Chinnathambia Pillai (died) and Others vs Dharmaraja

A. Raman, J.—This appeal is preferred by the defendant against the concurrent findings of the courts below.

The plaintiff filed a suit before the District Munsif Court, Sankarankovil claiming damages. The plaintiffs case is that the plaintiff is a tenant and is

running Tea-Hotel in the building bearing Door No. 3, North Car Street, at Sankarankovil, It belongs to the defendant. The defendant sent a notice

to the plaintiff calling up him to vacate the building. The plaintiff after receipt of the same has sent a suitable reply. Thereupon the defendant filed

RCOP. No. 3 of 1978 on the file of District Munsif Kovilpatti for eviction. The plaintiff filed a counter and contested the petition. On 27.3.1980

the plaintiff herein was examined in RCOP. No. 3 of 1978. During cross examination the counsel for the defendant put certain questions. The

questions put were annoying shocking and disturbing to the plaintiff. On the objection of the plaintiff the Presiding Officer refused to record the

questions. The imputations contained in the said questions are false and baseless. The questions have been put with a view to defame the plaintiff in

public. The plaintiff has five daughters of them only the eldest has been married. The next two daughters have attained age of puberty. They are

under the care and protection of the plaintiff. By imputing immoral character to the plaintiff the defendant has caused irretrievable harm to the

plaintiff and his daughters. The questions were put deliberately to harm the plaintiff and his daughters. The questions have caused mental pain and

sufferings. On account of such questions their reputation has suffered. The plaintiff has been treated with contempt. Therefore the defendant is

liable for damages.

The defendants pleaded as follows:-

The suit is not maintainable. It is true that the plaintiff has been a tenant in the building bearing Door No. 3, North Car Street, Sankarankovil

belonging to this defendant. It is also true that the defendant filed RCOP No. 3 of 1978 on the file of the DMC, Kovilpatti for eviction of the

plaintiff. The eviction was ordered and the plaintiff has filed CMA before the Sub Judge, Tenkasi. The suit is filed to harass the defendant. It is true

that on 27.3.1980 the plaintiff was examined. The defendant gave instructions to his counsel to cross examine the plaintiff. But the defendant denies

the words mentioned in the plaint. The defendant claims privilege as to what took place between him and the plaintiff. The proceedings of the

Court are absolutely priviled. The suit is not maintainable. The allegations in paragraph 8 are false. The words mentioned do not mention the names

of the plaintiff''s his daughters nor of the Muslims. The words are not defamatory. There was no annoyance to the plaintiff and the defendant had

no malicious intention. The defendant did not want to disgrace and defame the plaintiff. The questions asked are not per se defamatory. The

defendant is not responsible for the wording of the manner of putting questions by his counsel. It was not asked to impute immoral character of the

plaintiff''s daughters. The plaintiff did not incur any harm or injury to him or his daughters. The plaintiff did not incur mental pains or sufferings. The

defendant is not liable to the plaintiff for damages. There has been no defamation. The plaintiff is not entitled to claim Rs. 10,000 or Rs. 6,000. The

plaintiff cannot file a suit for damages. The defendant''s counsel was absolutely priviled as to what happened between him and the defendant. The

defendant has sent reply through his counsel. The defendant is not liable in law. The plaintiff has not been disgraced or defamed. Therefore the

defendant is entitled to exemplary costs.

The District Munsif, Sankarankoil decreed the suit with costs as prayed for. Aggrieved by the same, the defendant preferred an appeal to the

Sub-Court, Tenkasi and the Sub Judge, Tenkasi while dismissing the appeal modified the decree by reducing the damages to Rs. 6,000. Hence

this second appeal.

Both the courts below have held that certain questions were put to the plaintiff while he was in the box in RCOP. No. 3 of 1978 in the course of

cross examination by the defendant''s counsel and these questions are defamatory in nature. This concurrent findings of the courts below is not

challenged by the counsel for the appellant. He therefore confined his argument only to contend that the defendant is entitled to the privilege and he

is protected by the privilege and hence he is not liable for any damages to the plaintiff. Therefore the question for consideration is whether the

appellant-defendant is entitled to absolute privilege?.

