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P.K. Oswal Hosiery Mills Vs. Tilak Chand L. Ghasita Ram Jain - Court Judgment

LegalCrystal Citation
CourtPunjab and Haryana High Court
Decided On
Case NumberFirst Appeal No. 262 of 1958
Reported inAIR1969P& H150
Acts Code of Civil Procedure (CPC), 1908 - Order 30, Rule 1; Partnership Act, 1932 - Sections 4; ; Limitation Act, 1908 - Schedule - Articles 22, 24, 25 and 36
AppellantP.K. Oswal Hosiery Mills
RespondentTilak Chand L. Ghasita Ram Jain
Appellant Advocate H.L. Sarin,; M.S. Jain and; A.L. Bhal, Advs.
Respondent Advocate Y.P. Gandhi and; V.P. Gandhi, Advs.
Cases ReferredAbdulla Mohomed Jabli v. Abdulla Mahomed Zulaikhi
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the.....1. eight persons including tilak chand defendant-respondent (to whom i will hereinafter refer as the defendant) formed a partnership at ludhiana under the style 'p. k. oswal hosiery mills.' some of the parties were minors and were merely admitted to the benefits of the partnership. the defendant retired from the partnership vide deed of dissolution exhibit p. 119, on and with effect from june 24, 1954. according to the said deed of dissolution, he had separated himself from the firm 'after the rendition and settlement of accounts' and thereafter he had been left with no concern with the aforesaid firm. he also stipulated in the deed that the remaining parties and partners of the firm would be entitled to and liable for all the outstandings of the firm would be entitled to carry on the.....

1. Eight persons including Tilak Chand defendant-respondent (to whom I will hereinafter refer as the defendant) formed a partnership at Ludhiana under the style 'P. K. Oswal Hosiery Mills.' Some of the parties were minors and were merely admitted to the benefits of the partnership. The defendant retired from the partnership vide deed of dissolution Exhibit P. 119, on and with effect from June 24, 1954. According to the said deed of dissolution, he had separated himself from the firm 'after the rendition and settlement of accounts' and thereafter he had been left with no concern with the aforesaid firm. He also stipulated in the deed that the remaining parties and partners of the firm would be entitled to and liable for all the outstandings of the firm would be entitled to carry on the hosiery business regarding contracts for supplying the goods to the Government and manufacturing and supplying of other hosiery goods and every sort of business relating to the hosiery in the name of P.K.Oswal Hosiery Mills and the defendant would have no objection thereto, as he had absolutely severed his connections from the firm in which he had become a partner on January 1, 1954. On the same date a sum of Rs. 6,613/13/6 was received by the defendant and he executed for the said amount receipt Exhibit P. 120 stating as follows:-

'I have received in cash Rs. 6,613/13/6 (rupees six thousand six hundred and thirteen and annas -/13/16) of the current coin, double of Rs.3,306/14/9 (rupees three thousand three hundred and six and annas -/14/9) from firm P.K. Oswal Hosiery Mills, Ludhiana and have separately executed a deed of dissolution of partnership. In future I shall have no concern with the aforesaid firm nor is any previous account of mine of any kind outstanding against the firm.'

The remaining members of the firm also got from the defendant letter Exhibit P. 121 of the same date - to the Sales Tax and Taxation Officer, Ludhiana. The defendant wrote letter Exhibit P. 122 to the Manager, Punjab National Bank Ltd., Ludhiana, letter Exhibit P. 123, to the Government Department, in each one of which letters, he had stated that he had left the partnership of P.K. Oswal Hosiery Mills and that (in Exhibit P. 121 )his name may be deleted from the record of the addressee as such partner. To the sales tax authorities he had added that the relevant books and necessary documents were with the remaining partners of the firm. To the Punjab National Bank Ltd. he had added that in future no liabilities whatsoever stood against him relating to the accounts of the firm in connection with the partnership. To the Government he had written that he had no concern or connection of any sort with the outstanding of P.K. Oswal Hosiery Mills and the machinery of every kind because having received his share, the defendant had separated from the firm and had nothing to do with the assets and liabilities thereof.

2. On November 16, 1954, however, the defendant wrote the first alleged incriminating letter Exhibit P. W. 11/1 to the Director -General , Supplies and Disposals, New Delhi. In that letter he stated that it was thorough his zeal and co-operation that that firm had acquired good reputation and manufactured articles of the required standard to the satisfaction of the indentors and the inspectorate, but unfortunately something had happened in such a way that the constitution f the firm had since gone under a drastic change and perhaps the department had not been apprised of the same till then., He then added that he considered it his moral duty to apprise the Government of this changes and 'actual state of affairs.' After referring to the previous history of the constitution of the firm, the defendant continued to state:---

'It may further be notified that there is also some internal monetary trouble regarding the payment of my dues and for the same I am seeking advice of my legal advisor. As a result it is just possible that there may be some complications in regard to the payment drawn by the firm since June, 1954.

