V. C Jacob vs Achukutty Abraham

K. SUKUMARAN J.

A rare type of case, yet one which has raised many intellectually stimulating questions. It arises out of a litigation resorted to for the protection of the plaintiff''s reputation. The suit was decreed'' few the trial court but dismissed by the appellate court. The plaintiff has tenaciously pursued the matter by this second appeal before this Court. The cause of action has arisen in the uplands of the former Malabar area. Hard working cultivators of Travancore, confronted with a shrunken space, have massively migrated to Malabar for over half a century by now. Some have cleared forests and reared rubber plantations. Many have profitable ventures in pepper and in coffee. Even those who had thus moved with essentially planting projects, diversified their interests in later times. Some have taken to trade; some others to other avocations; transport, works contract and the like. The plaintiff in this case is one who is better known as a contractor, and as it generally happens, as a rich one of the time, and in the area.

Having settled down in Malabar earlier, and for a fairly long time, the plaintiff and his establishment had taken deep roots. He claims, and the evidence justifies the claim, that he was well known among the compact population of that newly developed area.

When famines increase, and children multiply, other institutions become essential human requirements. Hospitals, hotels and schools thus spring up. A school was established in that otherwise unapproachable area. Even when schools were open teachers were unavailable : such was the hangover of the antecedent educational backwardness of Malabar.

Those who had better educational facilities and consequently better educational equipment, were always ready and willing to migrate anywhere, if only employment is available. The 1st defendant, so set out to this area to become a teacher in the school.

The relationship between them was ideal, initially it, however, soured later, intensely. The result was a litigation. The case is, therefore, contractor v. teacher.

The facts, quite often, are stranger than fiction. They have been so in the present case. A newly started school needs new recruits for the establishment. Adequate facilities for the stay of the teachers, when they hail from distant places, may not easily be available in such developing but not yet developed, areas. The situation creates difficulties to a newly appointed teacher, mere so, if it is a ''lady teacher.

The plaintiff-contractor extended a helping hand to the 1st defendant, teacher, to tide over the difficulty. (The parties are somewhat distantly related too). The plaintiff permitted the 1st defendant to stay in his house. He was a married man and with children. Ordinarily therefore, a paying guest, and, that too, a teacher, need not create problems.

To see that a daughter is married, is a matter of justifiable anxiety on the part of an affectionate father. That was so in the case, of the 2nd defendant, the father of the 1st defendant. The marriage of the 1st defendant was duly and finally fixed. The marriage took place in the native land near Changanacherry. (There appears to have been some unpleasant incidents in the course of the marriage ceremony. Not so grave or serious as to mar the marriage function. There is controversy as to the role played by the plaintiff and his men on the one hand and the defendants on the other in those incidents.) The fact that the plaintiff attended the marriage is clear. Whether any one of the groups or both, behaved improperly is not an issue to be tried in the case. The incidents were a prelude to the further deterioration in the relationship between the parties.

Soon after the marriage, the first defendant shifted her residence from the plaintiff''s house to that occupied by another teacher of the school, Mrs. Elizabeth. The trouble started sometime later.

According to the plaintiff, the first defendant maliciously spread, a slander tarnishing his character. The slander was that, it was unsafe for a woman of values and virtues, to live in the house of the plaintiff. An apprehension of a threat to chastity was put forward as the ground for the change of residence of the first defendant. The story got currency among the teachers of the school and it spread in the locality, fairly quickly. The information trickled down to other groups as well, to reach the ears of the plaintiff himself.

Different people react dissimilarly in identical situations Some might have dismissed the talk, as a trivial matter. Some others might retort: gossip is a girlish trait - and may even quote Shakespeare. "Talking is a woman''s warfare". The plaintiff did not, however let it pass.

The plaintiff as a prominent person in that area:, would claim that he was much upset by the slander campaign. He felt aggrieved that his position and prestige in the society had been lost by the slander. A demand for repairing the mischief done that way, was improperly spurned by the defendants. The evidence in the case is that the lawyer''s notices Exts, A2 and A3 issued to both the defendants were returned with an endorsement indicative of an improper, and an unreasonable attitude. The endorsement reads:

Addressee refused. Hence returned to sender.

It the plaintiff felt infuriated, he cannot be blamed at all There was provocation enough for the initiation of a litigation. The next step, understandably, was the suit itself. Damages were claimed against the defendants in a sum of Rs. 5.000/-.

