Stanley Batchelor, Kt., Acting C.J.
1. This is an appeal under Clause 15 of the Letters Patent from a decree of a Bench of this Court consisting of the Chief Justice and Heaton J. These learned Judges having differed in opinion, it was held that the judgment of the Chief Justice must prevail, i.e., that the suit must be dismissed. The plaintiff consequently brings the present appeal.
2. The plaintiff is a solicitor of this Court, and the suit was filed to obtain damages for libel alleged to be containod in two articles which appeared in The Bombay Chronicle and were admittedly written by the Editor of that journal, the first defendant. To him I shall refer in future as the defendant, as the substantial defence is made on his behalf.
3. The circumstances in which the articles complained of came to be written are as follows: Among the plaintiff's clients were two well-to-do men, one Dada and one Tatya Saheb Holkar. In 1912, Dada, in the name of his mother, Ashidbai, entered into an agreement with Holkar for the purchase of a valuable) house, the property of Holkar. But Holkar was unable to carry out this agreement as he had already agreed to sell the house to one Khambatta, who obtained against him a decreo for specific performance. Dada then instituted a suit against Holkar claiming damages for breach of the contract of sale, and this suit was ultimately settled in January 1914 by the payment of Its. 3,000 by Holkar to Dada. At this time there was in the service of the plaintiff a clerk named Shambhuprasad, who died in Juno 1914, leaving a brother named Bhagwandas. In July 1915, Bhagwandas, through his solicitor, the plaintiff, filed a suit on a promissory notes for Its 3,000, executed by Dada in favour of Shambhuprasad. The suit was instituted as a short cause, but, a written statement being filed by Dada in August, the plaintiff was discharged as solicitor on the record on 9th September, 1915. Stated shortly, Dada's defence to this suit was that the promissory note had been passed without consideration, that Shambhuprasad was the mere nominee or prete nom of the plaintiff, and that the note was passed on an understanding with the plaintiff that he was to be paid Rs. 3,000 if, as he promised, he succeeded in obtaining for Dada a sum exceeding Rs. 20,000 as damages in Dada's suit against Holkar. Dada went on to plead that, as he had received only Rs. 9,000 in his suit against Holkar, he had refused to honour the promissory note, and hence the suit brought against him by the plaintiff in the name of Bhagwandas. Bhagwandas's suit came on for hearing before the late Davar J., on Saturday the 26th February, 1916. Issues were raised, among them being the issue whether, as Dada contended, the plaintiff was a necessary party. On the Saturday two witnesses were called by Bhagwandas as to the promis sory note, but admittedly those witnesses' evidence was not such as any Court could accept. Then the plaintiff wont into the witness box, being an indispensable witness for Bhagwandas, and denied generally the truth of the allegations made against him in Dada's written statement. At this hearing a beginning was made of the cross-examination of the plaintiff, but this cross-examination was far from being finished when the Court rose for the day, and the case stood over till the following Monday, the 28th February. On the case being called on, on the Monday, Bhagwandas, through his counsel, immediately submitted to a decree dismissing the suit with costs, the learned Judge observing that in taking this course Bhagwandas had acted very wisely. The present plaintiff made no intervention either by way of protest or by way of application to the learned Judge for an enquiry into the charges made in the written statement; he acquiesced in the dismissal of the suit with costs, and there matters rested for the time. A week later, that is, on 7th March, appeared the first of the two articles now complained of, but again the plaintiff made no sign. On the 15th March, the newspaper published the second of the two articles, and on the 18th March the plaintiff filed the present suit.
4. The question is, whether these articles libelled the plaintiff, in other words, whether the defendant in these articles has transgressed the limits of fair comment allowed to a journalist. I agree with the Chief Justice in thinking that this question must be answered in the defendant's favour. I find that all material facts are truly stated in the articles, though it may be that there are one or two small deviations from absolute accuracy on minor points which are of no influence on the conclusions, and I find that the conclusions are such as ought to be drawn from the premises by a critic bringing to his work the amount of care, reason and judgment which is required of a journalist.
5. In the first place it is not alleged that there was any preexisting malice or ill-will between the parties, and it is not denied that the subject-matter of the articles, the conduct of a solicitor of this Court, as disclosed in proceedings in this Court, is a topic of public interest and importance, Then I must give it as my own opinion, after a careful reading of the articles, that the real object of them is, not to condemn the plaintiff out of hand, but to pray for further investigation into serious allegations which had been made on solemn affirmation against his integrity, and which were still left in the region of controversy.
6. I now road the material passages from the articles complained of, as those passages are set out in paras 5 and 6 of the plaint:-[The passages referred to by his Lordship are set out in italics in the two articles reproduced in the statement of facts].
7. As the case has been argued before us by the learned Advocate-General for the plaintiff, the imputations complained of as libellous fall into two classes and may conveniently be summarised as follows :-
(a) The imputation that in bringing an unsustainable suit against Dada, Bhagwandas was acting merely as the creature of the plaintiff, who acquiesced in the dismissal of the suit, though Dada's charges against him were thus left unrefuted and unanswered ;
(b) the imputation that the plaintiff was guilty of grossly unprofessional conduct in the manner in which he settled Dada's suit against Holkar and in writing an untrue letter with the object of disguising that misconduct.
8. In regard to point (a) the defendant pleaded fair comment: in regard to (b) the defence was justification quoad the facts stated, and, for the rest, fair comment.
9. So far as concerns the law, the principal authorities bearing upon the question of libel by a journalist are cited and considered in the judgments of the. Chief Justice and Heaton J.
10. In the view I take of the case no useful purpose would be served by any further discussion of these authorities, So fur as the question of law concerns this appeal, I do not think we need travel far beyond the decision of the Court of Appeal in Hunt v. Star Newspaper Company, Limited  2 K.B. 309, where Cozens-Hardy M.R. said :-'The defence of fair comment only arises in the event of the plea of justification failing, but the plea of justification may fail by reason of the facts slated not being substantially true.' Here, of course, on the first charge the plea of fair comment is the only point for consideration, for there is no plea of justification; but I quote the passage to show that the Master of the Rolls required only that the statement of facts should be, not absolutely, but substantially, true. It is true that the adverb is not repeated in the judgments of the Lords Justices, but the learned Advocate General admits that he cannot demand more than that the facts stated should be substantially true. In the same case Fletcher Moulton L.J., as he then was, lays down the law in the words used by Lord Atkinson in Dakkyl v. Labouchere  2 K.B. 325, Note, pointing out that where a judgo has ruled that a personal attack can reasonably be inferred from the truly stated facts, ' it is for the jury to determine whether in that particular case the inference ought to be drawn.' 'In other words', the learned Lord Justice continues, 'a libellous imputation is not warranted by the facts unless the jury hold that it is a conclusion which ought to be drawn from those facts.
11. The only other cases to which I think it may be of advantage to refer are South Hetton Coal Company v. North-Eastern News Association  1 Q.B. 133 and Risk Allah Bey v. Whitehurst (1808) 18 L.T. 615. I need not discuss these cases. I refer to them only as establishing propositions which, in my judgment, are not now open to controversy. These propositions are that while the defendant is bound to comment on public questions with care, reason and judgment, he is not necessarily deprived of his privilege merely because there are slight, unimportant deviations from absolute accuracy of statement, whore those deviations do not affect the general fairness of the comment. The articles must be considered rather in their entirety than by separate insistence on isolated passages, and the jury-where there is a jury-in our case the judges-must decide what impression would be produced on the mind of an unprejudiced reader, who, knowing nothing of the matter beforehand, read the article straight through.
12. These, in my judgment, are the material propositions of law, and on the understanding that those propositions are correct, I am of opinion that the defence should prevail:
On the first imputation, which I have marked (a) above, the defendant's case appears to me particularly strong, and it is to be noticed that this is the real gravamen of the articles, the imputation marked (b) being far less serious. For professional misconduct in settling a case over the head of the solicitor on the record is venial indeed, compared with instigating one's clerk's brother to institute a false suit. It is now admitted that, as to this first imputation, the defendant is entitled to be judged by the facts properly available to him at the time when the articles wore written, without regard to facts which the plaintiff subsequently has established or nought to establish. The critical question, therefore, is : what were the facts then known to the defendant ?
13. First, he know that the antecedent probabilities were in favour of Dada's version, for it was obviously unlikely that Dada, a rich man, would have borrowed Rs. 3,000 from a solicitor's clerk of very limited means. Secondly, he know that Shambhuprasad, to whom the note purported to be passed, was at the time the plaintiff's clerk. Thirdly, he know that, practically from the first, Dada had put forward one and the same answer to the claim, an answer which, in the circumstances, bore, on the face of it, to any one familiar with Indian methods, a fair appearance of being true. Fourthly, and above all, he knew the fate of Bhagwandas's suit, a circumstance, which spoke eloquently in favour of Dada and was difficult of reconcilement with the plaintiff's denials. Indeed, if I had been on a jury appointed to try this issue, I should have said without any doubt that the conclusion hero drawn by the defendant ought to have been drawn, and was, in fact, the only reasonable conclusion open to a disinterested mind. For, how stood the suit when the Court rose on the Saturday evening The two witnesses called to prove the making of the note had contradicted each other beyond hope of reconcilement. And the plaintiff himself, so far forth as his cross-examination had gone, had, in my judgment, cut a pitiable figure. On this point I will content myself with quoting the passage where his cross-examination had to be broken off for the day. These are his words :-
Dada sent a notice of claim to Holkar. I don't remember if Dada consulted me before sending the notice. I did not write the notice on behalf of defendant. I think D'Cumha did. Defendant naked me what to do when he heard of Tatyu Saheb's agreement with Khannbatta. I don't remember what. I told him, I don't remember if I drafted a notice on behalf of the defendant. I will not swear that I did not. I did not send defendant to D'Cunha, I don't remember if I gave a draft of a notice to be taken to D'Cunha to be written by him and addressed to me. I can't say whether I did it or did not. 1 do not remember if I told the defendant to go to some other solicitor saying that I would act for Holkar.
14. In plain English, when directly questioned whether he did not do certain thoroughly unprofessional and dishonourable things, plaintiff's only answer is that he cannot remember. Had his conscience been easy, there could have been no tax on his memory. As to the excuse that he was ' frightened by counsel,' I do not believe it. That would be a good argument in the case of an illiterate villager, but is very unlikely to be true of a Bombay Solicitor.
15. With this cloud resting upon him on the Saturday evening, one would expect to find the plaintiff anxious to dispel it on the Monday morning. What we do find, however, is that plaintiff is spared from any further cross-examination as Bhagwandas consents to the suit being dismissed with costs, the learned Judge observing that in so doing Bhagwandas was acting very wisely. What that meant must have been manifest to all in Court. But the plaintiff stands by, acquiesces in the dismissal, and makes no sign or protest or application that the charges against him should be withdrawn or investigated As a juryman, I should not hesitate to draw the inference that his main anxiety was to escape further cross-examination, hoping that it would be nobody's business to investigate the charges now that Dada was satisfied. There were the two cases before the Court, that of Bhagwandas and that of Dada ; Bhagwandas submitted to defeat, lest worse should happen, and it was a fair inference that Dada's account was probably true. In all this the plaintiff quietly acquiesced, and his present reasons for that acquiescence may be stated. It is enough to state them, for they carry their own comment: ' On the 28th, the following Monday I was prepared,' he says, 'to continue my evidence, when Mr. Bahadurji, plaintiff's counsel, informed the Court that the suit was going to be dismissed. I was not surprised. I was quite indifferent, as I was not concerned.' And he remained unconcerned, and continued unconcerned even after the appearance of the first alleged libel on the 7th March. When the second article appeared on the 15th March, and it was clear that the attitude of unconcern was not likely to evade the charges, then the suit was brought on the 18th March.
16. It is true that, as the learned Advocate-General has urged, the plaintiff had on solemn affirmation formally denied that Bhagwandas was his nominee, and I agree that this i'act ought not to have been withheld, but ought to have been stated for whatever it is worth. But the omission cannot, I think, serve as a sot-off against all the evidence on the other side. I do not think it can be said that defendant designedly suppressed all reference to plaintiff's denial. I think rather he took it for granted that his readers would assume that the solicitor charged with fraud would deny the fraud, for, except upon that implication, no further inquiry would be needed, and the gist of the articles is to demand inquiry.
17. On two small points of verbal criticism I think it will be enough to state my opinion summarily. As to the phrase 'little doubt,' the defendant is entitled to say that it means what it Says, and does not mean 'no doubt.' As to 'unrefuted,' I think that 'refuted' means disproved, satisfactorily met, put out of controversy; and the word 'unanswered' in its context seems to me to bear the same meaning as 'unrefuted.' On both points, therefore, I accept the interpretation offered for the defendant.
18. Upon this first imputation there is one misstatement of fact. According to the article it was plaintiff who explained that it would not look well it' the note wore taken in the Solicitor's name, whereas in fact Dada's case was that it was Shambuprasad who offered this explanation. This inaccuracy appears to me of no consequence for three reasons : first, the plaintiff, who should know where he is libelled, has never complained of it, nor was the point ever taken till in this second appeal it was suggested by my brother Marten ; secondly, it is obvious, on Dada's case, that even though the actual speaker may have been Shambhuuprasad, he was the mere mouth piece of his master, the plaintiff; and, thirdly, in the fourth para of Dada's written statement it was expressly asserted that the demand for Rs. 3,000 was made by the plaintiff in person.
19. With regard to the argument that the defendant was not justified in using the 'observations ' brought to him, at his request, by Engineer, the discharged clerk and avowed enemy of the plaintiff, I entirely agree that in seeking help from Engineer the defendant acted very indiscreetly, and ran very grave risks. But this circumstance will not affect the result if I am right in holding that all substantial matters of fact are truly stated, and all comments on the facts are fair within the meaning of the law as already explained. In justice to the defendant it must also he remarked that all that he acted upon was, not any verbal assurances or statements of Engineer, but three official papers which, though produced by Engineer, would naturally be assumed by the defendant to be above reproach. Indued the present objection is confined to one of the papers, viz., the observations for counsel, and it is the fact that these observations had never been submitted to counsel. But the defendant did not know that, and I do not think that he is obnoxious to vory grave censure if he supposed that these formal observations for counsel had a foundation in truth. All this, however, is not, in my view, vory material, because my exoneration of the defendant is based on the opinion that his facts are true and his comments fair.
