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Raghunath Singh Parmar Vs. Mukandi Lal - Court Judgment

LegalCrystal Citation
SubjectElection
CourtAllahabad
Decided On
Reported inAIR1936All780; 165Ind.Cas.892
AppellantRaghunath Singh Parmar
RespondentMukandi Lal
Excerpt:
- - before we proceed further, we would like to mention here that mr. a good deal of time was spent in the court below in proving this allegation, but before us learned counsel appearing for the defendant has not attempted to challenge the finding of the learned subordinate judge on this question, and it must, therefore, be held that the defendant got this leaflet ex. mukandi lal furnished the court with a translation of the leaflet and that translation has been printed at pages 135 to 138. it would have been better if the parties had taken the trouble to get the leaflet translated through the court translator. 5. one of the charges levelled against the plaintiff in the yellow leaflet is that he is guilty of breach of confidence, the greatest of all sins, and that is his failure to.....1. this is a defendant's first appeal arising out of a suit to recover damages. the facts of the case which gave rise to this appeal, can briefly be stated as follows: mr. mukandi lal, plaintiff, and sardar bahadur narain singh were rival candidates from garhwal constitutency for a seat in the local legislative council in 1930. the election took place on 27th september 1930. the result was that sardar bahadur narain singh was successful. on or about 13th september 1930, a leaflet styled 'yellow leaflet' was handed over by mr. raghunath singh parmar, a son-in-law of sardar bahadur narain singh, to a press in landsdowne for publication. the plaintiff-respondent alleged that this yellow leaflet ex. p-l contained libellous statements against him, and because of those statements which are.....
Judgment:

1. This is a defendant's first appeal arising out of a suit to recover damages. The facts of the case which gave rise to this appeal, can briefly be stated as follows: Mr. Mukandi Lal, plaintiff, and Sardar Bahadur Narain Singh were rival candidates from Garhwal constitutency for a seat in the local Legislative Council in 1930. The election took place on 27th September 1930. The result was that Sardar Bahadur Narain Singh was successful. On or about 13th September 1930, a leaflet styled 'yellow leaflet' was handed over by Mr. Raghunath Singh Parmar, a son-in-law of Sardar Bahadur Narain Singh, to a press in Landsdowne for publication. The plaintiff-respondent alleged that this yellow leaflet Ex. P-l contained libellous statements against him, and because of those statements which are specified in the plaint he had been lowered in the estimation of the public and, therefore, he instituted a suit against the defendant for a sum of Rs. 10,000 as damages. The defendant in his defence denied that he had published the yellow leaflet and pleaded that in the matter of the printing of this leaflet he had merely acted as a messenger on behalf of the office of Sardar Bahadur Narain Singh and, therefore, he could not be held responsible for the matters mentioned in the leaflet. It was further denied that the pamphlet was defamatory. The defendant also pleaded that as the plaintiff had accepted an apology from Sardar Bahadur Narain Singh in respect of the statements contained in the yellow leaflet there was an accord and satisfaction and the plaintiff could not proceed against one of the joint tort-feasors after an acceptance of an apology from Sardar Bahadur Narain Singh. The defendant also pleaded that the statements contained in the offending leaflet came within the purview of 'fair comments on matters of public interest' and they were privileged. Another plea taken by the defendant was that the statements in the yellow leaflet Ex. P-l were made by way of reply to libellous statements made by the plaintiff or his helpers, and, therefore, were not actionable.

2. The learned Subordinate Judge came to the conclusion that the evidence produced in the case established that there was a publication of the leaflet by the defendant and that some of the statements in that leaflet were libellous. He rejected the pleas taken by the defendant in defence. The learned Judge, therefore, gave a decree to the plaintiff for a sum of Rs. 8,000 against the defendant. The defendant is dissatisfied with the decree made against him and has preferred this appeal. Before we proceed further, we would like to mention here that Mr. Mukandi Lal is a Barrister-at-law practising as an Advocate of this Court in Garhwal since 1919. He was twice elected to the U.P. Legislative Council. Before his last defeat, he was a member of the Council from 1923 to September 1930. For several years he acted as Deputy President of the local Legislative Council. Mr. Raghunath Singh Parmar is also holding a respectable position in life. He is a Barrister-at-law of several years' standing and a fairly big zamindar and, as stated above, he is a son-in-law of Sardar Bahadur Narain Singh.

