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Mitha Rustomji Murzban Vs. Nusserwanji Nowroji Engineer - Court Judgment

LegalCrystal Citation
SubjectMedia and Communication
CourtMumbai
Decided On
Case NumberO.C.J. Suit No. 1776 of 1940
Judge
Reported in(1941)43BOMLR631
AppellantMitha Rustomji Murzban
RespondentNusserwanji Nowroji Engineer
Excerpt:
defamation--libel--newspaper--publication of disparaging statement in newspaper regarding profession and work of a person--criticism by journalist--criticism must be fair--publication of matter of public interest--how far privileged--imputation of criminal offence--distinct charge of offence necessary--mere suspicion not sufficient. ;a statement which, being published of another in the way of his lawful trade, business, calling, or office, conveys a reflection on him calculated to disparage or injure him therein, is a defamatory statement, even though it may not be calculated to hold him up to hatred, contempt, or ridicule. ;halsbury's laws of england, 2nd edn., vol. xx, para. 493, p. 406, referred to. ;to publish in a newspaper of a woman, who is an instructress in physical culture and.....b.j. wadia, j.1. this is a suit for damages for defamation consisting partly of libel and partly of slander, and for an injunction restraining the defendant, his servants and agents and each and every of them from further printing, circulating, distributing or otherwise publishing the said libels and/or slanders or any similar libels and/or slanders affecting the plaintiff.2. the words complained of as libel are set out in paragraph 7 of the plaint, and were printed and published by the defendant in the issue of the kom sevak of september 22, 1940, a weekly journal in gujarati published every sunday, which was started by him sometime about the end of 1935. defendant stated that he and his sons were the owners of the paper in partnership, and: that he himself was the editor, printer and.....
Judgment:

B.J. Wadia, J.

1. This is a suit for damages for defamation consisting partly of libel and partly of slander, and for an injunction restraining the defendant, his servants and agents and each and every of them from further printing, circulating, distributing or otherwise publishing the said libels and/or slanders or any similar libels and/or slanders affecting the plaintiff.

2. The words complained of as libel are set out in paragraph 7 of the plaint, and were printed and published by the defendant in the issue of the Kom Sevak of September 22, 1940, a weekly journal in Gujarati published every Sunday, which was started by him sometime about the end of 1935. Defendant stated that he and his sons were the owners of the paper in partnership, and: that he himself was the editor, printer and publisher. The paper is mostly read by members of the Parsi community, but has a circulation also amongst members of the other communities. The words complained of as slander are also mentioned in para. 7 of the plaint, and were, according to the plaintiff, spoken by the defendant in reference to her at a public meeting held in Sir Cowasji Jehangir Hall, Bombay, on September 26, 1940. The defendant has put in a very long and prolix written statement containing matters which are mostly irrelevant to the issues in the suit. The publication of the words complained of as libel is not denied; but the defence is that the words are a fair and bonafide comment on a matter of public interest, and also that they were published on a privileged occasion. With regard to the words complained of as slander, the defendant denied that he uttered the words referred to by the plaintiff, and that if he did, they were spoken on a privileged occasion. In any event he contends that they are not actionable per se, that is, without proof of special, damage.