20. I have now discussed all the arguments which were addressed to us on imputation (a,), and for the reasons given I find that the defence of fair comment must succeed.
21. The second imputation, that which I have marked (b) above, is, as I have said, of a far less serious character, and, may, I think, be dealt with more summarily. The gist of it is that the plaintiff settled Dada's suit against Holkar in a manner contrary to professional rules or etiquette, and then,-this is 'the sting of it' says the learned Advocate-General-wrote an untrue letter in order to conceal the professional misconduct. The letter in question, admittedly written by plaintiff to the other Solicitor, is in these terms:-
We are informed by our clients agengt that the above suit has been settled by the parties out of Court... We are informed that your client has written to you accordingly.
22. The question really turns on the moaning to be put upon this letter. But before that is considered, it will he convenient to notico the argument of the Advocate-General that the defendant must fail here because he is guilty of two misstate-ments of fact. These misstatements are, it is said, first, that, according to the article, plaintiff gave his own cheque to Dada, whereas the fact is that plaintiff gave Holkar's cheque; and, secondly, that, according to the article, there was no intervention of any agent at all, whereas the fact is that, on behalf of Holkar, his agent, Vinayakrao took part in the settlement.
23. As to the first of these statements, it is admitted that it is a misstatement, and that in fact the cheque was Holkar's, and not plaintiff's. But the inaccuracy appears to me to be immaterial and to fall within the slight margin of error allowed by law, because it signifies nothing, and never did signify anything, whether the cheque was the plaintiff's or Holkar's : nobody had ever suggested that the money was plaintiff's, and it was common ground that it came from the pocket of Holkar. Moreover, I feel sure that the inaccuracy was a bona fide slip due to a not unnatural reading of a passage in Dada's written statement. The passage runs :-
The said suit against Tatya Saheb Holkar was settled by Mr. Surajmal with this defendant for Rs. 9,000 for damages. When Mr. Surajmal gave this defendant a cheque in payment of Rs. 9,000. etc.
24. In my opinion this passage would suggest to many readers that Surajmal gave his own cheque.
25. As to the second alleged misstatement of fact, that brings me to a consideration of the meaning of the letter, for the question whether there is, or is not, a mis-statement turns upon the moaning of the passage which I have cited from the letter. The defendant's assertion is :-
As a matter of fact, there was no intervention on the part of any 'agent' at all. The matter was settled between Mr. Dada and Mr. Surajmal direct, and the latter wrote this letter, it is alleged, to prevent it being known that he had communicated with or seen Dada in the absence of his Solicitor.
26. The passage which I last quoted from Dada's written statement is, I think, sufficient answer to the contention that for these allegations the defendant had no bettor authority than the ' Observations '. And as I read the prosent oxecrpt from the alleged libel, what it imputes is that plaintiff settled with Holkar (or his agent) and Dada over the head of Dada's Solicitor, D'Cunha, and that there was no intermediary between plaintiff and Dada. I do not think the imputation is that Holkar was not represented at the settlement, nor would there have been any point in making such an assertion. The point is, as I understand it, that here again (according to Dada's version) the whole business was really plaintiff's though Dada was put up to file the suit, and consequently when the suit came to be settled, we find plaintiff settling on behalf of Dada without reference to Dada's then Solicitor, D'Cunha. I must say candidly that that is what the passage means to me after all the argumont we have heard, so that I feel safe in saying that, at least, that is what the words may have conveyed to a fair, unprejudiced reader. But upon that meaning I find that the defence is established. For there was no reference to D'Cunha, and the letter commented on was in fact written by plaintiff.
27. In the present suit, no doubt, the plaintiff assorts that the settlement was made by Engineer and Vinayak without consulting him. Engineer, on the contrary, says that plaintiff took part in the settlement, and that is intrinsically so much the more probable story that I believe it, though Engineer is a poor witness, and, on their merits, I see little to choose between him and the plaintiff. In the suit of Bhagwandas all that the plaintiff said upon this point was : ' The arrangement was brought about by Nanabhoy Cowasjee Engineer who was lately managing-clerk '. Further corro-boration of this view is, I think, supplied by the admitted fact that plaintiff himself drafted the letter, Exh. 2, a letter from Dada (in the name of his mother Ashidbai) to D'Cunha apprising the latter that the suit had boon settled. I cannot doubt that plaintiff was himself instrumental in making this settlement with Holkar, and admittedly this was done 'over the head of ' i.e., without reference to, Dada's Solicitor. When, therefore, we find the plaintiff writing to the other Solicitor that the plaintiff is merely ' informed ' of the settlement by Vinayak, I think it is perfectly fair comment to say that this is suggestio falsi, intended to conceal the fact that the settlement was made by the plaintiff himself.
28. On these grounds I am of opinion that on the second imputation also the defence must be allowed; in other words the appeal fails, and this Court's order should be that the plaintiff's suit be dismissed and plaintiff should pay all costs throughout.
1. In my opinion there is no libel. Before going into the details of this case I think it desirable to get, and keep, clearly in view, some distinctions between the principal defences to a libel action, which are often confused, both in argument and in judicial pronouncement.
(1) A defendant may contend that the facts complained of are not libellous ; or
(2) a defendant may claim privilege; or
(3) defend upon the ground of fair comment; or
(4) he may justify, that is, plead the truth of the facts complained of.
2. The first of these defences may he neglected. It always was, and still is, to some extent, a matter of law for a Judge and not of fact for a jury. Privilege and fair comment are frequently confounded even in the dicta of most eminent English judges. Yet they have nothing in common. Privilege implies that the matter complained of is a libel, but, in the circumstances of its publication, and more especially in the relation of the parties, is protected. Fair comment never is libel. Speaking generally, the defence of privilege is particular to the defendant seeking to avail himself of it, while fair comment is common to everybody. The defence of truth implies that the matter complained of is libellous, but if true, there is a complete answer. Fair comment may be true or it may not. The language of the law always seems to me very loose and inexact in treating of these topics. Any statement in positive form is pounced upon as a statement of fact, going beyond comment proper, and therefore) outside the protection which the law gives to fair comment. But it is clear that if by comment is meant inference from facts truly stated, the process of inference legitimately leads to a conclusion which may be stated in positive form without losing its essential character.
3. Thus, that which in form is a statement of fact, may, on examination, turn out to be no more than what English Judges have called a deduction from the facts, and so, itself ' fair comment'' in no need of justification. Analysing logically, I should prefer the term induction to deduction, but the reasoning of the law, in comparison with the far more rigorous reasoning of logic and metaphysic, is blunt-edged, and tends to conform to the notion that the law ought to be, if it is not always, the expression of the average common sense of the society. It is, therefore, usually couched in the loose and general terminology of average men of average reasoning power, and while here and there it seems to aim at, seldom roaches verbal precision. These obervations are not merely academic, prompted by pedantry. This trial affords striking illustration both in the judgments before us, and in the arguments we have heard, of the urgent need of a preliminary and very exact analysis of the law in general, and the materials in the case to which that law is to be applied. I have carefully studied the leading English cases cited in the judgments of the trial, and appeal, Court, and I do not propose to refer to any of them because that study has convinced me that the attempts at definition which they contain are of very little definitive value. The most famous and now perhaps the most popular for example is that, whore the defence of fair comment is set up, the Judge is first to determine, as pure matter of law, whether the inferences complained of can reasonably be drawn from the true facts and that being done in favour of the defendant, the jury is next to determine whether the inferences ought to be drawn. Thus the final judgment is suddenly transferred, if not altogether, very largely, from the intellectual to the moral domain. It is, I think, obvious that any inference which can reasonably be drawn, is to that extent a fair inference. It may not be the right inference, but that is not the point. From any given group of facts it is almost always possible to draw more than one perfectly reasonable inference. Only one of them can be the true inference, but the others may be just as fair. And for all purposes of this limited defence it is the fairness, or reasonableness of the inference or comment which is decisive, not its ultimate proved truth. The latter will often depend upon further disclosure and the disproof of the truth of the facts from which the inference was drawn. All such considerations ought to be rigorously excluded in handling a defence of fair comment.
4. What then is meant by ' ought to be drawn'? Nothing more, I suppose, than that the average common sense of the people either accepts or rejects the inference as, although reasonable, not reasonable enough, or as appears from two of the judgments before us, that the conclusion reached by the inferential process is too positively expressed, and had much better have been stated in terms of probability. But here again it is clear that we are really deciding upon the reasonableness of the inference and nothing else. All judgments of that kind are probably influenced to a greater or less degree by the then known fact that the inference was untrue. I must pause here for a moment upon the term ' inference. ' Inference is, strictly, a process from fact A to conclusion B. But the subtlest reasoning is baffled when it tries to separate the process from the conclusion, and the law which is not subtle at all, carelessly identifies the inference with the conclusion.
5. For all practical purposes the use of inference for that which is reached by inference must be accepted, and will be found to raise no real difficulty. I find, then, in this dictum no real light or guidance. For it all comes to this that any comment or inference which the Judge thinks the facts admit must go to the jury and they are to say whether it is fair, that is, reasonable or not. In doing so, however, they would be affected in all probability by a sense of fair-play, and allow the entrance of many factors into the verdict which a more rigorous logic would exclude. Remembering that fair comment never is libel, it is hopeless to attempt definitions of what is and what is not libel in that large class of cases. For the plain truth is that the only criterion is the verdict of the jury in each case. If twelve honest butchers, bakers, grocers and cheesemongers say that the matter is a libel, it is, and if they say it is not, it is not, and there is the beginning and end of it. Unfortunately judges in this country are deprived of that flexible, but, on the whole very satisfactory, criterion, deliberately adopted by the common sense of the English people to correct the nice refinements and excessive technicality of the trained judicial mind. How necessary some such rude corrective and standard is, the divergence of judicial opinion, and the reasons which have led to it in the course of this trial amply prove. Another highly prized rule laid down in the English cases is that comment to be fair, must be comment on facts truly stated. The wide play given to this principle in spite of its apparent rigidity will be seen later when I deal with the actual materials upon which I base my own conclusions. Sufficient to say here, that, as a rule, it is almost meaningless. Fair comment is comment upon facts. In this connection only true facts are facts at all. If a 'fact' be untruly stated, it ceases to be a 'fact', and cannot, therefore, be a ground of inference. As commonly applied in argument, and sometimes in judgments, this rule then is pure tautology, and repeats as something new and added, what is necessarily implied in the proposition of fair comment. But what was really meant, I think, was that the ' facts ' upon which the comment is founded, must be truly stated, though later they may turn out not to be true at all. For all purposes of this defence a fact may be truly stated and may yet be utterly untrue. In the case we are considering some facts may be of that kind, while others may not, and these must be proved to be true, if they have formed any material part of the ground of inference, or if they are libellous in themselves. Slurring over these distinctions, or, possibly, allowing the final judgment to be swayed by the knowledge that the facts truly stated were after all untrue, accounts, I think, very largely for the conflict of judicial opinion before us. Much the most difficult part of the case turns upon a right understanding, and a correct application of this factor in the law of fair comment. First, it is necessary to keep clearly apart the classes of facts I have just mentioned. Here the comment, alleged to be fair, is comment upon a trial. All the materials put in evidence at that trial, the plaint, the written statement, the evidence, and the trying judge's comment in dismissing the suit with costs at the instance of the plaintiff are facts the truth or otherwise of which the defendant was under no legal obligation to prove. He could take them as he found them and comment upon them. It is quite irrelevant to enquire now whether they were true or false. The defendant had to state them truly, that is all. The comment went a little further, and touched upon an intimately related matter, which, as the writer said, was not fully revealed at the trial. Here the plaintiff charges him with having stated a fact which is untrue, and was not put in evidence at the trial, that is to say, a fact which the defendant himself adduced and first brought to the notice of the public. Any fact of that kind must be shown (a) to be true; or (b) to be no more than an induction from the truly stated facts; or (c) not libellous in itself; or (d) immaterial in the sense that the comment complained of is in no way strengthened by such fact, and will not be weakened by its dismissal from the ground of inference. It is only in the latter connection that I have introduced the qualification that the untrue fact stated must not be libellous in itself.
6. Although both Macleod and Heaton JJ. have held that the statement, ' that Bhagwandas was the creature of Surajmal admits of little doubt,' went beyond the limit of fair comment, the greatest difficulty in the case, and by far the greater part of the argument before us, centre upon the plaintiff's contention that the defendant has invented two untrue facts at least, and made them ground of inference against the plaintiff. It appears to me that whatever hope of success the plaintiff and his legal advisers could have had from the beginning to the end of the trial was rooted in their confidence that they could easily prove the untruth of these facts, and so, as was said repeatedly by the Advocate-General in his argument, the plaintiff must succeed. But at no time during the ten or eleven hours he was addressing us did the Advocate-General appear to me to realise certain qualifications, both upon what was actually stated in the impugned writing, and the rule he relied on with so much assurance. I tried over and over again to bring these possible dangers before his mind, but, as far as I was able to judge, wholly without success. If the facts which were thus declared by the plaintiff to have been untruly stated, to have needed justification and not to have been justified, were eliminated from the case, there would have been very little argument before us upon the isolated question whether the comment was fair or not. I shall presently show that in my opinion no fact was untruly stated that was in any sense material to the comment, and that upon the facts truly stated the comment was fair, and therefore no libel. Before sorting the materials I am going to deal with, on the foregoing principles, I must advert to one point which arose for the first time at this late stage. Although the plaintiff has so strenuously relied throughout upon the untrue statement of facts, those upon which the first and most serious comment was made went virtually unchallenged. It is true that in Macleod J.'s judgment we find him of opinion that there was a material omission, and here and there a misstatement. But such mis-statements will, I believe, turn out on examination not to be so much misstatements of facts, as themselves comment. If we begin with the plaint and enquire what was the libel of which the plaintiff complained we shall find that it does not include the point I am now dealing with, No one should know better than the plaintiff in a libel action what the libel is by which he feels himself aggrieved. He knows exactly where the shoe pinches. Apart from all other considerations I should be disposed to neglect anything in the writing as a whole which the plaintiff himself did not allege to be a libel. Now in the group of facts which had to be truly stated as ground of inference, before the defendant could contend that his conclusion that the plaintiff in Bhagwandas v. Dada was really Surajmal himself, was fair comment, there is one misstatement. The written statement says that it was Shambhuprasad who suggested that the promissory note should be in his, and not in Surajmal's, name, as it would not look well were it made out in favour of Surajmal. In the articles, the writer says that this was Suraj-lmal's suggestion. I believe myself that this was a purely accidental slip. It makes little or no difference whether in fact the suggestion came from Shambhuprasad, Surajmal's clerk, or from Surajmal himself, if it were made at a meeting at which Surajmal was present, or even were it made later, in his absence, with his knowledge and approval. No grievance was made of this slip at the trial or in the appeal Court. It is not mentioned in the plaint, It had never occurred to the plaintiff or his legal advisers at any time. But towards the close of the Advocate-General's opening, this point was given him from the Bench and he eagerly availed himself of it. If we turn to the judgment of the learned Chief Justice it is apparent that it had not at that time been taken by anybody. There the facts to be dealt with are placed in two groups, and the first in which this misstated fact would be included was said to be virtually unchallenged. I do not think we ought, now that the case has reached its final stage here, to pay any attention to this trifling error. I shall treat all the material facts upon which the inference that Bhagwandas was Surajmal's nominee was based as having been correctly stated, subject to any criticism or qualification which a close examination of Macleod J.'s judgment may evoke.
