Bhagwan Singh vs Ujagir Singh and Others

Rowland, J.—This appeal arises out of a Suit to recover damages for libel. The claim was Rs. 300. The Munsif found that the alleged libel had been made and published by the first three defendants and gave the plaintiff a modified decree against them assessing the damage at a hundred rupees. On appeal the Subordinate Judge has reversed this decision and dismissed the suit. Of the issues framed by the Munsif the first was whether the defendants or any of them had made and published the defamatory statements in the libel which took the form of a petition to the Town Superintend dent of Messrs. Tata & Co. Issue 2 was whether the plaintiff''s reputation was lowered thereby and issue 3'' was whether the plaintiff was entitled to damages and, if so, how much. The defence of defendant 1 was denial of the alleged publication. He did not plead either justification or privilege.

The defences put forward in the written statement of defendants 2 to 4 raise a plea of justification that the imputations were true and an issue as to this might well have been framed by the Munsif; but as he dealt with it on the merits the omission is not of importance. Before the Munsif the further contention was raised at the hearing that the occasion was one of absolute privilege. The Munsif held that publication was proved against defendants 1 to 3 but not against defendants 4 and 5; that it was not shown that the plaintiff was a man of bad character; that it was not at all proved that he sells women or that he keeps Chattisgarhia girls.

The Munsif further held that the allegations in the petition were reckless and false, were not made bona fide and were not made with belief in their truth. He held that no case of privilege was made out and that the plaintiff was entitled to damages which he assessed at Rs. 100 against those of the defendants who had published the libel; that is to say, defendants 1 to 3.

Against this decree defendants 1 to 3 preferred an appeal jointly to the District Judge and it is to be noticed that in the memorandum of appeal it is nowhere contended either that the libel was justified or that the occasion was privileged. The appeal was directed against the finding regarding publication and the finding regarding damages.

The contentions were that defendants 1 to 3 had not in fact signed the petition and the document was a collusive one and a ground was taken that the respondent''s evidence was inadequate and the question of damages was not proved. The learned Subordinate Judge was not content to discuss the correctness of the findings appealed against. He stated the points for determination in the following terms. (1) Whether the defendants or any one of them made defamatory statements against the plaintiff in the petition sent to the Town: Superintendent of Messrs. Tata & Co., under whom both the parties were admittedly employed as servants. (2) If so, whether the defamatory statement which the defendants published was true. In other words, if it was justified. (3) If the occasion of the defamatory statements may be a valid defence of a qualified privilege. (4) If the defendants established that the occasion was so privileged, whether the plaintiff succeeded in showing actual or express malice on the part of the defendants which would negative any defence of privileged communication.

He held that the publication alleged in the plaint had been fully established. He even went on to observe that the lower Court should have found the publication proved against defendants 4 and 5--a question not arising before him at all. He held that the occasion was one which might give rise to a defence of qualified privilege. He held in that view the burden of proof was on the plaintiff to establish malice and that the plaintiff had failed to discharge the burden. He said that the plaintiff having given his own evidence that he was a man of good character the presumption of law regarding good conduct, of an individual could not be invoked in his favour and concluded that the allegations made in the libel were true. He reversed the decision of the Munsif and dismissed the suit.

In second appeal it is contended that the Subordinate Judge should not have allowed the appellants to raise and succeed on defences not raised in the written statement or in the memorandum of appeal. It has also been contended that the Subordinate Judge''s findings were vitiated because he has misplaced the burden of proof and the view taken by him is against the weight of the evidence. I have pointed out above that neither justification nor privilege was raised as a defence in the memorandum of appeal. Order 41, Rule 2, Civil P.C., lays down that

the appellant shall not, except by leave of the Court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal.

The appellants were therefore not entitled to urge justification or privilege at the hearing of the appeal. They might of course ask the Appellate Court for leave to urge such grounds and it would be for the Appellate Court to decide whether such leave should be granted or refused. The Appellate Court under the same rule in deciding the appeal is not confined to the grounds of objection in the memorandum but is not permitted to rest its decision on any other ground unless the party affected thereby has had a sufficient opportunity of contesting the case on that ground. When an appellant seeks to raise a point not taken in the Courts below or in the memorandum of appeal the propriety of allowing him to do so and of basing the appellate decision on such a ground is a matter which the Appellate Court ought to decide. In Sri Kanta Prasad v. Jag Sah AIR (1925) Pat 57 it was held that a point not taken in the pleadings or the memorandum of appeal ought not to be allowed to be raised in appeal. It was the duty of the Subordinate Judge to consider the propriety of permitting these defences to be raised and of basing the decision on them.

As regards qualified privilege it is pointed, out that the publication alleged was not only publication to the Town Superintendent but publication to a number of the neighbours of the parties who were asked to give their signatures on the petition. This publication was held to have been established and the finding of the Munsif on this has been accepted by the Subordinate Judge. Therefore no question of privilege of any kind could arise and the Subordinate Judge was wholly in error both in allowing it to be raised and in basing his decision on it. As regards the defence of justification the propriety of allowing this defence to be raised ought to have been considered with reference to the state of the pleadings and of the evidence and of the findings of the learned Munsif. The plea of justification had not been raised by defendant 1.

