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Kapoor Chand Rikhi Ram Mahajan Vs. Hakim Jagdish Chand Siripat Rai and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 1488 of 1963
Judge
Reported inAIR1974P& H215
ActsPepsu Ayurvedic and Unani Practitioners Act; Indian Limitation Act, 1908 - Articles 23, 24, 25 and 36
AppellantKapoor Chand Rikhi Ram Mahajan
RespondentHakim Jagdish Chand Siripat Rai and anr.
Excerpt:
.....the act). since the application made on 2nd december, 1958, was addressed by the appellant and abhai kumar to the board which was the competent authority to take action, it is doubtful that the same could be regarded as libel, may it even contained defamatory matter. it means prosecution which may not be of criminal nature but is such as would cause any slur or odium upon the good name of the plaintiff and an action for damages lies if the other essentials of 'malicious prosecution' are made out. therefore, the suit respecting recovery of compensation or damages for defending the aforesaid proceedings, having been instituted within two years from december 3, 1959, and even from december 2, 1958, was clearly within time. the test appears to be as to whether there was reasonable or..........under which jagdish chand, now the respondent, sued kapoor chand now the appellant, and abhai kumar, now the second respondent, for damages amounting to rs. 1,500/- caused to him because of libel and slander and also for malicious prosecution which had been instituted against him by them, are briefly as under.2. the parties are residents of sunam. jagdish chand was practising there as hakim duly registered as medical practitioner under the pepsu ayurvedic and unani practitioners act, 2008 bk. he claimed to have taken examination conducted by the bhupindera tibbia college, patiala, in 1943 ad and passed the same and obtained diplomas of 'haziq-ul-hukama' and 'mahiro-tibbo-jarahat'. out of malice, the appellant and abhai kumar began to make false propaganda against him amongst.....
Judgment:

1. The circumstances, under which Jagdish Chand, now the respondent, sued Kapoor Chand now the appellant, and Abhai Kumar, now the second respondent, for damages amounting to Rs. 1,500/- caused to him because of libel and slander and also for malicious prosecution which had been instituted against him by them, are briefly as under.

2. The parties are residents of Sunam. Jagdish Chand was practising there as Hakim duly registered as medical practitioner under the Pepsu Ayurvedic and Unani Practitioners Act, 2008 BK. He claimed to have taken examination conducted by the Bhupindera Tibbia College, Patiala, in 1943 AD and passed the same and obtained diplomas of 'Haziq-Ul-Hukama' and 'Mahiro-Tibbo-Jarahat'. Out of malice, the appellant and Abhai Kumar began to make false propaganda against him amongst the public of Sunam and other villages located in its vicinity that he (plaintiff-respondent) was a quack Hakim and was illiterate and had obtained fictitious certificates of Hikmat by underhand means with a view to undermine his prestige and reputation and to injure him in his profession. On 2nd December, 1958(AD), they made an application containing similar allegations against him to the Board of Ayurvedic and Unani System of Medicines, Punjab, Patiala, (hereinafter called the Board). Jagdish Chand defended the proceedings arising out of the said application. The Registrar of the Board, however, decided the said proceedings against him and directed cancellation of the registration certificate held by him and also removal of his name from the relevant register, w.e.f. 22nd June, 1959. Therefore, on 30th June, 1959, the appellant and Abhai Kumar published and distributed pamphlets containing imputation that the license held by Jagdish Chand to sell and prescribe Ayurvedic and Allopathic medicines was cancelled by the Board and he was no longer entitled to practise as Hakim. They had also spoken on the similar lines to the public against Jagdish Chand and all this had adversely affected his profession as well as his reputation. Jagdish Chand had to file an appeal to the Board against the order of the Registrar cancelling his license and he succeeded therein on 3rd December, 1959, when the Board reversed the order passed by the Registrar and held that Jagdish Chand was admittedly a qualified Hakim and authorised him to practise as such. With these allegations, Jagdish Chand brought the suit and claimed Rs. 500/- as damages for loss in his practice as Hakim and a similar amount, I, e; Rs. 500/- as damages for mental strain and worry, on account of libel and slander which had been committed by the appellant and Abhai Kumar and also Rs. 500/- which he had to spend in defending himself in the case which had arisen out of the application made by Kapoor Chand and Abhai Kumar on 2nd December, 1958, to the Board.

