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Maroti Sadashiv and ors. Vs. Godubai Narayanrao and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberAppeal Nos. 139 of 1952 and 23 of 1953
Judge
Reported inAIR1959Bom443; (1959)61BOMLR143; ILR1959Bom405
ActsEvidence Act, 1872 - Sections 124; Code of Criminal Procedure (CrPC) , 1898
AppellantMaroti Sadashiv and ors.
RespondentGodubai Narayanrao and ors.
Appellant AdvocateD.B. Padhye, Adv.
Respondent AdvocateP.N. Behere, Adv. for ;N.L. Abhyankar, Adv.
Excerpt:
defamation - privilege -- defamatory statements made before police officers in course oj regular investigation -- whether such statements absolutely privileged.;defamatory statements made before police officers in the course of a regular investigation under the criminal procedure code, 1898, are not absolutely privileged but only a qualified privilege attaches to them which is liable to be destroyed by proof of malice.;gangappagouda gadigeppagouda v. basayya shivarudrayya (1942) 45 bom. l.r. 215 : s.c. [1943] a.i.r. bom. 167, followed.;madhab chandra v. nirod chandra [1939] a.i.r. cal. 477, sanjivi reddy v. koneri reddi (1925) i.l.r. 49 mad. 315, o'connor v. waldron [1935] a.c. 76 and joseph mayr v. charles warwick (1942) 47 c.w.n. 627, referred to. - - the notice which was published in.....1. these appeals arise out of a suit filed by the plaintiff for damages for defamation against the defendants. the plaintiff is the widow of one narayan died in the year 1943, leaving behind him his own widow and the adoptive mother bainabai, defendant no. 1. the second defendant is bainabai's sister and defendants nos. 3 and 4 are the sons of the second defendant. defendant no. 5 is the brother of bainabai. defendants nos. 6 to 10 are stated to be the friends of defendant nos. 3 to 5. now, the defamation alleged against the several defendants was that defendant no. 10 made an anonymous application to the district superintendent of police which contained the defamatory words that 'the plaintiff was pregnant.' this application was enquired into and statements were recorded by the police at.....
Judgment:

1. These appeals arise out of a suit filed by the plaintiff for damages for defamation against the defendants. The plaintiff is the widow of one Narayan died in the year 1943, leaving behind him his own widow and the adoptive mother Bainabai, defendant No. 1. The second defendant is Bainabai's sister and defendants Nos. 3 and 4 are the sons of the second defendant. Defendant No. 5 is the brother of Bainabai. Defendants Nos. 6 to 10 are stated to be the friends of defendant Nos. 3 to 5. Now, the defamation alleged against the several defendants was that defendant No. 10 made an anonymous application to the District Superintendent of Police which contained the defamatory words that 'the plaintiff was pregnant.' This application was enquired into and statements were recorded by the police at Dapori on 29-4-1950. The application was read to the plaintiff in the presence of other persons. The plaintiff, however, stated that the application was in the handwriting of the 10th defendant, though it was not signed by him. Defendant No. 9 made an anonymous application on 3rd May 1950 to the District Superintendent of Police, Amravati, and other police authorities. This application also, according to the plaintiff, contained defamatory words against her. It was stated in the application that the plaintiff was pregnant and that the plaintiff caused forcible miscarriage of a child and concealed the birth of that child. The plaintiff stated that defendant No. 3 sent two applications respectively on 26th June 1950 and 19th July, 1950 to the District Superintendent of Police, Amravati, containing false and defamatory statements that one Bapurao was the cause of the plaintiff's pregnancy an the plaintiff absconded with Bapurao to cause forcible miscarriage. The plaintiff further stated that during the investigation which started upon the said application defendants 1, 3, 4, 6 and 8 also made similar statements before the police authorities.

2. So far as defendant No. 5 is concerned, the plaintiff's case was that he published a notice in the local newspaper 'Udaya' dated 25th July 1950 on the instructions and on behalf of the first defendant. The notice which was published in the newspaper mentioned that the plaintiff's character was not good, that the plaintiff was morally defamed, that she became pregnant by illegitimate connection, that in order to cause forcible miscarriage she absconded from the village, and that she had thus brought disgrace to her family. A copy of this notice was got served by defendant No. 5 upon Bapurao who received it on 3rd August, 1950. Bapurao thereafter showed this notice to the plaintiff. The plaintiff has contended that all these statements in the notice as also those made before the Police officers were malicious and caused her immeasurable harm.