It was raised in para. 12 of the written statement of defendants 2 and 3 which runs as follows:

That the plaintiff sold women to some men which fact is known to these defendants and that public policy needs that it should be revealed and defendants think that the plaintiff being detected in doing so brought this case against them to feed fat his grudge.

Side by side with this plea defendants 2 to 4 also put forward a denial of publication, Thus as between the plaintiff and defendant 1 the question of justification was not raised in the Munsif''s Court. As between the plaintiff and defendants 2 and 3 the plea had been taken and negatived and in the appeal defendants 2 and 3 associated themselves with defendant 1 who had not pleaded justification and abstained from raising it on their own behalf. The position then was that defendant 1 had never taken this defence and the other defendants had abandoned it.

The procedure followed by the Subordinate Judge in allowing it to be argued and to succeed without permission being asked or given and without considering and deciding first whether leave ought to be given was erroneous. It does not follow that in second appeal an error of procedure Will always lead to reversal of the lower Appellate Court''s decision. It must be an error affecting the merits of the case (Section 99, Civil P.C.), but u/s 100 this Court can interfere on the ground of any substantial error or defect in the procedure which may possibly have produced error or defect in the decision of the case upon the merits. In the present case I am unable to say that the procedure followed has not affected the merits of the decision. If before giving permission for new grounds to be raised the learned Subordinate Judge had had clearly before him the state of the pleadings and of the record he might (even if in the result he gave permission) have taken a different view of the facts.

He would, or should, have appreciated that on the question of justification the burden of proof lay on the defendants, not one of whom had had the courage to say either that the libel was true or that he believed it to be true, though three of the defendants had gone into the witness box. The plaintiff had the presumption of good conduct in his favour, had been in steady employment for eight years and had himself deposed that the libel was false; while the principal witness whom the defendants put up to support the truth of the libel was no other than a brother-in-law of defendant 1, and had been out of a job for nearly two years. He would, or should, have attached weight to the fact that on a local inquiry by P.W. 1, the Circle Officer, the allegations had been found to be false. He would, or should, have noticed the relevance to the question of motive of the fact that defendant 1 was prosecuted and convicted for beating the buffalo of the plaintiff, an incident which occurred three days before the libel.

He would, or should, have attached weight to the opinion of the trial Court which had the advantage of hearing the witnesses and observing their demeanour. He might have inferred that at the time of presenting their appeal defendants 2 and 3 had thought their case of justification too hopeless to be worth presenting to an Appellate Court, and had therefore abandoned it. He might then either have refused permission to raise additional grounds, or if he granted it, would have addressed himself to the facts from a very different point of view, and possibly with a different result.

I do not propose to decide the questions of fact arising in this case, or to go into the details of the depositions to see whether the substantial facts. I have referred to can be outweighed by points scored in a contest of wits between cross examiner and witness in the box. The proper place for that is the Court of Appeal below. The Legislature has thought fit to entrust to the first Appellate Court the final decision of all matters of fact on which the disposal of the suit turns. Every officer in this position should realize that the confidence thus reposed in him implies a corresponding duty and trust, that he will to the best of his power weigh and balance the evidence, facts and considerations appearing on both sides. He should endeavour so to decide his cases that his judgment may carry a conviction if not of its correctness, at least of a fair endeavour to place a correct valuation on the merits of the cases of both sides. He should never let it appear either to the public or to a superior Court that he has chosen to accept the evidence of one side or the other without due consideration of the salient facts established and contrary to the conclusion to which the outstanding facts point, arbitrarily or op patently inadequate grounds.

In short the judgment ought to show that the Judge has been led to a particular conclusion by the force of the facts and not that he has had a fancy to adopt a particular conclusion and then made a one-sided presentation of the facts to support that conclusion. The danger that in any particular case a decision on facts may be against the weight of evidence and hardship may result is one that the Legislature has deliberately chosen to take relying on the good sense, experience, honesty and impartiality of the officers selected to discharge these important duties. All the more therefore it is incumbent on such an officer to see that in the discharge of his functions not only are none of these important qualities wanting but none shall even appear to be wanting. And particular care should be taken to avoid even the suspicion of bias in dealing with the rights of parties or the decision of a subordinate officer of a different religion or community from one-self.

The appeal is allowed, the judgment and decree of the Subordinate Judge set aside and the appeal remanded to him for disposal according to law. He will have to decide (a) whether the publication alleged is proved; (b) whether the defendants or any of them ought to be heard in appeal in support of the plea of justification; (c) if so whether they have proved it, the burden of proof being wholly on them. I should state that the burden of proof on this point is not shifted nor does the presumption of good conduct cease to be available in favour of the plaintiff in consequence of his having given evidence on his own behalf; (d) the amount of damages. Costs will abide the result.