3. Kapoor Chand and Abhai Kumar contested the suit. They admitted that they had made the application on 2nd December, 1958, to the Board, stating that Jagdish Chand had been unauthorisingly practising allopathic system of medicines and his name had been removed from the relevant register and that they had published the pamphlets and had distributed the same amongst their friends and relatives and had also spoken to them (friends and relatives) that the license of Jagdish Chand as Hakim had been cancelled. They, however, controverted the other material allegations of Jagdish Chand and pleaded that they had made the aforesaid application to the Board in good faith and not without any justification. The trial Court framed the following issues:-

(1) Does the plaintiff possess qualifications mentioned in paras Nos. 1 and 2?

(2) Is the plaintiff a Registered practitioner, as alleged in para No. 3 of the plaint?

(3) Did the defendants commit libel and slander, as alleged in para No 4 of the plaint?

(4) Had the defendants any justification for the publication of the posters?

(5) Did the defendants make application to the Registrar, Board of Ayurvedic and Unani System of Medicines, in good faith and with justification?

(6) To what amount of damages, if any, is the plaintiff entitled?

(7) Relief.

In addition to the said issues, the following issue respecting limitation was framed subsequently:--

Whether the suit is within limitation?

4. The trial Court held that the suit of the plaintiff respecting libel, alleged to have been committed by the defendants by making an application on 2nd December, 1958 to the Board, was barred by time, while his suit with regard to the libel and slander committed by the defendants by publishing and distributing the pamphlets was within time. The trial Court decided issues Nos. 1 and 3 against the plaintiff and issue No. 2 in his favour, Issues Nos. 4 and 5 were decided in favour of the defendants by the trial Court. No finding was recorded by it on issue No. 6. As a result of these findings, the trial Court dismissed the suit. Dissatisfied with the said result, the plaintiff went in appeal and the learned Additional District Judge, Sangrur, held that the suit was within time. He reversed the findings of the trial Court on issues Nos. 1,3,4 and 5, and decided the same in favour of the plaintiff. Under issue No. 6 he held that the plaintiff was entitled to recover Rs. 311/- as damages and he passed a decree for that amount in his favour and against the defendants. Aggrieved by the said decree, Kapoor Chand defendant has come to this Court in second appeal. I have heard the arguments and examined the record.

5. The learned counsel for the appellant contended that the suit was barred by time and the plaintiff failed to prove that the appellant was guilty of any libel or slander and the lower appellate Court was wrong in allowing Rs. 306/- to the plaintiff for his defending the proceedings before the Board for the reason that he did not claim damages for defending the said proceedings. I have not been able to agree with him. The application, which contained imputations which could amount to defamation against the plaintiff, was made by the defendants against the plaintiff to the Board on 2nd December, 1958. If the said application amounted to libel, it would mean that the same was committed on 2nd December, 1958. Since the suit was instituted on 14th June, 1960, it was clearly barred by time so far as that libel was concerned as the period prescribed for that relief was one year and it began to run from 2nd December, 1958, when the said libel was committed, vide Article 24 of the Indian Limitation Act, 1908, then applicable (hereinafter called the Act). Since the application made on 2nd December, 1958, was addressed by the appellant and Abhai Kumar to the Board which was the competent authority to take action, it is doubtful that the same could be regarded as libel, may it even contained defamatory matter. Further, the plaintiff did not claim and he was not awarded any damages for the said libel contained in that application. Therefore, the circumstance that the plaintiff respondent's claim for the said libel was time barred can be of no consequence.

6. Libel is a written or printed defamation, while slander is a spoken defamation. Pamphlets, one of which is Exhibit P-17, alleged to contain defamatory matter against the plaintiff constituting libel were published by the appellant and Abhai Kumar on 23rd June, 1959. They are alleged to have spoken defamatory matter against the plaintiff-respondent and that constituted slander on that day and thereafter. Therefore, the period of one year prescribed by Article 24 of the Act for the said libel commenced form 23rd June, 1959, when the pamphlet had been published and the period of one year prescribed by Article 25 for the said slander began to run from 23rd June, 1959, and thereafter when the appellant and Abhai Kumar communicated defamatory matter in words to the public. The suit having been instituted on 14th June, 1960, i.e., within one year from 23rd June, 1959, is undoubtedly within time.

