
B. Absence of reasonable and probable cause.
C. Defendant acted maliciously.
D. Termination of proceedings in the favour of the plaintiff.
E. Plaintiff suffered damage as a result of the prosecution.
24. Malicious prosecution is a malicious institution of unsuccessful legal proceedings against another without reasonable or probable cause. A claim of malicious prosecution is a tort action. Malicious prosecution is an abuse of legal and judicial processes. The public policy that supports the action for malicious prosecution is the discouragement of vexatious litigation. The plaintiff needs to prove that there was a prosecution without reasonable and just cause initiated by malice and case was decided in favor of the plaintiff. It is necessary to prove that damage was suffered due to prosecution. The plaintiff in case of malicious prosecution can recover money from the Suit no. 515190/2016 Harender Mudgal Vs. Ajit Kar page no. 15 of 28 defendant for harms suffered by him including loss of reputation and credit, humiliation, and mental suffering. Malicious prosecution is an abuse of process of the court by wrongfully setting the law in motion. It is necessary for the plaintiff to prove that damages were incurred by the plaintiff as result of prosecution. Reasonable and probable cause is an honest belief in guilt of the defendant founded on reasonable ground.
25. The burden of proof lies on the plaintiff's of the respective suits to prove existence of malice.
26. The Calcutta High Court in C. M. Aggarwal V Halar Salt & Chemical works and others, AIR 1977 Calcutta 356 held that foundation of law for claim against of malicious prosecution lies in the abuse of process of court by wrongfully setting the law in motion. It was observed as under: "The generally accepted essential elements in a cause of action for malicious prosecution, in conformity with the malicious decisions are:(1) that he plaintiff was prosecuted by the defendant(2) that the prosecution terminated in his favour, if from their nature they were capable of such termination(3) that there was no reasonable and probable cause for launching such prosecution(4)that the prosecutions was malicious, i.e., it was done with ulterior motive and not with the intent of carrying the law into effect."
27. The legal concept of malicious prosecution was Suit no. 515190/2016 Harender Mudgal Vs. Ajit Kar page no. 16 of 28 discussed by the Hon'ble Supreme Court in West Bengal State Electricity Board V Dilip Kumar Ray, Appeal (civil) 5188 of 2006 decided on 24th November, 2004 and observed malicious prosecution as a judicial proceeding instituted by one person against another from wrongful or improper motive and without probable cause to sustain it.
28. The High Court of Punjab & Haryana in Roop Singh V Amarjit Singh, Regular Second Appeal No 4379 of 2012 decided on 31st July, 2017 observed that malice for the purpose of malicious prosecution would mean a wrong full act done intentionally without just cause or excuse or an act done for want of reasonable or probable cause.
29. Defamation is a false and unprivileged statement of fact which is harmful to someone's reputation and is being published and/ or spoken deliberately, intentionally, knowingly with an ulterior motives and malice. Any intentional false communication either written or spoken which harms a person's reputation and decreases the respect, regard or confidence which a person is held is called defamation. Defamation could be written and/or verbal.
30. In Umar Abid Khan & others V Vincy Gonsalves alias, Vincent Gonsalves & others, First Appeal No 192 Suit no. 515190/2016 Harender Mudgal Vs. Ajit Kar page no. 17 of 28 of 2004 decided on 03 rd November, 2009 decided by the High Court of Bombay at Goa wherein it was held as under: "Every person has a legal right to preserve his reputation inviolate. In law it has been accepted as personal property and it is jus in rem a right good against all the world. A man's reputation is property and degree of suffering occasioned by the loss of reputation as compared to that occasioned by loss of property is greater. The Court, therefore, must draw a balance between freedom of speech and protecting the reputation of an individual."
31. The Plaintiffs in defamation action is entitled to recover as general compensatory damages, such sum as will compensate him for the wrong he has suffered. That sum must compensate him for the damage to his reputation; vindicate his good name; and take account of the distress, hurt and humiliation which the defamatory publication has caused.