From this date I have got no connections with the activities of the said firm and it is very likely that with this change, the quality of the goods produced by this firm under the management f its new constitution , may differ from what it had already been produced hitherto before and as towhether they shall be able to maintain the good reputation which I have earned from your Department through my zeal, hard labour and co-operation of the officers of your Directorate.

I do not know whether this change of Constitution may call for any fresh action for reviving the present registration of the firm but should any such action we consider necessary your department may kindly to the needful at an early date in the matter and if necessary due precautions may be taken with regard to the payment of the firm's bills and also in regard of warding off new contracts till my case is decided'.

Copies of the said letter were endorsed by the defendant to various branches of the Directorate General of Supplies and disposals and to registrar of firms Jullundur as well as to Deputy Accountant General, Industry and Supply, New Delhi. On the receipt of the above mentioned communication, letter exhibit P. W. 1/1, dated November 25th, 1954, was written by the Assistant Accounts Officer of the Office of Deputy Accountant General (Industry and Supply), New Delhi, Demi- Officially to Shri. B. Sen Gupta, Deputy Director of Supply, office of the Director General and Supplies, New Delhi, wherein it was stated that the defendant's letter showed that there was some quarrel among the partners of the firm, and the defendant had pointed out that as a result of dispute their might be some complications in regard to the payments drawn by the firm since June, 1954. The Assistant Accounts Officer then proceeded to seek the advice of Mr. Gupta in the following words:-

'In view of this I request you to please let me know in consultation with your legal advisor whether we should continue to make payments to the firm so long as the bills are received and presented in the name of the firm or we should stop payment of all bills.

I shall be grateful if you could kindly take immediately action and advice this office accordingly, I am withholding payment of firm's bills till I hear from you.'

3. On December 30, 1954, the office of the Deputy Accountant-General, Industry and Supply, New Delhi, wrote to Messrs. P. K. Oswal Hosiery Mills on the subject of payment of bills that as many as 18 bills of the firm of which amounts were mentioned in the margin of the letter had been forwarded to the Directorate-General of Supplies and Disposals, New Delhi, with letter, dated December 22, 1954, and that two subsequent bills had been kept pending in the office of the Deputy Accountant-General. The letter then proceeded to state:-

'The bills cannot be paid until the payment issue raised by one of the partners Shri Tilak Chand in his letter No. nil, dated 16th November, 1954, is settled by the Director-General (Supplies and Disposals), New Delhi, and necessary instructions are received from Director-General Supplies and Disposals to make the payment of the bills.'

The matter remained pending for some time. The Director-General, Supplies and Disposals, then wrote letter, dated January 18, 1955, Exhibit P. W. 11/2 to the defendant asking him to confirm in connection with his previous letter, dated December 1, 1954, whether he had no objection to the payments being made to the plaintiff - firm of bills in connection with the execution of the acceptance of tenders placed on that firm. The letter continued to add that in the absence of an intimation from him within a week from the date of the receipt o;f the letter, payment shall be made to the plaintiff-firm on the footing that the defendant had no interest whatsoever in the amount which was due from the Government to the firm. In reply to the abovementioned letter, the defendant sent telegram Exhibit P. W. 11/4, dated January 27, 1955, in the following words:-

'Acknowledge your letter SX -1/21643-D/III/2310, dated the 18th regarding Bills payment firm P.K. Oswal Hosiery, Ludhiana, Stop Matter seriously under consideration. Please don't make payments up to 31st instant. Letter follows.' This was followed by defendant's letter, Exhibit P.W.11/5, dated February 2, 1955, to the Director-General, Supplies and Disposals then asked the plaintiff-firm to execute a bond to indemnify the Government in case of any other claim from the defendant. In that connection, the Government in case of any other claim from the defendant. In that connection, the Government sent to the plaintiff -firm letter Exhibit P. W. 11/3, dated February 26, 1955, forwarding with it a specimen copy of the indemnify bond which was required to be properly filled in and executed by the plaintiff-firm on a stamped paper of the requisite value. It was on executing the said bond that the payments were subsequently released to the plaintiff-firm.

4. On March 1, 1955, the Deputy Accountant-General (Industry and Supply) wrote to the plaintiff-firm letter Exhibit P. 2 returning their bill, dated February 5, 1954, with the remarks that the same could not be obtained 'until the payment issue raised by one of the partners Shri Tilak Chand in his letter, dated November 16, 1954, is settled by the Director-General Supplies and Disposals, New Delhi, and necessary instructions are received from the Director-General, Supplies and Disposals, to make payment of the bills.'

