1. The suit, out of which this appeal - arises, was an action for damages for libel instituted by the appellant Nadirshaw Sukhia, a veterinary surgeon, against the three defendants, the first of whom, Phiroz Ruttonji Ratnagar was a frequent contributor to the columns of a daily newspaper called the Jam-e-Jamshed, published in Gujarati in Bombay, and the 2nd and 3rd defendants are its proprietor and editor and printer and publisher, respectively. All the parties belong to the Parsi Zoroastrian community. The libel complained of is contained in a letter written by the first defendant and publish, ed in the Jam-e-Jamshed of the 26th of January 1911. That libel was charged as containing two distinct imputations on the character of the appellant, first, that he had obtained the privilege of being called on to move or second propositions at the meetings of the Parsi Anjuman by sending to the trustees of the Parsi Panchayet, who convened those meetings, threats that if he were not allowed to move or second the propositions he would create disturbance at the meetings, and, secondly, that the appellant had boasted in certain lectures delivered by him of being a greater friend of the late Sir Jamsetjee Jeejeebhoy, the 4th Parsi Baronet of that name, than he really had been.
2. The pleas advanced in defence by the three defendants were that the statements in the letter charged as defamatory were not libellous, that, if they were, they were justified as being true in substance and in fact, that they were protected by privilege, and that they were fair comment on a matter of public interest.
3. The action was tried by Beaman J., who held that the words complained of were defamatory, that the defendants had failed on the pleas of justification, privilege, and fair comment; but he awarded one rupee as damages to the appellant and ordered each party to bear his own costs upon the ground that 'the published charge, having regard to what Dr. Sukhia had told us of himself and his mental attitude towards his opponents in public life,' did not express 'anything which would materially injure or lower his reputation as a public man by the statement that he threatened Sir Jamsetjee that if not allowed to speak r he would create a disturbance'.
4. From that judgment this appeal has been preferred; and the respondents, defendants in the Court below, have filed cross-K objections, maintaining that the learned Judge should have held their defence proved on all or any of their pleas of justification, privilege, and fair comment, and dismissed the suit with costs.
5. In support of the appeal it has been urged by the appellant's counsel, Mr. Raikes, that this was a case, not, as held by Beaman J., for contemptuous, but for, at least, nominal damages, because the libel held proved had been published in a largely circulated newspaper, with the deliberate object of preventing the appellant's election to the office of trustee of the Parsi charitable funds, at the trial the plea of justification had been persisted in by the respondents in ignorance of the facts, and the appellant had been subjected to a vexatious and insulting cross-examination with reference to his general character and conduct.
6. It will be convenient to deal at the outset with the cross-objections of the respondents, since if good they go to the root of the whole case. In urging them, Mr. Kanga, counsel for the 1st respondent, sought to argue that the statements charged as libel, taken by themselves, were no libel at all; but as this was not a ground of the cross-objections but was raised at the hearing of the appeal, the Court declined to allow it to be raised and to permit the respondents to amend their cross-objections. So the questions argued in support of the cross-objections are three: (i) whether the respondents have justified the truth of the libel in substance and fact, (2) if they have not, whether they are protected by privilege, and (3) if they are not so protected, whether the statements charged as libellous are fair comment on a matter of public interest.