3. One of the questions about which the parties were at issue was as to whether or not the defendant had been responsible for the publication of the leaflet Ex. P-l. The position taken up by the defendant in his written statement was that he had merely handed over the leaflet to the Lansdowne Press but that he was not responsible for the statements mentioned therein. On the question of publication the learned Subordinate Judge has found that the evidence conclusively proves that the defendant had it published, and it is further found that he was seen distributing it. A good deal of time was spent in the Court below in proving this allegation, but before us learned Counsel appearing for the defendant has not attempted to challenge the finding of the learned Subordinate Judge on this question, and it must, therefore, be held that the defendant got this leaflet Ex. P-l published.

4. Now we will proceed to discuss the various statements made in the leaflet and consider whether they are libellous or not. The leaflet Ex. P-l is printed at pages 135, 136, 137 and 138. We may point out here that this was the most important document in the case, but neither side took the trouble to have it translated and printed for the benefit of the Court. It appears that in the Court below Mr. Mukandi Lal furnished the Court with a translation of the leaflet and that translation has been printed at pages 135 to 138. It would have been better if the parties had taken the trouble to get the leaflet translated through the Court translator. At the time of arguments there was some controversy as regards the meanings of some of the expressions used in the offending leaflet.

5. One of the charges levelled against the plaintiff in the yellow leaflet is that he is guilty of breach of confidence, the greatest of all sins, and that is his failure to resign from Council when the Swaraj party did so. This charge relates to the failure of Mr. Mukandi Lal to resign his seat in the Council when the Congress in December 1929 passed a resolution that the Council should be boycotted and the members of the Congress should resign from the Council in a body. The evidence produced in the case shows that the same resolution was adopted by the party known as Swaraj party. Admittedly Mr. Mukandi Lal did not resign from the Council at the request of the Swaraj party. The leaflet shows that the writer of it claimed that Mr. Mukandi Lal had been sent to the Council on Swaraj or Congress ticket. This fact has been denied by Mr. Mukandi Lal in his statement. He has however admitted in his deposition that after he had joined the Council he became a member of the Swaraj party group and with the help of that party was appointed Deputy Chairman of the Legislative Council by a majority of votes. He, however, has not admitted that he was sent there on Congress or Swaraj ticket.

6. In our opinion for the purpose of deciding this point it is not at all necessary to go into the question as to whether Mr Mukandi Lal was or was not sent to the Council on Swaraj or Congress ticket. When people are making comments about men holding political positions such as Mr. Mukandi Lal was holding in the Council, it is permissible for them to exaggerate matters. The statement of the writer that he was sent on Swaraj or Congress ticket may not possibly be quite correct, but there is no gainsaying the fact that for a number of years Mr. Mukandi Lal remained in Council and was working along with the Swarajist party there. In these circumstances the writer was entitled to say that he was a member of the Congress or Swaraj party. If the statement that he was guilty of breach of confidence was made by the writer, because in his opinion he (the plaintiff) had not resigned from the Council when asked to do so, it was in our opinion a harmless statement and not libellous. The writer has expressed his own opinion which is that a man working as a Congressman or a Swarajist, if he does not resign when called upon by the Swarajist or Congress party to do so, is guilty of breach of confidence. Other people may take a different view, but, if a man makes a statement of this kind, it is an expression of view of his own belief and hardly libellous. In these circumstances we are not prepared to hold that this statement was libellous. After this we find in the leaflet the following statements:.he does not get time to understand these matters for two reasons: firstly, he gets no time by being too busy in eating and drinking and associating with his Muslim friends such as Raja Salempur. Secondly on account of his Western wife and children at home he gets still less time. And whatever time is left, (out of these two pre-occupations), that he spends in bringing up dogs and dealing in dogs and in publishing their (sale) advertisements and in educating dogs. The time and money which he spends in educating and training puppies, if that time and money he were to devote to the education of children of Garhwal, just as Garhwalia spent in his education, then Mukandi Lal would come to know how Garhwalis respect and honour him.