The defence repudiated the allegation contained in the plaint In the written statement, there was no pejorative suggestion as against the plaintiff. The defendants denied the authorship and circulation of the slander-According to them the pressure of time; prevented the 1st defendant from attempting a persona invitation for the marriage. This annoyed the plaintiff. The suit was the resultant reaction of his injured vanity.

The trial court, on an evaluation of the evidence, came to the conclusion that the defendants spread the objectionable statements though they did not have any intention to cause a loss of reputation to the plaintiff. The suit was decreed.

This decree was appealed against. The court below took a different view. It was felt that the pleadings were defective; and the evidence, unsatisfactory. The appeal was accordingly allowed. The result was the dismissal of the suit.

The plaintiff, upset by the unfavorable decree, has come up in appeal challenging the adverse finding of the appellate court.

Extensive areas were covered in the course of the arguments by both sides. Much of the time was spent on the contention about the defective nature of the plaint. In particular, it was urge, with much of vehemence, that an extract of the words used by the second defendant and a reference to the precise situation and context in which such words were used, were conspicuously absent in the plaint That according to counsel was a fatal defect. Recent rulings and textual passages were relied on in support of the conclusion reached by the court below. There was an attempt at a merciless dissection of the plaint with a view to expose its defects and deficiencies. Lastly, an exhaustive evaluation of the evidence too (not a legitimate exercise in second appeal) was also attempted by either side.

On pleadings generally, the position has been fairly settled by authoritative pronouncements. The current view is one approving of considerable relaxation in the rigour as regards the pleadings. A very ] recent ruling of the Supreme Court is Ram Sarup Gupta v. Bishun Narain Inter College, A. 1 R. 1987 S. C. 1242; An epitome statement of law on that aspect, is contained in the passage reading:

The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should state the essential material facts so-that other party may not be taken by surprise. The pleadings however should receive a liberal construction, no pedantic approach should be adopted to defeat justice on hair splitting technicalities. Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law, in such a case it is the duty of the Court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of the pleadings, instead the Court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is round that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal.

Whatever may be the generality of the relaxed rigour in relation to the pleadings generally, that should not be so in the case of a slander suit - such was the emphasis attempted by counsel for the respondent. Reliance was mostly made on the decisions of the English Courts. The House of Lords spoke at length on this question in Fullam v. Newcastle Chronicle, (1977)3 All E. R. 32. Whether a differential approach was possible in the Indian situation was a further question to be considered. A decision of the Cochin Chief Court in a secular litigation between spiritual personnel, Mar Timotheus Metropolitan v. Yohannan Kathatwr; (1914) V Cochin Law Reports 173, is note worthy in this context. Reference had been made there to the decisions in Capital and Counties Bank v. Henty, 7 Appeal Cases 741, Bradkmgh v. The Queen,3 Q. B. D. 607 and Harris v. Warre, 4. C.'' P''.''D. 125.

In an admirably independent approach, the Cochin Chief Court discarded the highly technical rule of English pleadings in the Indian set up. Paragraph 7 contains the entirety of the discussion on that aspect.

It will not be an unnecessary waste of precious space, if the passage h extracted in its entirety. It reads as follows :

What has been referred to above is a matter relating to the question of pleading and there is no question as to what the rules of English law on the subject are. The question for consideration is whether we will be justified in importing those highly technical rules of English pleading in Indian law. According to section 47 clause (d) of the Cochin Code of Civil Procedure, the plaint must contain a plain and concise statement of the circumstances constituting the cause of action, and where and when it arose, and in form 80 of the third schedule which relates to an action for libel the words being libellous themselves, it is stated in para 1 that the words used must be set forth. Section 600 of the Code provides that ''the forms set forth in the third schedule hereto annexed with such variation as the circumstances of each case require shall be used for the respective purposes therein mentioned.'' While it is necessary to set out the exact words constituting defamation even under the Indian law, it is nowhere laid down that a failure to comply with such a provision will necessitate the dismissal of the suit. The object of making such a provision is to give the defendant notice of the matter with which he is charged, so that he may not be misled in his defence. Ultimately, it comes to a question of the defendant being pre-judicially affected in his defence by want of knowledge as to the case brought against him. So far as the Indian law is concerned, we have to look to the object aimed at by the rule and if it can be gathered, that the 1st defendant knew well what the charge brought against him was and, if he went to trial for meeting that charge, it must be held that there has been a substantial compliance with the requirements of law and there was no miscarriage of justice. I am not therefore prepared to follow the English rules of pleading and to hold that the suit is liable to dismissal because the very words constituting the libel have not been set out in the plaint.