5. It was in the above background that on December 1, 1956, the plaintiff-firm acting through its partner Yuvraj Kumar instituted the suit from which the present appeal has arisen for recovery of Rs. 10,800, as detailed below on account of 'damage and loss to person and loss to property, and loss to trade present and future on account of slander of title of property on the basis of a written complaint made by the defendant, in respect of which he was, in no case, entitled to do so and also other false statements of the defendant, whose aim and purpose was to slander the rights and property of the plaintiffs and which were published intentionally and mischievously by the defendant as a result of which the plaintiffs suffered special loss':-

1. On account of damages on account of interest at the rate of six per cent per annum on the sum of Rs. 1,25,131/-, the payment of which was detained and withheld by the Director-General Supplies and Disposals for different periods as a result of the unjust act of the defendant; .... ........... ............ .......... Rs. 5,800/-2. On account of damages for mental worry; .... ............ .......... Rs. 1,500/-

3. On account of damages for embarassment in the discharge of the liability of the plaintiff - firm in the market, and damages and loss in their credit and position and loss of their reputation as regards the business in the market and in the eyes of their servants;

Rs. 3,500/-.................Rs. 10,800/-.................

A list of the bills submitted by the plaintiff-firm of which the payment had been delayed on account of the defendant's letter is contained in the schedule attached to the plaint. After written statement in reply to the plaint and a replication in reply to the plaint and a replication in reply thereto by the plaintiff had been filed, and the documents filed by the parties had been admitted or denied by the other side, the Court found vide its order, dated April 26, 1957, that the petition of plaint did not disclose any date of accrual of the cause of action, and therefore, directed the plaintiff to amend the petition of plaint. Thereupon the amended plaint, dated May 3, 1957, was filed by the plaintiff -firm.

5a. In ordr to appreciate the arguments addressed to us in this appeal, it appears to be necessary to quote verbatim paragraphs 4, 5, 8 and 9 of the amended plaint:-

'4. In spite of the receipt regarding the full and final settlement, and his letters, dated the 24th June, 1954, the aforesaid defendant, in order to cause loss to the plaintiff-firm in their trade and business, to injure the feelings and reputation of other member-proprietors of the firm and to cause them financial loss, without any rhyme and reason and without any just plea and with the intention of slandering their title of the property, sent a quite false and against facts, a written complaint through letter dated the 16th November, 1954, to the Deputy Accountant-General, Industries and Supplies, New Delhi and also forwarded copies therreof to other officers of the Department of Supplies. Later on, for want of self-control, and with mala fide intention, he also wrote another letter dated the 26th November, 1954, to the Income-tax Officer, `B' Ward, Ludhiana, in which he made insulting objections and statements in order to cause loss to the financial position and reputation of the plaintiff-firm . In this way, the defendant, in order to cause loss to the plaintiff-firm, made up his mind to continue his such acts, attitude (sic).

5. Some time after his letter dated the 16th November, 1954, the defendant made a request to the Director-General Supplies and Disposals to withdraw he aforesaid letter. Upon this the aforesaid Department started enquiries for verfication of the matter and their satisfaction. It seems that the defendant, during the course of enquiries intentionally hesitated to satisfy the department in the matter of the withdrawal of the aforesaid letter and acted with mala fide intention. For this reason, in spite of the serious efforts on the part of the plaintiff-firm, their bills were withheld in the concerned departments and their payment was detained. The entire responsibility in that behalf falls upon the defendant, according to law.

8. Apart from the loss mentioned above, the plaintiff-firm suffered loss in their trade and business on account of the illegal acts of defendant and the aforesaid firm as well as the proprietors of the firm, faced great embarrassment in the matter of the discharge of their liabilities in the market and they suffered an adverse effect as regards the credit, position and reputation in their sphere of business and in the eyes of their servants, which is estimated by the firm at Rs. 3,500/-. The action of the defendant is tantamount to making such a writing for which there was no just and sound for reason and the defendant mischieviously mentioned absolutely false facts in his letter in order to slander the plaintiff's rights in the property, as a result of which the plaintiff-firm and the proprietors of the firm suffered special damages. The contents of the aforesaid letter, in the eye of law, come under the definition of slander of title to property.