3. Plaintiff is a married woman, and gives instructions in physical culture in various institutions in Bombay. She conducts a physical culture and dancing class at her place of residence at Gowalia Tank Road. She also runs the 'Udyoga Ashram' for poor Parsi girls over the age of fourteen in two rooms in a house at Charni Road Junction, which have been given to her rent-free. Those classes are run with the help of other honorary Parsi lady teachers, who give instructions in cutting, sewing, knitting and all kinds of fancy and embroidery works. This instruction is given free of charge to the girls. About April, 1940, plaintiff and several other Parsi ladies and gentlemen started the 'Parsi Amateur Dramatic Society' for staging plays, dramas and dramatic entertainments for helping charities, particularly Parsi charities. At present the number of members of the Society is about forty. There were no rules nor any constitution for the Society until the beginning of this year. About this time also one Mrs. Bapsy Sabawalla, a well-known social worker in Bombay, started collecting a fund for purchasing ambulances in aid of the Bombay War Gifts Fund, and the Society thought of staging a Gujarati play in aid of Mrs. Sabawalla's fund. At first it was decided to stage one particular play, but it was given up. The Society then decided to stage the play named Aflatoon, which was written by Mr. Phirozeshah Jehangir Murzban, now deceased, the plaintiff's father-in-law. The play was rehearsed from time to time after April, 1940, generally in the plaintiff's class at Gowalia Tank Road, and it was finally staged on September 29, 1940, with a cast of a large number of persons, some of whom were ladies, and was performed before a Parsi audience. Many parts of the original play, which the Society considered were unsuitable for being performed by amateurs and before a modern audience, were cut off and dropped. About the end of August last the defendant, who came to know that the play was about to be staged, started an agitation in the columns of his paper Kom Sevak, not against the staging of the play, but against Parsi men and women taking part in acting plays upon the stage, whether as amateurs or professionals. His view is that the appearance of Parsi men and women together on the stage is far from desirable, and even harmful to the interests and welfare of the community, and especially of the women who take part with the men upon the stage. It appears that the Parsi community is divided over the merits of this question, which has been agitated for many years in Bombay, the 'orthodox' section of the community, as it is called, being against the appearance of Parsi men and women together on the stage, and the other section called the 'reformists' pulling the other way. There is no evidence before me as to which of these sections is the larger, though it is quite probable that it is the orthodox section which has the majority behind it. It was because of this controversy that the Society decided to perform the play of Aflatoon before a Parsi audience only, though, according to the plaintiff, there was nothing that was objectionable in the play and nothing to prevent it from being performed on the stage before a cosmopolitan audience. It was decided to stage it only before a Parsi audience, because of the agitation going on in the press. Many affidavits were made on the notice of motion for an injunction against the defendant last October. About the merits of this controversy there are various statements in the written statement; defendant's counsel was full of it, and so was the defendant. The merits of the controversy are, however, not before the Court, It is not' a question on which the Court is called upon to express any opinion. The only opinion that the Court can express is that any person, whether he is a private individual or a public journalist, has a right to hold any views he pleases on the subject, and to express the same. It is immaterial whether the opinion or the comment is correct or not correct, whether it is just or unjust, or whether it is couched in language which may not err on the side of moderation. What is material and important is that the comment must not go beyond the limits which the law calls 'fair'.

4. What the plaintiff complains of is that the words published about her in the Kom Sevak of September 22 are defamatory. As pointed out in Halsbury's Laws of England, Vol. XX, Hailsham's edn., para. 493, p. 406:--

A statement which, being published of another in the way of his lawful trade, business, profession, calling, or office, conveys ai reflection on him calculated to disparage or injure him therein, is a defamatory statement, even though it be not calculated to hold him up to hatred, contempt, or ridicule.

5. Section 499, Explanation 4, of the Indian Penal Code, attempts a more detailed explanation or description of what a defamatory statement is; but the principle is the same. It is not necessary for the plaintiff to prove that the words, are false. If the words are defamatory, they are presumed to be false, and it is for the defendant if he seeks to justify them to prove that they are substantially true. It is not necessary for the plaintiff to prove any malice on the part of the defendant. It is only for the purpose of rebutting the defence of qualified privilege that it becomes necessary to prove express malice in the sense of improper motive on the part of the defendant.

6. It is in evidence that the defendant began writing about the subject in the columns of the Kom Sevak from about September 1, 1940. He wrote again on the 8th, and also on September 15, 1940. It was, however, in the issue of September 22 that he wrote and published the words firstly set out in paragraph 7 of the plaint. Counsel for the defendant objected to the office translations of the passages referred to in the plaint; but there are now official translations before the Court. The first passage, which has been put in as exhibit A, runs as follows:--

In the past Mr. Adi Murzban, Mr. Rustom Murzban and Mr. Ratan B.S.N. Cooper were working as actors in the drama 'Aflatoon'. And this time they have declined to work as actors and have preserved their self-respect; for which Mr. Adi Murzban and Mr. Ratan B.S.N. Cooper deserve to be congratulated. What we regret most, is this that when Mr. Rustom Murzban who was to take part in this drama, has, according to what we have heard, stayed out, why does his wife Mitha Murzban persist (in her idea) to play her part in this drama, and spoil the future of the poor girls attending her class? Now, parents beware. Do not send your girls to classes of this type, where their future would be ruined.