3. It was further stated by the plaintiff that defendant No. 7 made two applications on 22nd September 1950 under the false signature of one Vinayak Balkrishna Pande to the District Superintendent of Police, Amravati. These two applications also contained defamatory words to the effect that the plaintiff caused forcible miscarriage at Dhamangaon, tahsil Chandur.

4. On 22nd September 1950, Champat defendant No. 8 made and application to the Station Officer, Nagpur Gate Police Station, Amravati, falsely signed as Vinayak Balkrishna Pande. This application also contained defamatory words and it stated that the plaintiff caused forcible miscarriage at Dhamangaon. The plaintiff states that the several applications and the statements made by the aforesaid defendants were defamatory statements made against her chastity and moral character and were therefore liable in damages.

5. The defendants resisted the suit. The first defendant who is the mother-in-law of the plaintiff in her written statement denied having made any defamatory statements before the Police as alleged by the plaintiff. She also stated that she did not give any notice to the plaintiff in 'UDAYA' as alleged in paragraph 4 (d) of the plaint.

6. Defendant No. 5 remained ex parte. He did not file any written statement nor did he enter the witness-box and give any evidence on his behalf.

7. Defendant No. 6, however, took up two defences: One of justification (truth of the statements made by him) and the other of absolute privilege. He stated in his written statement that was a reality that the plaintiff was pregnant in 1950 and that one Bapurao, plaintiff's husband's cousin, was the cause of this pregnancy, and that the plaintiff did abscond with Bapurao and caused forcible miscarriage. He further stated that he made these statements during the police investigation and those statements were true. He did not make any false statements and he stated that he was justified in making those statements.

8. Defendant No. 7, however, denied having made any application or statements before the police officers. In paragraph 5 of the written statement be stated that it was denied that the made any application to the District Superintendent of Police, Amravati, and the police authorities as alleged. Further, he stated that he had no concern whatsoever with the application dated 22nd September 1950, and that he had not done anything to harm the reputation of the plaintiff.

9. Defendant No. 8 took up the same defences as have been taken up by defendant No. 6. In his written statement, he stated that it was a reality that the plaintiff was pregnant in 1950 and that one Bapurao, brother-in-law (plaintiff's husband's cousin), was responsible for it. The plaintiff had absconded with Bapurao who caused miscarriage. This defendant, during the police investigation, spoke these things which were true. He did not make any false statement. It was denied that it caused any defamation of the plaintiff.

10. Defendant No. 9 denied having made any anonymous application to the District Superintendent of Police on 3rd May 1950. He also denied having made any defamatory statements about the pregnancy and forcible miscarriage of the child by the plaintiff. Defendant No. 10 similarly denied having made any anonymous application to the Police Officers or having made any statements before them in the course of the investigation.

11. The trial Court held that defendants Nos. 2, 3, 4, 6, 8, 9, and 10 were liable for the plaintiff's claim and dismissed the suit as against defendants Nos. 1, 5, and 7. The trial Court held that the words employed by the defendants amounted to a very gross kind of defamation and that the allegations made by the defendants were untrue, and that they had been actuated by malice in making those false statements. It also held that the privilege such as was attached to the statements made by these defendants was qualified and was shown to have been destroyed by the fact that these defendants had made those statements falsely and maliciously. The trial Court awarded Rs. 2000/- as damages to the plaintiff. First Appeal No. 139 of 1952 has been preferred to this Court by defendants 6, 8, 9 and 10; First Appeal No. 22 of 1953 by defendants 2, 3 and 4; and First Appeal No. 23 of 1953 was filed by the plaintiff against defendants 1, 5 and 7. Before the hearing of the First Appeals Nos 139 of 1952 and 23 of 1953 commenced, the learned Advocate who appeared for the appellants in First Appeal No. 22 of 1953 stated that he had instructions not to press his appeal. Accordingly his appeal was dismissed with no orders as to costs. It is only the other two appeals which have now come up for hearing before me and I would dispose of these appeals by this common judgment. However, I will deal with First Appeal No. 139 of 1952 first.