7. The plaintiff-respondent also claimed compensation or damages for defending the proceedings which had been instituted by the appellant and Abhai Kumar against him before the Board alleging that the said proceedings were malicious. A suit for compensation or damages on account of malicious prosecution is always maintainable. 'Prosecution' carries a wider sense and does not mean prosecution in a criminal Court only. It means prosecution which may not be of criminal nature but is such as would cause any slur or odium upon the good name of the plaintiff and an action for damages lies if the other essentials of 'malicious prosecution' are made out. Since the proceedings instituted by the appellant and Abhai Kumar against the plaintiff-respondent were not criminal. Article 23 of the Act could not apply and the suit relating to the relief referred to above, was governed by the residuary Article 36 of the Act, according to which the period of limitation was two years and it began to run when the said proceedings ended in favour of the plaintiff-respondent. It was on 3rd December, 1959, that the Board decided the said proceedings in his (the plaintiff-respondent's)favour holding that he was duly registered as Ayurvedic and Unani medical practitioner. Therefore, the suit respecting recovery of compensation or damages for defending the aforesaid proceedings, having been instituted within two years from December 3, 1959, and even from December 2, 1958, was clearly within time. I am supported in this view by Nagappa Chettiar v. M/s. Trojan and Co; Madras, AIR 1948 Mad 446.

8. Lack of reasonable and probable cause is to be understood objectively: It does not connect the subjective attitude of the accuser. The fact that accuser himself thinks that it is reasonable to prosecute does not per se lead to the conclusion that judicially speaking he had reasonable and probable cause for launching or prosecuting the proceedings. The test appears to be as to whether there was reasonable or probable cause for any discreet man to make the charge complained of. Mere circumstances of suspicion cannot be said to be reasonable or probable cause. The belief of the accuser in the charge which he is levelling must be based on grounds which, or some of which, are reasonable and arrived at after due inquiry. It is, therefore, required that he should have taken some step to satisfy himself that there is reasonable or probable cause before he makes the accusation.

9. The prosecution, though at the outset may not be malicious, may nevertheless become malicious in any of stages through which it has to pass if the accuser had acquired knowledge about the truth. The bringing of a charge false to the knowledge of the accuser imports in law malice sufficient to support a civil action. Malice is generally implied upon proof of absence of reasonable and probable cause for instituting the proceedings complained of. To record a finding of malice, it has to be seen as to whether the accuser instituted the prosecution for vindication of justice, e.g., for redress of a public wrong. If he is actuated by this consideration, he cannot be said to have malice. But if his object to prosecute is vindictive, to malign, the person before the public, or if he is guided by purely personal consideration, he should be held to have malice, and in order to come to a finding on that matter the conduct of the accuser has to be considered as a whole. Jagdish Chand, appearing as his own witness, has sworn that he had taken the examination of 'Haziq-Ul-Hukma' and 'Mahiro-Tibbo-Jarahat', held by Bhupindera Tibya College, Patiala, in 1943, and had passed it and that he was awarded degree in 'Haziq-Ul-Hukma' and diploma in 'Mahiro-Tibbo-Jarahat' by the said college. Copy (Exhibit P-3) of the aforesaid degree, and copy (Exhibit P-4) of the said diploma, were tendered by him in evidence on 18th April, 1961. No objection was then taken on behalf of the appellant or Abhai Kumar against the admissibility of Exhibits P-3 and P-4 on any ground, including non-production of the originals. Therefore, mode of proof of Exhibits P-3 and P-4 would be deemed t have been dispensed with by them (the appellant and Abhai Kumar). Copies of the certificates (Exhibits P-5 and P-9) also contain that the plaintiff-respondent was 'Haziq-Ul-Hukma' and 'Mahiro-Tibbo-Jarahat' from Bhupindera Tibya College, Patiala, and that his name had been duly registered as medical practitioner in the relevant register. Bhupindera Tibya College, Patiala, was a recognised institution in the erstwhile Patiala and East Punjab States Union. At Serial No. 451, the name of the plaintiff-respondent was entered as duly registered practitioner in the Punjab Government Gazette published on June 10, 1960, and he was shown to be 'Haziq-Ul-Hukma' and 'Mahiro-Tibbo-Jarahat' from the aforesaid Bhupindera Tibya college, Patiala. Copy (Exhibit P-25) of the order passed by the Board also shows that the plaintiff was duly entered as medical practitioner in the relevant register. From all this evidence, it is clear that the plaintiff-respondent did take and pass the examination of 'Haziq-Ul-Hukma' and 'Mahiro-Tibbo-Jarahat' held by the Bhupindera Tibya College, Patiala, in 1949, and that his name was also duly entered as medical practitioner in the relevant register. The allegation of the appellant and Abhai Kumar that the plaintiff-respondent had purchased the aforesaid degree and diploma from one Asghar Ali, without taking the aforesaid examination, is not substantiated by any satisfactory evidence and was rightly turned down by the lower appellate Court.