7. The person referred to in this passage as Mitha Murzban is the plaintiff, and Mr. Rustom Murzban is her husband. There is nothing objectionable in the first part of this passage ending with the words 'persist (in her idea) to play her part in this drama'. What the plaintiff complains of as alleged libel are the last words, viz. that by persisting in playing her part, the plaintiff will spoil the future of the Parsi girls attending her class, and the warning to Parsi parents not to send their girls to classes of this type, meaning the type of the plaintiff's class, where their future would be ruined. In the first place, the words 'her class', according to the defendant, refer only to the class which the plaintiff conducts at her place of residence, Gowalia Tank Road. According to the plaintiff, she conducts not only that class, but also the classes known as the 'Udyoga Ashram'. The important words are 'spoil the future of the poor Parsi girls'. A question arose as to what is the correct interpretation of the Gujarati word for 'future'. The defendant in his explanation first said that it meant the 'fortune' of the girls, and he illustrated it by a reference to exhibit No. 1, which refers rather to their matrimonial prospects. Later on he corrected himself and said that the word 'future' was general and comprehensive, and would mean or include social, religious and moral future. The plaintiff alleges that it means and includes moral and spiritual future also. By spiritual future or religious future is meant the religious faith or the religion of the Parsi girls. It is this last part of the passage to which objection is taken. To say of a person in respect of her profession or calling--and the profession or calling of the plaintiff is that of an instructress in physical culture, and dancing,--that she is unfit and incompetent for the purpose is, in my opinion, defamatory; but to say that the future including the social, religious and moral future of the girl would be spoiled by attending classes of the type of classes which the plaintiff conducts is to impute to the plaintiff an unfitness which is worse than attributing mere incapacity.

8. The second passage appears in the same issue, though not continuously with the first. It is headed 'A grave reminder', the first part of which refers to an incident, which happened in the year 1939 in connection with one Mrs. Gadiwala, who was attending the 'Udyoga Ashram' at Charni Road Junction. She was a married woman about twenty-seven years old. Sometime about July or August, 1939, she ceased to attend the 'Udyoga Ashram', and it was afterwards discovered that she had been converted to Islam and had married a Moghul. These are facts, or, at any rate, are not disputed by the plaintiff. The writer goes on to say: 'Is it necessary to give to Mrs. Mitha Murzban a grave reminder of that? 'He continues as follows:--

We would put this question only to this Dai Mitha; if so dire is the consequence in connection with a girl attending a class, have you as well as the people concerned any idea as to the extent to which the future of the Parsi girls would be spoiled by making them act as actresses on the stage?

9. The last words 'act as actresses on the stage' are printed in bold type in the passage. It is really difficult to see the connection between a woman who attended the 'Udyoga Ashram', and who afterwards left it and became a Mahomedan and married a Moghul, and the performance by Parsi girls upon the stage. In order to explain this connection, defendant stated in his evidence that what is meant is that if a girl like Mrs. Gadiwala came to grief merely by attending the class, viz. the 'Udyoga Ashram', in the sense that she had only a restricted freedom of movement, how much worse would be the consequence for girls, appearing on the stage who, according to the defendant, would have unrestricted freedom. Why the girls appearing on the stage should, after the performance is over, have unrestricted freedom has not been explained. In fact reading the words of the passage in their plain ordinary meaning there is no reference to the restricted freedom of the one, and the unrestricted freedom of the other, either expressly or even by suggestion. The words used are that 'the future of the Parsi girls would be spoiled'. In this case also the word 'future' means and includes their social, religious and moral future. The defendant stated that he did not suggest that Mrs, Gadiwala's conversion and marriage were the results of her attending the 'Udyoga Ashram'; but the suggestion is that if a girl attending a class like the plaintiff's class, 'Udyoga Ashram', came to such a result, the girls appearing with the plaintiff upon the stage would come to a result far worse than that of Mrs. Gadiwala. The only connection between the two, or the only common link between the two; viz. Mrs. Gadiwala's attendance of the 'Udyoga Ashram' and girls appearing with the plaintiff upon the stage, is the plaintiff herself. To my mind it is rather far-fetched, if not fanciful, to suggest that the distinction sought to be drawn was between some imaginary restricted freedom and an equally imaginary unrestricted freedom. Another explanation that was given was that the attack, if any, is on the classes, and not upon any one conducting the class. This is another fanciful explanation. As pointed out by Halsbury in the same volume in paragraph 494,. a statement which in form is only a criticism of goods may, nevertheless, involve a reflection on the seller or maker, and thus be the foundation of an action of libel or slander properly so called,