12. In this appeal, as I have already stated there are four appellants, defendants Nos. 6, 8, 9 and 10. The case against defendants Nos. 9 and 10 may be disposed of first. It may be noted that defendants Nos. 9 and 10 were minors when the appeal was filed in this Court. The learned trial Judge, relying wholly upon the evidence of the plaintiff alone, has held that these two defendants are also liable for the plaintiff's claim. These two defendants have denied having made any anonymous applications to the police officers, making therein allegations imputed to them. Now, it must be noted that the applications which they are alleged to have made before the Police Officers are not upon the record. The learned trial Judge has referred only to the evidence of the plaintiff in this connection. She says that it was Sub-Inspector Puri who had come for investigation. He had come for the investigation of the application by defendant No. 10. Defendant No. 10 had not signed the application. The contents of the application were that the plaintiff was pregnant and Bapurao was responsible for it Puri had brought for investigation another application by defendant No. 9 to the same effect. Even this application was anonymous. The plaintiff has further stated that all the defendants (obviously including Nos. 9 and 10) told that Bapurao was responsible for her pregnancy and they two were absconding for miscarriage. Puri, the Sub-Inspector, has not been examined. We do not know what statements were made by these two defendants before Puri. The statements made by the plaintiff in this behalf cannot be accepted when Puri has not been examined as a witness for the plaintiff and the applications themselves are not before the Court. Presumably, the statements that were made before Puri must have been reduced to writing. Nothing was easier for the plaintiff than to get those statement's called for the produced in this case, but no attempt was made in this behalf to get those statements or the applications produced in the suit. Even, the plaintiff herself has clearly stated that none of the defendants were examined in her presence. Therefore, the evidence of the plaintiff when she involves these two defendants, will be worthless and no reliance can be placed upon her evidence. Head Constable Unkandrao has been examined as a witness for the plaintiff and he does not say that these two defendants made any statements in the course of the investigation. It is, therefore, not possible to sustain the finding made by the trial Court against these two defendants and I must, therefore, set aside the decree passed by the trial Court against these two defendants and dismiss the suit.

13. Defendants Nos. 6 and 8 have admitted having made the statements before the Police but they have stated that those statements were true and justified. it is not disputed, and indeed it cannot be disputed, that the statements which they have made are defamatory per se. But we must find out as the whether there was any truth in the statements which they made and which they adhered to even in the course of the trial. Defendant No. 6 has been examined in the case and he has stated that he had told the Sub-Inspector that the plaintiff was pregnanted by Bapurao and that she effected miscarriage, and he further stated that he thought that in April 1950 the pregnancy was in the fifth or sixth month.

The reason why he thought that she was carrying and that her pregnancy was five or six months old was that he observed her belly bulging, hands and feet weakened and buttocks broad. Defendant No. 8 Champat has also given evidence on his behalf. he stated that he had told the Sub-Inspector Choudhari that the plaintiff was pregnant. He did not tell him who was responsible for the pregnancy. He is a tailor by profession and he had occasion to stitch a blouse for the plaintiff. He took measurements from the old blouse of the plaintiff. He was told by her that she wanted the blouse more loose than the old one. He saw the belly of the plaintiff bulging as if of a woman carrying. he thought she was in the sixth or seventh month of her pregnancy. Jagannath is a witness for the defendants.

He stated that he had told Choudhari Sub-Inspector that the plaintiff was pregnant and that she recently effected miscarriage. Sitaram is another witness for the defendants. he stated the in 1950 the plaintiff was pregnant. He had seen her pregnant two or three weeks before 6th June, 1950. He had observed her belly bulging. He stated that he did not know who was responsible for her pregnancy. In the cross-examination, he gives the difference between the belly due to pregnancy and the belly due to fat, and he says that the difference between the two is that in the former case hands and feet remain thin and in the latter case they get fat. Zingrya, another witness for the defendants, stated that he had seen the plaintiff going out for washing cloths and that her pregnancy was five or six months old before 6th June 1950. He did not know who was responsible for her pregnancy.

He gives the reason as to why he thought that she was pregnant. He says that he observed the plaintiff bulky and fat and therefore he thought that she was carrying. Defendant No. 2 is also sought to be relied upon by defendants Nos. 6 and 8 to justify their statements which they have made before the Police Officers and which they have also made at the trial. Defendant No. 2 had in this written statement admitted having made the statements before the police.

She did not choose to go into the witness-box and take oath in support of her own statements made in the written statement. She, however, offered herself for cross-examination by other parties. Mr. Pangarkar, who was the advocate for defendants 1, 6 and 8, examined defendant No. 2 as his witness and in the course of the examination-in-chief as conducted by Mr. Pangarkar, this defendant stated that two years back the plaintiff was not pregnant. When this statement was made by the second defendant at the very outset of her examination-in-chief. Mr. Pangarkar requested the Court to allow him to cross-examine the witness as a hostile witness. That permission was granted and thereafter Mr. Pangarkar cross-examined this witness on behalf of defendants Nos. 1, 6 and 8.