9. Besides this, on account of the contents of the defendant's letter, the proprietors of the plaintiff-firm suffered great mental worry. In this regard also, the plaintiff-firm is entitled to get the damages, which are fixed at Rs. 1,500/- . Since in the eye of law, the mental worry caused by the injuring of the feelings and reputation, is tantamount to personal injury, therefore, the plaintiff-firm is, in every way, entitled to get the amount of Rs. 10,800/- in all by way of damages, from the defendant, according to law and justice.' In the corresponding paragraphs of the written statement filed by the defendant in reply to the amended plaint, it was stated as follows:-

'4. With regard to paragraph No. 4 of the plaint, it jis submitted that on 24th June, 1954, full settlement of the accounts was not arrived at and a full amount due to him was not paid.

The amount of Rs. 3,200/- was agreed to be paid later on realisation and the question of good will was agreed to be dealt with later. It is admitted that the defendant wrote a letter on 16th November, 1954, to the Directorate-General of Supply and Disposal, New Delhi, and despatched its copies to the connected Supply Department Office. It is also correct that on the same date the defendant addressed a letter to the Incoem-tax Officer 'B' Ward, Ludhiana. It is, however, incorrect that the defendant addressed a letter to the Income-tax Officer, 'B' Ward, Ludhiana. It is however, incorrect that the defendant addressed those letters to injure the feelings and reputation of the other proprietors of the firm or to cause any material loss to them. The contents of the above letters do not justify any such allegations. The letters were written by the defendant to protect his own interest and not to cause any injury or loss to the plaintiff. On account of the unwarranted acts of the plaintiff, rights of the defendant were affected regarding the assessment of income-tax. The Director-General Supply and Disposal was also to be addressed communications to protect the interests of the defendant. Hence the defendant wrote the letter to protect his right and interest. These letters were not intended to cause any loss or damage to the plaintiff nor in fact these letters and communications could do any loss and damage to the plaintiff. The plaintiff in his own plaint has not stated what were the contents of those letters and which part of the contents is calculated to injure the reputation or any injury to the feelings and to the property of the plaintiff. No false defamatory and slanderous allegations were made by the defendant against the plaintiff. The plaintiff's financial position was not adversely affected by these communications. The rest of the contents of this paragraph are denied.

5. Paragraph No. 5 of the plaint as put is wrong and is not admitted. The defendant never backed out to satisfy the Director-General Supply and Disposal about the contents of his communications to the department nor did he act mala fide. No payment of the bills of the plaintiff was detained by any act on the part of the defendant nor was it in the power of the defendant to detain any such payment. The payment was detained on account of the acts of the plaintiff which will be dealt at length later on. The defendant, therefore, is not responsible for the payment being detained or delayed. As soon as the intervention of the respectable persons brought about a settlement between the parties the defendant informed the department accordingly. The delay in the payment of the bill was not due to any acts on the part of the defendant but this delay was committed by the department. The plaintiff did not suffer any injury or loss on account in any acts on the part of the defendant.

8. Paragraph No. 8 of the plaint is incorrect. It is denied that the plaintiff suffered any loss or damage in his business on account of any act of the defendant. It is further not admitted that the plaintiff's firm suffered any embarrassment in the discharge of their liabilities in the market. It is further denied that on account of any act of the defendant the plaintiff suffered any degradation in the eyes of their servants and persons connected with them nor was their credit, position, reputation was adversely affected by any act of the defendant entitling them to a recovery of Rs. 3,500/- as damages from the defendant. The aforesaid amount is exaggeratedly excessive. The defendant had proper and sufficient grounds for writing letters referred to in paragraph No. 4 of the plaint. These contents were never false. Their contents never affected any right in property and business of the plaintiff, nor were they calculated to defame the plaintiff. No mischievous matter was contained in those letters. The contents of the letters caused no injury and damage to the plaintiff or its proprietors and do not in the eye of law amounts to slanderous title and libel.

9. Paragraph No. 9 of the plaint is denied. The aforesaid letters did not expose the plaintiff is not entitled to claim any damages on that score.

Damages amounting to Rs. 1,500/- claimed on that score are exaggerated. The feeling and the reputation of the plaintiff never suffered any injury on account of those letters. No act of the defendant amounts to personal injury. The plaintiff is not entitled to recover any damages from the defendant.'

After a further replication had been filed by the plaintiff, the trial Court frame the following issues:-

'1. Whether the plaintiff-firm has been registered under the Partnership Act?

2. Whether Shri Yuvaraj Kumar is a partner of the plaintiff -firm?

3. Whether the suit claim or any part thereof is within limitation?

4. Whether the payment of Rs. 1,25,131/- to the plaintiff was withheld by the Industries and Supplies Department, Delhi, by reasons of any act or conduct of the defendant?

5. If issue No. 4 found in the affirmative, to what amount of damages, if any, is the plaintiff entitled on this account from the defendant?