Similarly a statement may appear in the form of a comment upon classes that may nevertheless involve a reflection upon the fitness of the person conducting the classes, and be the foundation of an action for libel.

10. Both these passages suggest that the plaintiff is unfit to carry on her classes for poor Parsi girls, because by attending the classes their future would be ruined. She is therefore unfit to discharge the duties of her profession, or the duties in respect of her calling; and the imputation would have a tendency to prejudice her in the way of her profession or calling. The statements are therefore defamatory of the plaintiff and constitute a libel.

11. No action, however, lies against a defendant if he can prove that the words complained of are a fair and bonafide comment on a matter of public interest. The onus is upon the defendant to show that the subject commented upon is a matter of public interest, that the statements of fact relating thereto are true, and that the comment based upon the facts is a fair and bonafide comment. It is the expression of the criticism that has to be fair. It is not necessary to prove malice on the part of the defendant, though malice may sometimes be proved to show that the comment is not fair. Nor is it a defence to allege that the defendant bonafide believed that his statements were true. There is no exact definition of what a matter of public interest is. Matters of public interest are numerous, and are usually grouped under certain heads; but generally speaking, they are subjects which invite public attention, and are open to public discussion or criticism. There is also no definite standard of what a fair and bonafide comment is. In Merivale v. Carson (1887) 20 Q.B.D. 275. Lord Esher M.R. as far back as 1887 proposed the following test (p. 280):--

What is the meaning of a 'fair comment'? I think the meaning is this; is the article in the opinion of the jury beyond that which any fair man, however prejudiced or however strong his opinion may be, would say of the work in question? Every latitude must be given to opinion and to prejudice, and then an ordinary set of men with ordinary judgment must say whether any fair man would have made such a comment on the work. It is very easy to say what would be clearly beyond that limit; if, for instance, the writer attacked the private character of the author. But it is much more difficult to say what is within the limit, That must depend upon the circumstances of the particular case.

12. It is further stated at page 281 that a comment may be independent, bold and even exaggerated, and that mere exaggeration, however gross the exaggeration may be, would not make the comment unfair. The question for consideration is whether 'any fair man, however prejudiced he may be, however exaggerated or obstinate his views, would have said that which this criticism has said of the work which Is criticised. If it goes beyond that, then you must find for the plaintiff; if you are not satisfied that it does, then it falls within the allowed limit, and there is no libel at all.'The same test, in my opinion, would apply to every comment, including a defamatory imputation as to character or profession or calling, unless the imputation is a correct or reasonable inference warranted by the facts commented upon: see the remarks of Lord Justice Fletcher Moulton in Hunt v. Star Newspaper Company, Limited[1908] 2 K.B. 309.; the remarks of Lord Atkinson in Hunt v. Star Newspaper Company, Limited,[1908] 2. K.B. 325. and the remarks of Lord Justice Kennedy in Peter Walker & Son, Limited v. Hodgson [1909] 1 K.B. 239. Newspapers are subject to the same rules as other critics, and have no special right or privilege, and in spite of the latitude allowed to them, it does not mean that they have any special right to make unfair comments, or to make imputations upon the character of a person, or imputations upon or in respect of a person's profession or calling: see Arnold v. The King-Emperor (1914) L.R. 41 IndAp 149 where it was pointed out by the Privy Council that the range of a journalist's criticisms or comments is as wide as, and no wider than, that of any other subject. This controversy, which gave rise to the agitation, is no doubt, in my opinion, a subject of public interest; but it cannot be said to be a reasonable inference warranted by the facts to say that the plaintiff who was one of the performers in the play would ruin the future of the Parsi girls attending her class or classes, and was therefore unfit to carry on her profession. As the imputation is not warranted by the facts, it takes the statements out of the sphere of fair comment.