In the cross-examination, this witness stated that the persons present during the investigation were Champat, defendant No. 8, Shrikrishna, defendant No. 7, Maroti, defendant No. 6, Behenabai, defendant No. 1, Purushottam defendant No. 2, Suryakant, defendant No. 4, Ramchandra defendant No. 5 and the plaintiff. Defendant No. 3 also offered himself for cross-examination. Mr. Pangarkar adopted the same procedure in examining this witness also. In his examination-in-chief, he stated that he had told the Sub-Inspector that Godubai was pregnant, but he did not know whether Bapurao was responsible for the pregnancy. In the cross-examination of this witness by Mr. Pangarkar in paragraph 7 of his evidence, this witness stated that defendant No. 1 did not sign the notice as she was busy and she said that signature by him or by her made no difference. I will come to the question of notice a little later; but I am now dealing with this witness, I think it proper to mention this fact which has been elicited by mr. Pangarkar as the advocate for defendant No. 1. These are the witnesses for the defendants in support of their contention that their statements were justified and were true.

14. The learned Judge on appreciation of this evidence made a finding that there is no substance in the statements made by these witness and he was, therefore, not inclined to rely upon their evidence at all. It is in evidence that the plaintiff was not living at the material time with Bapurao as alleged by some of these defendants, while the evidence shows that she was living in her own house away from Bapurao's house. Sitaram (D.W. 5) and Zingrya (D.W. 7) stated that the plaintiff was not living with Bapurao but in her own house. This fact was also deposed to by Saraswatibai and Purushottam, defendants Nos. 2 and 3. The plaintiff's witnesses also, namely, Bapurao and Laxmikant, stated that the plaintiff did not reside with Bapurao nor did she cook food for him. Vinayak (P. W. 6) has also stated the same thing. From this evidence it will be clear that there is no substance in the allegations made by the defendants that the plaintiff was residing with Bapurao. Further on the question of alleged unchastity of this lady, Behnabai, defendant No. 1, does not say that she was pregnant or was a women of bad character, nor does Shrikrishna, defendant No. 7. The evidence of Champat also who is stated to have gone to the house of the plaintiff for taking measurements of the blouse does not deserve any consideration at all. His evidence appears to be highly artificial and got up. Only because the lady appeared to be a little bulky, it does not follow that she was pregnant. The evidence of Maroti also does not inspire any confidence. To my mind, the evidence of Maroti also does not inspire any confidence. To my mind, the evidence which has been led in support of the alleged truth of the defamatory statements appears to be adduced without any proper sense of responsibility on the part of the witnesses who have dared to come into the box and take oath. The learned Judge has also referred to certain material contradictions in this evidence as it is impossible to come to any other conclusion than the one to which the learned Judge arrived. He has also believed the evidence of the lady doctor who gave her opinion that there was no pregnancy and signs of delivery, abortion or miscarriage. I must, therefore, accept the evidence of the lady doctor and also the other evidence adduced on behalf of the plaintiff and hold that there was absolutely no truth in the allegations recklessly made by defendants Nos. 6 and 8. It is also clear that these allegations were made without due sense of responsibility and with the full knowledge that the allegations had no basis in truth.