7. The circumstances under which the libel complained of came to be published may be briefly stated.
8. As a result of what is called the Judi case, which, in 1908, excited great commotion in the Parsi Zoroastrian community, and which was decided by a Division Bench of this Court, consisting of Davar and Beaman JJ., Davar J. framed a scheme for the election of trustees for the Parsi charitable funds, which aggregate over a crore of rupees. The first elections under that scheme were settled to take place in March 1911. Before the period of the elections, the appellant, who had taken a prominent part in the Juddin case, contributed an article to the columns of a Parsi daily newspaper published in Gujarati and circulated among other classes besides Parsis, an article over his-own signature, criticising] the conduct of the Parsi trustees in consenting to certain details of the scheme without consulting the Parsi Anjuman. The appellant came forward in January 1911 as a candidate for election to the office of trustee. He convened meetings of the Parsi community to hear his addresses in furtherance of his candidature and the candidature of others whom he supported ; he advertised those meetings in the newspapers; he invited the reporters of some newspapers to the meetings with a view to the publication therein of his lectures; he wrote a letter (Ex. 8) to the Editor of the Sanj Vartaman saying that he proposed giving lectures to ' lay before the public much which it is worth the while of our (Parsi) community to know. He also wrote to the 2nd respondent, proprietor of the Jam-e-Jamshed, In a letter (Ex.) informing him of the lectures intended to be given and requesting him to report them fully ' in his newspaper' ' as the matter is of public importance and much affecting our community.' In another letter (Ex. 3) the appellant requested the and respondent to send his reporter to report his lectures in the Jam-e-Jamshed.
9. Three lectures were accordingly delivered and, as desired by the appellant himself, they were reported in the Sanj Vartman, a Gujarati daily newspaper, which, the appellant in his deposition admits, has circulation not only among Parsi but readers of other communities as well. In these lectures he dwelt on his own qualifications for the office of trustee. The sum and substance of those qualifications was that he had rendered services to, and spent his life for the benefit of, the middle and lower classes of the community. He criticised in severe terms the aristocracy and the graduate class of the Parsi community whom he called ' brainless'. He charge the Parsi trustees, as they then were, with spending the moneys of the Parsi charitable funds ' unnecessarily and unreasonably' and with so manipulating the arrangements and procedure of the elections to be held as to defeat his own chances of election, and prejudice the rights of that portion of the Parsi community whose interests he had espoused. He charged one of the trustees with telling a falsehood. He passed strictures on several Parsi gentlemen. Lastly, the appellant in his lectures referred to the charges and attacksr ' the it writing and speeches,' against himself, to the agitation against 1 him in connection ' with the present burning questions,' with the result, as he said in the lectures, that he had ' become (sic)qirite unfit in the eyes of some and was regarded ' by those elected with pride on account of wealth as a beggar.' To such people his answer in the lectures was that he and those like him who did not belong to the aristocracy had ' not risen by the moneys of any of the poor widows or by the moneys-earned by the sweat of other,' meaning that the rich Parsis whom criticised had grown rich at the expense and on the moneys of poor widows and hard-working people. The appellant also pointedly referred to the opinion held about him by this opponents that ha was a troublesome thani, fond of sending lawyer's notices in every trifling matter, and liking always to rush into litigation.
10. It is with reference to, and by way of comment on, these lectures that the letter complained of as libel, and published in the Jam-e-Jamshed of the 26th of January 1911 was first written by the first respondent.
11. Of the three pleas on which the respondents rely in defence, in our opinion, having regard to the nature and character of the matter charged as libel, neither the plea of privilege, technically so called, nor that of fair comment can be open to the respondents. Both privilege and fair comment are two aspects of the law of privilege, with this difference that the former technically so called relates to the special rights of an individual, whereas the latter concerns the common rights of every member of the public at large ; McQuire v. Western Morning News Company (1903) 72 L.J.K.B. 612. To sustain the plea of privilege in the strict legal sense, it must be shown that the matter charged as defamatory was communicated by the defendant having an interest or a moiral or social duty in respect of it, to a person or persons having accoirelative interest or duty. That cannot be said of the present libel. Here plainly on the facts proved, and undisputed, the defendants, who as members of-the Parsi community had an interest in the questions raised by the appellant's candidature for the office of trustee of the Parsi charitable funds and his lectures, went beyond the privilege when they published the libel to the public at large, instead of confining it to the members of the Parsi community. The fact that the appellant had in the first instance courted general publicity and had contributed of his own accord to the circulation of his lectures among all classes of readers indiscriminately ] so as to make it a matter of public interest by means of the Sanj Vartman newspaper could not extend the rights of the respondents, so far as those rights flowed from privilege, technically so called. By publishing his lectures to the public at large, by dwelling in them on his own merits as a candidate for the office of trustee, and referring and replying to the views held about him by his opponents, he no doubt himself courted general publicity and made the matter one of public interest. In that view of the case every member of the public, Parsi or no Parsi, became entitled to comment on the conduct of the appellant and on his lectures, so far as that conduct lent itself to fair comment, having regard to the matter contained in the lectures. But because the appellant made it a matter of public interest, open to fair comment, the respondent did not become entitled to treat as privileged communication their discussion of it in a newspaper circulated among all classes of readers besides Parsis. Such discussion carried the matter beyond the sphere of privilege, understanding that term in the sense in which it is used in the books and in the decided cases in the English Law Reports.