6. Whether the defendant has been guilty of slander of title to the property of the plaintiff? If so, to what entitled from the defendant on this account?

7. Is the plaintiff entitled to any special damages on account of mental worry caused to him by any act or conduct of the defendant? If so, to what amount of damages is he entitled?

8. Whether the defendant is entitled to any special costs under Section 35A of the Civil Procedure Code?

6. By his judgment under appeal, Shri A. N. Bhanot, Senior Subordinate Judge, Ludhiana, held that issues Nos. 1and 2 had been conceded, that the suit was barred by time, the limitation for filing the same being one year under Articles 22, 24, and 25 of Schedule I to the Limitation Act, 1908, that the amount of any act or conduct of th dfendant, that issue N. 5 did not arise andissues Nos. 6 and 7 were not proved. He decided issue No. 8 against the defendant and, as a result, dismissed theusit of the plaintiff - firm failed were issues Nos. 3,4 and 6, and the arguments of the learned Counsel for the parties before us have been confined to the findings of the trail Court on those three issues.

7. The evidence on the record of this case shows that at the time of the dissolution of the partnership and retirement of the defendant from the firm on June 24, 1954, at least three disputes remained outstanding viz. (I) the question of income-tax, (ii) the question of goodwill, and (iii) the question of realisation of outstandings. Shri Gian Dass Jain D. W. 3 (who was Senior Subordinate Judge, Gurdaspur at the time of deposing in this case as a witness for the defendant) stated that he went to Ludhiana in the month of December, 1954, and that on that occasion he was called upon to intervene to get the disputes between the plaintiff-firm and the defendant settled. According to his deposition the dispute mostly centred round the income-tax assessable on the plaintiff-firm, and that Tilak Chand defendant wanted to safeguard himself against any imposition of tax on him with regard to the firm. Babu Ram, whose son was a partner in the plaintiff-firm and at whose house the witness was staying, gave an undertaking in writing to the defendant that he would not be liable to pay any tax with regard to the plaintiff-firm. The writing Exhibit D. W. 3/1 was left with the witness and he produced the same in Court during the course of his deposition. At the same another writing is stated to have been obtained from Tilak Chand defendant wherein he agreed to abide by the instructions of the plaintiff-firm with respect to the income-tax matters. Mr. Gian Dass Jain added that in the month of January, 1955, the parties again assembled at his flat in Delhi when Lachhman Dass member of the plaintiff-firm complained that the defendant had again created some trouble for them. The complaint of the defendant was that he had not been given anything in respect of goodwill and some other dues. The defendant was claiming about Rs. 10,000/- for that. The matter was discussed at great length and the plaintiff-firm offered to pay Rs. 3,000/- to the defendant 'without prejudice' if the defendant would co-operate with them in all matters. The defendant did not, however, agree.

This and other evidence on the record shows that no full and final settlement of all possible disputes between the parties had in fact been made on June 24, 1954. Detailed reference to the contents of the alleged offending letter Exhibit P. W. 11/1 has already made. It cannot in my opinion be said that the contents of the said letter were in any manner defamatory or libelous. The defendant merely wanted to safeguard his own interest and bragged that the good quality of the goods previously manufactured by the firm was due to his effort and the defendant gave expression to an apprehension that without him the firm may not be able to manufacture the same quality of goods in future. If he gave gratuitous advice to the Government to make sure that it did not get into difficulty regarding the payment of the previous dues of the firm, he was not in my opinion, thereby committing any tort. According to the official evidence on the record, the firm was expected to inform the department of every change in its constitution and to submit income-tax clearance certificate along with a list of partners. This the firm did only after November 5, 1955, because that is the date of the income-tax clearance certificate. The trial Court was, therefore, correct in holding that the payment was not stopped by the department merely on account of the letter of the defendant, but mainly on account of the omission of the plaintiff itself. In any case, the defendant did not direct stopping of the payment to the plaintiff-firm nor had the defendant any right or authority to do so. If the stoppage of payment by the Government was not justified, the plaintiff-firm could possibly try to obtain relief against the Government, but the claim against the defendant was in any event misconceived. The evidence on the record of this case does not at all prove either the slander of title or slander of any goods of the appellant-firm, In view of our finding to the above effect on issue No. 6, it is unnecessary to go further into the matters covered by issue No. 4.

8. Law relating to the capacity of corporations to sue in tort is summed up in 'Winfield on Tort' (Seventh Edition at page 80) in the following words:-

'A corporation can sue for torts committed against it, but there are certain torts which it is impossible to commit against a corporation. Such are assault and personal defamation. Thus, a corporation cannot sue for libel a person who charges it with bribery and corruption although the individual members of it might be able to do so, but if a libel or slander affects the management or its trade or business, then the corporation itself can sue; as where the workmen's cottages of a colliery company were falsely described in a newspaper as highly insanitary.'