7. There remain, then, (1) an alleged material omission in the group of facts upon which inference that Bhagwandas was Surajmal's nominee was based; (2) two alleged misstatements of fact in the second group of facts, the general gist of the comment upon which was that Surajmal had been guilty of writing a letter which was, to say the least, a calculated suppressio veri, and generally, of professional misconduct. These two facts are : (1) that Surajmal paid Dada his own cheque for Rs. 9,000 in settlement of the suit (Dada v. Tatya Saheb Holkar); and (2) that 'as a matter of fact there was no intervention on the part of any agent,' etc. It is admitted that the defendant made a mistake when he wrote that Surajmal paid Dada his own cheque. The cheque given by Surajmal to Dada was Tatya Saheb Holkar's cheque. But even were the mistake material, and later on I will show why in my opinion it was not, it was a very natural mistake. In the written statement, a fact upon which the defendant had every right to make any fair comment he chose, it is stated that Surajmal gave me a cheque. Now, in every-day ordinary parlance, if A were to say ' I had an account with B, which he settled with me personally on the basis of a reduction of ten per cent. and gave me a cheque for the amount,' I suppose that ninety-nine men out of a hundred would take it for granted that B gave A his own cheque for the amount. It might turn out that he had a cheque of C for the amount, which he handed to A, but that would be an exceptional case, and anyone writing with only the information before him which was then before Horniman, might very well have written in perfect good faith that Surajmal paid Dada his own cheque. The second of the two facts alleged to be untruly stated will need a little more detailed examination and analysis in its proper place.
8. I think the plaintiff's case is put at its highest, and is supported by the strongest reasoning by which it could be supported, in the judgment of Macleod J. I do not recollect that anything was added to that judgment, which could have been of any service to the plaintiff, in the Advocate-General's argument before us. Indeed, by far the weightiest consideration I have been able to discover In support of the conclusion that Horniman's first and most serious inference went beyond the limits of fair comment lies in the fact that two learned Judges, Macleod and Heaton, JJ., have been of that opinion. I think, then, that the best way of explaining why I have come to a contrary conclusion and giving my own reasons against those on the other side, will be to take these judgments and analyse them critically. I may premise that the libels complained of are really two, and distinct. The first is that Surajmal was the real plaintiff in the suit of Bhagwandas v. Dada and that that suit was, as brought, an utterly false claim to Surajmal's knowledge. The second is that Surajmal instigated Dada to file a suit against Surajmal's own client Tatya Saheb Holkar on the understanding that Surajmal would use his influence with Holkar to settle the suit for a sum not less than Rs. 20,000 and that in consideration of Surajmal's procuring such a settlement, Dada would pay him a sum of Rs. 3,000. Further, that not only was Surajmal guilty of gross misconduct in thus setting one of his clients against another, and agreeing to take a secret commission, but that when the settlement was made, although Dada was in the hands of another attorney-D'Cunha-Surajmal settled with him direct, and then wrote a letter to D'Cunha, conveying the idea that the settlement had been made by the parties as much behind his (Surajmal's) back as behind D'Cunha's. That Surajmal had thus been guilty of a breach of professional etiquette in settling with the client of another attorney behind that other attorney's back, and had been guilty of something much worse morally, in writing to that attorney in a strain calculated to cover up this breach of professional etiquette.
9. In the plaint I find the plaintiff setting forth the innuendos of which he complains, and among them that he is accused of having cheated his client Holkar. There is nothing in the articles or the comments which goes, or, as far as I can see, could go, that length. It was grossly improper, if true, for Surajmal to have instigated Dada to file a suit against Holkar. At that time both were his clients. But, on the facts, as they appear in this suit, it was a perfectly good suit, and, seemingly, Holkar had no defence at all. The only question would have been the quantum of damages. Tf Dada had gone of his own accord to another attorney to file that suit, and had claimed Rs. 25,000 damages, and Surajmal acting for Holkar had settled for Rs. 9,000 even without Holkar's knowledge in the first instance, provided that Holkar approved of the settlement on those terms, I cannot see that Surajmal would have done anything unprofessional, or anything which could possibly have boon included logically in the attack which Horniman made upon him in these two articles. It would have been, I believe, an impropriety, though a very venial one, were it true that Surajmal, when the suit had been brought, settled on behalf of his client Holkar with D'Cunha's client Dada, 'over the head' of D'Cunha. But there is nothing in all this which is, or comes anywhere near, cheating Holkar. This much the Advocate-General conceded when I put it to him in the course of his argument. It is very necessary, it is indeed essential, to keep all this in proper focus, and very clearly before the mind, when we have to deal with the alleged misstatement of fact contained in the passage: 'As a matter of fact there was no intervention on the part of any agent, etc.' For the whole argument there went upon the ground that Holkar had an agent representing him with Surajmal, and therefore it was untrue to say that there was no intervention on the part of any agent. Keeping these two alleged libels apart, for the present, it is to be noted that, so far as its reasoning goes, Heaton J.'s judgment is confined to the first. There he came to the conclusion that it was not fair comment to say that there was little doubt but that Bhagwandas was Surajmal's creature, and after that, as the learned Judge very rightly said, it was unnecessary to go into the less serious charges. It is unfortunate, I venture to think, that we have thus not had the assistance of Heaton J.'s clear, practical mind upon the natural meaning in its proper context, and as a whole, of the passage in which the sentence ' as a matter of fact, etc.,' occurs. And I may add that while for purposes of clarity I have separated the libels, which the articles are said to contain, I do not mean to say that, except possibly, in assessing damages, it matters whether both or only one are or is proved.
10. On a first view it might be thought that the facts out of which this suit has arisen, are extremely complicated. They really are not. It would be better to lay out of the case at once and altogether the suit for account brought by Dada against Surajmal and the criminal prosecution in respect of one of its items which he set on foot against Surajmal. It may be conceded, as far as I am concerned in this judgment, that both these proceedings were instigated by Nanabhoy. It may be conceded that Nanabhoy was hostile to Surajmal. No one denies it. But a great deal of capital seems to have been made out of the fact, partly by way of prejudice, and partly to break down Nanabhoy'e credit as a witness. Nanabhoy's evidence is only valuable to prove that Surajmal did in fact settle direct with Dada, and that this settlement was not effected behind the back of Surajmal, and without his knowledge. Later on, I hope to show that the defendant was not bound to 'justify' here at all. I cannot help feeling, after reading the trial before Macleod J., that the defendant's case was jeopardized by his counsel's scrupulosity, in avoiding all semblance of justification. The defendant elected to defend upon the ground of fair comment. That is a much easier defence as a rule in such cases as this, than justification. Once committed to it, defendant's counsel fought shy of anything that might seem, however remotely, to approach justification. He did not even cross-examine Surajmal upon the fact which, owing to a step taken later by defendant's legal advisers, it is now contended, he knew very well that he must justify. It certainly was in my opinion a serious tactical blunder, first, to omit all cross-examination of Surajmal, and, then, at the closing stage of the case, to put in an application for a commission to examine Vinayak and Holkar on this very point. Either it needed justification or it did not. If it did, then most surely Surajmal ought to have been cross-examined upon it. If it did not, there was no reason at all for examining Vinayak and Holkar about it. Probably defendant's counsel believed that he must succeed on the ground of fair comment and did not wish to take the risk of enhanced damages, should that expectation after all be falsified by anything that looked like indirect justification. It does not follow that because a defendant stakes his case upon fair comment, the conclusion so reached must be false. All that such a defence means is that the defendant does not care whether the conclusion be true or false, provided only he can show that it is a fairly-reached conclusion from the premises available to him at the time he drew it. And he is in a somewhat delicate position when the plaintiff, as in all such cases he must, goes into the box and denies and denies not only the conclusions but many of the promises. Here the defendant's position was peculiarly embarassing since the worst conclusion he drew against the plaintiff was no more than a repetition of the defendant Dada's allegation in his written statement. When the plaintiff swore that it was quite untrue that he was the real plaintiff in Bhagwandas's suit, and that, in effect, Dada's written statement was false from beginning to end, what was the defendant to do? If he had cross-examined on these points the Judge would, in all probability, have stopped him, pointing out that he had not chosen to justify. If he kept silent, as he did, the record would indicate that his conclusion was false, and that Surajmal had been grievously wronged by his inference. All that is really irrelevant, but there can be no doubt, I think, that it exercised a very great influence upon the minds of both MacLeod J. and Heaton J. But as to this particular statement, which finds no place among the facts put in evidence before Davar J., if it were a new fact, and not an induction from such facts duly put in evidence, the defendant would clearly have been obliged to prove it. It is regrettable, then, that he made no attempt to cross-examine Surajmal on the point. The reason is probably discoverable in the uncertainty of his counsel's mind as to his position at the time. There is a sentence in Macleod J.'s judgment which seems to me to support this conjecture. He says that, as far as he could gather, defendant's counsel did not admit that there was any fact which he had to justify. If that were so then a passage in the defendant's written statement had better have been wholly omitted or differently worded. In para C the defendant says: ' as to such portions of the said words, if any, as are not facts put in evidence at the trial, etc., the same is true in substance and in fact.' That certainly suggests that the defendant thought some such portion there might be, and that it, at any rate, would need justification. If it was not to justify this passage in the article that Nanabhoy was called as a witness for the defence, it is not easy to understand why he was called. Then three other witnesses appear to have been examined before Macleod J., to prove that Surajmal was really responsible for the withdrawal of Bhagwandas's suit, and after they had been examined, and Strangman for the plaintiff wanted to call evidence in rebuttal, Bahadurji for defendant said that all this evidence might be struck out, as he was not justifying. Strangman, however, on being given an option (presumably of having the evidence struck out at once, or of leaving it on record and calling evidence in rebuttal), elected to call evidence, and seems to have been allowed to do so. It is not easy in these circumstances to know whether this evidence was, in the understanding of the learned trial Judge, on the record or not at the end of the trial. I merely mention this to indicate the uncertainty and confusion which marked the conduct of the defendant's case before Macleod J., and doubtless contributed in no small measure to the conclusion reached by that learned Judge. Heaton J. puts it quite plainly that the inference which Horniman drew was not only of a most serious and damaging nature, but was not true. It was not contended, the learned Judge adds, that it was true. But that is surely laying too much stress on the form of the defence, and looking at the result of the trial whore Surajmal, on this ground, was allowed to have it all his own way. I preface, what immediately follows, thus. It is admitted that the subject-matter of these articles is of public interest. It is admitted that Horniman bore no malice to Surajmal. Nanabhoy did not go to Horniman of his own accord, Horniman sent for him because he wanted further information. He knew from the record of the case before Davar J. that Nanabhoy had been Surajmal's managing clerk throughout the transactions which led up to the suit of Bhagwandas v. Dada. I doubt whether, where the defence is fair comment, malice or no malice is of much importance. But where it becomes necessary to compute the fairness or unfairness of comment, and the scales are fairly evenly balanced, it would be hard indeed to exclude the influence of such a factor as malice, were it proved in the writer. And there are passages in the judgment of Macleod J., which indicate, to say no more, a feeling against the defendant on the supposition that he was actuated by something very like a malicious desire to discredit Surajmal. I think it is perfectly clear, too, that both Heaton and Macleod JJ. were influenced to some extent by what came out at the trial before Macleod J. This is suggested by the learned Chief Justice, and I think that the suggestion is well-founded. Yet it is quite clear that every consideration of that kind has to be banished from our minds in deciding whether, at the time the articles were written and on the facts then before the defendant, Horniman, they were or were not fair comment.
11. It is needless for me to say that I have a very high respect for any considered judgment of Macleod J. Where I find that I am not able to agree with him, that sentiment compels me to state, if only as a matter of courtesy, my reasons at length. I have read Macleod J.'s judgment several times since the hearing of this appeal came on. And I will begin my examination of his judgment in detail by saying that I believe he was much influenced by two dominant notions. First, his onsc of fair play was affronted by Horniman's method of supplementing the information he had before him in the reports of the trial. Evidently, Macleod J. thought that had Horniman been anxious solely to see tills matter laid before the public in the justest light, he ought to have invited Surajmal's own explanations in the first instance. Instead of doing so he sends for Surajmal's enemy. Was that an honest way, was it a fair way of approaching the elucidation of a matter of public interest? Such I take to have been what was uppermost in Macleod J.'s mind in more than one part of his judgment. Yet, if it means anything, it means that Horniman was acting maliciously, and this is nobody's case now. The second dominating influence easily distinguishable in Macleod J.'s judgment was that Horniman took some of his facts and some of his comments from the observations prepared by Mr. Vateha for counsel in the suit of Bhagwandas v. Dada. Now I want to say hero once and for all that I see no magic in the use of 'Observations.' No one denies that Horniman had recourse to the 'Observations.' No one assorts that in doing so he could claim any protection. If he stated a fact from the 'Observations' which was not put in evidence at the trial, he did so at his own risk, and if it were challenged he would have to prove it. If he took comments from the observations and published them verbatim, he made them his own, and they would have to be judged fair or unfair on that footing, and that footing alone. It is no part of the law of fair comment that the comment must be the writer's own : he is as much entitled to publish derivative as original comment if it be fair, and he chooses to adopt the former and make it his own. But throughout his argument before us the Advocate-General appeared to think that he clinched his contention that comment was unfair, or that a fact was not true, by ehowing that it came literatim and, by Horniman's own admission, from the ' Observations. ' This is very strange. Suppose that there had been no observations at all in this case, but that Nanabhoy had told Horniman orally what was stated in them. Suppose Nanabhoy had said:
Here is a letter of Surajmal. You see it suggests that he did not settle the suit with Dada direct, and did not even know that the parties had settled the suit till he was told so by an agent of his client Holkar. Now turn to Dada's written statement, and you find him swearing there that Surajmal did settle with him direct. Turn again to Surajmal's sworn testimony before Davar J., and you don't find a word about the intervention of any agent of Holkar, but a statement that Surajmal's own managing clerk settled the case with Dada direct. My suggestion on that is that this letter is a calculated lie, intended to conceal from D'Cunha that Surajmal had settled the case behind D'Cunha's back with D'Cunha's client.