12. Then as to the plea of fair comment, it is of the se of it that it should be, in the first place, comment on facts truly stated on a matter of public interest. In other words, given facts which are true as regards a matter of public interest, it is open to any member of the public at large to comment on them fairly, but if any allegation of fact imputing any act or acts of misconduct is made in the course of the comment, the libel is out of the sphere of fair comment, and can be justified only on the ground that the allegation is true. That is the law to be collected from the cases of which we need only mention three: McQuire v. Western Morning News Company  2 K.B. 100, Hunt v. Star Newspaper Company, Limited  2 K.B. 309, and Davis v. Shepstone (1886) 11 A.C. 187, where the Privy Council, Lord Herschell delivering the judgment, expounded the law as follows:-
There is no doubt that the public acts of a public man may lawfully be made the subject of fair comment or criticism, not only by the press, but by all members of the public. But the distinction cannot be too clearly borne in mind between comment or criticism, and allegations of fact, such as that disgraceful acts have been committed, or discreditable language used. It is one thing to comment upon or criticise, even with severity, the acknowledged or proved acts of a public man, and quite another to assert that he has been guilty of particular acts of misconduct.
13. Applying that test of the plea of fair comment here, what is charged and found proved as libel is not comment but an allegation of fact, not found in the lectures of the appellant, but an allegation made by the ist respondent on the authority of a third party, imputing misconduct to the appellant in that he had gained prominence as a speaker at the meetings of the Parsi Anjuman by means of threats to the late Sir Jamsetjee and his co-trustees. The rest of the letter containing the libel may be in the nature of comment; but the libel itself is not.
14. The plea of fair comment, therefore, is, in our opinion, out of the way, as well as the plea of privilege, for the respondents; and their only means of escape is by proving the plea of justification and establishing the truth of the libel in substance and fact.
15. That plea rests on the evidence of the statement alleged to have been made by the late Sir Jamsetjee Jeejeebhoy to the 1st respondent. Beaman J. has ieved the oral evidence led to show that the statement was so made. But the question is whether the statement is admissible in evidence, being that of a deceased person. Respondent's counsel relied on Clause 3 of Section 32 of the Indian Evidence Act, which makes relevant any statement of a deceased person' when, if true, it would expose him, or would have exposed him to a criminal prosecution or to a suit for damages.' Here, if the statement that the appellant had sent threats to the trustees were true, as alleged, Sir Jarnsetjee's communication of the fact to the ist'defendant could not have exposed him either to a criminal prosecution or to a suit for damages, because it would have been protected by the exception to the offence of defamation in the Penal Code, which says that it is not defamation to publish a libel, provided it is true and the publication is for the public good. Nor could a suit for damages have lain, because the truth of the libel would have been a complete defence.