The two questions that were put to the plaintiff while he was in the Box as a witness in RCOP. No. 3 of 1978 by the counsel for the petitioner in

that RCOP i.e. the defendant herein in the course of cross examination are as follows:-

The property bearing Door No. 3, North Car Street Sankarankoil belongs to the defendant. The plaintiff was running a Tea-Hotel in the said

building, as a tenant under the defendant. Alleging that the defendant as a tenant has committed wilful default in payment of rent the landlord viz.,

the defendant filed an application in RCOP. No. 3 of 1978 for eviction of the tenant. The application for eviction was contested by the plaintiff.

Therefore in that application filed for eviction the Rent Controller was called upon to decide the question whether the tenant had committed wilful

default in payment of rent. The eviction was not sought for on the ground that the tenant has put the building to different use or that he is running a

whose house in that demised property. Therefore in an application filed for eviction the two questions that were put to the plaintiff in the course of

cross examination are not only irrelevant but also impudently out of place. The answers to these questions of eitherway will not in any manner have

any bearing on the questions of default. Therefore it is clear that these two questions were put to the respondent in the course of cross examination

with a view to harass, defame and humiliate the person. The urge to take vengeance against the recalcitrant tenant thus found its way in the shape

of these two questions. It is really sad that even if the landlord had instructed the counsel should venture to put such questions. The counsel owes a

duty to the Society, to the Court and to the nobility of the profession. Unless the questions are relevant and important and when the questions are

of the nature per se defamatory the counsel who appeared for the Landlord in RCOP. No. 3 of 1978 ought not to have put such questions,

however much he was produced by the his client. It is really a sad commentary on the profession.

Now we have to see whether having insulted and defamed the plaintiff and his daughters in open Court by making heartless and wild allegations

against them can a person get away with the same. According to the Counsel for the appellant, the defendant can get away with the same and the

damages he has caused to the plaintiff and his family does not concern him and that he can always hide under the cloak of the privilege. Some one

called the law as an ass. But even the assuming quality attributed to law does not make it ineffective and weak. I do not think that the argument of

the learned counsel for the appellant that under the guise of privilege any questions affecting the character, the chastity of a women can be asked

without a necessity for the same. If such a liberal interpretation is to be given courts will become a place for washing ones dirty linen. The majesty

of law will be marred and defiled if such unbridled power is given so. In my opinion the law is not so weak or ineffective as to prevent such

personal onslaughts.

The counsel for the appellant relied upon the decision reported in Madhab Chandra Ghose and Others Vs. Nirod Chandra Ghose, to contend

that statements made by party in reports to police and in subsequent judicial proceeding as witness are absolutely privileged and civil action for

damages does not lie. But that was a case quite different on facts. In that case on 21st November, 1934 defendant 3 sent a report to the Officer of

the Moulvi Bazar Police Station alleging that one Alhadini, a widow, had given birth to a child, that Nirod Chandra Chose, the plaintiff, was

responsible for the illicit pregnancy of the woman, and that the child had been killed. This report was followed up by two other reports which were

sent by defendant 1 and defendant 3 to the police. As a result, the police officer started investigation. It is said that during the investigation, the

Police Officer was resisted by the plaintiff and his party. The result was that the Sub- Inspector of Police Gopal Chandra Ghose, instituted a case

u/s 147 and other sections of the Indian Penal Code against the plaintiff and others. The police also sent up Albadini and others on charges u/s 302

read with other sections of the Indian Penal Code. Defendants 1 to 5 deposed in those two cases. But ultimately in both the cases the accused

were acquitted. The plaintiff therefore brought the suit for damages basing his claim on the statements made to the police and in the depositions in

the aforesaid judicial proceedings. The defence substantially is that the defendant acted in good faith and that the allegations are true. The trial court

has found that the defendants conspired with one another, that the informations given to the police also false and that as the result the plaintiff has

been lowered in the estimation of the public. Therefore a reading of the facts of this case would show that it can have no relevance or application to

the facts of the case.