12. Horniman compares the letter with what appears on the record of the case, and agrees that this is the only reasonable construction which could be put upon it. Would he not then be entitled to adopt the suggestion made to him, and express it as his own comment? Would it make the slightest difference that it had been suggested to him, and might never have, else, occurred to him? None whatever that I can see. Those observations presumably would have been acted on had the suit of Bhagwandas v. Dada gone on. There can be little doubt that this letter of Surajmal to D'Cunha would have been put to Surajmal, and if Dada's version were true, I do not see what other inference could possibly have been drawn from it than that which the defendant Horniman drew. Observations of this kind, I suppose, contain facts and comments, which counsel are intended to use. It may be that the attorney who drew these observations did not think that this part of thevn would be relevant or at any rate material in the suit. But there they were, and read in the light of what had happoned at the trial before Davar J., I do not see why Horniman should not have used them if he believed that any fact they stated or any comment they made was true and fair. It is upon that basis that I discuss the question wo have to answer, and I cannot help thinking it a pity that the learned Judge, who tried the action, and the Advocate-General, who argued the appeal for Surajmal beforo us, should have been under what appears to me so grave a misapprehension of the significance and weight of a fact which no one denies that Horniman did draw upon these observations, in writing parts of the impugned articles, I will now go over Macleod J.'s judgment, noting only those passages which, in my opinion, lead to wrong conclusions. I need not delay over the facts leading up to the suit of Bhagwandas and Surajmal. On the pleadings, Macleod J. observes :-
It is unfortunate that plaintiff did not ask for particulars of the statements referred to in this para (Para. 6 of the written statement). For the articles profess to comment only on what was made public at the trial.
13. Is that quite correct? The most debated part of the alleged libel is introduced by the writer's statement: 'As regards the last named point, it may be as well to elucidate the matter a little further on the basis of the defendant's allegations, though the matter was not fully revealed in Court'. When the learned Judge comes to deal with the evidence, he remarks :-
With that evidence before him (defendant) to send for Nanabhoy was a very indiscreet step on the part of the dofendant, if he wanted to write a fair comment on the report of the trial, for it is difficult to escape from thinking that the defendant must have expected to hoar from Nanabhoy something to Surajmal's detriment.
14. Undoubtedly he did. The impression left on his, or for that matter anybody's mind, by the report of the trial before Davar J. must have been most unfavourable to Surajmal. The Judge goes on to say that defendant might have obtained all the necessary information for an article from Messrs. Ardeshir, Hormusji, Dinshaw & Co. Then follows a long passage showing that Surajmal had every right to regard Nanabhoy as a bitter enemy. Later the Judge says:-
Unfortunately for himself, defendant read Mr. Vateha's observations and though it is denied, I think it is probable, that he had some conversation with Nanabhoy about them.
15. Observe the word ' unfortunately.' Certainly it has proved unfortunate for the defendant that these observations ever came under his notice, but I doubt very much whether this should have been so, beyond, of course, this, that if defendant took any fact from those observations, he would lie under the obligation of proving it. Then the learned Judge asks:-
Was then the defendant's comment on the report of the trial fair comment, tested by the rule to which I have referred above? In the first place was it based upon facts truly stated, or wore there misstatements of facts, and in this latter must be included the omission of important facts. For unless a report which is being commented on is fairly set out the comment cannot possibly be fair. It cannot be said that the report of the case was properly set out before the comment began.
16. It is to be remembered that the Chronicle had published a report of the case, and no exception has been taken to that report that I know of. It is of course true that that report is not reproduced in full in the articles, but it had been laid before the readers of the paper, and the articles appear to me to give a fairly accurate resume of it. The judgment continues: 'True the effect of the pleadings is set out, but pleadings are very different from evidence and nothing is said about the evidence given on oath by Surajmal in examination-in-chief, denying the allegations made against him by Dada.' His cross-examination is referred to in language which leads the reader to infer that he completely broke down and the defendant writes, 'the case was suddenly withdrawn, the Judge appropriately remarking that the plaintiff had adopted a very wise course.' The Judge used those words for reasons only known to himself. They certainly are not apparent from the report, but the addition of the words ' appropriately ' by the first defendant, cannot be commended. I shall later resume for myself what appear to me to be the salient features of the case tried by Davar J. Here it is enough to say that what Macleod J. imputes to the defendant as unjustifiable, is that he did not set forth Surajmal's oxamination-in-chief; and that he uses the word 'appropriately' in recording Davar J.'s remark upon the termination of the case. I think that the reasons which Macleod J. says were known only to the learned Judge himself, and certainly do not appear on the record, are obvious enough. As to the omission to include in the articles what Surajmal said in examination-in-chief or a resume of it, all I need say here is that anyone who had read the report of the case, or who had the information on record there before him, would have understood perfectly why Surajmal was called as a witness for the plaintiff and what he certainly must have said in his examination-in-chief. His cross-examination indicates that pretty clearly, and it is upon his break-down under cross examination and the sudden collapse of the suit while that cross-examination was in progress, that the writer wants to concentrate public attention. Then the Judge goes on : ' It is obvious that saturated with Mr. Vatcha's observations he was ready to pass judgment on a case the trial of which had only just commenced.' That is a curious phrase to use about a case which had ended, but of course the learned Judge meant that the trial of it had barely commenced before the plaintiff withdrew it and consented to a decree against him with costs. The judgment continues:
His first remark is 'that the plaintiff was morely the creature of Surajmal admits of little doubt in view of the circumstances revealed' 'and that Mr. Surajmal should have been thus content to have the case withdrawn and the very ugly allegations made against him loft unrefuted, is a matter which demands further inquiry.
17. It must be borne in mind in dealing with all this part of the alleged libel that Horniman inferred from the pleadings, the evidence, the nature, and the end of the suit that the defendant's version was true. The defendant had stated without reservation that Surajmal was the real plaintiff, and Bhagwandas merely his nominee. In the circumstances revealed by the trial, as the writer says, he believed that the defendant's declaration to that extent was true, and therefore he morely reiterates it in the sentence which Macleod J. calls his first remark. No serious exception, I believe, could possibly be taken to the next sentence. Doubtless, the writer has already concludod that the suit was Surajmal's suit; therefore if that is fair comment, it follows that the withdrawal of the suit was Surajmal's withdrawal, and the whole sentence goes no further than saying that Surajmal's conduct in allowing the suit to be thus withdrawn, while the ugly allegations against him wore left unrefuted, certainly was a matter which demanded further inquiry. Even wore Surajmal not the real plaintiff, as inferred' by the writer, still he was as much interested in the suit as the plaintiff, Bhagwandas, regard being had to the written statement and the issues, and the part he had taken in it up to the time of its withdrawal, and it surely was fair comment to say that his conduct in allowing the suit to be thus withdrawn without making any protest called for further inquiry. Macleod J. concedes that if Surajmal were the real plaintiff then it was he who gave the word to withdraw ; but he adds that ' the recorded circumstances nowhere point inevitably to the conclusion, and, if 'unrefuted' means 'disproved by the decision of the Court', then Surajmal was content that the allegations against him should go unrefuted.' Now here the learned Judge certainly adopts the view that comment to be fair must take the form of an inevitable inference. In my judgment that is not the law. I do not like the use of such a word as ' inevitable ' in such a connexion. Fair comment, with which alone we are dealing, impliedly permits of a much greater latitude than the drawing of inevitable inferences. All that is required is that the inference from facts truly stated should be fair, that is, one possibly out of many equally or almost equally fair inferences. If out of throe or four inferences one was inevitable in the strict sense, then all the others would cease to be reasonable inferences at all, and would not fall to be considered under the defence of fair comment. What was the inevitable inference from the facts before Horniman? If the inference he drew was not the inevitable inference, and, therefore not fair comment, it could only be because there was an inevitable inference which excluded all others, and, speaking logically, deprived them of any semblance of reasonableness. Dare any one say that there was such an inevitable inference here? unless indeed it were the very inference Horniman drew I will here, without quoting, dispose of Macleod J.'s treatment of the two words 'unrefuted' and 'unanswered.' I regret that I cannot agree with the learned Judge in saying that the use of those words by the defendant in their respective contexts necessarily means that Surajmal did not even deny Dada's allegations. So far from that being so I think anyone would understand that the writer meant that notwithstanding any denial Surajmal may have given, the break-down of the case in the middle of his cross-examination, just at a point where he was plainly getting into deep water, and putting himself in a very compromising light, left Dada's allegations still virtually in possession of the field. Merely denying an accusation is certainly not 'answering ' it in the sense of the writer. Every prisoner who pleads not guilty denies the charge but would any one understand that his mere plea had ' answered ' it? I think not. The learned Judge then sots forth the next two passages on which the plaintiff relies. He sums them up thus :-
The allegations are that Surajmal after instigating Dada to file a suit against his own client Tatia Saheb, sends him to another solicitor to file the suit, but after that had been done, arranged the settlement of the suit with Dada without letting Dada 's solicitor know what was happening. Truly the matter was not revealed in Court, nor in any of the proceedings. It was revealed solely in the observations... which no one had seen except Mr. Vatcha and Nanabhoy.
18. Now much of this at any rate was revealed, as immediately appears in what the learned Judge next says, in the written statement of Dada. It is true that there is no mention there of Surajmal having sent him, Dada, to D'Cunha, but he does most distinctly say that Surajmal instigated him to file the suit against Holkar, and it is hardly necessary to add that Surajmal could not very well have acted for both plaintiff and defendant in such a suit. If he really instigated Dada to bring this suit against Holkar in the manner alleged by Dada it is certain that by implication he 'sent' Dada to another Solicitor, formally to conduct that suit. The written statement of Dada again does most expressly aver that Surajmal settled the suit with him. Macleod J. comments upon this as follows :
But how can any reasonable person spell out of the passage in the written statement which I have just quoted a charge by Dada against Surajmal of having broken this rule of professional etiquette? And I may note here that there is nothing in the written statement about Surajmal having sent Dada to D'Cunha.
19. I have commented on this in anticipation. I own I find it rather difficult to follow the learned Judge in the first part of the sentences last quoted. No one ever supposed that Dada had accused Surajmal of having committed this breach of professional etiquette. It was no concern of Dada's. But he certainly did accuse Surajmal of having instigated him to bring the suit against Holkar, and he certainly did say that Surajmal settled that suit with him. Then when Surajmal's letter to D'Cunha was laid before Horniman, he comments on it in the manner above described. It is, as the writer makes pretty clear, I think, a new allegation not revealed in the proceedings befor Davar J. but connected with them, and one which might have been revealed or refuted had that trial run its course. That is all the passage in the artice seems to me to mean, and if Dada's allegations were true, a conclusion already inferentially reached by the defendant, then it would follow almost of necessity that this letter was of the character imputed to it, Thon the learned Judge concludes that defendant would never have written a word of this portion of the articles, if he had not had the 'Observations' before him. I agree that he would not, unless the man who wrote the observations had given him the same matter to use if he chose. But as I have said the mere fact that the observations were defendant's source of information is of no consequence or relevance whatever. The solo question is whether the fact upon which the writer is commenting now, is a fact, and, if so, whether the comments are fair There are seemingly two facts, one, Surajmal's letter, the other, the assertion that as a matter of fact there was no intervention on the part of any agent at all. Both camo out of the observations. The one as a fact, the other, I should say, as a comment upon it, fully justified by the contents of Dada's written statement, provided of course that statement was substantially true. Of course, as the learned Judge says, the charge made in the article is not taken direct from the written statement of Dada, but from the letter of Surajmal along with The contents of the written statement. But if it be substantially true or at any rate if it wore eminently fair comment upon the materials before the writer, what can it matter that he did not take it bodily out of the written statement? The judgment proceeds:
But the defendant made a worse blunder. Even if it can be said that it was alleged in the proceedings that Surajmal settled the whole matter direct with Dada, it certainly was never alleged anywhere that Surajmal then wrote to the other Solicitor stating, etc. This was taken direct from the observations, and what is more startling the comment is also taken direct from the observations. What justification was there then for the defendant stating that the contents of Surajmal's letter which he got from the observations were not only untrue but were so written deliberately, in order to screen the breach of etiquette committed by him?