16. If the statement of Sir Jamsetjee as that of a deceased person is inadmissible in evidence, then there is no evidence at all in justification of the truth of tfye libel in substance and fact. That is Beaman J.'s view and we agree. But assume that-the statement is admissible. Even then we do not think that the circumstances of the case are such that it would be wise to act upon it and hold the truth of the libel proved. Coming from a man of the high position such as the late Sir Jamsetjee occupied, his statement may be presumed to be true; but, on the other hand, it lacks the test of cross-examination. That defect could have been cured by the respondents calling as witnesses any of those who were co-trustees of the late Baronet and who are alive. And in this connection we cannot shut our eyes to the fact that whereas the statement had been made by Sir Jamsetjee to the ist respondent in 1908, the respondent published it three years afterwards, in January 1911, long after Sir Jamsetjee's death in 1908. We do not say that they waited so long for an opportunity to publish the statement after Sir Jamsetjee's death, and have the benefit of it without the test of cross-examination. The fact that they published the statement when and after the appellant had offered himself publicly as a candidate for the office of trustee and posed as a champion of the '' middle and lower classes of Parsi society is proof of the respondent's bonafides. But if the appellant had as a matter of fact gained prominence at the meetings of the Anjuman by sending threats, it is probable the facts could be proved by more certain testimony than the statement of a deceased person, which, as the Privy Council put it in Sri Raghunadha v. Sri Brozo Kishoro (1836) L.R. 3 IndAp 154 is prima facie open to suspicion, because incapable of contradiction by the deceased by reason of his death. This uncertainty gains when we find documentary evidence in the case which shows that the late Sir Jamsetjee was more or less on terms of friendship with the appellant. In this state of the evidence, we are not prepared, sitting in appeal, to disturb Beaman J.'s finding on the issue as to justification, unless it is shown to be clearly erroneous. We cannot say it is.
17. The respondents complain, however, that in corroboration of the truth of Sir Jamsetjee's statement, they had tendered certain evidence on the plea of justification, but that Beaman J. had shut it out on the ground of inadmissibility. The evidence so tendered but refused consisted of instances of acts of the appellant more or less closely resembling the particular act of misco', luct imputed to the appellant in the libel. We think such evidence was rightly excluded. The respondents could justify the libel as true in substance and in fact by proving its truth, not the truth of other acts and occasions, having nothing to do with the Parsi Anjuman and its trustees, unless the specific acts of misconduct charged in the libel having been proved, it was intended to show further that those acts were part of the habitual and intentional, not accidental, conduct of the appellant: see Section 15, Indian Evidence Act; Makin v. Attorney-General for New South Wales  A. C. 57. But no such question as the latter was raised at the trial; nor could it be raised with due regard to the nature of the libel and the pleadings in the case.
18. The question which has been debated with considerable force in this appeal by counsel on either side is that of damages and costs. Bearaan J. has awarded to the appellant one rupee as what he calls in the judgment ' contemptuous damages,' and has consequently directed the appellant to bear his own costs. Damages and costs hang together as a rule, though not always, and, in this case, if the learned Judge is right in holding that it is a proper case for ' contemptuous damages,' he was well warranted in the order as to costs. We confess we have wavered considerably during the hearing of this appeal on the question of damages, mainly because that is a question which the Judge had to decide, discharging the functions of a Jury. In his judgment Beaman J. more than once repeats and emphasises the nature of the discretion he had to exercise in fixing the quantum of damages. The rule of law is : ' if the case be one of libel-whether on a person, a firm, or a company-the law is that the damages are at large. It is not necessary to prove any particular damage; the Jury may give such damages as they think fit, having regard to the conduct of the parties respectively, and all the circumstances of the case': per Esher M. R. in South Hetton Coal Company v. North-Eastern News Association  1 Q. B. 133. It is true that when a case is tried before a Judge and Jury, and the Jury fix the damages, as they think fit, they are sometimes not logical in their verdicts. But when a Judge sits in their place, we do not see any reason why he should trouble himself with what a fanciful Jury would have done. Beaman J.'s findings of fact, so far as they rest on proved evidence, are in appellant's favour; so far as they go against him, the findings are more or less speculative. The learned Judge has found the libel not justified. We' have this undisputed fact that the appellant sued because in a way the respondents had forced his hands. In the letter containing the libel. they had thrown him a challenge to sue, if he dared. And he sued. At the trial the respondents not only persisted throughout in their plea of justification but