Praneswar Basumatary vs Asomiya Pratidin And 4 Ors

1) Heard Mr. R.S. Chouhan, the learned advocate for the appellant as well as Mr. U.B. Sarma, the learned advocate, for the respondents.

2) By this appeal under section 96 CPC, the appellant has challenged the judgment and decree dated 08.04.2010 passed by the learned Civil Judge,

Sonitpur, Tezpur in Money Suit No. 9/2007, by which the suit filed by the appellant, seeking a sum of Rs.20.00 Crore as damages from the

respondents for publishing a series of defamatory and libelous news items in Asomiya Pratidin, an Assamese language daily dated 27.06.2003, was

dismissed.

3) The case of the appellant in the plaint was that at the relevant time, he was the elected Member of the Legislative Assembly of Assam from 75

Sootea Legislative Assembly Constituency in the 7th Assembly of the State of Assam. Bereft of details, inter-alia, it was pleaded that he is highly

respected and popular person from the Bodo- Kachari Community and having done many developmental works for the State in general and his

Constituency in particular, he was loved and respected by all sections of people. However, his prestige, good name, image, reputation and respect in

the society had considerably suffered loss because of false, baseless, malicious, libelous and defamatory news article, which was prominently

published in the Asomiya Pratidin, inter-alia, in its editions dated 18.03.2006, 25.03.2006, 01.04.2006, 02.04.2006, 03.04.2006, 05.04.2006, 07.04.2006,

08.04.2006, 11.04.2006, 13.04.2006, 22.04.2006, 28.04.2006, 12.03.2007, which was simultaneously published from Guwahati, Dibrugarh, North

Lakhimpur and Bongaigaon Districts of Assam. It was stated that by continuous printing, publishing and circulating the false, baseless, motivated,

slanderous, malicious, and defamatory news against him, the appellant had been defamed before the public, thereby his prestige, goodwill, good-name

and good-fame was lowered in the estimation of others, thereby influencing the voters against him in the election, leading to his defeat. Therefore,

claiming that the cause of action for the suit arose on the various dates as mentioned in the two suits, the appellant had prayed for a decree of

Rs.20.00 Crore as damages and compensation for defamation and for decree directing the respondents to publish apology in the front page of their

newspaper, for interest and costs, etc.

4) The respondents contested the suit by filing their joint written statement, thereby denying the claim and by justifying their news article, further

claiming that the appellant, being a public servant, was answerable to the public. It was stated that certain actions of the appellant, as mentioned in the

news items, were illegal, which led to filing of several criminal complaints against him. Taking an aggressive stand against the appellant, the

respondents had defended the news items published, printed and circulated by them and they had prayed for dismissal of the suit with cost.

5) trial:-

Upon pleadings, the learned trial Court had framed the following issues for

Whether there is cause of action for the suit?

Whether the plaintiff is a man of repute and whether the publication of the allegedly defamatory news items published on 18.03.2006, 25.03.2006,

01.04.2006, 02.04.2006, 03.04.2006, 05.04.2006, 08.04.2006, 11.04.2006,

13.04.2006, 22.04.2006, 28.04.2006 and 12.03.2007 the plaintiff had been defamed?

Whether news items published by the defendants are based on true facts as stated by the defendants or the same are defamatory or malicious?

Whether the plaintiff is entitled to compensation for the damages to his reputation as claimed by him in the suit?

As to what relief or reliefs the parties are entitled to?

6) In support of his case, the appellant had examined the following witnesses, viz., himself (PW-1), Sri Putul Rabha (PW-2), Sri Pawan Chetri (PW-

3), Sri Padum Nath (PW-4) and Sri Suresh Ghotraj (PW-5), and had exhibited various documents. The respondent No.5, namely, Sri Dibyajyoti Nath

examined himself (DW-1) and had exhibited a RTI reply as Ext.A.

7) In respect of issue No.1, the learned trial Court, upon appreciating the pleadings and evidence had held that there was cause of action for the suit

and, as such, the issue was decided in the affirmative and in favour of the appellant. In respect of issues No. 2 and 3, the contentious cases of the

parties was discussed in details and it was held that the DW-1 had adduced evidence to the effect that the news items that were published were

based on reports collected by him, showing that criminal cases were filed against the appellant by different persons including the then Deputy

Commissioner of Sonitpur District. Thus, it was held that the appellant had failed to show that he had a good reputation amongst all sections of people.

Resultantly, it was held that there are sufficient reasons to believe that the respondents had published the news items bona fide believing the same to

be true and that they had no intention to harm, damage or lower his reputation. On the basis of evidence of PW-2, PW-3, PW-4 and PW-5, it was held

that they were closely associated with the appellant and that the appellant was still loved and respected by the people in the locality and that he had

the same reputation, good-name and fame in the society as he had earlier to publication of the news items. Hence, it was held that the appellant had

failed to prove the damage caused to him due to the publication of the news items at Ext.1 to Ext.13 and accordingly, the issues No.2 and 3 were

decided in the negative and against the appellant. In view of the decision on issues No.2 and 3, the issues No.4 and 5 were also decided against the

appellant and the suit was dismissed.