20. The whole passage illustrates perfectly the point of view of the learned Judge, and, in my judgment, the true cause of his having come to what I feel was a wrong conclusion upon the case, He admits, or, to be more accurate, hypothetically half admits, though with reluctance, that ono part of the comment might have boon upon facts put in evidence at the trial. But prefacing his next observations with the statement that the defendant committed a worse blunder he dwells upon what nobody denies that it was not alleged at the trial that Surajmal wrote the letter to D'Cuhna, and that it was false, and deliberately written to screen his professional breach of etiquette. What justification, he asks, could there be of that And the answer is simple. Fair comment on a true fact. If it be assumed that this was a blunder on the part of the defendant, the question is prejudged. But was it? The letter, alleged or not alleged, is a fact. It is not denied. It was before the defendant, and it appears to me that hehad a perfect right to comment on it in the way he did. Its truth was flatly denied by the defendant in the suit before Davar J. in his written statement. From the course, what was elicited in, and the end of that trial defendant had inferred, and I believe wo all agree that the inference was upon those materials fair inference, that the writton statement was substantially true. If it was, this letter was false. Not only that but the defendant had the sworn evidence of Surajmal himself, and who should have known better that it was false? When Surajmal gave that evidence he had probably forgotten all about this letter. When it had become a prominent feature in the libel suit beforo Macleod J. he materially modified the evidence he had first given, so as to explain the letter as best he could. But when defendant wrote he had only the record of the trial before Davar J. to work upon. And had nothing ever been added to that, is there any one who could deny that the inference that the letter was falso, to the extent of, at any rate, being a suppressio veri, was a fair inference? If so far the inference was not only fair, but, to use Macleod J.'s own term, ' inevitable ' the reason assigned by the writer of the article for Surajmal 'having written this false letter, whether alleged or not, seems to me to be as clearly fair comment. It is the obvious reason, some reason there must have been, and this feature in the settlement of the suit of Duda v.Holkar is so intimately, connected with the truth as a whole of the defendant's version of the facts in Bhagwandas v. Dada, that although not elicited in that trial, it became fair matter for comment upon the whole case. The learned Judge appears to have held from first to last that nothing which was not put in evidence at the trial before Davar J. could possibly be ground of inference, in commenting upon the character of that case. I do not agree. What was put in evidence there was closely related to the former suit, and any highly suspicious feature in that suit, if true, lent support to the main conclusion, which the defendant had formed, that Dada's defence was substantially true, This breach of etiquette, standing alone, was relatively unimportant, but the reason for it was sinister in the light of Dada's allegations.
21. Almost all the Advocate-General's force of argument was concentrated upon this much of the impugned article. It was pressed upon us, over and over again, as though, in that form the point was difficult, instead of being of the simplest, that the fact stated, namely, that there was no intervention on the part of any agent was untrue, and that the innuendo that the letter was false was wholly unwarranted, because at the trial of the libel action Surajmal swore that the suit was settled by Holkar's agent, and the defendant failed to prove by Nana-bhoy's evidence that it was not, and therefore the plaintiff must succeed. This is very crude reasoning. In the first place it assumes that there was intervention on the part of an agent in the only sense in which that was denied as a fact in the article; in the next place, it assumes this to be an independent statement of fact by the writer of the article, which as fact not put in evidence at the trial before Davar J. he had to 'justify', and last, it wholly overlooks the important need of keeping distinct, what was before the critic when he wrote, from anything that may or may not have been proved at the subsequent trial. If it can easily be shown that this apparent statement of a fact, viz., that no agent intervened in the settlement between Surajmal and Dada, was not only a fair inference, but by far the most probable and therefore the fairest inference to be drawn from the materials the writer had to comment upon, the whole of this argument falls to pieces, and becomes virtually irrelevant. Let me suppose that the sentence, instead of being worded compendiously as it is, had been thus cast: 'But from the written statement of Dada, and the evidence of Surajmal himself on oath, it is clear that no agent intervened in the settlement between Surajmal and Dada,' could any exception have been taken to it? I do not think so. And yet that is exactly what the sentence, taken in its context, really means as is made perfectly clear from what immediately follows.
22. The point of the passage is to show that Surajmal's letter was in essence false, and so written to conceal from D'Cunha his own direct communication with D'Cunha's client. If we had not had the evidence taken at the trial of the libel action before us, I make bold to say we should all unhesitatingly have come to the same conclusion. While I do not think that later evidence, material or even in strictness, relevant, I may add that, speaking for myself, it does not satisfy mo that the letter was true. Macleod J. is said to have believed Surajmal implicitly and to have disbelieved totally the evidence of Nanabhoy. I am not concerned really with that evidence taken at that time. I admit that it is usually unwise to interfere with the estimate of so experienced and able a trial Judge as Macleod J. of the value of evidence given before him. But I should say that even were our judgment upon this point to depend upon, or even to be influenced by, that evidence, its whole tenor leaves no doubt on my mind but that Surajmal knew perfectly well of the settlement with Dada before it was completed. He was in no need of being informed of it by Holkar's agent as his letter certainly suggests that he was. And, lastly, I think it almost absurd to insist that even if. Holkar's agent did not intervene, that is to say, go to Dada behind Surajmal's back in effecting this settlement, yet there certainly was an agent of Holkar representing him in this dealings with Surajmal. That might have been taken for granted. There is nothing improper in it. The object of the writer was to show up an impropriety in Surajmal's method of doing business. His remarks must be road in connexion with, and strictly confined to, that object. It is no answer to his statement that as a matter of fact there was no intervention on the part of any agent to reply that, between Holkar and Surajmal, the former was represented by an agent. The learned Judge then proceeds to deal with the second article in which he remarks ' that these allegations taken from the observations are repeated, with a further fact added that Surajmal paid Dada with his own cheque.' That was admittedly a mistake as I have already said, but I think it is quite an unimportant slip. The Judge then comments on this in these words : 'It is difficult to see what object the defendant could have had in laying such extraordinary stress on these facts which he had gathered from the observations unless he wished, whilst making a personal attack on Surajmal on a matter outside the case, to drive home the inference he drew from the circumstances actually revealed, that Bhagwandas was the nominee of Surajmal, and that all Dada's allegations against him were true.' Precisely. That is undoubtedly what the defendant was seeking to do. But does it deprive him of his rights to comment fairly on these materials too? When the learned Judge used the word 'personal' it is plain that he suggested that the attack was in some degree malicious. But it has since been admitted that it was not. He then goes on to say that ' the defendant after referring to the allegations of the defendant (in Bhagwandas's suit) including those which were never made, etc.' That is putting the case as strongly as it could be put against the defendant. For, while some of the allegations were not made in the written statement of Dada, they certainly were made to Horniman, and he had to judge fur himself upon the materials before him whether the allegations were probably true or false. What next follows deals with some of the comments in the article, and, for my part, even after giving the greatest weight to Macleod J.'s opinion, I am still quite unable to see that they exceed the limits of fair comment. For example, when the learned Judge condemns the writer's comments upon Surajmal's lapses of memory, he says that these were .singularly unfortunate and supports that by this process of explanation: ' Surajmal could not remember what he had said to Dada when Dada heard of Khambatta's agreement and asked Surajmal what he should do, or whether he told Dada to go to other attorneys. He could hardly be expected to remember the first, but if he told Dada to go to other attorneys as he was acting for Tatya Saheb, that was the right thing to say.' Does this fairly represent what was in the mind of the writer of the articles? Surely not. In judging Surajmal's evidence before Davar J. it is to be remembered that he had boon fully acquainted for months with the nature of the defence. He know perfectly well what was being put to him in cross-examination and why. He know that when he was asked what he said to Dada when Dada came to him about Khambatta's prior agreement, it was being suggested that he told Dada to file a suit for damages against Tatia Saheb. With that knowledge in his mind there was no excuse at all for giving the evasive answers he did. It is impossible, if he really had instigated Dada to do this, that he should have forgotten it, or in view of the correspondence preceding the suit of Bhagwandas v. Dada and the defendant's written statement therein, that he would not, before going into the witness box, have searched his memory for what did pass on the occasion referred to. He could not have been taken by surprise on these points. Presumably he was there to clear his character of the aspersions cast upon it in the written statement, and this was one of the most serious of them. He could at least have said : 'I do not exactly remember what I said to Dada, after this lapse of time, but I most certainly did not instigate him to file a suit for damages against Tatya Saheb.' If Dada had come to Surajmal to file a suit for him against Tatya Saheb, then doubtless it would have been right for Surajmal to refuse to act for him and advise him to go to some other attorney, if, indeed, that could be called advice at all. But that surely is glossing over the real implication of these questions and answers, an implication as well known to Surajmal as to counsel examining him. The learned Judge admits that Surajinal's inability to remember whether he had drafted the notice to be sent to himself acting as attorney for Holkar, was suspicious. That is putting it very mildly indeed. The suggestion was not only that Surajmal advised Dada to file a suit against Holkar, in which, of course, Surajmal could not act for him, but that he actually drafted notice of suit for him and sent him with it to D'Cunha, in order that this notice which he himself had drafted should in due course be sent to him as Holkar's attorney. I ask without fear of contradiction whether it is, humanly speaking, possible that after months in which to prepare himself for cross-examination upon the salient fact that he had instigated Dada to bring the suit, he should have been in any doubt at all whether he had himself drafted the notice. I say emphatically that it is not. He knew, he must have known, whether he had done such a thing, and if he had not, he could have given an unqualified denial to the suggestion. Why did he not? The explanation again is perfectly obvious. Wo are told that counsel was flourishing papers when he put the questions to the witness. If Surajmal had not a clear conscience, if he had really instigated the suit, although he had not in fact drafted the notice, ha might not have felt positive that he did not, he might have feared that if he denied having drafted such a notice, counsel would next moment confront him with it. So he took refuge in the answer that he could not remember whether he had given Dada such a draft or not. Macleod J. says that it was proved as a fact that Surnjmal did not draft any such notice, but that D'Cunha drafted it under Dada's instructions. This was in the libel action. But how was the defendant to know that at the time he wrote the articles He might very well have presumed, as Macleod J. admits, that counsel had instructions. But whether counsel had or not appears to me quite immaterial. For Surajmal's inability to remember whether he had drafted the notice for Dada or not, whatever else it may or may not warrant, certainly would warrant an inference that his conscience was very far from being clear at that time, about the part he had taken in launching that suit. And that was quite enough for the defendant. I am not quite sure whether Macleod J. meant in the passage I am about to quote to treat the sentence in the article as a statement of fact or as comment on fact. He says: 'as to the words 'other matters of importance, he had also forgotton,' they were grossly unfair, and the defendant's attempt to explain them was ludicrous.' What precedes the words in the second article certainly resumes compendiously the most important points which Surajmal then swore he had forgotton, but there were minor points of detail at any rate, and one of them might fairly be called important, which Surajmal had also forgotten. As I road the words through, they merely sum up the concluding part of the cross-examination, the gist of which has just been given. It certainly would not have occurred to me on reading the article that the plaintiff could make a special grievance out of this sentence, in view of the substantial truth of what went before, and the general tenor of the passage as a whole. I should have thought that this was too near going over every line and word with a microscope, to find the minut-est flaw, a method that no jury would ever think of adopting. The learned Judge proceeds: ' I must hold that the defendant has misstated the fact on which his comment is based. He has laid the greatest stress on allegations which were never revealed to the public, to support the conclusions he arrived at and has moreover accepted those allegations as true.' If by ' the fact' here the learned Judge really means the sentence ' other matters of importance he had also forgotten,' all I can say is that that is on its face comment upon the record. It may go too far, and to that extent it may not be fair comment, but it certainly is not such a fact untruly stated as the learned Judge had in mind.