In 'Salmond on the Law of Torts' (fourteenth edition), the same subject is dealt with at pages 614-615 in these terms:-

'In general a corporation may sue for and tort (e. g., malicious presentation of a winding up petition) in the same way as an individual. The only qualifications are (I) the tort must not be of a kind which it is impossible to commit against a corporation e.g., assault or false imprisonment; (ii) in case of defamation, it must be shown that the defamatory matter is of such nature that its tendency is to cause actual damage to the corporation in respect of its property or business. Thus an action of libel will lie at the suit of a trading corporation charged with insolvency or with dishonest or incompetent management. But where there is no actual damage, nor any tendency to produce such damage, no action will lie at the suit of the corporation; the only persons who have any cause of action are the individual members or agents of the corporation who have been defamed,. So it has been held that a municipal corporation cannot sue for libel charging it with corruption and bribery in the administration of municipal affairs.'

9. We would have had to judge the capacity of the appellant to sue by applying the tests laid down in the above-quoted texts of authority if the appellants were a corporation in law. Unfortunately, for the appellants, however, it is not even a legal person. It is partnership firm. It is well known that a firm is merely a compendious artificial name adopted by its partners and is not itself a legal entity. Libel or slander of a partnership firm may indeed amount to a defamation of its partners. But then it is the partners who may in such an eventuality sue and not the firm. The remedy of an association like a partnership concern really lies at the hands of its individual members who can personally sue if they have been defamed. It is not necessary for all the partners of a firm to join in such an action. Any one of or more of the partners who feel aggrieved may sue and the othrs may be joined as proforma defendants. Salmond writes in this connection at page 641 (Article 187) of his book (ibid) as under:-

'Where two or more persons possess a right of action in respect of one and the same injury-as, for example, a trespass or other wrong to the property of co-owners, or a libel on a firm of partners in the way of their business - is it necessary that those persons should all join in one and the same action, or can one of them sue without the others? The old rule of the common law on this point was that (with considered) all persons so suffering a joint injury must join in one action. But now the non-joinder of persons one or some of them. The only effect of such a non-joinder is that the Court may, in its discretion order the other persons so jointly injured to be joined as or (if they will not consent) as defendants. Where two or more persons have suffered a joint, but not a several injury, a release granted by one of them will, in the absence of fraud, destroy the whole cause of action, and operate as a bar to an action by any of the others.'

For the foregoing reasons we are inclined to think that the trial Court was perfectly correct in holding that the plaintiff-firm cannot maintain a suit for libel or slander. Moreover, the plaintiff has in this case failed to prove that the statements contained in the defendant's letter, dated November 16, 1954, were made falsely or maliciously. Nor is there any evidence to show that the business of the plaintiff-firm suffered in any manner on account of the alleged defamatory letters. After perusing the evidence on the record of this case, we are satisfied that the finding of the trial Court to the effect that the said evidence is not sufficient to prove either the causing of any such mental worry which may be actionable or losing of reputation or slander of property of the plaintiff-firm. We have, therefore, no reasons to differ from the finding of fact recorded by the trial Court on issues Nos. 4, 6 and 7.

9a. In this view of the matter the question of limitation for filing the suit from which the present appeal has arisen really becomes academic. In fairness to the learned counsel for the parties who argued the said issue at length, we may, however, notice their arguments in this behalf. It is the common case of the parties that the question of limitation has to be decided in this case according to the provisions of the Indian Limitation Act, 1908 (hereinafter called the Limitation Act). The finding of the trial Court is that the instant suit is covered by Articles 22, 24 and 25 of the first Schedule to the Limitation Act. The said Articles are in the following terms:-

'Description of suit Period of Time from which period begins to runlimitation 22. For compensation for any One year When the injury is committed.other injury to the person24. For compensation for libel. One year When the libel is published.25. For compensation for One year When the words are spoken, or if the words slander are not actionable in themselves, when thespecial damage complained of results.'

10. On the other hand, the plaintiff has contended that neither Article 22, nor 24 nor 25 is applicable to this case, and that the suit is, therefore, governed by the residuary Article 36 relating to torts, which is quoted below:-

'36. For compensation for any Two years When the malfeasance, misfeasance or non-malfeasance, misfeasance feasance takes place.'or non-feasance independentof contract and not herein specially provided for.

11. In the alternative the plaintiff claims that Articles 22 and 25 not being applicable, if it is found that even Article 36 does not apply to this case, the limitation for filing that the suit from which this appeal would be six years under Article 120. Article 120 is in the following terms:-

'120. Suit for which no period of Six years When the right to sue accrues.' limitation is provided else-where in this Schedule.