32. In light of the legal position discussed above, it be seen that there is no straitjacket formula to conclude that a particular litigation has been initiated with malice as it is not possible to peep into the mind of the person but the court has to see the overall conduct of the person and the manner in which the prosecution especially the criminal prosecution is launched.
33. My issuewise findings are as under: Suit no. 515190/2016 Harender Mudgal Vs. Ajit Kar page no. 18 of 28 Onus to prove the issue no.(1), (2), (3) and (4) framed on 11.01.2010 and issue no.(1) framed on 29.03.2010 in the counterclaim was on the defendant/counterclaimant. For the sake of convenience issue no. (1) and (3) of the main suit are taken up first.
ISSUE NO.1 & 3(1)Whether the suit is hit by Order 7 Rule 11 CPC and several other provisions of CPC as noted in preliminary objections of written statement?OPD & (3) Whether the suit is hit by Section 35 A of CPC?OPD
34. Onus to prove these issues was on the defendant.
35. Here it is apposite to mention that vide detailed order dated 31.10.2009 passed by the Ld. Predecessor of this court, application under Order 7 Rule 11 CPC read with Section 35A and section 151 CPC of the defendant was dismissed with cost of Rs.3000/ (2000 to be deposited with DLSA and Rs.1000/ to be paid to the plaintiffs). Further, the application of the defendant for review of the aforesaid order was also dismissed with cost of Rs.500/ by the Ld. Predecessor vide order dated 14.12.2009. Further, the counterclaimant/defendant has failed to prove that the suit of the plaintiff is hit by Order 7 Rule 11 CPC, Section 35 A of CPC and several other provisions of CPC as stated by the defendant in his written statement.
Suit no. 515190/2016Harender Mudgal Vs. Ajit Kar page no. 19 of 28
36. No new ground has been mentioned by the defendant to show that the plaint of the plaintiffs is liable to be rejected nor any document has been proved on record in this regard.
Hence, these issues are decided in favour of the plaintiffs and against the defendant/counterclaimant. Both issues stand disposed of accordingly.
ISSUE NO. (2) (2)Whether the suit is bad for misjoinder of parties?OPD
37. Onus to prove this issue was on the defendant/counterclaimant.
38. Here it be noted that no evidence has been led by the defendant/counterclaimant to show that he is not a necessary party in the suit or which other parties were required be impleaded in the main suit. Even otherwise, as per order 1 Rule 9 CPC, no suit shall be defeated by reason of the misjoinder of the parties.
Hence, this issue is also decided against the defendant/counterclaimant and in favour of the plaintiffs.
ISSUE NO. (4) Suit no. 515190/2016 Harender Mudgal Vs. Ajit Kar page no. 20 of 28 (4) Whether the suit is time barred?OPD The onus to prove this issue was on the defendant/counterclaimant.
39. Record of file reveals that the suit for recovery of damages of Rs.19 lacs was filed by the plaintiffs on 08.07.2009. As per plaintiffs, on 30.06.2008 at about 18:00 hours, he found that defendant was taking photographs of Flat No. 1186 for complaining to concerned authorities. The plaintiff no. 2 when objected, the defendant in fit of anger, pulled hairs of the plaintiff no. 2 and pushed her on the floor and outraged her modesty. The plaintiff no. 2 shouted and neighbours gathered who called the police and an FIR No.414/2008 u/s 354 IPC was lodged in PS Dwarka on 01.07.2008 against the defendant. The plaintiffs have duly proved the said FIR no. 414/2008 as Ex.PW1/1.
Further, it is also the case of the plaintiffs that on 25.07.2008, when the plaintiff no.1 returned from abroad, he noticed a letter on the Notice Board of the Residents Welfare Association, Pocket3, Sec19, Dwarka, wherein the defendant inter alia has written, "If I never get scared for a simple false case made when a dirty woman vomits lies selling her chastity in the open market". In the last para of the said letter, the defendant has written, "If a Suit no. 515190/2016 Harender Mudgal Vs. Ajit Kar page no. 21 of 28 husband uses his wife's chastity naked before the public falsely implicating the others then he may be termed half pimp even for his own wife who seeks client and if a woman voluntarily does so she is a half prostitute and I know how to teach lesson to pimp and prostitute and their accomplices."