13. The other defence is that the words were published on a privileged occasion. No action lies for a communication made upon an occasion of qualified privilege and fairly warranted by it, unless it is proved by the plaintiff to have been made maliciously, that is, with an improper motive; malice, it has been said, destroys the privilege. Communications are made upon occasions of qualified privilege if made (a) by a person in discharge of a public or private duty whether legal, moral or social to a person who is interested in receiving it, or (ft) by a person who has an interest to be protected communicating information relevant to that interest to a person1 honestly believed to have a duty to protect it, or (c) by a person in matters when a common interest or a reciprocal duty or interest arises in respect of the subject-matter of the communication between the person and the person or persona to whom the communication is made. It is essential that there should be reciprocity of either a duty to communicate and an interest to receive, or an interest to communicate and a duty to receive, or a common interest or reciprocal duty to communicate and to receive the information. It is incumbent upon the defendant to prove: (a) that the words were published on a privileged occasion, and (b) that the communication was relevant or pertinent to the occasion. It is not enough for him to prove that he honestly believed in his duty or interest and in the corresponding duty of his readers; or that he believed honestly in the relevancy of what he said. It is necessary that the Court should be satisfied that what he communicated was something, which a reasonable person could have done.

14. The occasion for the communication of the words complained of is described in paragraph 7 of the written statement as follows: namely, that the statements were made in discharge of a moral or social duty and on a matter of public importance on which there was an interest common to the writer and to the persons to whom such statement was conveyed. The defendant must also show that what he communicated was relevant or pertinent to the privileged occasion. Any attack or personal imputation upon a person's calling or profession cannot be said to be relevant to, or fairly warranted by, the occasion; nor can it be said to be a mere incidental reference. In some cases the whole public or a section of the public may have an interest in being informed, as, for instance in the case of a controversy on a matter of public interest carried on in the press such as this particular controversy was. Even in such cases the communication must be relevant to the occasion, that is relevant to the discharge of the duty or the protection of the common interest. The statements made by the plaintiff are not, in my opinion, relevant or pertinent to the controversy about Parsi girls generally appearing upon the stage. It was pointed out by Lord Justice Romer in Chapman v. Ellesmere (Lord)[1932] 2 K.B. 431 that it may be true in one sense to say that the newspapers owe a duty to their readers to publish any and every item of news that may interest them. But this is not such a duty as makes every communication in the paper relating to a matter of public interest a privileged one.

15. The second part of the plaintiff's case is that the defendant slandered her at a public meeting of the Parsis convened by the Parsi Federal Council in the Sir Cowasji Jehangir Hall on September 26, 1940, to protest against the appearance of Parsi girls along with men on a public stage. The words complained of by the plaintiff are set out about the end of paragraph 7 of the plaint. They are as follows:--

The girls who are going to take part in the play 'Aflatoon' are not allowed even to go to their parents' home. The father of this girl is present here. (At this stage a Parsi gentleman named Mr. Pestonji Mehta which is a mistake for Jamsetji Mehta who is the father of the girl entered the stage and supported the facts published (mentioned) by Mr. Nusserwanji)' Mr. Nusserwanji there meaning the defendant.

16. Plaintiff admitted that she herself was not present at the meeting; and it was therefore incorrect for her to say in the verification clause that all that was stated in para. 7 including these words was true to her own knowledge, She, however, alleges that these words were spoken in reference to her and that is not specifically denied by the defendant in his written statement. Defendant has also not specifically denied that these were the words spoken, but has done so impliedly by setting out in his written statement what according to him were the words he spoke. His version of what he spoke is as follows:

I have come to learn that some of the Parsi girls are going to take part in this play (Aflatoon) against the wishes of their parents. Since the agitation in my paper against this movement one of such girls has been staying away from her parents' house for a month. As an instance I shall call the father of the girl who is sitting here and he will bear me out.

