(1) This appeal by the plaintiff raises two questions, the first is as to whether the statements contained in the affidavit filed by the defendant in support of his application made in the suit between them to get an order of attachment before judgment are defamatory in character; and the second is, even if they are defamatory in character, whether they, having been made in the course of and with reference to judicial proceeding, are absolutely privileged and, therefore, the plaintiff gets no cause of action to institute the suit for damages in respect of them.
(2) They arise in the following circumstances. The plaintiff is a tenant of the defendant. The latter instituted O.S. No. 218 of 1956 in the Court of the Munsiff, Bhadravati, against the present plaintiff to recover Rs. 588/- and odd as arrears of rent due to him. It appear that before this suit of 1956, there was also an earlier suit filed by the defendant against him to recover rents due from him, and the execution of the decree obtained in that suit was pending. It was during the pendency of O.S. No. 218 of 1956 that the defendant made an application to secure an order of attachment before judgment under R. 5 of O. 38 of the Code of Civil Procedure and, in support of that application, he filed the affidavit. The suit was decreed against the defendant (present plaintiff) who thereafter filed O.S. No. 17 of 1957 in the Court of the Civil Judge, Shimoga, to recover Rs. 4,000 as damages, alleging that the statements contained in that affidavit are defamatory in character.
(3) The defendant denied that the statements in the affidavit are defamatory in character and contended that to secure the decretal amount that might ultimately be passed in the suit, he made the application for attachment before judgment, supported by the affidavit, alleging the facts bona fide and in good faith, that he swore to the facts in the said affidavit only to secure an order of attachment before judgment and that he had no intention of injuring the reputation of the plaintiff. He, therefore, denied that the allegations were either defamatory in character or that he had any intention to harm the reputation of the plaintiff. Consequently he stated that the plaintiff was not entitled to any relief in the suit.
(4) The trial Court found that the statements made in the affidavit by the defendant were not defamatory in character and that they had been bona fide made only with a view to get an order of attachment before judgment and to secure the decretal amount that may ultimately be passed in the suit. On that view of the matter, it dismissed the suit.
(5) The plaintiff preferred an appeal in the Court of the Additional District Judge, Shimoga. The learned Judge held that the statements were defamatory in character. But he stated that they having been made in the course of and with reference to judicial proceeding, were absolutely privileged and that the plaintiff got no cause of action to file the suit to recover damages in respect thereof. He, therefore, dismissed the appeal. Hence this second appeal, and the two questions which require determination are those as stated before.
(6) The first question is whether the statements in the affidavit are defamatory in character.
(7) Mr. T.S. Ramachandra, appearing for the defendant-respondent, contends that the statements in the affidavit were necessary for the purpose of securing an order of attachment before judgment, since unless he alleges the facts as required by R. 5 of O. 38 of the Code of Civil Procedure and satisfies the Court by affidavit or otherwise about the facts alleged he would not be able to secure an order of attachment before judgment from the Court and, therefore, his client made those statements in good faith and that he had not intention to harm the reputation of the plaintiff and therefore he contends that the statements in the affidavit are not defamatory in character.
(7a) on the other hand, Mr. U. Subrahmanyam, appearing for the appellant, contends that the statements in the affidavit are in excess of what is required to be alleged and proved under rule 5 of O. XXXVIII of the Code of Civil Procedure and, therefore they are defamatory.
(8) I have, therefore, to determine whether the statements in the affidavit are defamatory in character as stated by the learned Additional District Judge in view of the provision of Rule 5 of Order XXXVIII of the Code of Civil Procedure.
(9) Ext. P-2 is a certified copy of the affidavit filed in O.S. No. 218/56. The statements made therein are that the defendant (present plaintiff) has been deliberately evading payment of rent as and when it became due, that he (defendant herein) filed a suit and obtained a decree against him, that the execution of the said decree was still pending and that O.S. No. 218/56 was the second suit to recover the rent; he then stated that the defendant does not own moveable or immoveable properties within the jurisdiction of the Court except those mentioned in the affidavit and that he has purchased properties in the name of his wife with a view to defraud his creditors. He further stated that he had learnt that the defendant wanted to leave the jurisdiction of the Court and start business in another place, that he was heavily indebted and that since he was dodging to pay the rent due to him, it was necessary that the articles disclosed in the application should be attached before judgment so that he could have security for the suit claim.
(10) As I stated, the trial Court found that these statements were not defamatory in character and had been made bona fide to secure an order of attachment before judgment in his favour. The learned appellate Judge, however, did not agree with that conclusion and held that the statements that the defendant therein was heavily indebted and was attempting to move out of the jurisdiction of the Court were defamatory in character. The question is whether this finding of the learned appellate Judge in the circumstances of this case can be accepted as correct.
(11) In my opinion, the finding of the lower appellate Court cannot be accepted as correct since, in arriving at that conclusion, it has totally overlooked the provisions of rule 5 of O. XXXVIII of the Code of Civil Procedure.
(12) What is required by rule 5 of O. XXXVIII C.P.C. is that, where, at any stage of the suit, the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him:
(a) is about to dispose of the whole or any part of his property, or (b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court, the Court may either call upon the defendant to furnish security or may attach the property required to be attached by the plaintiff. Thus it would appear that the plaintiff, in order to secure the necessary order of attachment before judgment, has to allege and satisfy the Court by an affidavit or otherwise about the said allegations, and unless he does so, he would not be entitled to secure that order from the Court. The defendant in this case has alleged certain facts which were known to him and certain other facts which, as he had learnt.