7. It is an admitted fact that Mr. Mukandi Lal, the plaintiff, like a fairly large number of educated Hindus in this country, has no scruples in the matter of inter-dining. It appears to us that the statement that he gets no time because of eating and drinking and associating with his Muslim friends like the Raja of Salempur is a statement made in very bad taste. But we are of opinion that none of these statements referred to can be said to be libellous. The writer may be of opinion that a Hindu should not dine with a Mahomedan while there may be other persons who see absolutely no objection to this. As regards the statement about the plaintiffs having no time to understand politics because of his fondness for his home life and for his dogs, all that is necessary to say is that it is also in very bad taste. What we have however to consider is whether it is libellous, and on that question we have no hesitation in holding that it is not. If a man is fond of his home life, in our opinion it is a very good thing. But if there be a person or persons who take a different view that he or they are entitled to hold that view without being held guilty of having published a defamatory matter. It is quite possible that the writer of the leaflet is an orthodox man and his point of view is that a man who inter-dines should not be sent to Council. It cannot be said that the view expressed amounts to a libel.

8. Another matter complained of against the plaintiff is that he took credit for having killed a leopard in Rudraprayag which was not true. We do not wish to waste our time unnecessarily over this matter. The evidence is this. There was a tiger playing havoc in a certain part of Garhwal and the Government asked a European gentleman to kill that tiger. It is further in evidence that Mr. Mukandi Lal put certain questions in the Council as regards the loss of life for which this tiger was responsible. After the tiger had been killed, Mr. Mukandi Lal, it is said, stated that he had got it killed. The writer insinuates that as a matter of fact Mr. Mukandi Lal was not brave enough to kill this tiger, yet he took credit for having done so. This may be an opinion of the writer and yet Mr. Mukandi Lal may take credit for having moved the Government to get a Shikari to kill this tiger. There is no question of defamation in respect of the statement made by the writer and we hold that it is not defamatory. Another matter which the plaintiff considered libellous was a statement made by the writer that Mr. Mukandi Lal was responsible for the increase of 33 per cent on the revenue. The history of this matter can briefly be stated as follows: The Government were anxious to increase the land revenue. Mr. Mukandi Lal was consulted by the Deputy Commissioner and he expressed an opinion that 33 per cent increase would be quite reasonable. Later on, this matter was agitated in the local Legislative Council and Mr. Mukandi Lal appears to have made a speech complaining against the increase. When the Finance Member referred to Mr. Mukandi Lal's conversation with the Deputy Commissioner, Mr. Mukandi Lal stated that he had given his opinion in his individual capacity to the Deputy Commissioner but that he had since then changed his views. The complaint of Mr. Mukandi Lal is that the statement made by the writer, that he was responsible for 33 per cent increase in the land revenue, was libellous. We find ourselves unable to agree with this contention. The evidence produced in the case does show that Mr. Mukand Lal had in his talk with the Deputy Commissioner agreed that the proposed enhancement at the above-mentioned rate would be quite reasonable. The writer of the leaflet was justified in putting his own gloss over the facts and attribute to the plaintiff that he was responsible for the increase. It cannot be said that a statement of this kind is libellous. If a man's opinion is asked and he says that 33 per cent enhancement would be reasonable, he cannot later on say that the statement is libellous because it is uttered by the opposite party. In Ex. P-l there is a statement about the Garhwali soldiers who were convicted of mutiny in 1930. The writer states as follows:

In connexion with the case of the Garhwali soldiers at Peshawar, while prominent vakils and barristers of India, with whom Mukandi Lal can never stand any comparison, were prepared to look after the case, without charging any fee, they (Garhwalis) reposed confidence in Mukandi Lalji and engaged him for conducting the case. But the public is well aware of the treatment which he meted out to them, after they had reposed their confidence in him. On account of this betrayal of confidence no Garhwali would, you may be sure, come in this trap and would not cast his vote in his favour, in order to make him his representative.