A substitution of the provisions of the Cochin C. P. C- with the corresponding current sections of the Indian Code will give the law of the present times.

With utmost respect, I would adopt that statement of law as the correct guiding principle for the Indian situation.

Although in the context of libel, the rigour of English pleadings has been adopted by the Indian High Court as is evident from Nannu v. Ram Prasad, AIR 1926 Allahabad, 672, AIR 1940 125 (Nagpur) and in W. Hay and Others Vs. Aswini Kumar Samanta, and other cases. The approach and the line of thinking which had commended itself to the Cochin Chief Court, had not been presented before those courts. The Cochin case is one of an action in slander itself. Even "in that context, the reasoned differentiation, calling for a different approach in relation to the pleadings, was clearly indicated by that court. I have no hesitation in following that reasoning and approach and to hold that the principles laid down in the English decisions including those in the recent decisions rendered by the House of Lords, would not apply in all their rigour in relation to the pleadings in the Indian set up.

True, the Privy Counsel in Ghirdharee Sing v Koolahul Sing, 1840 Moore''s Indian Appeals 344, leaned in, favour of looking to ''the essential Justice of the case'' without considering whether matters of form have been strictly attended to. The prevailing conditions (a century and half later and forty years after the ushering in of the Indian Republic) warrant appropriate modulation in the approach of the courts. Even then, the handicaps of past disabilities could be duly reckoned.

The pleadings in the present case, when roughly translated, read as follows:

At about the'' time, the 2nd defendant quarrelled with the members of the plaintiff''s family on some matters and recently shifted the residence from the plaintiff''s house. Later the 1st defendants came to Kozhikode to meet the 2nd defendant and defendant I and 2 told many that the 2nd defendant shifted the residence from the plaintiffs'' house as the plaintiff attempted to commit rape on the 2nd defendant and that the very chastity of the 2nd defendant would be in jeopardy, in case of her continued residence there and that that was the reason for her shifting the residence.

In a sense, even the rigorous requirements of English pleadings would be satisfied by these allegations. The words imputing an offence are clear enough; the context is distinctly described; the persons to whom the slanderous words were uttered are properly named. The defendant cannot possibly have any doubt about the case they had to meet.

There was some discussion at the Bar whether the averments contain a specific imputation against the plaintiff of an offence punishable under the Indian Penal Code. If there is a reference to murder or theft, slander is properly pleaded-conceded counsel for the respondent. An attempt Eat invading chastity is not an offence as against a man, emphasised counsel. That was so even as, against the women in England under the common law, was the further elaboration of the concept. As for women, relief came in England with the passage of the Slander of Women Act. Men there, are as yet uncovered.

In India, there continued to be cleavage in judicial opinion on that topic as reflected in the decisions of the Calcutta High Court on the one hand and those of Madras and Bombay High Court on the other. (See Aghore Nauth Bannerjee v. The Calcutta Tramways Co. Ltd., 1885 ILR II Calcutta 232, Parvathiv. Mannar, 1885 ILR 8 Madras, 175 and Bal Bhicaiji v. Perojshaw Jivanji, 1916 ILR 40 Bombay, 401). Man has no face to lose, nor reputation to suffer, even if he is branded as indulging in promiscuous sexual relationship. Arguments of counsel for the respondent proceeded that way.

If an imputation of an offence is actional, then the defendant can have no escape route. An allegation that a person has attempted to commit adultery, will necessarily constitute an allegation of an attempt to commit an offence. In the scheme of the Indian Penal Code, an attempt to commit an offence, is itself an offence. Even an attempt at outraging the modesty of a woman will be an offence. (Vide Sec. 354 of the I. P. C.) Viewed that way, the allegations extracted above, doubtless, contain statements attributing an offence to the plaintiff. It will then satisfy the requirements of a proper pleading in an action for slander. I therefore repel the contention that the pleadings in the present case were deficient and that the non-suiting of the plaintiff on that ground by the appellate court is justified. The appellate court committed an error of law in relation to its understanding of the law on the pleadings.

This leads to the final and next stage of the discussion. That is about the existence of satisfactory evidence to decree the suit.