(13) It appears that the defendant had to file suits to recover rent from the plaintiff. Since he was driven to Court from time to time and since the execution of the decree obtained by him previously was still pending, he dated that the plaintiff was about to leave the jurisdiction of the Court, that he had no other property except the property mentioned by him and that he had purchased properties in the name of his wife. But the latter statement or similar ones are made to emphasize the fact that the plaintiff was avoiding the payment of rent and that he had to file suits to recover the same and that an execution proceeding was still pending against him and that he was about to remove himself out of the jurisdiction of the Court. It was in such circumstances that defendant made the application for an order of attachment before judgment in respect of the properties mentioned by him and filed the affidavit in support of that application.
(14) It is to be remembered that the main object of attachment before judgment is to enable the plaintiff to realise the amount of the decree if one is eventually passed, from the defendant's properties. Further, vague allegations are not sufficient to secure an order of attachment before judgment. Law requires that the person seeking an order of attachment before judgment must relate the facts as required by rule 5 of O. XXXVIII of the Code of Civil Procedure and satisfy the Court by an affidavit or otherwise about them. If, therefore, when such statements as are required by law to be made or alleged and satisfy the Court about them, are made, it would hardly to be right to hold such statements, are defamatory in character I, therefore, hold that the statement of facts made by the present defendant in his affidavit were necessary for the purpose of securing an order of attachment before judgment and were made bonafide only with that intent and, therefore, they are not defamatory in character. Hence the finding of the lower appellate Court that the allegations are defamatory in character is set aside since the learned appellate judge arrived at that finding having overlooked the provisions of rule 5 of O. XXXVIII of the Code of Civil Procedure when he stated that the allegation that the plaintiff was about to leave the jurisdiction of the Court was defamatory in character. Therefore the plaintiff's suit to recover damages on the ground that the statements are defamatory in character is liable to be dismissed.
(15) In view of this finding, the other question, whether, even if the allegations or statements made in affidavit are defamatory in character, they are absolutely privileged, having been made in the course of and with reference to judicial proceeding, does not arise for consideration.
(16) The English law on the question is quite clear. In royal Aquarium and Summer and Winter Garden Society v. Parkinson, (1892) I Q B 431, at p. 451, Lopes L.J. has stated:
'The authorities establish beyond all question this: that neither party, witness, jury nor judge can be put to answer civilly or criminally for words spoken in office; that no action for libel or slander lies, whether against judges, counsel, witness, or parties, for words written or spoken in the course of any proceeding before any Court recognised by law and this though the words were written or spoken maliciously without any justification or excuse, and from personal ill-will and anger against the person defamed. This absolute privilege has been conceded on the grounds of public policy to ensure freedom of speech where it is essential that freedom of speech should exist, and with the knowledge that Courts of justice are presided over by those who from their high character are not likely to abuse the privilege, and who have the power and ought to have the will to check, any abuse of it by those who appear before them.' (Vide : Salmond on torts--Thirteenth Edition by R.F.V. Heuston--p. 361).
Thus it is obvious that any statement made in the course of and with reference to judicial proceeding by any jury, judge, party, witness or advocate, is absolutely privileged. This principle of common law was extended by their Lordships of the Privy Council to India in Baboo Gunnesh Dutt Singh v. Mugneeram Chowdhry, 11 Beng L R 321. That action was called a suit to recover damages for defamation of character. And their Lordships expressed the opinion agreeing with the High Court that such an action could not be maintained in a Civil Court for damages.
(17) The decisions of the Courts in India after the abovesaid Privy Council decision are not uniform. The preponderance of judicial opinion seems to be in favour of holding that any statement made in the course of and with reference to judicial proceeding is absolutely privileged, whereas the minority view is that the law in India is codified, that the theory of an absolute privilege and that the same rule ought to be applied in civil suits for damages for defamation. The majority view is based on the principle that the principle of English law which represents the result of Judicial experience for centuries, ought to be applied in so far as it has not been made applicable by statutory provisions to the Contrary, and that the very fact that it a party who has mad a false and malicious statement in a judicial proceeding is liable to be criminally prosecuted, renders it unnecessary that he should be liable also in a civil suit for damages for defamation. Thus it is obvious, as stated by Justice Sir Asutosh Mookerjee in G.H. Crowdy v. L.O. Reilly, 18 Ind Cas 737 (Cal).
' a great deal may be urged in support of each of these conflicting views.'
Mr. U. Subrahmanyam for the appellant asks me to accept the minority view and hold that such a privilege is not absolute but qualified since the common law principle is not suited to the condition of this country. But, as I stated, since this question does not arise for my consideration, I decline to express any opinion on that point.
(18) Thus, in view of my finding on the first question that the statement made by the defendant in his affidavit are not defamatory in character, the plaintiff gets on cause of action to file the suit to recover damages against the defendant; his suit must, therefore, fail. Accordingly, I confirm the decree passed by the lower appellate Court dismissing the plaintiff's suit.
(19) Consequently, the appeal fails and the same is dismissed, with the result that the plaintiff's suit stands dismissed with costs throughout.
(20) Appeal dismissed.