23. As to the allegations which were not on the record of the case before Davar J. I fail altogether to discover more than one which can accurately be so described, and that is the letter which Suajmal wrote to D'Cunha. He did write it. Such other allegations as flow from it will be found on analysis to be no more than inference from facts put in evidence at the trial. It is true that the writer of the article says that ' it is alleged, etc' and that 'it is roundly alleged, etc.,' and does not make it clear that these allegations were not to be found in the record of the trial before Davar J. But what was the position It was roundly alleged before Davar J. that Surajmal had instigated Dada to file the suit against Holkar. It was there, too, alleged that Surajmal had settled the suit with Dada. Then this letter from Surajmal to D'Cunha is unearthed, and comments are made on it in the written statement. It is impossible to say how far this part of what was suggested by the defendant's attorneys for use in the case might have been brought out and either proved or disproved by evidence had the case gono on. The note by the compiler of the observations in relation to Surajmal's letter, does not conclude the matter. It is almost certain, I think, that had that suit not come to so premature an end, Surajmal would have been cross-examined and pretty rigorously about the part he played in the settlement. And I see no reason to suppose that had he then admitted, as he had admitted in a measure, that the settlement was his own, though brought about by his managing clerk, he would not further have been called on to explain this letter. When the learned Judge says that defendant not only laid the greatest stress on allegations which were never revealed to the public, but accepted them as true, it means no more than, as I have tried to show already in more than one connection, that the defendant took risks of adopting a fact and making it the ground of comment. But in what immediately follows Macleod J. went much further, for he said : 'I must also find that from the report of the case before the public as far as it went it could not reasonably be inferred that Bhagwandas was the nominee of Surajmal, that is to say, using the word 'infer' in its strongest sense'. If the learned Judge held that view then he would not have allowed this question to go to a jury at all. I can hardly believe that he really meant that. Surely, whether that conclusion was in the nature of fair comment or not must have been left to a jury. For, with the materials before him at the time, I doubt whether any one could be found to say that the writer's inference was one which could not reasonably be drawn from the facts, although it is possible that a jury might have thought it one which ought not to have been drawn, nor do I understand what the learned Judge means by 'using the term inference in its strongest sense.' An inference is always an inference, whether it be a good or a bad inference, and whether an inference could be 'reasonably' drawn depends upon the degree of probability in its favour. I cannot wholly agree with Macleod J.'s definitions, or test of reasonableness. An inference, if we must use exact terminology, is not a surmise. A surmise is rather a guess, if the word has a place at all in logical terminology. What Maclood J. appears to be distinguishing is a loose from a close inference. He gives, to illustrate his meaning, inferences which might reasonably have been drawn, as, for example, ' that it would have been reasonable to infer from the fact that Bhagwandas withdrew his case, that he was apprehensive that Dada would be able to succeed in his defence and prove that Bhagwandas was the nominee of Surajmal, or that it was possible that Bhagwandas was the nominee of Surajmal. It was not reasonable to infer that Bhagwandas was the nominee of Surajmal.' Are we not drawing very fine distinctions here? If it were a reasonable inference that Bhagwandas apprehended that Dada would be able to prove that he was the creature of Surajmal, it is very much the same thing as inferring that Bhagwandas was the creature of Surajmal, for if he wore not, upon what possible ground could he have apprehended that Dada would be able to prove that he was?. Then follows this : ' The former are true inferences. The latter is a conclusion.' Every inference, as I have said before, ought to roach a conclusion, though that conclusion may be positive and unqualified or merely probable and qualified. But the distinction here drawn is one without a meaning and if I understand the learned Judge aright, what he really means is that the defendant was much too positive in stating the result of his inference, particularly as it turned out not to be true. I do not agree that the defendant has confused inference with assumption. It is in the main correct to say that he has accepted as true most, if not all, that was said on Dada's side in the case before Davar J., and necessarily, therefore, where what Dada said was in conflict with what Surajmal said, had declined to accept the latter as true. But that position was reached by a process of perfectly legitimate inference from what was revealed at the trial as long as it was restricted to matters there put in evidence. As soon as the comment went outside that group of facts it depended upon one ascertained and not controverted fact and a comparison of that with the conclusion inferred from the trial and its contents, viz., that Dada's version was substantially true. There, again, I see no confusion between inference and assumption. I do not agree with Macleod J. that ' on the given data it was impossible for any one to draw an inference in the nature of a conclusion.' It may have been impossible for any one to come to a true conclusion by way of inference upon the data then available, because some of them turned out later to be false data, but that is quite another matter and one with which, in deciding upon the fairness or otherwise of the defendant's comment, I am not concerned. I find the result of this close critical examination of what Macleod J. really said very instructive in the light of the manner in which the judgment was used before us in argument. The impression left on the mind after a more or less casual reading of Macleod J.'s judgment is that that learned Judge found that the defendant had based his comments on one or more material facts untruly stated, and that in one or two particulars, though here the judgment hesitates a little, the writer's comments were not fair. During the argument before us we were told, over and over again, that the sentence in the first article that 'there was no intervention, etc.', and the corresponding sentence in the second article were utterly false, and that this was found by the learned trial Judge who had disbelieved Nanabhoy and had believed Surajmal on the point. But I have not been able to find anything in Macleod J.'s judgment which goes that length. Indeed, upon the most careful scrutiny, I cannot find that the learned Judge has definitely found a single fact stated as a fact in the alleged libels to be untrue, except that the cheque was not, as stated, Surajmal's own cheque, but Tatya Saheb's. I have now been over Macleod J.'s judgment at least six times in order that I may not unwittingly do that learned Judge the least injustice in dealing with his conclusions and the means he has used in coming to them. I gather that the facts which towards the end he says that the defendant untruly stated were : (1) not a positive misstatement, but an omission to state a material fact which he ought to have stated, viz., that Surajmal had in his examination-in-chief denied on oath the defendant Dada's case as a whole ; (2) that Surajmal paid Dada Rs. 9,000 by his own cheque ; and (3) that the writer said that certain matters were alleged, giving the public to understand that they were alleged in the suit of Bhagwandas v. Dada, whereas in fact they were only alleged in the observations prepared for the use of Dada's counsel in that suit. I cannot find that the learned Judge definitely points out a single one of these allegations as untrue. As to the draft notice which Surajmal is now alleged to have written and sent by Dada's hand to D'Cunha, that is not mentioned in the libel at all. We must confine ourselves strictly to the libel complained of, and so confining ourselves, and to Macleod J.'s judgment upon it, I believe I am right in saying that I have set down every untrue fact which that learned Judge held had been made the ground of comment. It comes to this, then, that there is one untrue fact and one only, and that has been admitted from the first. It was 'roundly alleged' in the suit upon which the comment was made, that Surajmal had instigated Dada to file a suit against Holkar. It was roundly alleged in that suit that Surajmal settled the suit with Dada, and not with Dada's attorney, and also that at the time of that settlement Surajmal demanded the Rs. 3,000 under the promissory note upon which that suit was brought. It was not alleged specifically as a breach of professional etiquette on Surajmal's part, that he had settled the suit over the head of D'Cunha. Nor was it alleged that he had written the letter to D'Cunha, conveying a totally false impression of what had really occurred. But these matters were alleged in the observations prepared not by Nanabhoy at all, but by Vachha. And these allegations coming under the notice of the defendant he believed them to be true and utilized them as the ground of one comment, viz., that there was no intervention on the part of any agent, and one demand that those in authority should take the matter up and insist upon Surajmal giving satisfactory explanations. The comment, as I have already pointed out, was fair, and, in my opinion, necessary, from the materials before the writer in the suit of Bhaywandas v. Dada. Under rigorous analysis, then, this elaborate and impressive judgment is shown to be almost void of any relevant and important content.
24. I will now deal, much more briefly, with Heaton J.'s judgment in appeal. It is virtually confined to one sentence in the first article, ' that the plaintiff was the creature of Surajmal admits of little doubt.' Before going further I should like to point out that isolating the sentence thus from, its context has given rise to some want of proportion in handling it for the purpose of the plaintiff's libel suit. It is perfectly clear, when the sentences preceding and following it are also read, that what the writer meant was this. The suit had broken down ignominiously after a feeble attempt to prove cash consideration by false evidence, just at the critical point where the cross-examination of Surajmal might have been expected to force upon him disclosures which would have substantiated Dada's defence as a whole. The Judge, in dismissing the suit, had, according to the writer, 'appropriately remarked that the plaintiff had taken a wise course' and then defendant adds, connecting this with the next, which is the really important sentence, 'that the plaintiff was the creature of Surajmal, etc.,' and goes on 'that Surajmal (now substituted for the nominal plaintiff Bhagwandas who has just been ruled out) should have been content, etc.' The mere statement standing alone that the plaintiff was the creature of Surajmal, had the suit in all other respects been bona fide, would not have been libellous at all. But as soon as it became clear that the suit was Surajmal's, that he was the real plaintiff, then it became a matter of vital importance for him to refute the serious charges brought against him in the written statement, and not to let the matter drop, just when that matter was being opened.
25. He had to prove that, although the promissory note was for his benefit, and for reasons of his own had been made out in the name of his clerk Shambhuprasad, the transaction was in all other respects honest, or, in other words, that there had been cash consideration, and not the consideration alleged by the defendant. A great deal of this judgment deals in generalities upon which I have nothing to say beyond this, that I doubt, with respect to the learned Judge, whether the standard to be applied in determining whether comment is fair or not, varies according to the station of the plaintiff, and the degree of personality in the libel. I doubt whether there is any standard. And I am sure that if there were, it could not vary according to the factors indicated by the learned Judge. All that is essential in this connection is whether the subject-matter of the libel is of public importance. If it is, it can make no difference, whether the person complaining of it is an author, a statesman, or an attorney, once that point is settled against the plaintiff, the resultant comment has to be justified upon exactly the same loose general principles, and sentimental considerations ought to have no play.
26. The learned Judge says: ' On the facts appearing I think the writer would have been within the limits of fair comment had he said that the claim made by Bhagwandas was extremely suspicious, indeed probably false, and that the allegations against Surajmal both as to professional misconduct and as to his part in Bhawandas's suit had not, owing to the collapse pf the case, been satisfactorily met. and that they' demanded further and fuller inquiry ... But Horniman went further than this. He wrote that the plaintiff Bhagwandas was merely the creature of Surajmal admits of little doubt in view of the circumstances revealed... This amounts to saying, that Surajmal, there was little doubt, had committed the serious criminal offence of engineering a false claim. It is a grievous thing to say of any man, an atrocious thing to say of a solicitor, unless it is true, or unless there are the strongest grounds for saying it. It is not true. Horniman does not contend that it is true.
27. I pause here to emphasize, what I am afraid I must have already said more than once, that it was Dada who said all this, and Horniman merely adopted that as the truth, by inference from what had occurred at the trial, taken along with the pleadings and issues. The learned Judge was evidently greatly influenced by his present conviction that this was all false. But would he have thought so at the time the articles were written and on the materials then available It does not follow that the conclusion Horniman reached is not true because he prefers to adopt the comparatively easy defence of fair comment than the defence of justification. It is quite clear from what the learned Judge has declared would have been fair comment, that the dividing line, when the article is read in its natural sense, and kept entirely distinct from further information elicited at the trial of the libel suit, is extremely fine. And Heaton J., at any rate, certainly would not have gone the length, Macleod J. apparently would, of withholding this altogether from the jury on the ground that the inference was wholly unreasonable. Indeed in another place he admits that it was quite a reasonable inference, though he thinks that it was too 'conjectural,' in other words, I suppose, an inference which, while perfectly reasonable, ought not to have been drawn. And he is careful to point out that he is treating himself as a jury, in coming to his conclusion that the sentence I have so often quoted was not fair comment. he was powerfully influenced again by the gravity of the charge as it presented itself to him. He says that it amounts to accusing Surajmal of a serious criminal offence. Here he refers to a section of the Indian Penal Code which, as far as I know, has hardly ever been enforced in any such connection as this. But the actual conclusion that Surajmal was the real plaintiff in the suit, standing alone, is quite harmless and, left there, could not be regarded as a libel at all. It only becomes so, as Heaton J. has perceived, if the rest of Dada's statement were true.
28. It was, however, an inference that had to be drawn before any part of the articles need have been written, And it was an inference, as I hope to show, which was not only fair on the materials then available, and at the time it was drawn, but by far the most probable inference. It is on this point that I differ entirely from Heaton J. and still more from Macleod J. when he finds that it was not even a reasonable inference.
19. Still treating himself as a jury Heaton J. quite correctly sets forth the grounds upon which this inference, as ha believes, rests. He comes to the conclusion that they are not strong enough to support it, because he sets over against thesa other grounds upon which a different inference and one less unfavourable to Surajmal could have been based, and as he evidently thinks ought to have been based. It seems to me, speaking with respect, that in this balance-sheet, as it has been called in the argument before us, Heaton J. has greatly undervalued or omitted factors on what we will call the defendant's credit side, and overvalued factors on the debit side.
30. The result is a view much too favourable in my opinion to the plaintiff. Heaton J. has omitted from consideration altogether three items which I consider so important as to be almost decisive. He has paid no attention to the undeniable facts giving rise to antecedent probabilities amounting almost to certainty that the claim was a false claim. He has paid no attention to the dramatic and most significant ending of the suit, and he makes no mention of Davar J.'s comment. Remembering how intimately versed that learned Judge was in all the law's chicaneries, what wide experience he had of the worser sort of attorneys and their ways, and of false claims of this kind, the few words he is recorded to have spoken when the suit, doubtless to his own surprise, came to an abrupt end, surely deserve much consideration.
31. On the other side of the account, 1 and 2 are true, as stated. But they seem to me to be quite outside the proper ground of inference, at the time the inference had to be drawn. 3. Of course, Surajmal had not directly supported the claim on the promissory note. How could he possibly have done so after acting as plaintiff's attorney and drawing his plaint? I assume that what Heaton J. means is that he had not directly asserted any interest of his own in the consideration. Else the passage is meaningless. 4. Here I come to what clearly influenced the learned Judge much more in my judgment than it should have done in Surajmal's favour, and against Horni-man. He helieved, although here again I cannot help feeling that this belief has been strengthened by the evidence in the libel suit, that Surajmal was a much injured man who took the earliest opportunity, although it was quite needless for him to have done so, of coming forward courageously to clear his character. If we turn once more to the pleadings, and then to the issues (which have not been noticed at all by Heaton J.), in Bhagwandas's suit, it is pretty clear that every one concerned in that suit realised that from the first Surajmal was at least as deeply interested in it as the nominal plaintiff, Bhagwan-das. Bhagwandas pretended to want 3,000 rupees. Surajmal was virtually on his trial. The most serious charges had been brought against him. It was not seriously contended before us, when I put that point to the Advocate-General, that any inference of the kind Heaton J. was disposed to draw from Surajmal's appearance in the witness-box at that stage of the case, was now contended for. I do not see that any such could fairly be drawn. 5. Here, again, with great respect, I think the learned Judge has diverged so widely from what I conceive to be the true line of approach to a just estimate of reasons for and against defendant's articles having been fair comment, as to have wholly missed the sinister significance of the very fact he is setting down to Surajmal's credit. Why was he not so cross-examined? As Horniman inferred, and as I think most people would have inferred at that time, for the very good reason that he did not care to submit to that ordeal. This, of course, depends upon the truth of Dada's allegations that it was Surajmal's suit. If it was, then, to use Macleod J.'s words, he gave the word for its withdrawal. Precisely, and if he did, what was the reason At the time the articles were written only one reason would have occurred to any one. That he had got into deep water already, and did not care to risk any further exposure. 6. Much the same criticism applies to this item. And even were it the fact that Surajmal was not the real plaintiff, and had no control over Bhagwandas, is it not strange, keeping the pleadings and the issues still clearly in mind, that he should have entered no protest whatever at this summary termination of a suit, in which he was giving evidence as Heaton J. believed with no other intention than a courageous desire to refute at once and forever Dada's calumnies against him just at a point when his evidence was of such a kind as to suggest that the preliminary portion at any rate of these calumnies was true. 7. The point appears to me to be not so much that Dada had not been examined and cross-examined and therefore that the account lie gave in his written statement had not been tested, as that Surajmal did not insist that it should be tested. Of course if Surajmal had nothing to do with the conduct of the suit, it might be answered that that was not his fault but Bhagwandas's. This again seems to me to beg the really important question as it presented itself when the articles were written. The learned Judge, putting himself in the place of a juryman, then goes on to say that the view taken by the defendant that Dada's version might be true was a view which any reasonable man might have taken, but that in his opinion it was too conjectural. All that immediately follows would have been quite appropriate had the suit run an ordinary course and ended in a verdict for the defendant. But in that case, the reasons given for this view being too conjectural would not have been available, and I find it extremely difficult to follow what was exactly in Heaton J.'s mind when he wrote this part of his judgment. I do not think that it would be useful to advert further to any particular part of that judgment. It will be simpler and serve my purpose better if I now resume all that has gone before in a statement of my own conclusions and the reasons which have led me to them.
32. These reasons seem to be so convincing and the conclusions so obvious that I have naturally felt much pressed by the simple fact that two of my learned brethren have come to a contrary conclusion, and I have felt obliged to show that I have given the most earnest consideration to their judgments.
33. Now what were the facts with which the defendant had to deal when he wrote his first article, the whole foundation of which was the belief he had at that time that Bhagwandas wan a mere nominee of Surajmal, and that the claim as presented was utterly false, while the defendant Dada's version of it set forth in his written statement was substantially true?
34. First look at the nature of the claim. Here is a clerk on 11s. 100 a month suing a man worth lacs for a sum of Rs. 3,000 which, he alleges, he, out of his poor means, advanced on a promissory note to this wealthy gentleman. This poor clerk was in the employ of Surajmal. To go no further I do not see how any Judge of experience could have helped having his attention arrested and his suspicions aroused I have no doubt but that Davar J. did not miss these points, and that even before he had had to consider seriously whether the whole of Dada's story set forth in his written statement was true, he must have regarded the suit with grave suspicion. On the very face of it, once the relative positions and wealth of the parties to it became known, it must have almost been pre-judged. Then there was the remarkable story contained in the written statement. This story had been suggested from the very first in the correspondence. It was finally given there pretty fully.