9. The learned Subordinate Judge has held after a consideration of the evidence produced in the case that this statement is libellous, and, after hearing learned Counsel on both sides, we are of opinion that the finding of the learned Subordinate Judge must be upheld. In our opinion the statement is highly libellous and should not have been made unless there was some justification for it. The brief history about the mutiny of Garhwali soldiers is as follows: In 1930 there was rioting at Peshawar. In connexion with that some Garhwali soldiers were Court-martialled for mutiny. They were tried at Abbot-tabad. Before the trial commenced, the military authorities who had appointed a special officer to look after the defence of these accused persons, caused inquiry to be made from the accused persons whether they would like to engage a counsel and, if so, to suggest his name. The officer who was deputed to look after the defence of the accused persons made inquiries of the accused persons, and they told him that they would like to have Mr. Mukandi Lal as their counsel. Mr. Mukandi Lal was wired to and in reply he stated that he was quite prepared to defend them. As regards his fee, he stated that he would want Rs. 500 for travelling expenses and Rs. 100 a day as his fee. The accused persons agreed to pay that and then an assurance was conveyed to him by the military authorities that the accused persons had agreed to his terms, but the military authorities disclaimed all responsibility for payment of the fee which might be found due to Mr. Mukandi Lal. It appears that the trial lasted for some days and Mr. Mukandi Lal's bill came up to a sum of Rs. 1,800. He had been paid Rs. 500 in advance and a sum of Rs. 750 was realised later on, but the balance could not be realised and Mr. Mukandi Lal had to go without it. Now if the writer had only expressed an opinion that in a political case of this kind according to the writer's view, no fee should have been charged from the accused persons, there would have been nothing wrong. There are people who think that in political cases lawyers who belong to a party to which the accused belonged should not charge any fee. On the other hand there are people who quite reasonably and justifiably would say that politics has nothing to do with a matter of this kind, and if they are asked to leave their home and to go to an outlying station and to stay there for several days, they would like to be paid before they take up the case. But the serious matter in connection with this charge is that Mr. Mukandi Lal is charged with having committed breach of faith. We may point out that the writer of the pamphlet at one place praises those Garhwali soldiers and expresses his opinion about them as follows:.and if he cared even a little for their well-being, he (Mukandi Lal) would not take Rs. 1,800 of the hard-earned money of those Garhwali heroes who according to their own understanding protecting their country and religion accepted the punishment of transportation for life and imprisonment.

10. A perusal of the offending leaflet makes it perfectly clear to us that the writer is making very grave charges against Mr. Mukandi Lal. He at first extols the accused persons in the Garhwali soldiers' mutiny case and praises their conduct. Then he wants the public to believe that those soldiers reposed confidence in Mr. Mukandi Lal and that Mr. Mukandi Lal won their confidence and let them down. The words used by him are:

But the public is well aware of the treatment which he meted out to them after they had reposed their confidence in him. On account of this betrayal of confidence no Garhwali would, you may be sure, come in this trap and would not cast his vote in his favour.

11. Here there is a clear charge that Mr. Mukandi Lal as a lawyer and as a gentleman was guilty of breach of confidence. The public is informed that Garhwali soldiers had placed their confidence in him and that he after winning their confidence 'let them down.' No attempt whatsoever was made to prove that there was an iota of truth in this absolutely false charge made against a man holding She position of Mr. Mukandi Lal. The defendant was guilty of the publication. The evidence of Mr. Mukandi Lal explains the meaning of the words 'But the public is well aware of the treatment which he meted out to them after they had reposed their confidence in him.' It appears from the evidence produced in the case that some people had started making false statements about Mr. Mukandi Lal after the trial of this Garhwali affair. Some body started saying that Mr. Mukandi Lal was likely to be appointed a District Judge and others started saying that he had betrayed their confidence. This how-over does not improve the position of the defendant in any manner. If a person is guilty of slander, another person repeating it cannot escape responsibility because he merely repeats the slanderous statement made by another. People who make slanderous statements will be punished when they are found out and tried. Another person, however, has no right to repeat the slanderous statement which is without justification. He cannot say that he should not be held liable because the statement which he has published was nothing else but a repetition of a similar (slanderous statement which had been uttered by some other persons unknown. Mr. Mukandi Lal in this case in his evidence has denied that there was any breach of faith on his part. He has examined the officer who was put in charge of the defence of the accused persons in the mutiny case and the learned Judge after a consideration of that opinion has held that Mr. Mukandi Lal did his best in the matter of the defence of the accused persons. Mr. Mukandi Lal takes credit that because of his advocacy some of the persons charged with mutiny were let off. We are entirely satisfied with the statement of Mr. Mukandi Lal on this point and there is no evidence whatsoever from which an inference might be drawn that Mr. Mukandi Lal was guilty of any breach of faith with these accused persons in the Garhwal case. The charge that he was guilty of breach of confidence after having won their confidence is utterly false and we entirely agree with the learned Judge of the Court below in holding that it is libellous. Another statement which is the subject matter of the dispute between the parties is as follows:

On the one hand he sticks to his Western habits (ways) and has no scruple in taking articles of food and drink from the hands of Englishmen and Muslims, while, on the other hand, when necessity arises, he would put on sacred thread and khaddar clothes, become a confidant of the Kahattriyas and Brahmans of Garhwal, assume the appearance of a Brahman, and has even no scruple in going into their houses and defiling their utensils, etc. .... If this is not betrayal of confidence, what else it is?

12. In our opinion this statement is also libellous. The learned Judge of the Court below has held it to be so, and we agree with his conclusion as regards this matter. Here the charge is that when necessity arises the plaintiff puts on sacred thread and Khaddar clothes and becomes a confidant of the Kshattriyas and Brahmans of Garhwal, assumes the appearance of a Brahman and has even no scruple in going into their houses and defiling their utensils, etc. The writer of the pamphlet makes a positive assertion that the plaintiff is in the habit of going to Brahmans and Kshattriyas of orthodox type in Garhwal and without knowing that he has no scruple to interdine with Europeans and Muslims, dines with them. In other words he says that those Gharhwali Kshattriyas and Brahmans would not have dined with Mr. Mukandi Lal if they had known that he was in the habit of interdining with Europeans and his Muslim friends. Here we have a specific charge that the plaintiff deceives orthodox Brahmans and Kshattriyas and wins their confidence and then defiles their utensils. Now it may be stated that no evidence whatsoever was produced on behalf of the defendant to prove that there was any truth in any of these allegations. Not a single Kshattriya or Brahman of Garhwal was produced in evidence to show that he had been cheated and deceived by Mr. Mukandi Lal as alleged by the writer of the pamphlet. In a country like India it is a very serious matter to make a charge of this kind. We suppose that in Garhwal, where people are more backward, the seriousness of this charge will be much more grave. It is most disgraceful for any man to go and defile the utensils or to wound and injure the feelings of orthodox Hindus by dining with them, by making them believe that he is just as orthodox as they are. As it has been found that the charge was false, we are satisfied that it was libellous. Having decided that in our opinion at least two of the allegations referred to above are highly libellous, we now proceed to consider the various other pleas taken in defence. The first defence urged on behalf of the appellant before us was that the allegations made were fair comments on matters of public interest and therefore were privileged. The law on this subject is stated in Eraser's Law of Libel and Slander, Edn. 6, p. 161. It is stated there that:

The defence that the words complained of are lair comment on a matter of public interest really is, that the words, though they may be defamatory, are not actionable. Fair comment does not negative defamation, but establishes a defence to any action founded on defamation. It is precisely where the criticism would otherwise be actionable as a libel that the defence of fair comment comes in.

13. At another place at p. 163, the following observations are made:

The limits of fair comment on matters of public interest are very wide. As Lord Esher, M. R., said in Merivale v. Carson (1887) 20 QBD 275, at p. 280. 281: Every latitude must be given to opinion and to prejudice, and then an ordinary set of men with ordinary judgment must say whether any fair man would have made such a comment.... Mere exaggeration, or even gross exaggeration, would not make the comment unfair. However wrong the opinion expressed may be in point of truth, or however prejudiced the writer, it may still be within the prescribed limit. The question which the jury must consider is this: would any fair man, however prejudiced he may be, however exaggerated or obstinate his views, have said that which this criticism has said...? When you come to a question of fair comment you ought to be extremely liberal....

14. At p. 165, it is stated:

Comments may be fair, although wrong; they may be fair although expressed with violence and heat. A critic is entitled to use ridicule, sarcasm and irony, as weapons so long as he does not use them unfairly.