Six witnesses had been examined on the side of the plaintiff. A strong circumstance, namely the endorsement by the postal authorities, about a refusal to receive the registered letter sent by the plaintiff is more important than most of the oral testimony. Counsel for the respondent could not properly justify an attitude by which a registered article was refused by the defendants. The teacher and her father, with fairly good worldly experience, should not have acted so unreasonably or so arbitrarily. An adverse impression against them could rightly be formed from the circumstance. In the absence of other factors, it may even be a decisive or crucial factor in the thought process and the resultant conclusion.

The defendants had no case that plaintiff had misbehaved towards the 1st defendant at any time or in any manner. Counsel for the respondent submitted that the woman would be the victim whatever be the source and sphere of such a sticky accusation. There is force in that submission. Quite often, even while reeling with pain from a wounded self respect, a woman prefers to live with her pursed mouth and painful murder.

Counsel for the respondent submitted that if the plaintiff''s version is correct, it would mean that a teacher, newly married, was unjustifiably and cruelly making an allegation against a helpful man, who gave her a roof when she was crying for a shelter and caring for a career. Such a conduct would be strange and unusual. Stranger still would be her conduct of attributing bad conduct on his part, which can even ignite a domestic discord and blast the family board. Normally, civilised human conduct would be inconsistent with spreading of a scandal against a man who was helpful. But then, it is equally easy to pose another question.

Will a person enjoying a good reputation and holding a prominent position, one who had shown some amount of magnanimity and helpfullness to a needy girl, think of originating a scandal in which he is robed as a robber of chastity, a scandal importing into his own home, and in the society, the smog of slander? One without a courage of conviction is unlikely to assume an aggressive role and level an attack against the defendants as ungrateful souls spreading a sinister canard. Rarer still will be the initiation of an actual litigation with its attendant publicity, by a person merely pretending virtue. All men may not be angels who place their dulcimers on the Choral Pitch; but then an immoral hypocrat is unlikely to invest much of time, trouble and money in the vindication of a reputation. The arguments for the two sides are therefore somewhat well-balanced. The court will have to act on the actual evidence available in the case in that situation.

The defence, as noted earlier, had a theory that the plaintiff had nursed an ill feeling when a personal invitation was not extended to him by the defendants in connection with the marriage of the 1st defendant. If the defendants were pressed for time, as they would have it as an explanation now, the plaintiff ordinarily would have very much appreciated'' it. It is unimaginable that for such a silly cause, a reasonable and well meaning man would have rushed to a litigation with a self-directed false allegation. I have no hesitation to reject that story of the defence.

As for the plaintiff, there comes the difficulty. He had named T. Raghavan Master, C T. George, T.K. Narayanan Nair and Abubacker Haji as the persons to whom defendants directly stated the false allegations about him. Of them, it was claimed Narayanan Nair and Abubacker Haji had questioned plaintiff himself about it. Paragraph 3 of the plaint makes reference to the persons who had directly questioned the plaintiff about the story. In that situation, the acceptable evidence of one among them, could ordinarily be expected for sustaining the plaint claim. Some of them are teachers of the same school. No doubt, in that situation, there will be a disinclination on their part to cause discomfort to a fellow teacher. It cannot, however, be assumed that to one among the group is prepared to speak to the truth, when they have nothing to spite the plaintiff. The non examination of any of such persons specifically named in the plaint, is a fatal factor shaking the, plaintiffs case.

PWs 1 to 5 only speak about the generalities on reputation of the plaintiff, his influence in the society and his acceptability even as a just arbitrator in the petty disputes of the people of the locality That may not be sufficient to establish the wanton violence done to plaintiffs reputation.

P. W.6 is an independent witness; one of the locality and one who has given evidence with an amount of naturalness. He claimed to have gone to the house of Elizabeth teacher, the place where the first defendant was staying, after her marriage. He stated that the words as referred to in the plaint were stated to him by the 1st defendant. He also spoke about the presence of the father when she made the statement; the 1st defendant, the father of the 2nd defendant, had endorsed the statement of the 2nd defendant.

If the evidence is accepted, that would be sufficient to pass a decree in favour of the plaintiff.

It was for a medical consultation that P-W. 6 went there. He cut his finger with something like a sickle. Elizabeth teacher''s husband was a Homeo doctor. He thought of getting the wound dressed by that Doctor, Does it stand to reason that any one would go to a Homeo path for dressing a bleeding wound? queried counsel for the respondent. The rural set up and the cultural and educational background, of the witness, have all to be reckoned in judging his conduct. It is difficult to summarily dismiss it as an impossible conduct.