8) Assailing the judgment and decree passed by the learned trial Court, the learned Counsel for the appellant has meticulously read out the defamatory

news article, pleadings as well as the evidence on record. By pressing all the grounds of appeal, it is submitted that the news item published with

malicious intention to defame the appellant, knowing the said news item to be false. It is submitted that the respondents had failed to prove that the

offending news item was published in good faith. It is submitted that the press had no special privilege and immunity for publishing false, baseless,

fabricated and concocted stories against the appellant. It is submitted that by the dint of his developmental works, in respect of which evidence was

led, the appellant had earned an impeccable goodwill, name, fame and prestige in the society, which was totally lost by the publication of the offending

news item, which contained false allegations, which could not be justified by the respondents. It is submitted that because of the false news items, the

appellant had lost his election, which proved that his reputation was irreparably lost. It is submitted that the learned trial Court had misread and

misconstrued the evidence and had arrived at a wrong and erroneous finding, which had vitiated the judgment passed by the learned trial Court and

prayed for reversal of the decision by the learned trial Court and had prayed for the suit being decreed. It is submitted that in the defamation suit, it

was the burden of the respondent to dispel the doubt by leading evidence, but the learned trial Court had wrongly shifted the burden of proof on the

appellant and, as such, there was a miscarriage of justice. It is submitted that the respondents could not prove the result of the criminal cases filed

against the appellant or that the public are suffering from lack of development works. In support of his submissions, the learned advocate for the

appellant had placed reliance on the following case citations:-

a. Gambhirsinh R. Dekare Vs. Phalgunbhai Chimanbhai Patel & Ors., (2013) 3 SCC 397;

b. Magna Publishers Co. Ltd. Vs. Shilpa S. Shetty, (2007) 12 SCC 792.

9) Per contra, the learned advocate for the respondent has made his submissions to justify the publication of the news item found offending by the

appellant. By referring to the various news items, it is submitted that each and every statement made in the news item stood proved by the DW-1 by

proving Ext.A. It is submitted that once malice is alleged against the respondents, the burden of proving malice would be on the appellant, but the

appellant did not discharge his burden. It is submitted that reputation is something which one cannot perceive for himself, but it must he considered as

to how the other members of the public value the reputation of the appellant and in this connection, it is submitted that as per the evidence of the

plaintiff’s witnesses, none of them had stated that the prestige and reputation of the appellant was lowered before their esteem. It is submitted that

the LCR revealed though there was mention of various exhibits in the evidence- on- affidavit by the PW-1, but no exhibits were actually marked and

proved before the Court. In this connection, it is further submitted that the appellant had made statements in the plaint about the allegedly defamatory

news items, which was specifically denied by the respondents in their written statement that those articles were the ones printed by the respondents,

yet the appellant had not proved the relevant news papers. Hence, the learned advocate for the respondents has prayed for dismissal of the appeal.

10) From the submissions made by the learned advocates for both sides, the following points of determination arise for consideration in this appeal:-

I. Whether the appellant has been able to establish that he has been defamed?

II. Whether the impugned judgment and decree passed by the learned trial Court by dismissing the suit is sustainable on facts and in law?

11) The point of determination No.1 is taken up first. At the outset, the word “defamation†is required to be analyzed. According to The Law

Lexicon, by P. Ramanatha Aiyer, 2002 Reprint Edition, Defamation is defined as

Ø “The taking from another’s reputation; a false publication calculated to bring one in disrepute. Defamation, is when a person speaks

scandalous words of others, whereby they are injured in their reputation. (Tomlins Law Dictionary).â€​

Ø “An intentional false communication, either published or publicly spoken, that injures another’s reputation or good name, holding up of a

person to ridicule, scorn or contempt in a respectable and considerable part of the community; may be criminal as well as civil. Includes both libel and

slander.â€​

Ø “Defamation is that which tends to injure reputation; to diminish the esteem, respect, goodwill or confidence in which the plaintiff is held, or to

excite adverse, derogatory or unpleasant feelings or opinion against him. Statement which exposes a person to contempt, hatred, ridicule or obloquy.â€​

In Blacks Law Dictionary Seventh Edition, the word defamation is defined as follows:-

Ø 1. The act of harming the reputation of another by making false statement to a third person. . If the alleged defamation involves a matter of public

concern, the plaintiff is required to prove both the statement’s falsity and the defendant’s fault. 2. A false oral or written statement that

damages another’s reputation.

12) In the opinion of this Court, the allegation made in the plaint in respect of defamation must be assessed and/or evaluated by the touchstone of

Evidence Act, 1872 and, as such, the burden of proving the allegations would be on the appellant under the touchstone of the provisions of Section 102

of the Evidence Act, 1872.