15. In our opinion, having regard to the evidence produced in the case it is impossible to hold that the plea of fair comment is open to the defendant. The very foundation on which that plea of fair comment is built is wanting in this case. The law on this subject has been laid down very clearly in Hunt v. Star Newspaper Co., Ltd. (1903) 2 KB 309, at p. 319 Lord Fletcher Moulton, L. J. made the following observations while dealing with the plea of fair comment:

The law as to fair comment, so far as is material to the present case, stands as follows: (1) In the first place, comment in order to be justifiable as fair comment must appear as comment, and must not be so mixed up with the facts that the reader cannot distinguish between what is report and what is comment . , . Any matter therefore which does not indicate with a reasonable clearness that it purports to be comment, and not statement of fact, cannot be protected by the plea of fait comment. (2) In the next place, in order to give room for the plea of comment the facts must be truly stated. If the facts upon which the comment purports to be made do not exist, the foundation of the plea fails. This has been so frequently laid down authoritatively that I do not need to dwell further upon it...(3) Finally, comment must not convey imputations of an evil sort except so far as the facts truly stated warrant the imputation.... To allege a criminal intention or a disreputable motive as actuating an individual is to make an allegation of fact which must be supported by adequate evidence.

16. In our opinion these observations are applicable to the case before us. No question of fair comment can arise in respect of both the statements which we have held to be libellous, and they are positively false statements, and, as we have already pointed out, no attempt whatsoever was made to make out that there was any truth in them. In these circumstances the defendant-appellant cannot say that the allegations made come within the definition of fair comments. In fact the allegations are not mere comments but they are positive statements and are given out as such. In these circumstances we reject the plea of fair comment on matters of public interest. Another plea taken in defence was that the libellous statements were privileged because they had been made by way of reply to libellous statements made either by the plaintiff or by a person working on his behalf. In our opinion this plea has no force. The statements made by the plaintiff have been read over to us by learned Counsel for the defendant, and we are satisfied that not one of them was libellous. It is true that in one of the statements Sardar Bahadur Narain Singh is stated to be an old man of 71, but that does not make the statement libellous. There was no occasion for the party of Narain Singh to come out with libellous statements by way of reply. If we had found that on plaintiff's side libellous statements had been made which compelled the defendant's side to make counter-statements, different considerations would have prevailed. As that point itself is not established, no question of privilege can arise.

17. Another plea which has been taken on behalf of the defendant-appellant is that of accord and satisfaction. It was contended that Sardar Bahadur Narain Singh and the defendant were joint tort-feasors and that the plaintiff had accepted an apology from Sardar Bahadur Narain Singh, and, therefore after that apology he had no cause of action to make a claim for damages against another joint tort-feasor. We agree with the contention raised by learned Counsel that where there are joint tort-feasors, a compromise with one of them would debar the plaintiff from seeking remedy against others. But the question, however before us is whether this principle of law can apply to the case before us. On that question we are clearly of opinion that the defendant-appellant has no case. The facts are very simple. We do not know who is the writer of the offending leaflet. The defendant does not say anywhere in his defence that he was a joint tort-feasor along with Sardar Bahadur Narain Singh, and, therefore, the apology tendered by Sardar Bahadur Narain Singh puts an end to the cause of action of the plaintiff. Sardar Bahadur Narain Singh was examined as a witness in the case. He does not say that he had anything to do with the commission of this tort. On the other hand, in the apology which he tendered to the plaintiff and which is printed at pp. 150 and 151, Sardar Bahadur Narain Singh takes particular care to see that he is not making any admission about his being responsible for the publication of the libel. What he says in this apology is this:

Exhibit 'B' are the election petitions which ware published by some of my supporters during the last Council election and I do find that they are susceptible of an interpretation, different from that put on them by me, and as such I must concede that they contain baseless and defamatory statements which have given pain to, and hurt the feelings of, Mr. Mukandi Lal. Although they were published without my knowledge and if I had seen them before publication I would have not allowed them to be issued as such, yet since they have been published by my supporters I must as a gentleman express my unqualified regrets for their publication and hope Mr. Mukandi Lal will excuse those responsible for the publication for the pain and harm caused to him. I particularly regret that Mr. Mukandi Lal's honour and integrity should have been impeached in conducting the Garhwali soldiers' case and he should have been falsely accused of having committed breach of confidence with them. I also regret that Mr. Mukandi Lal was wrongly accused of having got the land revenue increased in Garhwal. I file this expression of regret without prejudice to my defence.