15. Then Mr. Padhye argues that the defendants Nos. 6 and 8 were entitled to a privilege, which, according to Mr. Padhye, is an absolute privilege, and says Mr. Padhye, no matter how outrageous the lie which was propagated by these witnesses and no matter how malicious the motive of these persons who made the statements that they made and to which they adhered, they would still be protected and their statements would not be at all actionable. Before I consider this point as to whether the defendants Nos. 6 and 8 are entitled to an absolute privilege or to a qualified privilege which is liable to be destroyed by proof of malice, I must set out as a statement of fact that the statements complained of by the plaintiff were made before the police officers in the course of the investigation stated to have started upon certain applications. It is not quite clear whether the Police Officers in the course of a regular investigation under the provisions of the Code of Criminal Procedure, having registered an offence, called up on these persons, particularly defendants Nos. 6 and 8, to make the statements. It is true that one of these defendants says that in answer to the police officer's query the statements were made; but that cannot clearly show that these statements were made in the course of the investigation of the nature which the Police officer has got to start and carry on under the provisions of the Code of Criminal Procedure. But for the sakes of Mr. Padhye's argument I may assume that these statements were made in the course of the investigation. Then the question arises; where the statements absolutely privileged or was only a qualified privilege attached to these statements? In support of his contention, reliance is mainly placed upon two decisions: one reported in Madhab Chandra v. Nirod Chandra, : AIR1939Cal477 and the other in Sanjivi Reddy v. Koneir Reddi, ILR Mad 315: AIR 1926 Mad 521. In ILR Mad 315: AIR 1926 Mad 521 it has been held that the statements made in a complaint to a Magistrate under Section 107, Criminal Procedure Code, praying that security should be taken from a person for keeping the peace and a repetition of the same statements before a police officer to whom the Magistrate referred the complaint for enquiry and report are absolutely privileged and no action for defamation in respect of such statement is maintainable. In the Calcutta case : AIR1939Cal477 the learned Judges of the Calcutta High Court held:

'No action for libel or slander lies, whether against Judges, counsel, witnesses or parties, for words written or spoken in the course of any proceeding before any Court recognised by law and this thought the words were written or spoken maliciously without any justification or excuse, and from personal illwill and anger against the person defamed. Further, the statements made with a view to repeating them on oath in a subsequent judicial proceeding are similarly protected. Hence statements made by a party in reports to police and statements made by him in subsequent judicial proceedings as a witness are absolutely privileged even thought they are defamatory and false.'

These two decisions have, however, not been approved in a decision of our own Court which is reported in Gangappagouda v. Basayya : AIR1943Bom167 , where it was held that a Mahalkari holding a preliminary enquiry in the conduct of a police patil on the directions of the Collector in order to report to the Collector is not acting in a judicial capacity, nor exercising the attributes of a Court, and that the evidence given before the Mahalkari in such an enquiry is not absolutely privileged. it is true in this case the statements were made before the Mahalkari and not before a Police Officer as in the instant case. But the principle underlying the decision was that if a statement is not made before a Court or a tribunal having the attributes of a Court, then it could not be said that the statement was absolutely privileged. This has been made clear by the learned Chief Justice in the course of his judgment when he has stated:

'I am clearly of opinion that it is impossible to hold that the Mahalkari was acting in a judicial capacity, or was exercising the attributes of a Court.' The learned Chief Justice also referred to the well-known case of P.H. Watson v. M'Ewan, 1905 A. C. 480, and to the Madras and Calcutta cases to which I have already referred. The learned Chief Justice in the final paragraph of his judgment observed that he was disposed to think that the Madras and the Calcutta cases referred to above went too far, and could not be reconciled with the decision of the Privy Council in O'Connor v. Waldron, 1935 A. C. 76. If the test that has been laid down in this case that a statement, if made before an officer who was not acting in a judicial capacity or who was not exercising the attributes of a Court, could not be said to have been absolutely privileged, is correct, then the statements made in this case before the Police officers cannot be regarded as absolutely privileged. The police officer can never be stated to have been acting in a judicial capacity or exercising the attributes of a Court when the purported to record the statements in the present case and therefore I have no doubt that the statements such as were made before the Police officers were not a qualified privilege attached to them. I am bound by the decision reported in : AIR1943Bom167 in so far as it goes and I must, therefore, hold that these statements were not absolutely privileged. Incidentally I may also refer to a subsequent decision of the Calcutta High Court itself which is reported in Joseph Mayr v. Charles Warwick, 47 Cal WN 627, where the learned Judge, Mr. justice Blagden, has reviewed all the cases and has held that a written communication to the Commissioner of Police, containing defamatory statements, is not absolutely privileged. The learned Judge has, in the course of his judgment, observed that a statement to an officer of the police with a view to his setting the criminal law in motion is certainly not as such privileged absolutely in England. After considering the position of law in England, he has further held that it is certainly not the policy of the law in India either to prevent a judicial enquiry into the motive of person who says something to a policeman defamatory of somebody else. The learned Judge has considered the case reported in : AIR1939Cal477 and has observed: 'I think, with great respect, that their Lordships understood 1905 A. C. 480 to decide more than it really did decide. That was not, as is stated at p. 580, a case of a witness claiming protection for a statement which he repeated in 'subsequent' judicia proceeding, for the proceeding was pending at the publication and not merely contemplated; and it was a case of a witness, pure and simple; and not of a party who in fact gave evidence.'