40. Perusal of the judicial record reveals that nothing has been brought on record by the defendant to controvert these versions of the plaintiffs. Now, since the first incident of alleged defamation was dated 25.07.2008 (i.e., when the plaintiff no.1 saw a letter on the notice board of RWA) and the suit filed on 08.07.2009, (i.e., before the expiry of one year from the date of cause of action), the suit of the plaintiffs is within limitation.
Hence, this issue is decided in favour of the plaintiffs and against the defendant/counterclaimant.
ISSUE NO. (5) (framed in main suit filed by the plaintiff & ISSUE NO.(1) (framed in the counterclaim filed by the defendant) (5) Whether the plaintiff has suffered any defamation and if yes, whether the plaintiff is entitled to a decree for recovery of Rs. 19 lacs alongwith interest @ 18% per annum as pendente lite and future interest as damages from the date of suit till the date of actual realization of the decreetal amount in favour of the plaintiff and against the defendant?OPP (vide order dated 03.02.2010 the onus was to be read as OPP in place of OPD) & Suit no. 515190/2016 Harender Mudgal Vs. Ajit Kar page no. 22 of 28 (1) Whether the counterclaimant/defendant is entitled to recover a sum of Rs.40,000/ with 18% compound interest per annum from the date of institution of plaint as pendentlite and future interest?OPP
41. For the sake of convenience aforesaid issues have been taken up together. The onus to prove these issues are on the plaintiff's of the respective suit and counterclaim.
42. As far as the plea of defamation raised by the plaintiffs is concerned, they have not examined any relative, friend or near dear ones to prove that their reputation was lowered in their eyes or in the eyes of the public. Nothing has been brought on record by the either of the parties showing that their name was defamed by the other party by way of libel or slander regarding the criminal case decided against either of the party. Thus, both the plaintiffs and defendant/counterclaimant have miserably failed to prove that they have been defamed by each other.
43. It is settled position of law that for the purpose of claiming damages for loss of reputation,mental agony, financial loss, one has to establish it by leading cogent evidence the level of reputation enjoyed by him/her in the society. However in the present case no such evidence is led by either of parties, therefore, the prayer of the parties (i.e., either of plaintiffs or defendant/counterclaimant) to pass a decree of damages is not sustainable.
Suit no. 515190/2016Harender Mudgal Vs. Ajit Kar page no. 23 of 28
44. In the present suit, plaintiffs have relied on the evidence of plaintiff no.1(PW1) by way of affidavit Ex.PW1/A wherein he has relied on copy of FIR no. 414/2008 Ex.PW1/1 which was lodged on the complaint of his wife i.e., plaintiff no.2 alleging that the defendant/counterclaimant had outraged the modesty of his wife (plaintiff no.2). Plaintiff no.2 has not come in the witness box to prove this fact that she lodged the said complaint. Neither the decision of said judgment has been placed on record by the plaintiffs.
45. However, perusal of order dated 06.06.2009 of Ld. Predecessor reveals that the defendant has filed certified copy of judgment dated 22.02.2018 in complaint case no. 4991515/16 between plaintiff no.2 and defendant whereby the defendant was acquitted in the said case. It was ordered by the Ld. Predecessor that the effect of the said judgment on the present proceedings shall be considered at the relevant stage.
46. The another contention of the Ld. Counsel for the plaintiffs is that the plaintiff no.1 on return from abroad noticed a letter, copy of which is Mark A (5pages) (mentioned as Ex.PW1/2 in the evidence by way of affidavit Ex.PW1/A) on the Notice Board of the Residents Welfare Association, Pocket3, Sec19, Dwarka alongwith copy of envelop Mark B. It is stated that in document Suit no. 515190/2016 Harender Mudgal Vs. Ajit Kar page no. 24 of 28 Mark A the defendant inter alia has written, "If I never get scared for a simple false case made when a dirty woman vomits lies selling her chastity in the open market". In the last para of the said letter, the defendant has written, "If a husband uses his wife's chastity naked before the public falsely implicating the others then he may be termed half pimp even for his own wife who seeks client and if a woman voluntarily does so she is a half prostitute and I know how to teach lesson to pimp and prostitute and their accomplices."