However, more serious difficulties exist in relation to the acceptance of his evidence. In his chief examination, PW6 stated that PW2 was present when the first defendant talked to him the slanderous words. That is not the case of PW2. PW2 is positive in his evidence that he knew about the defendant''s objectionable actions only from the plaintiff. There is, therefore, an irreconcilable conflict in the version as given by PW2 and PW6.

Counsel for the plaintiff submitted that the statement of PW6 did not necessarily mean that PW2 was in the hearing range when the defendant uttered the objectionable words to PW6. It is difficult to accept the suggestion as a wholly convincing explanation for the glaring disparity in the version of the two witnesses. A reading of the testimony of P W. 6 would not bring to mind a crowded consultation room and a que of waiting patients. If P. W. 6 could see, and state about his having seen, P. W. 2 in the house of Elizabeth teacher, that must ordinarily be in the presence of P. W. 2 himself. As noted earlier, P. W. 2 does not have such a case at all. This situation, to a considerable degree, shatters the reliability of the evidence of P. W. 6. The plaintiff apparently put his money on the wrong horse.

There is yet one more strong enough circumstance, disfavouring a ready acceptance of the uncorroborated testimony of P. W. 6. That is the belated inclusion of the witness in the witness list. The suit had been filed in 1977. The name of P. W. 6 was absent in the array of persons particularly enumerated in paragraph 3 of the plaint. His name appears in the witness list for the first time in 1979. The court will then have a feeling that there is not enough assuring evidence and supportive materials justifying an interference with the finding of fact on the question by'' the appellate court.

Possibly, it is a shortfall in the evidence unexpected or unanticipated by the plaintiff. Yet it is there. The plaintiff had presumably an over-doze of optimism. Only the actual battle in the legal court brought to him a realisation of his inadequate equipage. Even then, he has to face defeat, with the doubtless dismay, but a partial satisfaction of having done his best. A feeling that those, whose names were mentioned in the plaint may not be as helpful as was imagined earlier, might have persuaded

''him to leave out such persons from the witnesses examined on his side.

''That too may be an unexpected (and for him quite unfortunate) eventuality. That eventuality too, cannot visit on the defendants, penal consequences. It may be that the defendants were perilously near the liability zone. It is particularly so when the explanation put forward as the motive for the plaintiffs suit is so tenuous and so artificial.

A general impression of this Court that the plaintiff had a courage of conviction and had done well to resort to an action for the protection of his reputation, would probably be ample reward for all the trouble that he had taken In the situation, that could be his only consolation; and insubstantial terms, that is a good consolation in the prevailing situation. He can now consign to oblivion the whole experience as a squalid episode in a shabby period in the lives of all the parties.

With the above observation, I dismiss the second appeal. An appreciation of a daring action in the protection of one''s own reputation as attempted by the plaintiff, would justify this Court in declining costs to the respondent. I direct the parties to bear their respective costs. This State enjoying the ecstasy of literacy, has witnessed many legal battles, when reputation was a target of attack.

Decided cases would indicate that a wounded self respect made even an otherwise disciplined spiritual novice sue his ecclesiastical superior as in Mar Timotheus Metropolitan v. Yohannan Kathanar, (1914) V. Cochin Law Reports 173, or as in (the case of a Hindu spiritual head) M. Swaminatha Pillai v. Vencatagiri Sastrui, 1908 T. L. R. Vol. XII

Page 72; or again as in (a Muslim spiritual head) ismal Kattuvava Rowter v. Marakar Lebba Abdul Kadir Lebba, 1908 T. L. R. Vol. XIIL Page 190. Mr. A. B. Salem, an advocate, who functioned as Chief of a local authority, fought and won one such battle, when, with an innuendo on his religious persuasion, an article in ''Argus'' referred to "Judicial Perfidy", and thus calumnised his Jewish faith. (That case would be helpful guide to any lawyer as to the thoroughness with which pleadings are to be made and the qare with which evidence has to be adduced Quite often, the words of wisdom of Vidhura (as occurring in that massive epic Mahabharatha) are forgotten. The words read :

You protect your reputation. Reputation is the strongest force. The great sages say that the life of one who has lost his reputation is a useless one. Oh! son of Gandhari, a man lives till such time as his reputation remains undermined. A man''s life extends till such time as the existence of a good reputation. With the destruction of the reputation, man also perishes.

(See Bhishma''s Vakya in Adiparvam, Paragraph 203).

Even in the background of a defeat suffered by the plaintiff, this litigation may have a lesson to give : Slanderers, beware !