The learned Judge has also referred to the case in ILR Mad 315: AIR 1926 Mad 521 and also to a subsequent case reported in Bapalal and Co. v. Krishnaswami Iyer, 1940 Mad WN 1054: AIR 1941 Mad 26, but he was not inclined to accept the reasoning in either of these two cases. But so far as this case is concerned, as I have already stated, the decision in : AIR1943Bom167 is clear upon the point and I must therefore hold that the statements were not absolutely privileged.

16. Then the question arises whether the plaintiff has been able to prove malice. As already stated that the evidence on record shows that the statements made by the defendants were made with full knowledge that those statements were untrue. This itself, in my opinion, is a conclusive proof of malice. It was stated before me in the course of arguments submitted by Mr. Padhye that they might have believed that when the whole village was saying that the plaintiff was carrying, the plaintiff was really pregnant. to say the least, this would be a totally unreasonable belief in the rumour or the gossip of the village and I cannot say that there was any justification for the defendants to have such belief. It is rather surprising that Defendants having known these statements were untrue to their knowledge, they were adhered to and were even repeated during the course of the trial. The defendants persisted again in making these statements in the written statement and repeated the other statements which they had admitted that the had made before the Police officers. This conduct itself is some indication of the malice which actuated them in making the statements. When no serious attempt was made to prove these reckless statements, I should think that these statements were made by these defendants having been actuated by the malice which is necessary to be proved before the plaintiff can say that the defendants are not entitled to the qualified privilege. If, therefore, the learned trial Judge has held that the statements being defamatory and untrue, malice can be easily inferred, I have no doubt that this is a case where the statements were made by the defendants being actuated by malice.

17. The last point that was made by Mr. Padhye is regarding the quantum of damages. I do not think that the learned Judge is in error in having awarded Rs. 2000/- as damages. The defamation when a lady is involved and I do not think that the award of damages as made by him is in any way unreasonable (sic). Besides, when a fruitless and a half hearted attempt was made by these defendants to prove the allegations that they had made, failure to substantiate these allegations would be a relevant circumstance in considering the quantum of damages. I am aware that certain decisions have taken the view that this conduct which is exhibited by the defendants would be a relevant circumstance for increasing the amount of damages as it aggravates the offence and the plaintiff would be entitled to higher damages; but that question is not now before me and I may not pursue the point further.

18. There was another point which was made by Mr. Padhye and that was that although there has been a decree in the trial Court for Rs. 2000/- his clients have been saddled with the full costs of the suit. I do not think that the learned Judge was in error in awarding the full costs of the suit against the defendants against whom he passed a decree. I must, therefore, reject this submission also.

19. Now, I come to the First Appeal which has been filed by the plaintiff herself which is First Appeal No. 23 of 1953. This appeal has been filed against defendants Nos. 1, 5 and 7. I would consider the case of defendant No. 5 first. Defendant No. 5 has, as I have already stated, remained ex parte. He did not put in a written statement or go into the witness-box to controvert the statements made against him in the plant and also at the trial by the plaintiff. The learned Judge has held that so far as these three defendants are concerned, the plaintiff has not been able to prove and substantiate the allegations made against her. Kesheo Sadashiv Talharkar is a clerk in the 'Udaya' office and he has been examined for the plaintiff. He stated that Bapurao Chimnaji Bobde had brought a notice fro being published in the 'UDAYA'. He produced the original notice dated 22-7-1950 in Court. He further stated that the notice was published in the issue of 'Udaya' dated 25th July, 1950 and that at the instance of Bapurao the issue of the 'Udaya' was sent to the address of Bapurao Balkrishna Pande by registered post. This witness further stated that the notice was given by Bapurao Chimnaji on behalf of Bahenabia as appeared from the signature clause. The learned trial Judge says that the signature upon the original notice is not proved by any witness on behalf of the plaintiff and therefore he was not prepared to say that the printed notice which was being produced in the case was the very notice which had been given by the defendant No. 5. In this connection, the evidence of defendant No. 5. In this connection, the evidence of defendant No. 3 is also relevant. In his evidence, he stated that the notice dated 2nd July 1950 was in the handwriting of defendant No. 5. It was written in the presence of this witness at the house of defendant No. 1 at Amravati. Defendant No. 5 resided in the house of defendant No. 1. The fair notice was written by defendant No. 5 and it was read out to defendant No. 1. Defendant No. 1 did not sign the notice as she was busy and she said that signature by him or by her made no difference. Now, it may be noted that this defendant No. 3 is the sister's son of the first defendant and defendant No. 5 is the brother of the first defendant and also of the second defendant. Although it is true that the original signature is not proved to be that of the fifth defendant, the evidence on the record to which I have already referred sufficiently establishes that the original notice was given for being published by defendant No. 5 himself at the instance of the first defendant. if the fifth defendant has not chosen to come to the witness-box and challenge the statement made by witness Keshao and also that made by the third defendant, I must hold that the original notice was in the hand-writing of and had been duly signed by the fifth defendant for an on behalf of the first defendant. I would accordingly direct that the printed copy of the notice be accepted and exhibited as Ex. X in the appeal. When defendant No. 5 has not chosen to controvert any of the statements made in the plaint or at the trial, he must be deemed to have accepted the correctness of these statements and therefore I have no doubt that he would be liable for the plaintiff's claim. Accordingly I set aside the decree of the trial Court and hold him liable for the plaintiff's claim.