A defamatory statement is one which has the tendency to injure the reputation of a person to whom it refers; and it is made with a view to

lower him in estimation of right thinking members of society generally. Such statements which cause a person to be regarded with feelings of

hatred, contempt, ridicule, fear, dislike, or disesteem would also come within the definition of defamatory statement. Therefore whether a statement

is defamatory or not has to be judged by the standard of an ordinary prudent right thinking member of the society. Therefore a tendency to injure

and lower the reputation of a person is sufficient. Here there cannot be two opinions about the nature and effect of the statements made by the

defendant. He has imputed unchastity to the daughters of the plaintiff. A suggestion is made that two of the plaintiff''s daughters ran away with a

Muslim. It is also suggested that he has been running a whore house with his daughters. If ever there is a defamatory statement it can be only these

statements which of course were put in the form of questions to the plaintiff when he was examined in the RCOP proceedings. There was no

provocation for putting such questions. The case was one for eviction of the tenant from the premises on the ground of non-payment of rent.

Therefore the questions were as much out of place as a pick pocket would be in a nudist colony. Therefore the very questions put to the plaintiff

expose the malicious intention of the defendant. The intention to cause harm to the reputation of the plaintiff and his family, the malicious will to

lower the plaintiffs and his family in the estimation of others is thus very much rampant. Therefore the questions are absolutely defamatory.

It is no doubt true that one of the defences to a suit for damages for defamation is privilege. Privilege is of two kinds. One is absolute privilege.

The other is a qualified privilege. An absolute privilege is of such a nature that no action will lie however false and defamatory the statement is. The

absolute privilege would arise in the following cases:-

(1) If any statement is made in the course of and with reference to judicial proceedings by any judge, juryman, party, witness, or advocate;

(2) Fair, Accurate, and contemporaneous reports of public judicial proceedings published in a newspaper;

(3) Any statement made in Parliament by a member of either House;

(4) Parliament papers published by the direction of either House, and any reputation thereof by any person in full;

(5) Certain statements made by one officer of State to another in the course of official duty;

(6) Communications between husband and wife.

Apparently the counsel for the plaintiff wants to bring the case under the clause relating to statements made in the course of and with reference to

judicial proceedings. The normal rule is that neither party, witness, counsel, jury nor judge can be put to answer civilly or criminally for words

spoken in office; that no action of libel or slander lies, whether against judges, counsel, witnesses, or parties for words written or spoken in the

course of any proceedings before any court recognised by law, and this though the words written or spoken were written or spoken maliciously

without any justification or excuse, and from personal ill-will and anger against the person defamed. Ofcourse this privilege has been conceded on

the grounds of public policy to ensure freedom of speech. Here in this case it is a statement made in the form of question Put by the counsel to the

witness. Of course it is not in evidence whether the counsel was authorised in writing to put such questions. Of course it is contended by the

learned counsel for the appellant that in order to be privileged the statement need not be relevant, in the sense that having a material bearing upon

the matter in issue. But however though it need not be relevant in that sense it has to be made with reference to the case in hand. A statement made

in the form of questions in respect of extraneous matter cannot be considered as one privileged, otherwise in the name of privilege persons like the

defendant will run amuck and to hurl abuses and slanderous suggestion and indulge in mud-slingings, without rhyme or reason. Therefore the

privilege cannot be an unbridled horse. If that were so the law would become a meaningless one. For there will be no protection. Hence it is not

possible to accept the argument of the learned counsel for the appellant that the statement made in the form of questions by the defendant is a

privileged one. For, the word privilege is used in the sense of excuse or immunity. But the question to be posed is that whether there is an excuse

for the defendant to put such questions. Can it be stated that any public interest is involved in making such a statement. On the otherhand making

such scurrilous statements is only against the interest of public. In making such statements in other words by putting such questions it has to be held

that the defendant has acted from an improper motive. Thus the question put to the witness were not connected with the matter. This is not an

occasion where the putting of such questions was felt necessary in any manner by the defendant. Therefore the contention of the learned counsel

for the appellant-defendant that the questions put to the plaintiff while he was in the Box by the defendant''s counsel would be protected by the

garb of privilege.