they also subjected him to a severe cross-examination by means of offensive questions reflecting on his honesty and that without any basis of fact. It was suggested to him in cross-examination that he had brought the suit because ' it was a paying game.' Beaman J. has found that there is nothing dishonourable in the appellant's career and nothing to justify imputation on his character. The learned Judge says in his judgment that he does not believe and is not influenced by the evidence of general reputation led by the respondents to show that the appellant was a man of worthless character. The most that can be said is, as the learned Judge finds, that the appellant is a pugnacious man, persistent in the maintenance of his own opinions. That does not justify a libel upon him and is not a sound reason for giving him no more than contemptuous damages. Beaman J.'s main ground for giving them is that the imputation of the libel is not serious, and that it could not have materially lowered or injured the appellant's reputation. That may be, but we have the established fact that the appellant failed to be elected to the office of trustee. The imputation of the libel was that the appellant sought to gain prominence as a speaker at public meetings by underhand means discreditable to a gentleman, namely, by sending threats to the organisers of those meetings. It is true that what led to the libel was the appearance of the appellant as a candidate for the office of trustee and the highly controversial character of the lectures he had delivered in public in support of his candidature. It is also true that in those lectures he had attacked several individuals, exposing himself in respect of them to the possibility of proceedings for defamation. Those attacks may or may not have been justified. Of that there is no evidence and none could be admitted as relevant. But none of the attacks was on the respondents except one that the Parsi Punchayet had given its printing work only to the press of the 2nd and the 3rd respondents. That was a fact on which it was open to the appellant to make his own fair comment. But it did not justify the respondents in publishing a libel falsely imputing independent acts of misconduct to him. It cannot be said that the appellant had provoked the libel merely because lie had come forward as a candidate for the office of trustee, and excited controversy by his lectures. No misconduct in and with reference to the suit itself is found against the appellant, unless it be that Seaman J. thought he was at times 'defiant' while he was under cross-examination. But there is the reasonable explanation that some of the questions put imputed to him without any K justification dishonesty and dishonourable conduct in matters unconnected with the libel charged.
19. All this rests on the certain facts of the case, facts resting on relevant evidence and found proved by the learned Judge at the trial. The rest of his reasoning in the judgment under appeal, so far as it bears on this question of damages, is more or less conjectural, as, for instance, that the respondents could have completely justified the libel if the appellant had sued on the whole of the letter, Ex. A, instead of picking out of it a few lines and hanging his cause of action on them. What might have been in that case is speculation in the absence of trial and evidence on that aspect of the action. Even then it might be fairly argued that the portion complained of as libel in this suit was an allegation of fact imputing acts of misconduct apart from the rest, standing as libel by itself, apart from the rest of the letter, as matter of comment and, that, therefore, it was justifiable in law on no other ground than that the allegation was true in substance and in fact.
20. On these grounds we have come to the conclusion that it is certainly not a case for contemptuous damages. Is it then a case for aggravated damages According to Beaman J. it would have been, were it not for the grounds on which he has awarded one rupee. The appellant's counsel, Mr. Raikes, has contended here in appeal for aggravated damages. But as to that we may well, I think, bear in mind that the libel was published at a time and in the course of a heated controversy and public excitement in the Parsi community. It is not easy to be precise in fixing the quantum of damages in such a case; but we are of opinion that the ends of justice will be sufficiently met by an award of Rs. 200 as damages to the appellant.
21. After this the question of costs becomes simpler and solves itself. The question of costs of the trial was no doubt in discretion of the Judge ; but that discretion had to be exercised on proper materials, i. e., if there had been misconduct on the part of the appellant in commencing these proceedings or in the course of the suit, that would have been good cause for depriving him of his right to costs, even though he had won on the merits. In Harnett v. Vise (1880) 5 Ex. D. 307 the successful plaintiff, whom the Jury awarded 10 damages, was not given his costs by the Judge, because, as held in appeal, the libel complained of ' was not the true cause of the litigation ' and the plaintiff had been actuated by a by-motive. There is nothing of the kind here. The appellant had been challenged by the respondents to sue; he sued and won; and they must pay his costs, especially now that we have substantially raised the amount of damages and held that this was not a case for contemptuous damages.