20. As regards defendant No. 1, the plaintiff stated in her evidence that the notice in the 'Udaya' was given by defendant No. 5 on behalf of defendant No. 1. She also stated that defendant No. 5 resided with defendant No. 1. Defendant No. 1 herself stated in evidence that she never consented to the given of the notice. She, however, stated that she did not know that any notice was given by defendant No. 5. She did not meet defendant No. 5 during the last five years. But defendant No. 2 stated that defendant No. 1 was present during the investigation by the police. Defendant No. 2 is the sister of the first defendant. Defendant No. 3, sister's son of the first defendant, stated that the notice was written by defendant No. 5. It was in his handwriting and it was written in his presence at the house of defendant No. 1. He also stated that defendant No. 5 resided in the house of defendant No. 1. Further, he stated that the notice was read out to defendant No. 1. On being asked as to why he did not put her own signature to the notice, defendant No. 1 stated that she was busy and that signature by him or by her made no difference. I am inclined to believe what the plaintiff and defendants Nos. 2 and 3 have stated in this behalf and reject the evidence of defendant No. 1 herself. The notice must have been prompted by defendant No. 1 herself. It must have been drafted and written by defendant No. 5 in the presence of defendant No. 3 stated that it was read over, and in spite of this evidence, when defendant No. 1, now says that she did not known anything of the notice, it is impossible to believe her. I would, therefore, hold that she would also be liable for plaintiff's claim.

21. I now come to the case of defendant No. 7. The learned Judge had held that no satisfactory evidence has been led against him. The application which is stated to have been made by this defendant was under the signature of one Vinayak. In his written statement, he denied having made any such application at all. The witness Laxmikant does not say anything about this application as ever having been made by defendant No. 7. It is true that defendant No. 2 has stated that Shrikrishna, defendant No. 7, was also present during the investigation. But mere presence during the investigation, even if true, would not show that it was he who made the application for which he is sought to be made liable. Defendant No. 2 does not say that defendant No. 7 made any statement before the investigating officer in her own presence. Defendant No. 3 also tried to show that he relied upon the information given by Shrikrishna when he made the statement that was imputed to him; but even he has not made it clear as to what kind of information was supplied by Shrikrishna, defendant No. 7. I do not, therefore, think that there is any satisfactory evidence against defendant No. 7. I, therefore, accept the finding made by the trial Judge in this behalf. Accordingly the appal must fail as against defendant No. 7.

22. The result is that First Appeal No. 139 of 1952 will be dismissed so far as defendants Nos. 6 and 8 are concerned. It will be allowed so far as defendants Nos. 9 and 10 are concerned. First Appeal No. 23 of 1952 will be allowed with costs so far as defendants Nos. 1 and 5 are concerned. it will be dismissed so far as defendant No. 7 is concerned. Defendant No. 7 is entitled to his costs from the plaintiff.

23. In accordance with my judgment I would modify the decree of the learned trial Judge. In place of the decree passed by him, I pass the following decree:--

'I order defendants Nos. 1, 2, 3, 4, 5, 6 and 8 to pay to the plaintiff Rs. 2000/- (Two thousand) and full costs of the suit. The rest of her claim is dismissed. The claim against defendants Nos. 7, 9 and 10 is dismissed with costs on the plaintiff.'

24. Order accordingly.


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