13) On examining the evidence of the PW-1, no doubt, he has deposed in his examination- in- chief that the offending news item had defamed him

before the public at large However, from the statements made by all other 4 PWs examined by the appellant, it can be seen that the prestige, goodwill,

good-name and fame, respect, etc. of the appellant has not been lowered at least in eyes of the PW-2 to PW-5. The statement of the PW-2 in his

cross examination is to the effect that all the Congress workers still have great respect towards the appellant and they still respect him like before.

The PW-3 had stated in his cross examination to the effect that 99% people from their constituency are Congress workers and they still have great

respect towards the appellant. The PW-4 had stated in his cross examination to the effect that he had made statement in his affidavit that people love

the appellant and the people still loved him. The pw-5 had stated in his cross examination to the effect that he still had respect and reverence towards

the appellant and all the people in the constituency still have respect and reverence towards the appellant.

14) Thus, though the allegedly offending news articles, do not show the appellant in a good light, but it appears from all 4 (four) PWs produced by the

appellant that his prestige, good-name, goodwill and reputation was not lost. Therefore, the only effect would be to hold that the appellant had not been

defamed. The opinion of the appellant for himself of what others might be thinking of him, is of no consequence to succeed in a case where damages

is being sought for being defamed because for the appellant to succeed in this case for defamation, at least one of his witnesses must have formed an

adverse opinion of the appellant on the basis of the news item, which is alleged to be defamatory. A man’s opinion about himself cannot be called

“reputationâ€. Thus, the decision of the learned trial Court on issues No. 2 and 3 cannot be faulted with. The DW-1 had exhibited a document as

Ext.A, which was a RTI reply provided by the Superintendent of Police, Sonitpur, Tezpur, disclosing the lodging of 6 police cases against the appellant

by various persons. Thus, the finding by the learned trial Court that the appellant had failed to prove that he had a good reputation in the society was

proved vide Ext.A and, as such, the statement by the appellant that he had a good reputation stands disproved.

15) The appellant had pleaded in the suit that he had done many developmental works, which was denied by the respondents in their written

statement. Under the provisions of Section 102 of the Evidence Act, 1872 if no evidence was tendered from either side, the said plea of the appellant

would fail. However, despite denial by the respondents of the claim of the appellant that he had done any development works, the appellant did not

lead any evidence to prove his pleadings in the plaint. Thus, the plea of the appellant remained “not provedâ€. It is also seen that despite positive

assertion by the respondent in the written statement, standing by the correctness of the news items, the appellant had not cross-examined the DW-1

on the correctness of any news item, alleged to be defamatory. Rather, in his cross examination, the DW-1 had denied that the appellant had a good

reputation. He had also reiterated that the news items were published on collecting information. Hence, the stand of the respondents in their written

statement and in the evidence- on- affidavit filed by the DW-1 could not be demolished in cross examination by the appellant.

16) Therefore, the submissions by the learned advocate for the appellant that the respondents did not discharge their burden to prove that the news

items were true are not tenable as because under the Evidence Act, 1872, the burden of proof cannot be held to be on the defendant to prove any plea

of the appellant. Nonetheless, the respondent by proving Ext.A, without any objection, had proved that at least 6 police cases were filed against the

appellant alleging various offences, which is cemented by the fact that the DW-1 was not even cross examined on the contents of Ext.A. Thus, the

admissibility of Ext.A was not questioned by the appellant. More importantly, the LCR reveals that none of the documents were marked by the

appellant/ PW-1 as exhibits, despite reference being made in the judgment. Thus, in the absence of marking even the news papers containing allegedly

defamatory news items, the appellant is found to have failed to discharge his burden to prove any part of his pleadings.

17) In respect of the cases cited by the learned advocate for the appellant, it is seen that the subject matter of the case of Gambhirsinh R. Dekare

(supra) was a criminal prosecution for defamation, which was quashed by the High Court. Thus, the observation by the Hon’ble Supreme Court

that the news item had the potentiality of bringing doomsday for an individual is of no help to the appellant, because except for the opinion perceived

by the appellant, all the remaining 4 (four) PWs examined by him had not lost the respect of the appellant, which they continued to had prior to news

items being published and circulated by the respondents. Similarly, the case of Magna Publishers (supra) also does not appear to help the appellant as

the matter relates to grant of ad-interim injunction, which are decided in an altogether different footing, where only prima facie case, balance of

convenience and irreparable loss and injury are of prime consideration of the trial Court. The said case would have no application, as none the

witnesses examined by the respondent doubted the character and integrity of the appellant, as such, the appellant was not defamed before his said

witnesses.

18) Therefore, in view of the discussions above, the point of determination No. I is answered in the negative by holding that the appellant has not been

able to establish that he has been defamed. In view of the said finding, this Court did not deem it necessary to burden this order with the English

translation of the defamatory news items.

19) Consequent upon the decision of this Court on point of determination No.I, the point of determination No. II is answered in the affirmative by

holding that the impugned judgment and decree passed by the learned trial Court, thereby dismissing the suit of the appellant is found to be sustainable

on facts and in law.

20) Therefore, this appeal stands dismissed.

21) There shall be no order as to cost.

22) The LCR may be returned back.