If a party to a judicial proceedings is sued in a civil Court for damages for defamation in respect of a statement his liability has to be only

determined with reference to the principles of justice, equity and good conscience. The immunity is granted with a view to function without any fear

of harassment. This however has been conceded on the grounds of public policy to ensure freedom of speech where it is essential that freedom of

speech should exist and with the knowledge that courts of justice are presided over by those who from their high character are not likely to abuse

the privilege and who have the power and ought to have the will to check any abuse of it by those who appear before them. The protection is given

to prevent making such statements, from being harassed from outside. But here, the harassment has come from within the Court hall. Therefore on

analysis I am satisfied that the defendant cannot claim for any privilege much less absolute privilege for the statements made by him in the form of

questions. The circumstances of this case, the background and the necessity for putting such questions have to be taken into consideration. The

matter has to be decided only with reference to principles of justice, equity and good conscience. It has to be tested on the anvil of necessity and

relevances as well. The contention that however irrelevant the questions are, the privilege can be claimed cannot be apply to the facts of this case.

Such a too wide application will only allow persons like the defendant to commit slander and libel and walk away unharmed. It will be used as a

tool by them to commit liberal slander openly whether was any necessity or not for the same. It would amount to arming them with a licence to

commit such acts. I do not think the object of the law is to arm these persons with such shield of protection. Considering the case I feel that even

assuming some privileges can be claimed it is a case where the defendant has overstepped his limit. An excess has to be condemned wherever its

immunity exceeds its rights. Nor one can abuse his privilege. Here is a glaring instance where the defendant has exceeded and has abused his

privilege. It is as if he has crossed the ''lakshman reka'' in an unabashed and wilful manner. To cloth such person with immunity will be only harmful

to the society. The Courts of law cannot simply cross their fingers and be a mute witness to such happenings. There is no public interest or

advancement of society involved in this case. It is purely a litigation between private parties wherein such a question was never relevant. The sole

aim of which was to defame not only the plaintiff but also impute unchastity to the daughters of the plaintiff has these question have been put by the

defendant in a cavalier fashion.

Neither before the suit nor laid or after that the defendant has chosen to tender any apology. Nor has he regretted having put such questions.

He had the cheek to contest the matter. When he failed in his attempt he pursued the matter by way of appeal. Not satisfied with the verdict of the

lower appellate court he has chosen to come by way of second appeal to the suit. He does not feel sorry for what has been done by him. To feel

sorry for one''s of deeds and to repent for the same is a virtue. That, the defendant does not possess. At least having fought up the matter in the

courts if he withdraw gracefully, one can appreciate. But with vengeance he has chosen to come up to this level. There has been no intention on his

part at any stage of the proceedings till date to make amend for his action. He has not even chosen to pay the amount of compensation. Thus this

hard boiled nature of the defendant his tongue in the cheek attitude, the utter absence of humane feelings, the persistent plea of privilege are all

proof of the man. Therefore it is a fit case where I am constrained to award exemplary cost to the respondent. The matter has been pending in the

courts from the year 1981 onwards. We are in the year 1997. 16 long years have gone by. The plaintiff viz., the sole respondent is also dead now

and his legal representatives have been brought on record. The appellant has not felt sorry for his deeds. He has not even cared to pay or deposit

the damages awarded by the Courts below. Therefore it is clear that the defendant to say the least is a cantankerous client and a libellous litigant.

In the nature and circumstances of the case, considering the harm he has caused to the respondent and his family, his unrepentant attitude I hold

that it is a fit case where the defendant/appellant should be ordered to pay an exemplary costs of Rs. 5,000 to the respondent/plaintiff.

In the result, this appeal is dismissed with costs throughout. In addition to the usual costs, the defendant/appellant shall pay to the

respondent/plaintiff a sum of Rs. 5,000 as exemplary costs.