12. Mr. Harbans Lal Sarin, the learned Senior Counsel for the appellant - firm first referred to the judgment of a Division Bench of the Calcutta High Court in Imperial Tobacco Co. v. Albert Bonnan, AIR 1928 Cal 1. The appeal before the Division Bench had arisen out of the judgment of a learned Single Judge of the Calcutta High Court in a suit filed by Albert Bonnan against the Imperial Tobacco Co. for recovery of about seven and half lacs of rupees as damages for various acts done by the defendant-company, the main act being an allegation made to the customs authorities about the goods of the defendant being counter-felt on account of which allegation the goods of the defendant were detained by the customs authorities for some time. The action was based on an allegation of slander of goods. As to the question of limitation it had been held by the learned Single Judge (Pearson, J.), in Albert Bonnan v. Imperial Tobacco Co.(India), Ltd., AIR 1926 Cal 757, that the goods in question having been detained by the Collector of Customs on representation made by the defendant maliciously and without reasonably probable cause, the limitation for filing a suit for damages for such detention against the defendant was governed by Article 36. The learned Judge observed that Article 36 is the general article which provides a period of two years' limitation for suit to recover damages in tort unless any specific Article provides otherwise. It was held that in so far as the cause of action may be slander of title or slander of goods, the limitation would be either one year under Article 25 or two years under Article 36, the latter being applicable in the circumstances of the case before the learned Single Judge. The plaintiff had in the case invoked Article 48, but the contention of the plaintiff in that respect was repelled on the ground that the defendant-company never had possession or control over the goods and the Collector of Customs could not be looked upon as the agent of the defendant-company. When the matter was taken up in appeal to the Division Bench by Imperial Tobacco Co., (the defendants) it was held by Rankin, C.J. and C.C.Ghose, J., that a suit for damages against the defendant at whose instance the plaintiff's goods were detained by the Customs Authorities, is governed by Article 36 and not by Article 49. It is noteworthy that the contest in that case was between Art. 48 or Article 49 on the one hand and Art. 36 on the other. It was only in certain observations of the learned Single Judge that Article 25 was mentioned. Otherwise no one ever claimed that the suit against Imperial Tobacco Co. was governed by Article 25.

13. There is in fact no quarrel with the proposition of law that if a suit for damages in tort cannot be brought under any other specific Article in the first Schedule to the Limitation Act, it would be governed by Article 36 as held in the case of Imperial Tobacco Co., AIR 1928 Cal 1 (supra), and also in Essoo Bhavaji v. The Steam-ship 'Savitri', (1887) ILR 11 Bom 133. In the Bombay case it was held that the intention of the Limitation Act appeared to be that not more than two years should be allowed for bringing the suit founded on a tort, except in certain well-defined particular instances covered by the earlier Articles relating to actions of tort.

A Division Bench of the Nagpur High Court (Stone, C.J. and Vivian Bose, J.), held in Hargovind Dullabh Jiwan v. Kikabhai Rahimatullah, AIR 1938 Nag 34, that where a person dissuades other persons from taking a certain building on rent by making false statements as to habitability and safety of the building, the person so representing is liable in tort, the tort being analogous to slander of title and falling within the broader description of injurious falsehood. It was held that the action in such a case is one for misfeasance independent of contract and Article 36 applies to such action.

The judgment of a Division Bench of the Allahabad High Court (Sulaiman, C.J. and Bennet, J.), in Sobha Ram v. Tika Ram, AIR 1936 All 454, is not directly relevant for deciding the case before us. The contest in that case was between the residuary Article 120 on the one hand and Article 22 of the first Schedule to the Limitation Act on the other. It was held that where a person entices away the wife of another, a suit for damages against him by the husband is governed by Article 120 as such a suit does not fall within the scope of any other Article in the first Schedule. Their Lordships observed that such a suit is not governed by Article 24 as the suit is not for a libel, but for loss of society of the wife, and he infringement of that absolute right by the other. It is on the basis of the above-mentioned authorities that the appellant-firm sought to argue that the suit from which the present appeal has arisen was within time. It was submitted by Mr. Sarin that Article 22 was not applicable because no part of the claim was founded on any injury to the person of the plaintiff. So far as Articles 24 and 25 are concerned, the argument of the learned Counsel for the appellant was that the libel and the slander referred to therein is the libel of a legal or living person or slander of such a person and that the said expressions did not relate to slander of goods or slander of title. It was also argued that in the Scheme of Part IV of the first Division of the First Schedule to the Limitatiion Act, it is apparent that suits referred to in Article 19 (for compensation for false imprisonment), Article 21 (by executors or representatives under the Indian Fatal Accidents Act), Articles 22 to 25 relate to torts against the person and that torts against the property are referred to in Articles 29 to 36. Article 29 relates to suit against a carrier for compensation for losing or injuring goods, Article 31 to suits against a carrier for compensation for non-delivery etc., and Article 32 against a defendant who perverts property given to him for certain use.