35. And this was not the common kind of defence; the defendant did not deny execution, he did not, while admitting execution, merely deny that he had received cash consideration. He frankly admitted the promissory note sued on ; and proceeded to explain how it came to be made and why he refused to pay. It was an elaborate story. It revealed Surajmal from first to last, as the protagonist in a subtle piece of roguery. It is idle to say that when the case was suddenly dropped Surajmal had not been examined as to the part he had played in obtaining this promissory note. That had to be introduced by showing the part he had taken in the suit in connection with which, and as a secret commission for his services in which, the amount of Rs. 3,000 was to be paid him by Dada and the promissory note was given for that sum in advance as security. No one, I am sure, doubts but that, had the case gone on, Surajmal would have been examined searchingly on all these points. But on the very threshold he had broken down so badly that no wonder he felt the game was up, and that to press the matter further was only courting inevitable and already foregone defeat. The defendant contended that the nominal plaintiff Bhagwandas (representing his deceased brother Shambhuprasad) had really no interest whatever in this promissory note. The issues raised brought this point of contest out in sharp relief. Every one concerned in the suit must have known that this was the real issue. It is true that the plaintiff made an abortive, almost ridiculous, attempt to prove the payment of cash consideration. This presupposes that Dada was in need of Rs. 3,000 and that he did in fact borrow it from Shambhuprasad, If that were not true, and no one now contends that it was, what alternative explanation of the facts can human ingenuity suggest oilier than that alleged by Dada? 'It is very unfortunate that Shambhu-prasad died before this suit. Had he been alive he might have been bold enough to bring it, but it is pretty certain that had he tried to support the allegation of cash consideration at the trial he would have been exposed at once and the utter falsity of the claim in the form it had taken would have been even more clearly proved than it haw been. For Bhagwandas may at least say that he know nothing about the note. It had come to him as part of his brother's property and he took it for granted that it was genuine and in order. That would have been well enough had not Surajmal, who, on the alternative case, knew perfectly well what the real transaction was, boon Bhagwandas's attorney. How Bhagwandas got the witnesses to prove cash payment is not easy to understand unless Surajmal had procured them. Shambhuprasad would have been in a very different position. Even if the suit broke down utterly, Surajmal might have persuaded Bhagwandaa that he ran no risk as he could always shelter behind his own personal ignorance of the transaction. It would have been extremely awkward for Shambhuprasad,' had he been plaintiff, and gone into the box to swear to the payment of cash, and then the whole story had turned out to be a deliberately false concoction. Even then the question, every one acquainted with the facts would have been asking, would have been : Who is responsible for all this perjury? This much at least is certain, that if Bhagwandas did not know the truth of the note and was persuaded to call in aid false witnesses to prove that his deceased brother paid cash for it, Surajmal must have known. A very rich man does not make out a promissory note in favour of his own attorney's clerk for Rs. 3,000 without receiving a penny in cash, without there being some very strong reason for such an extraordinary act, and a reason which it was necessary in the opinion of one at least of the interested parties to conceal. If there was no cash consideration-and this wo may take to have been proved beyond doubt-what consideration was there? None that Shambhuprasad could have given. But a consideration which Surajmal might have given, and yet dare not avow. Just such a consideration, in short, as that alleged in Dada's written statement. The only possible escape from his dilemma involving, as it does, the substantial truth of every fact and the complete vindication of every comment in the allged libels, is that Shambhuprasad, in the absence of his master at Mahableshwar, told Dada the story which is given in Dada's written statement, without Surajmal's knowledge, and so got the note in his own name intending to dupe both Dada and bis own master Surajmal. That is a veritable tabula in naufragio. I do not know whether it ever has been actually suggested, but ingenuity, driven desperate, might invent it. I hardly think it worth serious consideration. It is so extremely improbable that even had Shambhuprasad thought of it, could he have believed himself able to carry it through without Surajmal on the one hand and Dada on the other getting scent of his treachery? I come back, then, to this question. If there was no cash consideration for the note, what was the consideration Dada tells us in his written .statement with the utmost candour and abundant circumstantiality of detail. There was no cash consideration; no one has pretended at any stage of this litigation, as far as I have been able to discover, that when this promissory note was made, Dada was in need of money, or that Shambhuprasad had Rs. 3,000 to lend. But if the consideration really was that which is set out in the defendant's case, and that appears to be almost the only possible alternative, it follows that Surajmal knew perfectly well what was the nature of the suit in which he tiled the plaint for Bhagwandas, and acted as his attorney as long as there was any chance of it going through as an uncontested short cause. It is instructive to note Surajmal's conduct in his relation to this suit. I am not sure whether this was or could have been in defendant's knowledge when he wrote the articles, and if it was not, strictly speaking, it ought not to find a place in the reckoning of factors making for or against the defence of fair comment. It was, however, laid before us in argument, and as far as I recollect no objection was taken. The suit for account brought by Dada against Surajmal was settled by consent ten days before this suit was brought on. The account suit ended thus Dada withdrew all his objections and surcharges amounting to about Rs. 70,000 and submitted to a decree awarding Surajmal's counter-claim for Rs. 1,300 with costs. All allegations made against Surajmal were withdrawn. It is only upon that last term that I dwell a moment, as possibly explaining the plaintiff's hardihood in persisting in this suit. Bhagwandas v. Dada was filed as a short cause. Correspondence had already indicated to Surajmal, who was acting as Bhagwandas's attorney, that Dada meant to repudiate the claim, and, if necessary, fight it on the allegations which wore afterwards fully set forth in his written statement. The written statement was only put in at the last moment when the suit was on for disposal as a short cause. It was then transferred to the long cause list, and very shortly after that Surajmal ceased to act as attorney for the plaintiff. It is fair argument that he did not like the look of the written statement, and decided that if the suit was going to be fought out, he had better keep out of the contest as much as he could. That was in September. 1915. This may not be such good argument, but it is permissible to doubt whether the suit would have ever come on at all had it not been for the settlement of the account suit. The withdrawal of all allegations in that suit might have heartened Surajmal to go on with this suit. He might have thought that Dada would never persist in these allegations so soon after he had withdrawn a number of other serious allegations in another suit. I say this because I am trying to put myself in the place of a critic about to comment on the suit before Davar J. just after its dramatic ending. Surely, he would have been asking himself how, if Dada's version was substantially true, as the course and result of the suit seemed to indicate that it was, Surajmal could have had the foolhardiness to press it to a definite issue. Some such explanation as this may have suggested itself. That is to say, of course, if the intending critic had really known about the account suit and Surajmal's conduct in Bhagwandas's suit as plaintiff's attorney.
36. Be that as it may, the suit did come on in due course. The issues raised at the trial show how deeply Surajmal was implicated. The attempt to prove cash consideration had, as is now conceded all round, failed, and failed ignominiously. If the suit had ended then and there no one need have been surprised, although most people, who took the trouble to read the pleadings and the written statement, would have drawn their own conclusions, and those conclusions would have been uniformly unfavourable to Surajmal. Moreover, he could hardly have supposed that under so vigilant and experienced a Judge his own troubles would have ended with the inglorious collapse of a manifestly false suit, in defending which the most serious charges were brought against himself. The least he could do was to brazen it out as far as he was personally concerned and by disproving the consideration alleged by defendant indirectly support the tottering case of the plaintiff. Doubtless, he overrated his own ability and resource as a witness. Members of the legal profession, who are constantly, if attorneys, suggesting lines of cross-examination, if counsel attacking hostile witnesses by that method, usually think themselves very well qualified to face so familiar an ordeal. Experience only too frequently shows what very poor witnesses they make. Surajmal was no brilliant exception. Very soon he began to flounder. His conscience could not possibly have boon as clear of offence as he wished the Court to believe. He could on]y explain his extraordinary answers, months later, by saying that he was frightened. Frightened of what The point where he broke down most calamitously was upon a chance question whether be had not himself drafted a notice to be sent to himself by Dacla's attorney, D'Cunha. He could not remember. He was frightened. Frightened because he saw papers in counsel's bands. But if he know, as he must have known, had this allegation been utterly false, that he hart never sent such a notice, that he never would have thought of doing such a thing, there was nothing in a paper flourished before his eyes to frighten him. At this precise moment, just when he must have felt most keenly that he was making a pitiable exhibition of himself, and that there were many worse rocks ahead, the Court rose for the day. On Monday, Surajmal was present in Court. The trial, as everyone thought, was going on and without doubt many were waiting eagerly to hear how Surajmal would acquit himself under further cross-examination. What happens? The plaintiff surrenders unconditionally; consents to a decree dismissing his suit with costs, and the Judge passes it, remarking that the plaintiff had adopted a very wise course. Does Surajmal, who had, in the opinion of one learned Judge, eagerly accepted the first opportunity of vindicating his character, thus displaying the courage of an honest and injured man, raise any protest Not a word. He lets his character, which his examination so far had cortainly not raised, or helped to clear, go at that. When the first of theso articles appeared a week later, on the 7th of March, does he protest i He maintains the same cynical indifferent silence which he has the hardihood to explain in the libel action by saying that he did not feel in any way concerned about the suit, or care how it ended. It is only when the second article appears, and he realises that the matter will not be allowed to rest, that in sheer desperation, as it seems to me, and self-defence he brings this libel action. The first and perhaps the moat important question is, whether upon all the facts disclosed in the pleadings and the evidence at the trial before Davar J., in view of its curious sudden termination, and the Judge's comment, was it a fair inference that, as Dada alleged, Surajmal was the real plaintiff, and the nature of the transaction underlying the promissory note was set out with substantial truth in the written statement? Speaking for myself I should say unhesitatingly, that it was not only fair comment, a reasonable inference, but by far the most probable and therefore the most reasonable inference that could at that time have been drawn. Does anyone seriously believe that between Saturday night and Monday morning Surajmal was not consulted? Does anyone seriously believe that had he declined to consent to the suit being withdrawn, it would have ended as it did When I put these questions in this form I mean them to be answered of course, with reference to the materials before the defendant when he wrote the articles. Remember that the nominal promisee of the promissory note was Surajmal's own clerk. The nominal plaintiff was a man of no substance at all. Presumably whatever information he got for use in supporting his claim he got from his first attorney, master of his deceased brother, Surajmal. If such evidence as the plaintiff thus advised decided to give was all false who should have known that bettor than Surajmal? Who should have known the real truth of the matter better than Surajmal? Who was most interested in refuting the defence set up by Dada, Bhagwandas or Surajmal? With all these considerations before him would anyone have hesitated to conclude that it was Surajmal who decided that the claim had better be dropped before further unpleasant disclosures had to be made? Would anyone at that time have hesitated to conclude that in the main at any rate Dada's defence was true? It is common ground throughout all the judgments that it was fair comment to say that the plaintiff's suit was utterly false, and that the withdrawal at the stage when it was withdrawn indicated that the plaintiff knew it, and felt that the defence would, or, at any rate, might, be established, if he persisted. But if the claim as brought was utterly false, and that was a perfectly fair conclusion, it appears to me to be just as fair a conclusion from that, that the real plaintiff was Surajmal and not Bhagwandas. Bhagwandas may not have known how the promissory note came to be given to his deceased brother Shambhuprasad, but Shambhuprasad must have known. And if it was not given him for cash, as he alleged, he would have had to show what it was given for and what interest he had in it, Does any one suppose that he could have done so after launching the suit on the basis of an ordinary loan transaction, a promissory note for value in cash paid and received? Failing that, what other conclusion was reasonably possible than that defendant's case was substantially true, and that Bhagwandas was the creature of Surajmal, that Surajmal was the only person interested in the consideration for the note, and that the suit was in fact his? It is all very well now to say that had the case gone on Surajmal would have improved under cross-examination, and Dada would have broken down, and failed to prove his defence. That was clearly not the opinion of those in charge of the case. For, had they had any hopes of that kind it is as certain as anything in human conduct well can be, that the plaintiff would not have been advised to consent to a decree dismissing his suit with all costs. Apart from the charges against Surajmal, what worse fate could have overtaken the plaintiff? True, he might have had to pay costs of one, or, at most, I should think, two more days' hearing. But that was relatively unimportant. As it was, I have since ascertained that his two attorneys' bills were taxed against him for an aggregate of over Rs. 2,000. So that a few hundreds, more or less, would certainly not have deterred him from fighting to a finish, had it really been his suit, and had he been advised that there was still a fighting chance dependent upon the result of Dada's examination and the conclusion of Surajmal's evidence. And putting myself now in the place of a juryman I feel no doubt whatever what my verdict would have been upon that, now generally conceded to have been by far the most important, part of the libel. There is no question here of any facts untruly stated. There never has been. It is simply a case for a jury to say whether, upon the facts, it was fair comment to say that the suit was Surajmal's suit and that the case made out by Dada in his written statement was probably true.