17. The plaintiff's counsel argued that the words quoted in paragraph 7 were substantially the words used by the defendant, or were words which are the same in effect. It was formerly essential for the plaintiff to prove the actual words pleaded; but it has now been held that it is enough to prove the substance of the words set out in the statement of claim of the plaint: see the remarks of Lord Coleridge, Chief Justice, in Harris v. Warre (1879) 4 C.P.D. 125 In Tournier v. National Provincial and Union Bank of England [1924] 1 K.B. 461 Lord Justice Atkin pointed out at page 488 that--

No slander of any complexity could ever be proved if the ipsissima verba of the pleading had to be established.

18. Whatever the words used were, plaintiff has to prove as she alleges that those words meant and were understood to be meant that she had been guilty of the criminal offence of wrongfully confining the girl Mani Jamshedji Mehta, and that in confining her the plaintiff had used physical force or violence,in order to compel her to take part in the performance of the play against the wishes of her parents. There is no reference to the use of physical force or to any illegal detention in the words set out in the plaint. What is alleged by the plaintiff is that the defendant said that the girls who were to take part in the play of Aflatoon were not even allowed to go to their parents' home, and Mani Mehta was one of such girls. Mani Mehta and her parents were called, and they denied this allegation. The girl's father, Mr. Jamshetji Mehta, an old man of about seventy-five, was also present at the meeting; and he said that he was too confused to follow what the defendant said; but at the defendant's instance he got up on the stage and then sat down. If, however, the plaintiff contends that even these words, viz. that the girls are not allowed even to go to their parents' home, were understood to mean that she had committed a criminal offence, it is for her to prove that the words were capable of conveying, and in fact did convey, that meaning; and the evidence must be sufficiently strong and cogent for the purpose.