14. It is the common case of both sides that if Articles 22, 24 and 25 or any of them is applicable to the present suit, it must fail as being barred by time, but that if the suit is governed by Article 36, no part of the claim made therein is beyond time. The whole argument of the parties on the question of limitation appears to be based on some kind of mis-apprehension. The plaintiff-firm has tried to make out a case on the issue relating to limitation as if the claim is based on slander of title or slander of goods. Slander of title is committed when one falsely and maliciously writes or speaks defamatory words affecting the title of another to real or personal property. 'Slander of title' is a false malicious statement in writing, printing, or by word of mouth injurious to any person's title to property and causing special damage to such persons. (Stroud's Judicial Dictionary, Volume 4, Page 2798). 'Slander of goods' is a form of slander of title, and the action in such a case is for making defamatory statements about a man's goods, which are actionable if they are untrue and cause him special damage and are made maliciously. 'Slander of title' is a false and malicious statement about a person's property or business and does not relate necessarily to his personal reputation, but to his title to property or his business or generally to his material interest. In Winfield on Tort (seventh edition), it is stated at page 693 as follows:-

'By far the happiest term for it is Salmond's injurious falsehood, for 'slander of title' might suggest a connection with 'slander with which in fact it has scarcely anything in common: and if we adhere to the older phrase it is only because Salmond included under 'injurious falsehood' the other torts of 'passing-off' and 'injuries to trade marks' to which the term perhaps does not apply quite so exactly.

As for classification, slander of title is more closely allied to unlawful competition than to any other heading. Most of the modern cases on it are concerned with rival traders and nearly all the cases, old and new, are instances of interference with business, if not unlawful competition.'

Torts arising out of fraud, deceit and injurious falsehood including cases of slander of title or slander of goods have never been treated as torts of trespass or injury to the person. Though Pearson, J., did distinguish between 'slander of goods' and 'slander of title' for applying Article 36 on the one hand and Article 25 on the other to suits covered by those causes of action, there appears to be no distinction between the two in so far as the use of the word 'slander' in Article 25 is concerned. On a consideration of all the authorities cited before us on the subject, we are prima facie of the view that a suit for damages on account of slander of goods or slander of title would be governed by the residuary Article 36 and not by Article 24 or 25 which are intended to relate to libel or slander of person which would both fall under the genus-'defamation'. In fairness to learned Counsel for the respondent, it may be stated that he relied on the judgment of the Lahore High Court in Harnam Singh v. Doola Singh, AIR 1937 Lah 709, of the Allahabad High Court in Ishri alias Hatim Ali v. Muhammad Hadi, (1902) ILR 24 Al;l 368, and of the Bombay High Court in Abdulla Mohomed Jabli v. Abdulla Mahomed Zulaikhi, AIR 1924 Bom 290. Counsel for the plaintiff-appellant also relied on Section 23 of the Limitation Act and claimed that he had suffered a continuing wrong for which the limitation had not expired when the suit was filed. We find no force in this contention of the plaintiff. In any case, as already stated, we are not called upon to finally decide this matter in the view we have taken of the case of the plaintiff-appellant on merits.

15. At the same time it is clear from the plaint of the suit that though words 'slander of title' have been used therein several times, the real claim of the plaintiff is for damages for defamation. There were no ready goods in this case, the title to which or quality of which was made the subject of any slander by the defendant. From the evidence produced by the plaintiff-firm, it is clear that its grievance was that it had been defamed and humiliated by the defendant by writing the impugned letter. That indeed was the finding of the trial Court also inasmuch as the suit is maintainable by a for slander of goods or slander of title, but no suit is maintainable by a firm which is not a legal person for defamation either by word written or spoken. In this view of the matter, the suit from which the present appeal has arisen would indeed be maintainable only within the time allowed by Articles 24 and 25. In so far as the claim of mental worry is concerned, that may be a claim based on an injury to person and would be governed by Article 22. The finding of the trial Court on the issue relating to limitation does not, therefore, seem to be incorrect on the facts of this case and the suit of the plaintiff does appear to have been time barred.

16. For the foregoing reasons this appeal fails and is accordingly dismissed. We, however, direct that the parties in this case will bear their own costs throughout.

17. Appeal dismissed.

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