1. This is a second appeal from the decision of the learned Distriot Judge of Sabaranpur. The plaintiff, who is a jeweller of Lahore, brought an action against Messrs. Trevellion & Clark, the well known drapers, who have shops in most of the large towns in Northern India for damages for breach of contract, damages for slander, and for a perpetual injunction to compel Messrs. Trevellion & Clark to deal with the plaintiff. The defendants denied the contract and denied the slander. The learned District Judge came to the conclusion that there was a contract between the parties, that the defendants had broken the contract, and he fixed the damages at Rs. 1. As to slander, he held that plaintiff had been slandered by the defendants, and he gave him Rs. 500 as damages. He also issued an injunction restraining the defendants from refusing to serve the plaintiff. From that decision the defendants appeal. Some years agoj Mr. Minck, the plaintiff, was asked to pay: a dress bill inourred by his wife at the defendants' shop at Mussoorie. He refused to pay the bill. An action resulted, in which the price which Messrs. Trevellion and Clark had charged for the dresses was reduoed. In his evidence in that case the' plaintiff said that Messrs. Trevellion & Clark had oharged 400 per cent over and above the legitimate price for these goods. Messrs. Trevellion & Clark thinking, rightly or wrongly, that the plaintiff was an unsatisfactory customer, issued notice to all their shops that if Mr. Minck came to buy goods he should not be served.
2. In June 1929, Mr. Minck saw in the window of Messrs. Trevellion & Clark's shop at Mussoorie a display of violets. The violets were there for decorative purposes and were not marked for sale. Mrs. Minck liked the violets and wished to purchase a bunch of them. A Week after, she sent her husband to Messrs. Trevellion and Clark with instructions to buy a bunoh of violets. Mr. Minck entered the shop and asked one of the lady attendants for a bunoh of violets. She said that she thought there were some upstairs and went to see if there were any. When upstairs Mr. Clark, a partner of the defendant-firm, pointed out toherthat this was Mr. Minck. and reminded her of the orders that had been issued. Mrs. Barker, the shop assistant, recollected what the orders were and agreed that Mr. Minck must be told he could not be served; Mr. Clark said that this was a man's job and he would tell Mr. Minok. Both Mrs. Barker and Mr. Clark went downstairs, and Mr. Clark told Mr. Minok that he was sorry he oould. not serve him. Thereupon Mr. Minok said that the firm would hear from him later and walked out of the shop. These are the facts which led to this litigation; it has taken up the time of the Subordinate Judge, the District Judge, and now of this Court. It appears to me that the action is frivolous and that the time of three Courts should not be wasted in such actions. However I have to consider the case as it is before me. I have examined the statement of claim, and I agree with the argument of Dr. Katju, who appears for the defendants, that the statement of claim discloses no cause of action. On contract, I can find nothing in the plaint, which, on these faots, either alleges a contract or can be taken to allege a con. traot. The plaintiff merely alleges that he offered to buy a bunch of violets. No damage is pleaded. On the question of alander, the words complained of are : 'we refuse to serve you.' The innuendo alleged was that the plaintiff was not a fit person to deal with. Even if these words could bear such a meaning, there are so many other innocuous meanings that oan be attached to them that it is impossible to say that they must bear a slanderous meaning.