47. Also, it is the case of the plaintiffs that public notice Mark A (5 pages) and Mark B was sent to Sh. K.C.Patra. PW1 has also relied upon copy of letter dated 08.01.2009, Mark C, signed by 51 residents of his society.
48. In this regard, it be noted that the plaintiffs have not examined any witness in support of these contentions to prove that the defendant/counterclaimant has put these letters on notice board of the RWA or sent the same to the alleged K.C.Patra, resident of the same society. Further, none of the parties has examined any independent witness to prove their case, not even examined the aforesaid K.C.Patra.
49. Another contention of the plaintiffs is that as per the the certificate issued by the Chartered Accountants, Suit no. 515190/2016 Harender Mudgal Vs. Ajit Kar page no. 25 of 28 Ex.PW1/9 (2pages) which mentions the turn over of the company of the plaintiff no.1 as Rs.80,65,201/ in the year 20072008 and Rs.47,49,777/ in the year 20082009 alongwith the copy of ITR for assessment year 20072008 to show that the plaintiffs are liable for recovery of damages of Rs.19 lacs alleged to be caused due to defamation by the defendant/counterclaimant, in this regard, it be noted that the certificate Ex.PW1/9(2pages) is not proved as per Indian Evidence Act as no certificate u/s 65 B has been filed alongwith Ex.PW1/9 (2 pages).
50. It is trite that truth is an absolute justification to a civil action for defamation. In Simi Grewal vs. T.N. Ramachandran decided on 28th February, 1974, the Bombay High Court observed that once it is proved that representation or statement in question is true in substance then in fact, it is utterly irrelevant to consider whether it is defamatory or not? A person has no right to the protection of a reputation to which a person is not entitled".
51. Further, it is also necessary to see as to whom the said allegations were communicated to. In case, the allegations/statements have been made to a person in authority for the purpose of seeking redress or for the purpose of protection of one's own rights or interests or if the said statements have in fact been prompted or Suit no. 515190/2016 Harender Mudgal Vs. Ajit Kar page no. 26 of 28 provoked by the conduct of the plaintiff himself or herself, then, the claim for damages must fail. Every human being has a right to selfprotection.
52. In the counterclaim, the counterclaimant/defendant has stated that the plaintiffs deserve prosecution u/s 340 Cr.P.C. and 182 IPC as the plaintiffs/noncounter claimants had done illegal erection of House No. 1186 & 1187 which has caused amalgamation, shifting of doors, windows, blocking common path and space thus, affecting peaceful enjoyment of counterclaimant's property. However, no evidence has been led by the counter claimant/defendant in this regard.
53. It may be noted that in the counter defendant/counterclaimant has stated that the cause of action to file the counterclaim arose on 07.07.2009 when the suit no. 80/09 was instituted with malice". Thus, the counterclaim filed by the counterclaimant/defendant is an afterthought.
Accordingly, these issues are decided against the defendant/counterclaimant and in favour of the plaintiffs.
54. As regards the damages incurred due to filing of the suit by the plaintiffs, the counterclaimant has also not been able to prove as to how he was defamed and in front of whom.
Suit no. 515190/2016Harender Mudgal Vs. Ajit Kar page no. 27 of 28
55. Accordingly, it is held that plaintiffs as well as defendant/counterclaimant have miserably failed to prove their cases in affirmative and, therefore, the present suit as well as the counterclaim filed by the defendant are hereby dismissed. Parties to bear their own costs.
56. Copy of this judgment be also placed in the counter claim.
57. Files be consigned to records, after due compliance.
Digitally signed by MOHINDER MOHINDER VIRAT VIRAT Date: Announced in the Open Court 2023.01.28 16:47:19 +0530 On 28.01.2023 (Mohinder Virat) Addl. District Judge05
SouthWest District, Dwarka, New Delhi.
Suit no. 515190/2016Harender Mudgal Vs. Ajit Kar page no. 28 of 28