1. This is an appeal in a suit for defamation brought by the plaintiff, a peshkar in the employ of the Bareilly Municipal Board, against four members of the Board. The Board had passed a resolution on the 15th of September, 1919 that the plaintiff should be removed from service. The Commissioner asked for a further report from the Board before accepting the resolution. The majority of the Board then went back on their previous opinion and recommended the reinstatement of the plaintiff. The four defendants wrote a dissentient note. The dissenting note contains the following passage which is relied on by the plaintiff as furnishing his cause of action:
who has earned a notoriety for quarrelsomeness, not only by assuming a defiant and insulting attitude before a full house towards a member of the Board (which formed the subject-matter of the case against him), but also by resorting to similar acts while in service under his former employers, but rather had been at the root of much friction lately in evidence in the Board's working.
2. The learned Subordinate Judge, Babu Govind Sarup Mathur, in an excellent judgment, dismissed the suit, and it is much to be regretted that the District Judge should have been persuaded to disturb his decision. The occasion was obviously privileged, and the Subordinate Judge found that two out of the three statements contained in the alleged libel were fully justified. As to the third, he found that there had been dissension in the Board, and, though there was no actual proof on the record that the plaintiff was responsible for the dissension, he found that it was generally believed, and was believed, in good faith by the defendants that the plaintiff was responsible. He found, therefore, that the alleged libel was written in good faith in the discharge of a public duty and was not actionable.
3. The learned District Judge, in an inordinately long judgment, has reversed this decision. It is perhaps indicative of the weakness of the case which the learned-District Judge set himself to argue that he should have found it necessary to write-a judgment three times as long as that of the trial Judge, though the latter had dealt adequately with all the issues arising in the case. The judgment is so long and contains so much repetition, that it is not altogether easy to reconcile different, portions of it and to discover exactly what the learned District Judge means to find. Some passages dealing with the attitude of the defendants towards the Chairman of the Board are quite irrelevant for the< purpose of the present suit.
5. It is quite clear, on the findings of the learned District Judge himself, that there is no case against the second, third and fourth defendants. The learned Judge expressly finds that there is no proof of malice on their part. He thinks that they are liable because they signed the note jointly with the first defendants, whom he finds to have been actuated by malice; It is hardly necessary to say that this is a mistaken view of the law. If the three defendants are entitled to claim privilege and acted without express malice, they do not lose their right because the first defendant may have had ether motives. If four persons commit a joint tort, they are no doubt all equally liable, but these three defendants committed no tort at all. They only used language which they were justified in using in the bonafide discharge of a public duty.
6. There had been some previous enmity between the first defendant and the plaintiff, and on this ground, and because he finds that the defendant has not proved the truth of the statements used, the learned Judge holds that the defendant was actuated by malice The plaintiff's Counsel contends that these are pure findings of fact which conclude the case against this defendant. It is, therefore, necessary to examine how far the learned Judge's conclusions are conclusions of fact and how far they are legal inferences from other facts which he has found. The first part of the alleged libel states that the plaintiff has earned a notoriety for quarrelsomeness from two circumstances. The first of these circumstances is that he assumed a defiant and insulting attitude towards a member of the Board before a full house. The last sentence is merely a plain statement of fact, the truth of which is accepted by the Court below. The learned Judge's only comment on it is that the incident did not justify the defendants in saying that the plaintiff had earned a notoriety for quarrelsomeness by reason of it. The second circumstance referred to is that the plaintiff had resorted to similar acts while in service under his former employers. It is admitted that this statement rests on a letter of the Assistant Registrar of the Co-operative Societies, under whom the plaintiff was formerly employed, which had been placed on the personal file of the plaintiff in the records of the Board's office. In that letter it was stated that the plaintiff had made reckless and unfounded allegations regarding the probity of various persons, official and non-official, working under the Registrar and had been unable to give a satisfactory explanation of his conduct. The learned Judge's comment on this is two fold. He thinks, in the first place, that the defendants were not entitled to make use of the letter because it was not a public document; and, secondly, he thinks that it does not justify the assertion that the plaintiff committed similar acts or was quarrelsome, because, according to the learned Judge, the acts of which he was accused in the Assistant Registrar's letter were far more serious than those imputed to him in the alleged libel and could have formed the foundation for criminal or civil proceedings. The learned Judge is wrong on both points. The personal file might be confidential as regards the general public, but it was part of the official records of the Board, and in giving an opinion to the Commissioner, as to the I plaintiff's fitness for further employment, the defendants were not only entitled, but were under a duty, to look at his previous record as shown in the personal file. We have also no hesitation in holding that it is a perfectly fair description of a person who repeatedly makes unfounded charges against a number of his fellow-officials and other persons to call him a quarrelsome person. Nor is it ad unfair comment in view of both these incidents together to say that he had earned a notoriety for quarrelsomeness. 'To submit the language used on privileged occasions to a strict scrutiny, and hold all excess beyond the absolute exigency of the occasion to be evidence of express malice, would greatly limit, if not altogether defeat, the protection which the law gives to statements made on such occasions.' Halsbury's Laws of England, Vol. XVIII, para. 1303.
7. The learned Judge remarks more than once that the whole object of the note Was to prevent the plaintiff from being reinstated as if this disposed of the matter. The learned Judge forgets that an intention to prevent the plaintiff from being reinstated was not necessarily contrary to, and might indeed be identical with, the public duty laid on the defendants. The whole Board had at its previous meeting resolved that the plaintiff should not be re-instated, and the defendants were giving at the request of the Commissioner, the reasons in support of that resolution.
8. For the above reasons we hold that the learned Judge's findings as to these two statements are not pure findings of fact, but are vitiated by the erroneous view which the learned Judge has taken of the law.
9. There remains only the third allegation, namely, that the plaintiff had been at the root of much recent friction in the Board's working. This statement is quite unimportant as compared with the two already considered. A man may easily be a cause of friction without any fault of his own. That there had been friction in the Board's working is found by both Courts, and is undeniable. The trial Court thought that there was no direct evidence of the plaintiff being responsible, and the District Judge, without discussing it separately, draws the further inference that the statement must have been untrue.
10. It seems to us that it was quite unnecessary for the defendants to offer any formal proof since the fact is not only admitted by the plaintiff, but forms an essential part of his case. From the statement of facts contained in the judgment of the trial Court, which the learned District Judge accepts as correct, it appears that the case which the plaintiff set out to establish was that Sahu Shiam' Sundar Lal was elected Chairman in the hope that he would prove a dummy, but that owing to the able assistance ha received from the plaintiff he was able to assert his independence and rule the Board, and that this was resented by some of the members and led to be formation of a clique. Another fact which is actually part of the plaintiff's cause of action is that there had first of all been a division of opinion in the Board, as to whether the plaintiff should be suspended; that there had been a subsequent unanimous resolution in favour of his removal; and that, when the Commissioner raised a technical objection to this resolution there was again a division of opinion as to whether he should be reinstated. These facts alone are sufficient to justify the statement that the plaintiff had been a cause of friction in the Board's working. When the statement made does not in any way go beyond what the occasion warrants, and is indeed a statement the truth of which can be inferred from the plaintiff's own allegations, no inference of malice can be drawn.
11. We, therefore, set aside the order of the Court below and restore the decree of the trial Court with costs in this Court and in the Court below.