3. The first point argued by the appellant is that there was no contract. On the facts set out above it is quite dear that there was not a concluded contract. In a contract for the sale of goods the most essential condition is the price. There is not one atom of evidence in this case of the price of these violets. There was no evidence by the plaintiff of any price that he Was prepared to pay, and there is no evidence of the price at which the defendants ware prepared to sell. It is oon. tended however by counsel for the respondent that the words used by Mr. Minck meant, and must be taken to mean, that he did offer and was prepared to pay whatever might be found to be the fixed prioe which Messrs. Trevellion and Clark attached to these goods. It is admited that Messrs. Trevellion and Clark, likemoat other European shops, deal in goods at fixed prices. There is no force in the contention of counsel for the respondent. No ordinary person goes into a shop and asks for goods intending to pay whatever price the seller puts upon those goods, and, further, Mr. Minck never saw the goods or knew what they were like. The conclusive test to be applied to this argument is this : If there was a binding contract, Mr, Minck was equally bound with Messrs. Trevellion and Clark, and therefore if the contention of counsel is sound, the assistant only had to bring the violets from upstairs and say that the price of a bunch of violets was fixed at Rupees 1,000 for Mr. Minck to be compelled to pay the price demanded. It has been also argued that the person who keeps a shop is bound to serve any member of the public who cares to enter the shop for the purpose of business. I know of no authority for this proposition, and I have been referred to none. A shopkeeper keeps a shop for his own benefit, that is, to make profit, and not for the convenience of the public. He cannot be forced to deal with anyone. That this is clear can be seen from the fact that in a special case, such as an inn in England, there has to be legislation in order to make an innkeeper serve, under certain conditions, a member of the public. He has that liability thrown upon him beoause of the special conditions of the trade and the special privileges and monopoly which he is given by the state. Apart from special legislation, it is open to a shopkeeper any time to refuse to deal with any member of the public, and it is not necessary for the shopkeeper to give any reason for his refusal. The opening of a shop is a mere invitation to the public to come into that shop. Such an invitation can be revoked at any moment. It is voluntary and without consideration. On the point of slander, it is contended by the respondent that the words 'I refuse to serve you' are slanderous. In the first place, if, as I have held, the defendants had a right to refuse to serve the plaintiff, the mere use of the words which enforce that right cannot be said to be slanderous. Further a Bench of this Court, of which I was a member, held in the case of Laohhrni Narain v. Shambhu Nath : AIR1931All126 that:
the test is whether a certain publication is libellous or not is whether, under the circumstances in which the writing was published (equally under which the slander was published), reasonable men to whom the publication was made would be likely to understand it in a libellous sense. It is unreasonable that where there are a number of interpretations, the only bad one should be seized upon to give a defamatory sense to the publication.
4. In that case the Bench followed the well-known ease of Capital and Counties Bank v. Henty and Sons (1882) 7 A.C. 741. In the first plaoe, there are a large number of other interpretations which might be put upon the words, and therefore it is unreasonable to select the only one which would give a defamatory sense to them. It would be otherwise however if these words were used in a public house or inn in England, for there the only reason which a landlord of an inn is entitled to give under the law for refusing at the proper hours to serve a member of the public is that that member of the publio was drunk. But these considerations do not arise in an ordinary shop.
5. Further no civil action can be maintained for libel or slander unless there has been a publication of the words com-plained of. That is, that the defamatory matter has been made known to some third person. The only publication found in thiB case by the lower Court was to the lady assistant in the shop. To amount to publication the words complained of must convey a defamatory meaning to those who read or hear them. Firstly it is quite impossible that the assistant could have understood these words in a libellous sense. She knew all the facts, and she knew why orders had been given not to serve the plaintiff. The only person therefore to whom this alleged slander is said to have been published was a person who, under no circumstances, could have taken the words as defamatory. Seoondly, the saying of these words, even if they were defamatory, in the hearing of the lady assistant could not, under the circumstances in my opinion be publication in law. It was the duty according to the orders of the firm of the lady assistant herself to have told the plaintiS that she could not serve him. Both she and Mr. Olark had agreed that the plaintiff must be so told, Mr. Clark and the lady assistant were so closely identified together in this common duty imposed upon them by the firm and by agreement that the fact that one of them was the actual mouthpiece of them both would not, in my opinion, amount to publication to the other. Where two or more persons agree together to write or utter words defamatory of another, and one of them writes or utters the words in the presence of the other or others who have so agreed, all of them may be sued as joint tort feasors provided there has been publication of the defamatory matter to some person other than those who are acting together or the person wronged. But the writing or uttering of the defamatory words by one of them in the sight or hearing of the others alone will not, in my opinion amount to publication in law. As I have found that a shop-keeper has a right to refuse to deal with any one, it is quite clear that the injunction granted by the lower Court cannot stand. The appeal therefore must be allowed, the decree of the lower appellate Court is set aside and the action is dismissed with costs.