18. This apology was tendered in an election petition which had been filed by the plaintiff. The object of that election petition was to unseat Sardar Bahadur Narain Singh. The plaintiff was satisfied with this expression of regret and he withdrew his petition, but he never gave any undertaking that he would not seek his remedy against the supporters of Sardar Bahadur Narain Singh as suggested by the Sardar in his apology. We see nothing in the proceedings connected with the election petition on the question of commission of a joint tort. It was the duty of the defendant, if he wished to avoid the claim of the plaintiff, to take a specific plea in his defence that he and Sardar Bahadur Narain Singh were joint tort-feasors and, as the plaintiff had accepted an apology from one of them, he was not entitled to maintain an action against the other. No such plea was taken. We have been during the course of argument referred to a statement made by Mr. Mukandi Lal at p. 25. He was cross-examined about the election petition and he made a statement that ha would not sue Sardar Bahadur Narain Singh. We see nothing in this statement from which it can be inferred that he treated Sardar Bahadur Narain Singh to be a joint tort-feasor. No specific plea was taken, and in these circumstances it can be very reasonably argued by the plaintiff that this question should not be gone into, because no plea had been taken and he had no opportunity to meet this defence. In our opinion the plaintiff is justified in giving this reply to the defendant's plea about the point in issue. For the reasons given above we are of opinion that no plea was taken that the defendant and Sardar Bahadur Narain Singh were joint tort-feasors in the case and, therefore, no question of the exemption of the defendant from liability on account of the apology tendered by Sardar Bahadur Narain Singh arises in the case.

19. There remains the question of damages. The learned Judge of the lower Court awarded the plaintiff a sum of Rs. 8,000 on account of damages. We may remark that no special damages were claimed by the plaintiff. The learned Judge of the Court below took into consideration the conduct and position of the parties and the seriousness of the statements made and then came to the conclusion that the plaintiff was entitled to recover a sum of Rs. 8,000. In England the amount of damages in cases of this kind is left to the jury. In this country the Courts have to decide both questions of law as well as fact, and it is for the Judge to decide what sum should be awarded as damages. The presiding Judge has full discretion in the matter. Similarly the Judges sitting in appeal possess the same power. The plaintiff in this case, as we have already remarked, is a practising lawyer. He is a Barrister practising at Lansdowne, and it appears that he is the President of the Bar Association of that place. He has not stated what his monthly income is. He made a statement that he had some zamindari, but the income of that zamindari was not mentioned by him. We have to bear in mind the fact that the plaintiff has been taking an active part in the politics of the Province since a number of years. For about seven years he was a member of the Local Legislative Council and during that period was appointed as Deputy President of the Council. There can be no doubt that the plaintiff holds a respectable position in life in these Provinces.

20. The defendant on the other hand holds an equally, if not more respectable pest. He is also a Barrister-at-law. He practised for several years and from the evidence it appears that now he has retired and he is carrying on a farm; it is proved that the defendant is responsible for the publication of libellous statements against the plaintiff. Those statements are of a very serious kind. As we have already stated, it is a very serious matter to make a charge that a counsel after winning the confidence of his client betrayed that confidence. We further find that certain interrogatories were served in this case on the plaintiff, and as regards some of the questions put we are thoroughly satisfied that they were put with a view to vilify the plaintiff and to annoy him. We have been informed that one of the questions asked was whether the plaintiff had an European wife. That question had nothing to do with this case. Then he was asked whether he was a Kalwar. That point had nothing to do with the case. There are several other insinuations which were made solely with a view to annoy and vilify the plaintiff. After taking into consideration, however, the position in life of both the parties, their conduct and other relevant matters, we are of opinion that the damages awarded by the learned Judge of the Court below were excessive, and in our opinion a sum of Rs. 4,000 would be a fair amount of damages. To this extent) we will allow the appeal.

21. For the reasons given above we allow this appeal in part, modify the decree of the Court below and award the plaintiff a sum of Rs, 4,000 on account of damages. In other respects the appeal stands dismissed. As regards the costs, we order that the plaintiff will get the whole costs awarded to him by the Court below and all his costs in this Court. The appellant will bear his own costs in both the Courts. We desire to express our appreciation of the judgment of the learned Judge of the Court below. He has written a very careful and thorough judgment which in our opinion is simply excellent and it has been of very great help to us.


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