10. Exhibit P./A., which embodies the order of the Registrar of the Board, cancelling the registration certificate of the plaintiff-respondent and removal of his name from the relevant register, too, contains that further proceedings in the case had been stopped by the Government. Therefore, the information, which the appellant and Abhai Kumar could obtain from the said order of the Registrar, was in respect of the removal of the plaintiff-respondent's name from the relevant register, and cancellation of the registration certificate held by him. It (the said order) also communicated to them that further proceedings in the case had been held up under orders of the Government. As such, they should be deemed to have knowledge that the matter was still under consideration and under these circumstances, they should not have rushed to the press for publishing the pamphlets (Exhibits P-1 and P-17). They did not state in the said pamphlets that further proceedings in the case had been stopped by the Government. Although the aforesaid order was passed by the Registrar of the Board, the appellant and Abhai Kumar wrongly stated in the said pamphlets that the registration certificate of the plaintiff-respondent had been cancelled by the Board. It is pertinent to note that on 27th Dec; 1957, i.e., a year before making the application to the Board against the efficiency and competency of the plaintiff-respondent, the appellant and Abhai Kumar had made an application to the Chief Minister, Punjab (Exhibit P-8) making imputations against the plaintiff-respondent that he had connived with the Revenue Clerks and Tehsildar for misappropriating the Government funds. On 12th September, 1957, as well, the appellant and Abhai Kumar had made a similar complaint against the plaintiff-respondent. The appellant, while appearing as D.W. 3, admitted that the said application had been made by him and Abhai Kumar. The circumstance, that the appellant and Abhai Kumar had made the said applications to the Chief Minister, that the plaintiff-respondent was associated with the revenue employees in misappropriating the Government funds, goes a long way to show that they had ill-will against the plaintiff-respondent and were out to malign him. The name of the plaintiff-respondent, as indicated above, was duly entered in the relevant register and he held the registration certificate. Therefore, the appellant and Abhai Kumar, had they exercised the care and caution expected of them in inspecting the said register or in obtaining information from the Board respecting the registration of the name of the plaintiff-respondent as medical practitioner and about his qualifications, could have known the same. They did not do so. During the inquiry held by the Registrar, on the application made by the appellant and Abhai Kumar on 2nd December, 1958, they must have come to know about the qualifications of the plaintiff-respondent and also about his name having been duly registered in the relevant register. But still they prosecuted the said proceedings; and after the order passed by the Registrar they had rushed to the press and published the pamphlets referred to above. Therefore, when all these circumstances and the evidence present on record are read as a whole, there can be no escape from the conclusion that the appellant and Abhai Kumar had acted without reasonable or probable cause in making application to the Board on 2nd December, 1958, and also in publishing the pamphlets referred to above. They do not appear to have made the said application, or published the said pamphlets, for the benefit of the public; rather it appears that they had been actuated because of malice and wanted to malign the plaintiff-respondent and to injure his reputation and profession.

11. The plaintiff-respondent claimed compensation on the following three heads:--

(a) Rs. 500/- as damages for loss in his practice as Hakim resulting from the libel committed by the appellant and Abhai Kumar by distribution of the pamphlets;

(b) Rs. 500/- spent by him in defending the case instituted by the appellant and Abhai Kumar before the Board; and

(c) Rs. 500/- as compensation for mental pain and worry due to the false propaganda carried on by the appellant and Abhai Kumar.

The lower appellate Court did not allow any amount as damages on head (c). It allowed nominal damages, amounting to Rs. 5/-, on head (a). Amar Nath (P.W. 1), who is clerk of Shri Kishori Lal Advocated, stated clearly that Shri Kishori Lal had been retained by the plaintiff-respondent in defending the proceedings before the Board and the expenses incurred in retaining him (Shri Kishori Lal Advocate) were Rs. 306/-, i.e. Rs. 250/- as fee of the counsel, Rs. 26/- as Munshiana, Rs. 10/- as writing charges and Rs. 20/- as inspection fee. So these, i.e., Rs. 306/-, were the real or pecuniary damages which the plaintiff-respondent had to suffer on account of the malicious proceedings instituted by the appellant and Abhai Kumar in the Board. Rupees Five which were allowed to the plaintiff-respondent as damages on account of the libel committed by the appellant and Abhai Kumar, in publishing pamphlets, which were bound to cause loss in his practice as Hakim, were nominal. Therefore, I find that the lower appellate Court had assessed the barest amount of damages suffered by the plaintiff-respondent on account of the aforesaid malicious proceedings and the libel. It, thus, follows from the discussion above that the findings recorded by the lower appellate Court on the issues, and the conclusion arrived at by it, are correct and the decree, granted by it, does not suffer from any infirmity. So, the appeal is bereft of any merit and fails.

12. Consequently, I, maintaining the decree passed by the lower appellate Court, dismiss this appeal with costs.

13. Appeal dismissed.


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