37. I have never felt the least doubt, myself, that that was perfectly fair comment. As to the rest of the libel I have shown that it contains certainly one fact untruly stated. But whether the cheque was Surajraal's, or Tatia Saheb's, is utterly unimportant. I have pointed out that it was a very natural mistake, such a slip as any one might have made. As soon as we dismiss the idea, which pervaded the plaintiff-appellant's argument right up to the end of the hearing, that the defendant was alleging, and had any conceivable reason for alleging, that Surajmal had settled the suit with Dada, without Tatia Saheb's knowledge or consent, the unimportance of the slip is self-evident. Let us suppose that Surajmal had settled the suit for Rs. 9,000 without consulting his principal Tatia Saheb. It would have been a very daring thing to do, and one which Surajmal could not have defended, had Tatia Saheb repudiated the settlement. But he might even then have pleaded that he so settled in the best interests of his client and in the sure confidence that he would ratify the settlement. Dada's case from the first has been that he expected at least Rs. 20,000 from Tatia Saheb, acting under Surajmal's advice. It is certain, I think, that he would have got some' damages. How much was the only question. If Surajmal had ever told Tatia Saheb that Dada meant to insist on a minimum of Rs. 20,000 damages, he might very well have settled for Rs. 9,000, reducing costs proportionately, with the certainty that Tatia Saheb would gladly consent. But I do not believe that it ever entered the head of the defendant to make such an allegation against Surajmal. He was attacking Surajmal. He was holding up his professional conduct to public reprobation. He was pointing out that amongst his tortuous dealings he had first instigated one of his clients, Dada, to file a suit against another of his clients, Holkar, and, then, after, for form's sake, he had sent Dada to another attorney, D'Cunha, he had settled with Dada over the head of D'Cunha. And that he had then written a letter (in this lay the sting of the accusation) to D'Cunha meant to convey a false impression and conceal his unprofessional conduct. There would have been no sense at all that I can see in suggesting that Surajmal had settled this suit without Holkar's knowledge, even supposing anyone believed that an attorney could do anything of the kind. What was charged against him he could do, and as far as I can see, he actually did. Nor was it in itself a very serious matter. No one would have attached any importance to it but for the lying letter which Surajmal next wrote to D'Cunha. To make and bring home that charge two things were necessary : (1) that Surajmal did write the letter. That is admitted. (2) That as between him and Dada no agent of Holkar intervened. In other words that no agent of Holkar settled the suit with Dada without Surajmal's knowledge, and
38. only after the settlement had been made, informed Surajmal of it. There the defendant had Dada's written statement to go upon ; and in addition Surajmal's own evidence given before he realized that any such point was going to be made against him. Both, if true,-and why should the defendant not have believed Surajmal himself upon oath regarding this matter?- conclusively establish the falsity of the letter. It is only by insisting that the sentence 'as a matter of fact, etc.' should be wrenched from its context, and read as an isolated statement literally that the plaintiff can make any show of a grievance out of it. So read and meaning that Holkar never had an agent with Surajmal, it would doubtless be untrue. But I cannot understand how such arguments could be used, in face of the plain meaning of the passage as a whole.
39. This, again, I consider to be perfectly fair comment. And that disposes of the whole matter, both law and fact. I never was in any doubt, after hearing the Advocate-General's first day's argument, that there was no libel at all, My only anxiety has been to understand how my two learned brethren, Heaton and Macleod JJ., whose opinions I must respect and acknowledge to be fully as deserving of weight as my own, had come to a contrary conclusion.
40. I am of opinion that the plaintiff's suit should be dismissed with all costs throughout.
1. In this libel action the plaintiff, Surajmal, is a solicitor and the three defendants are or were the Editor, Printer and Proprietor respectively of a newspaper called The Bombay Chronicle. The alleged libel relates to Surajmal's professional conduct in two actions, viz., suit 907 of 1912 (Ashidbai v. T.S. Holkar), which was a suit for damages for breach of contract of sale of real estate; and suit 837 of 1915 (Bhagwandas v. Dada), which was a suit on a promissory note for Rs. 3,000.
2. The circumstances giving rise to the alleged libel are as follows: In 1912, Surajmal had two rich clients, viz,, Tatya Saheb Holkar, whom I will call ' Holkar, ' and Haji 'Ahmed Haji Hassam Dada, whom I will call ' Dada '. In that year Holkar sold some land in Nepean Sea Road twice over, viz. first, to a purchaser called Khambatta, and, secondly, in February 1912, to Ashidbai as Dada's nominee. As regards this second sale which was for Rs. 66,000 Surajmal acted for both the vendor and the purchaser. The first purchaser Khambatta then brought an action for specific performance against Holkar and obtained a decree therein. In that action Surajmal acted for Holkar.
3. In August 1912, Dada, by his mother and nominee Ashidbai, brought against Holkar the above suit 907 of 1912 for damages for breach of the contract of February 1912. This suit was settled in January 1914 by Holkar paying Dada Its. 9,000 as damages. In this suit Surajmal acted for Holkar and a Mr. D'Cunha acted for Dada.
4. Meanwhile, on the 26th April 1913, Dada had executed a promissory note for Rs. 3,000 in favour of a clerk of Suraj-mal's, named Shambhuprasad. This clerk died on the 12th June 1914 leaving a brother named Bhagwandas who claimed the promissory note as a joint family asset to which he was entitled by survivorship.
5. Subsequently, in July 1915, Bhagwandas brought against Dada the above suit 837 of 1915 to enforce the promissory note. In this suit Surajmal acted for Bhagwandas until September 1915 when there was a change of solicitors, Messrs. Hiralal, Mehta & Co. thenceforth acting for Bhagwandas. Dada also changed his solicitors, being represented at first by Vachha & Co. and afterwards, viz., in February 1916, by Ardeshir, Hormusji, Dinsha & Co.
6. The written statement in that suit was declared on the 17th August 1915 and raised a startling defence which in effect was as follows :-Dada alleged that Surajmal had instigated him to bring the 1912 suit; that Surajmal promised he would influence his client Holkar to pay Rs. 20,000 to Rs. 25,000 as damages; that Surajmal was to be paid by Dada Rs. 3,000 if such damages were in fact obtained ; that the promissory note was in respect of such Rs. 3,000 and was passed in the name of Surajmal's clerk Shambhuprasad as nominee for Surajmal, who, it was submitted, was a necessary party to the suit; that as only Rs. 9,000 had been obtained as damages Dada was not liable on the promissory note and had received no consideration therefor, and he accordingly counterclaimed for its concellation and delivery up.
7. This, then, was the position when the 1915 suit came on for trial before Davar J., on Saturday, 26th February 1916, and it will be seen that the suit involved issues of a very grave character for Surajmal, although he was not a party to the proceedings and was no longer on the record as solicitor for the plaintiff, At the trial the plaintiff in that suit proceeded to Call his evidence although the onus would appear to have been on his opponent. His first two witnesses claimed to have been present at the execution of the promissory note and the payment of the Rs. 3,000 but appear to have been seriously ' shaken in cross-examination. Then Surajmal was called and after denying in examination-in-chief the allegations made against him was partly cross-examined by Mr. Davar when he soon showed a somewhat surprising ignorance as to what advice he had given Dada when told of Khambatta's prior contract of sale : and as to whether he had drafted a notice for Dada to send to Holkar : and as to whether he had advised Dada to go to another solicitor. Stopping here for a moment I must respectfully dissent from Mr. Justice Macleod's criticism of this cross-examination. In my opinion Mr. Davar was quite entitled to ask the questions he did, and I may further observe that before us the Advocate-General expressly declined to put forward any contention to the contrary. In fact the cross-examination was never finished, as on the Monday morning (28th February, 1916) the suit was abruptly withdrawn, and according to the newspaper report, Exh. S, the Judge observed that it was an extremely wise step to take and ordered that the suit should be dismissed with costs. Surajmal appears to have acquiesced in this notwithstanding that the Saturday's proceedings had been reported in the public press. At any rate he made no sign. Even the first alleged libel which was published on the 7th March elicited no response from him and it was not till after the publication on the 15th March of the second alleged libel that an apology was asked for and the present suit instituted. It is also noteworthy that in cross-examination in the present suit after stating that he was not surprised at counsel's statement to the Court that the 1915 suit was going to be dismissed, Surajmal added, ' I was quite indifferent as I was not concerned.
8. As regards the alleged libellous articles, they have been read and re-read several times over and I do not think it necessary to repeat them. It will be seen that they demand an enquiry by the proper authorities into Surajmal's conduct in relation to the 1912 and 1915 suits and in particular as to (1) the charge that the promissory note for Rs. 3,000 was in effect a secret commission or bribe taken by Surajmal as the price for giving his client Holkar certain advice and that the 1915 suit was a false suit engineered by Surajmal; and (2) the charge that Surajmal settled the 1912 suit over the head of Dada's solicitor and then by his letter of the 10th January 1914 endeavoured to create the false impression that the parties themselves had settled the suit.
9. Of these two charges the first is by far the the most serious. The second is little more than an alleged breach of professional etiquette apart from the interpretation to be put on the letter of 19th January 1914.
10. The defence is substantially one of fair comment. In particular the defendants do not contend that charge No. 1 is true. As regards charge No. 2 they justify some of the details obtained aliunde and for this purpose rely on para 6 of the written statement.
11. The legal principles governing a defence of fair comment are set out by Lord Ludlow in South Hetton Coal Company v. North -Eastern News Association  1 Q.B. 133, by Lord Cozens-Hardy in Hunt v. Star Newspaper Company Limited  2 K.B. 309, and by Lord Atkinson ia Dakhyl v. Labouchere  2 K.B. 325, (Note), and have been cited again in the Court of Appeal in Peter Walker & Son, Limited v. Hodgson  1 K.B. 239. I need not repeat them. It is sufficient to say that in the present suit the Advocate-General accepted Lord Cozens-Hardy's view in Hunt v. Star Newspaper Company, Limited, that the statement of facts must be substatantially true, and did not rely on the literal interpretation of Lord Collins' judgment in Digby v. Financial News, Limited  1 K.B.502, which is to the effect that there must be no misstatement of factwhatever.
12. Turning, then, to the first charge, there is one clear mis-statement of fact, for it was not Surajmal but Sambhuprasad who was alleged to have said it would not look good for the promissory note to be in Surajmal's name. The misstatement is not, however, pleaded nor was itraised at either the trial or the first appeal; and before us the point was only taken as the result of a remark from the Bench towards the close of the Advocate-General's opening speech. Under all the circumstances I think that the misstatement even if now admissible must on the plaintiff's own showing be regarded as too minute or trivial for him to rely on as defeating the plea of fair comment.
13. Advocate-General largely relied on the fact that the article omitted to mention Surajmal's denial of the charge in examination-in-chief. The article shows, however, that he was being cross-examined and I think one would infer that he had previously denied the charge. Otherwise why was he called and what need would there be to cross-examine him?
14. I have carefully considered all the other points raised on Surajmal's behalf, e.g., as to the words 'creature,' 'little doubt,' 'content to have the case withdrawn,' and 'the... allegations... left unrefuted.' But as Sir Basil Scott pointed out in his judgment wo must consider what the writer of the article knew at the time, and must disregard matters subsequently proved or alleged in the present suit. At that time the writer had not before him Surajmal's evidence in the present suit. But he did have before him Surajmal's conduct on the withdrawal of the 1915 suit. I quite recognise that a lawyer may remember the saying: 'No case, abuse the plaintiff's attorney' and may properly be slow to take offence. But a line must be drawn somewhere and I think it may be drawn at a charge of fraud. Speaking for myself, I regard it as almost inexplicable for any respectable solicitor to behave like Surajmal did in making no protest or appeal whatever either to the Judge or to the Law Society so that his character might be cleared of the charges of fraud made against him. Surajmal's own explanation, viz., that he was quite indifferent as he was not concerned, demands in itself an explanation, but this of course was said in the present suit and was not before the writer of the article and I, therefore, merely uso it as showing that even now no real explanation has been given of Surajmal's silence. In my judgment; therefore, the writer was justified in drawing very adverse inferences from Surajmal's behaviour and from the Judge's comment; that it was extremely wise to withdraw the suit.
15. There is, too, another important consideration. The story as to the cash consideration for the promissory note having broken down at the trial, how came it that Dada signed this promissory note in favour of Surajn?al's clerk at a time when he was engaged in litigation with a client of Surajmal's, viz., Holkar' Dada's story is in effect that it was a bribe. There is no other explanation even now of this promissory note which admittedly is a genuine document. I recognise that Surajmal, if innocent, would not know the real origin of the promissory note, e.g., if it was part of a fraudulent scheme concocted by the deceased clerk alone, But this possibility has to be taken into consideration with the other circumstances of the case, and the unexplained origin of the promissory note is, in my opinion, a matter from which an adverse opinion could fairly be drawn. In saying this I have not overlooked the fact that Dada on his own showing was in effect an accomplice in the attempted fraud on Holkar, and that Nanabhoy from whom the defendants obtained some information was a discharged clerk of Surajmal and on hostile terms with him. A fair critic would, therefore, regard anything these men said with caution, and in fact Dada has never gone into the witness box and Nanabhoy at the present trial was shown to be an unreliable witness. The case does not, however, depend on whether the statements of these two men were all true.
16. Looking, then, at the articles as a whole, and after giving my best consideration to the judgments at the trial and on the first appeal, I think the articles did not exceed the bounds of fair comment as regards the first and graver charge I have mentioned.
17. As regards the second charge, it is true that the defendant Horniman amplified the allegations made in para 4 of the written statement in the 1915 suit and relied on matters contained in 'observations for counsel,' which in fact were not before counsel at the trial. But if in consequence of this it becomes necessary to justify, I think Surajmal did in effect settle the 1912 action over Mr. D'Cunha's head. Even on his own showing his clerk Nanabhoy brought about the settlement in company with Holkar's agent Vinayakrao. Surajmal further admits having drafted the letter, Exh. 2, which Mr. D'Cunha's client was to send to Mr. D'Cunha informing him of the settlement of the suit. I also think that Surajmal's letter of the 19th January 1914, Exh. F,, was in such terms as to give Mr. D'Cunha the erroneous impression that the parties themselves had settled the suit. Under these circumstances I am not disposed to regard as vital any inaccuracy in the passage 'as a matter of fact there was no intervention on the part of any agent at all. ' It is clear that no agent was acting for Dada in the settlement. It is also clear that Surajmal by himself or his clerk Nanabhoy took part in that settlement, and that Surajmal either knew of the settlement himself or was informed of it by Nanabhoy. That being so, why write to Mr. D'Cunha 'We are informed by our client's agent,' meaning thereby Vinayakrao, unless it was to create a wrong impression? Under these circumstances, I think that even if the passage alleges in effect that Vinayakrao gave no information or assistance, it is not of a sufficiently substantial character to defeat either the plea of fair comment or that of justification. So, too, as regards the statement that Surajmal gave his own cheque this is not true but is either a fair inference from Dada's written statement or, if not, is unimportant in the view I take of the case.
18. There are other points in connection with this second charge which have been raised in argument and duly considered by me including what I have already said about the unreliability of Nanabhoy, but looking again at the articles as a whole and on a full consideration of the circumstances, I think the defendants succeed on this second charge as well as on the first.
19. In the result, therefore, I think that the plaintiff's appeal should be dismissed and the defendants' cross-appeal as to costs allowed, the effect being that the action will be dismissed and that the plaintiff will pay the costs of the action and of both appeals and will refund any costs already paid to him.