19. Besides the girl's father who denied what the defendant had said, plaintiff called three other witnesses: Dara Kapadia, a reporter of the Jame-Jamshed, one Ibrahim Haji Mahomed Mistry, who calls himself a free-lance journalist and who writes to the press, and one Hirjibhai Byramji Warden, who is related to the plaintiff, being her maternal uncle. Kapadia and Warden made a joint affidavit on the Notice of Motion for Injunction, and both stated in their affidavit, as they stated here, that the defendant did say in his speech that Parsi girls were made to take part in the play against their parents' wishes. Kapadia stated that the defendant also said that one girl was wrongfully confined, Warden stated that the defendant said that girls were detained by force both by the plaintiff and her husband, and that the same night after the meeting was over he went up to the plaintiff to enquire about the serious charge that had been made against her. Ibrahim Mistry only stated that the defendant said that the girls had not been allowed to see their parents for a month, and Mani Mehta was one of them. He stated that he asked the plaintiff's husband over the phone whether any girl was detained in his house, and that he received a reply that it was not true. On the other hand defendant denies that he spoke about any wrongful or possible detention at all, or made any such allegation. He says he did not even refer to the plaintiff. Three witnesses were called on his behalf who were present at the meeting, two of whom actually spoke at the meeting. The man who did not speak was Framroze Banker; but he said that he was a great admirer and friend of the defendant, and he always took whatever the defendant said as correct. He further stated that at the end of the meeting he saw Jamshedji Mehta, who spoke to him of his own accord, and told him that his daughter Mani was about to take part in the play against his and his wife's, i.e. her mother's wishes. When Mr. Mehta was confronted in the box with Banker, he said that he had not seen or met Banker at all that evening. I entirely agree with counsel's comment upon Mr. Banker that he was a partisan witness of the defendant, and I place no reliance upon his evidence. There are, however, two independent witnesses, who belong, no doubt, to what is called the 'orthodox' section, and are friends of the defendant, but who cannot be said to be partisan witnesses. One of them was Mr. Cawasha Manekshaw Talyarkhan, who was until 1937 a practising advocate of this Court. He stated what according to him happened at the meeting, when defendant called the old man on the stage, and the old man nodded and raised up his hands as if to approve of what the defendant had stated. This is slightly a modification of the words used in his affidavit that the old man 'corroborated' what the defendant said. All the witnesses were, however, agreed that no particular reference was made to the plaintiff. Mr. Talyarkhan stated that the words 'shame, shame' that came from the audience were directed against one Pestonji Kapadia. Mr. Banker said that the words 'shame, shame' were directed against the organisers of the performance, and amongst its organisers plaintiff would be included; but he did not say that the plaintiff was referred to by name. Mr. Dadachanji, however, stated in his evidence that nobody ever said 'shame, shame' at all at the meeting. One thing is significant namely that Mr. Talyarkhan, who was once a practising lawyer, should have referred in his speech to 'habeas corpus proceedings.' Mr. Warden was right when he too said that habeas corpus proceedings were referred to, though Warden went further and said that they were referred to in connection with Mani Mehta and her illegal detention by the plaintiff Mr. Talyarkhan in his evidence however stated that he did refer to habeas corpus proceedings; but he said he put the case in the alternative to the audience. He said that he knew nothing as to what had happened; but if the girls, including Mani Mehta, were absent from their parents voluntarily, nothing could be done; but if they were kept back by force, then a writ of habeas corpus can issue. I doubt very much whether such an elaborate explanation, which a lawyer gives to his client, was given in that heated atmosphere of the meeting to an excited audience. At the same time he stated that he did feel a doubt as to what the defendant said, and the defendant corroborated what Mr. Talyarkhan said. It is very strange for Mr. Dadachanji, who is also a journalist and social worker, to say that he did not understand what habeas corpus meant, and he thought even Mr. Talyarkhan did not understand what it meant. This is again another exaggeration. It seems to me that it is quite probable that the speakers having come to know that the plaintiff was an organiser, for the matter of that the main organiser of the performance of this play, wanted to drive home their remarks against her; but the evidence is conflicting and not clear as to whether she was referred to specifically and in connection with any illegal detention by her. The onus is upon the plaintiff to show that the words either contained a direct charge of having committed a criminal offence or that they clearly indicated and suggested the commission of such an offence. I have considered all the evidence together on both sides as carefully as I can, and I have come to the conclusion that plaintiff has not discharged that onus. An imputation of a criminal offence in order to be actionable per se, which is a drastic remedy, must be a distinct charge and must not be a mere statement of suspicion: see Simmons v. Mitchell (1890) 6 A. C. 156. It may be made in so many words, or it may be made in words from which the charge could be inferred; but the inference must be clear and unequivocal. In view of my opinion I do not think it is necessary for me to go into the question whether the words were spoken on a privileged occasion. If the words were defamatory, and did impute the commission of a criminal offence, an imputation of having committed a criminal offence would not be relevant or pertinent to that privileged occasion. However, that is a question which need not be gone into at length, because, in my opinion, the plaintiff has not proved the slander.

20. The only question is: what is the relief which the plaintiff is entitled to? She claims Rs. 5,000 by way of damages. I have already held that to say of a person, and especially of a woman, that as an instructress she is unfit to carry on her work or her profession, and that by carrying it on she would ruin the 'future' of Parsi girls in the sense in which that word was used, is grossly defamatory; and I order the defendant to pay the plaintiff a sum of Rs. 1,000 as and by way of damages. The plaintiff also claims an injunction against the defendant; but there is no evidence before me of any threat to repeat the libel complained of. Even in para. 8 of the plaint the only allegation was that having regard to the campaign which had been carried on the defendant would continue to further publish the defamatory matters affecting her, unless he was restrained. There is no allegation that he had threatened to do so, and there is no evidence either. I cannot, therefore, order an injunction to issue against the defendant.

21. I have heard counsel on the question of costs. The usual rule is that the plaintiff must get the costs of those issues on which the plaintiff has succeeded, and the defendant must get the costs of those issues on which the plaintiff has lost. No doubt, there was considerable evidence led on the question of slander; but the more important part of the defamation was the libel, which question was argued at considerable length. Taking all the circumstances, including the defendant's conduct in relation to this case, into consideration, I order the defendant to pay three quarters of the plaintiff's taxed costs in the suit. Costs to be taxed on the basis of two counsel being allowed.

22. Decree for the plaintiff for Rs. 1,000, three-fourths taxed costs of the suit and interest on judgment at six percent, per annum till payment.


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