Arumuga Mudaliar vs Annamalai Mudaliar

K.S. Venkataraman, J.—The plaintiff is the appellant in this Second Appeal. The suit is one for damages of Rs. 500 against the defendant

for having defamed the plaintiff by writing the letter Exhibit A-I, dated 5th May, 1958 and publishing it The Courts below find that the matter

complained of is highly defamatory to the plaintiff, but that there has been no publication and it is on the latter ground that the suit was dismissed by

the learned District Munsif and the dismissal was confirmed by the learned Subordinate Judge on appeal. The contention of the appellant''s learned

Counsel Sri Jagadisa Iyer before me is that there has been publication. That is a question of fact and no reasons have been shown to justify

interference u/s 100, Civil Procedure Code, with that finding.

The facts necessary for our purpose may be briefly stated. The plaintiff was a co-trustee of two temples along with the defendant and was

directed to hand over charge of the articles to the defendant on resignation of his office of trusteeship. There were some differences between the

plaintiff and the defendant in that connection, and when the plaintiff sent a letter to the defendant, the defendant replied by means of Exhibit A-1

wherein he accused the plaintiff of being a bachelor of highly immoral character and state that he had been put to shame by being beaten with

broomstick and filth thrown on his head and that further the plaintiff was a mean-minded man. The letter Exhibit A-I was mostly in the handwriting

of one Viswanatha Mudaliar. But there are some corrections made by the defendant and the letter has been signed by the defendant. The

defendant, like the plaintiff, was a resident of Nedungal, however, the means adopted by the defendant of sending Exhibit A-I to the plaintiff was to

send it by registered post addressed to the plaintiff as ex-trustee at Nedungal-vide cover Exhibit A-2. It so happened, however, according to the

plaintiff, that when the postman brought the letter on 7th May, 1958 the plaintiff was not in his house and had gone to the house of his uncle''s son

Muniswamy Mudaliar who had died just that day in the same village. The plaintiff was preparing a list of the articles to be purchased in connection

with the funeral ceremonies. The plaintiff would have it that the defendant who was standing in his house opposite pointed the plaintiff to the

postman and the postman1 delivered the letter to the plaintiff when there were a number of persons present nearby. Since the letter was addressed

to him as ex-trustee, the plaintiff thought that the letter would only relate to the differences between him and the defendant over the temple, and the

plaintiff did not suspect that it would contain any defamatory matter. So, he asked witness Arumuga Mudaliar (P.W. 1) to read the letter though

the plaintiff was a literate and could read it himself. P.W. 1 read the letter and stopped at the defamatory portion. But P.W. 1 encouraged him to

read on, and it was read fully. The people present there laughed. This was on 7th May, 1958.

The plaint alleges that the publication took place in two ways : (1) by asking Viswanatha Mudaliar to write it; and (2) by delivering the letter in

the presence of the villagers and relations and having it read.

The defence was that Viswanatha Mudaliar was solely responsible for the letter, that the defendant had asked Viswanatha Mudaliar not to post

the letter till the defendant had consulted an Advocate at Arni, but in collusion with the plaintiff Viswanatha Mudaliar had posted the same. The

defendant denied that he pointed the plaintiff to the postman.

Both the Courts concurred in disbelieving the defence by which the defendant sought to escape liability altogether for the authorship of Exhibit

A-1. They pointed out that the defendant had made corrections in Exhibit A-:, had signed the letter and had addressed the envelope Exhibit A-2

with his own hand. They rejected the case of the defendant that some other innocuous letter had been enclosed in that envelope and had been

replaced by Exhibit A-I by the plaintiff getting it collusively from Viswanatha Mudaliar. On the question of publication they held that the letter

Exhibit A-I was prepared jointly by the defendant and Viswanatha Mudaliar, that they were therefore joint tortfeasors and therefore there could be

no publication in law as between them. On the second method of publication, relied on by the plaintiff, they rejected the case of the plaintiff that the

defendant pointed the plaintiff to the postman. They have not specifically rejected the evidence that the letter was delivered to the plaintiff when he

was in his uncle''s house and it was read out at his instance by his friend P.W. 1 and that a number of persons heard it. But the Courts pointed out

that the defendant could by no means have anticipated that the letter would be read and published in such a manner -he had taken the precaution

of sending the letter by registered post addressed to the plaintiff personally.

Now the learned Counsel for the plaintiff was at great pains to dislodge the finding of the Courts that Viswanatha Mudaliar was a joint tortfeasor

with the defendant and he referred in that connection to the test which has been laid down to determine when persons are joint tortfeasors. Thus

quoting The Koursk, 1924,. page 140, it is stated in Winfield on Tort in Chapter 29:

Persons are said to be joint tortfeasors when their respective shares in the commission of the tort are done in furtherance of a common design....

but mere similarity of design on the part of independent actors, causing independent damage is not enough; there must be concerted action to a

common end.

See also Anand and Sastri, Chapter III, page 282, 1952 Edition. But I do not see any reason to interfere in Second Appeal with the finding, which

is one of fact, that Viswanatha Mudaliar and the defendant were joint tortfeasors. There is at least some evidence in support of that inference and it

is not open in Second Appeal to weigh the quantum of evidence. The evidence principally relied on by the Subordinate Judge is Exhibit A-8, the

statement of the defendant as accused in the criminal case of defamation launched in the same matter by the plaintiff, wherein the defendant had

stated that both he and Viswanatha Mudaliar conferred together and wrote the letter. There is not sufficient evidence to show that Viswanatha

Mudaliar was not a joint tortfeasor and was simply used by the defendant to write out what the defendant dictated.

Once it is held that Viswanatha Mudaliar. was a joint, tortfeasor with the defendant, the finding that in law there could be no publication by the

defendant to Viswanatha Mudaliar cannot be questioned and has not been questioned by the learned Counsel for the appellant. That position is

supported by the two decisions quoted by the learned Subordinate Judge, namely, C. Doraisami Naidu and Others Vs. Kanniappa Chetti, , and

Trevellion and Clark Vs. A. Minck .

As regards the. second method of publication, there is no reason to interfere with the finding of the Courts below that the defendant did not

point out the plaintiff to the postman and could not have anticipated that the plaintiff would not be in his house at the time of delivery and that the

letter would be read out in the presence of persons other than the plaintiff. It may be noted that P.W. 1 who was by the side of the plaintiff does

not say that the defendant pointed the plaintiff to the postman, though P.W. 1, speaks to the presence of the defendant in the opposite house. It is

obvious that the defendant could not have known when he posted the letter that the plaintiff''s uncle would die and that at the time of the delivery

the plaintiff would be in his uncle''s house and that the letter would be delivered there and would be read out to others by somebody other than the

plaintiff. The defendant cannot therefore be held responsible for the actual publication which resulted in that manner. By taking the precaution of

addressing the letter by registered post to the plaintiff, he took reasonable care to ensure that the letter was only read out by the plaintiff. He could

not have intended by his act that the letter would be delivered to the plaintiff in his uncle''s house and read out there to a number of persons. That is

not the natural consequence of the act of the defendant and he could not have intended any such consequence. It is that criterion which is

applicable in finding out whether the defendant in a case of defamation can be held liable for the publication which actually results; see for instance

the case in Huth v. Huth L.R. (1915) 3 K.B. 32. The facts in that case were in fact stronger than those in the present case, because there the letter

was addressed by Mr. Huth to Miss Edith Greaves, the maiden name of his wife, and was enclosed in an envelope which was not gummed and

bore only a half penny stamp, less than the usual postage. The butler of the addressee felt curious that she should be addressed by her maiden

name, took out the letter and read it. It was held that what the butler did was a breach of his duty, that he was not expected to take"" out the letter

and read it and the defendant could not have anticipated that the letter would be so taken out and read by the butler and consequently there was

no publication. The criterion is thus laid down by Swinfen Eady, L.J., at page 43:

When the authorities which were referred to are considered it will be seen that, in each of those cases, the defendant-who must be dealt with upon

the footing that he intended the natural consequences of his act in the circumstances of the case intended the publication which in fact took place.

The same criterion is laid down by the other learned Judges. The subject is discussed in leading text-books, for instance in Clark and Lind sell on

Torts, Chapter 20, Section 7, para. 1267. Winfield on Tort the chapter on defamation Chapter 22, u/s 4, the words must be published. Halsbury''s

Laws of England, Simonds Edition, Vol. 24, pages 33 to 43. Venkatesa Iyer''s Law of Torts, Chapter 14, pages 335 to 338, Anand and Sastri,

pages 561 to 567.

The appeal fails and is accordingly dismissed, but having regard to the fact that the matter was defamatory the parties will bear their costs

throughout.

No leave.