U.L. Bhat, J.
1. Appellant herein filed the suit for damages on account of certain defamatory questions put and statements made in the course of trial in a prior suit by or at the instance of the respondent herein. The trial Court dismissed the suit and the dismissal has been confirmed in appeal. Hence this second appeal.
2. Appellant herein filed O.S. 254/1978 in the Munsiff's Court, Kayamkulam claiming decree for certain sums of money alleged to have been borrowed from him by the respondent. Appellant then was working as clerk of an advocate practising in the Haripad Munsiff's Court. Respondent was earlier working as Examiner in that Court though subsequently transferred to Sub-Court, Alleppey. Allegation in the suit was that the respondent was taking loans from him and also used to get goods and articles purchased through him with his money on undertaking to repay the amount to him when she gets her monthly salary. She did not return the money but assured him that money would be repaid next month. Even though there was no such repayment appellant went on advancing loans and purchasing articles for her. Respondent put off making repayment and ultimately the suit was filed. A sum of over Rupees four thousand was claimed in the suit. Respondent contested the suit denying the transactions alleged. She, however, contended that the suit was filed with the intention of defaming and intimidating her and causing annoyance to her, a young lady who was working as a Government servant. Trial Court decreed the suit. Respondent challenged the decree in appeal. Appellate Court reversed the decree and Judgment of the trial Court and dismissed the suit with costs in both the Courts. Appellant herein filed S.A. 443/80 but this Court dismissed the same at the admission stage. It was thereafter that the appellant filed the present suit claiming damages for loss of reputation on account of defamatory statements said to have been made in the course of trial.
3. Exts. Al and A2 are certified copies of plaint and written statement in the prior suit. There was an attachment before Judgment. Ext. A3 is a copy of the petition filed by the respondent against the attachment. Ext. A4 is a copy of the issues raised in the plaint. Appellant was examined as P.W. 1 in the prior suit. The advocate who appeared for the respondent in the prior suit has been examined in this suit as P.W. 1. In the course of cross-examination of the plaintiff in the prior suit he put the following questions : (vernacular matter -- Ed.) Did you feel infatuated with the defendant?) (vernacular matter -- Ed.) (Did you not engage a room in St. George in Alleppey and invite the defendant for illicit purpose). Ext. A6 is a copy of the deposition of the respondent in the prior suit. In the course of her evidence, she stated : (vernacular matter -- Ed.) (Plaintiff made improper talk. I did not agree) in answer to the question as to why the plaintiff had filed the suit. This portion is Ext. A7.
4. The two Courts were satisfied that the suggestions in the questions put to the appellant and the suggestion made by the respondent in the course of her evidence in the prior suit constitute per se defamatory statements. However, both courts held that since these statements were made by or at the instance of a party in the course of trial in a judicial proceeding, the maker of the statements has absolute privilege and therefore, appellant has no cause of action. It is this finding which is strenuously and seriously challenged by learned counsel for the appellant.
5. Apparently, in the written statement filed in the prior suit, respondent did not refer to the improper overtures said to have been made by the appellant. Evidently, she instructed her counsel about it and the evidence of her advocate is that he asked the questions on instruction. She herself referred to it in her evidence in the prior suit. The case in the prior suit was that appellant repeatedly advanced loans to the respondent in cash and was purchasing goods and articles for her out of his own money. This case was denied by the respondent and she definitely averred in the written statement that the suit was filed with the ulterior object of defaming, intimidating and annoying her, a young lady employed in Government service. Circumstances of the case were discussed by the first appellate Court in the prior suit in paragraph 7 of the judgment. The first appellate Court stated that appellant was an advocate clerk having free access to the office of the Munsiffs Court where the defendant was working as Examiner. Appellant is in affluent circumstances, even though his income from his profession is not substantial. His three sons who are well placed in life and his daughter employed abroad have been supplying him with funds. Respondent is a divorcee. The Court also referred to the suggestion put to the respondent in cross-examination to the effect that she being a woman of dubious morals, one of her brothers committed suicide and her husband divorced her. The Court also commented on the circumstance that according to the appellant's case, he has been anxious and ever willing to fulfil the demands of the respondent for her mere asking. He was prepared to go anywhere with sufficient money in his pocket to satisfy her desires. The inference drawn by the Appellate Court was that even according to the appellant loans were given and purchases were made at various places and occasions. The Court noticed that the goods alleged to have been purchased by the appellant for the respondent consisted of cosmetics, perfumes, beauty aides, vitamine tablets and honey and the money was allegedly supplied for buying saries, ornaments, vessels, provisions etc. The Court also noticed that from the entries in the documents relied on by the appellant, it could be seen that he must have accompanied her to various places so that he could advance money. The Court also noticed the evidence given by him to the effect that after his daughter came to know that he had squandered money by paying it to the respondent, she stopped sending him money. In,this view, the Appellate Court came to the conclusion that 'these payments even if true, are only gratuituous payments not intended to be paid back'. In para 9 of the Judgment, the Court observed : 'I am constrained to say that the evidence adduced by the plaintiff does show that the attempt of the plaintiff is to tarnish the image of the defendant rather than to recover any amount'.
6. In S.A. 443/1980 this Court declined to interfere with the Judgment and decree passed by the first appellate Court and made the following observations: No doubt some of the inferences made by the Court below on the appellant's motive for lending money appear to be based on surmises and conjectures. Therefore, while stating that such observations made by the Court below on the appellant's intention and motives cannot be accepted and are not based on evidence in the case, I see no reason to issue notice in the matter'.
7. Learned counsel for the appellant contended that the suggestions put by the cross-examining counsel on the instruction of the respondent herein and the statements given by the respondent herein in the course of evidence (referred to earlier) are per se defamatory, that the courts below committed a substantial error of law in holding that the statements are absolutely privileged and therefore the suit for damages for defamation would not lie; learned counsel contended that, in any event, the statements being irrelevant to the case, the defence of absolute privilege would not be available. Courts below have held that the statements made in the course of the trial of the prior suit are per se defamatory. The question which arises for consideration is whether the respondent is protected by the rule of absolute privilege and even if so, whether the statements made are irrelevant and as such the protection of the rule could be denied to the respondent.
8. We are now concerned only with the liability in a civil action for defamation as a tort. An examination of the common law of England would show that English Courts have accepted that statements made by Judges, Juries, counsel, parties and witnesses in the course of trial in the course of any judicial proceeding are statements made on privileged occasions and the maker of the statements is saved from civil action by the rule of absolute privilege and no action will lie for damages.
9. For over four hundred years English courts have reiterated this view. See Damport v. Sympson (1596) 78 ER 769, Eyres v. Sedgewicks (1620) 79 ER 513, Astly v. Younge (1759) 2 Burr 507 = 97 ER 572, Kennedy v. Hilliard (1859) 10 Ir., C.L.R. NS 195, Henderson v. Broomhead (1859) 4 H & N 569 = 157 ER 964, Scott v. Stansfield (1868) LR 3 Ex 220, Dawkins v. Lord Rokely (1875) LR 7 HL 744 (affirming (1873), LR 8 QB 255), Seaman v. Netherclift (1876) 2 CPD 53, Munster v. Lamb (1883) 11 QBD 588, Royal Aquarian and Summer and Winter Garden Society v. Parkinson (1892) 1 QB 431 and Anderson v. Gorrie (1895) 1 QB 668. These decisions have accepted the view that statements made by Judges, Juries, counsel, parties and witnesses in the course of judicial proceedings are not actionable in civil law for slander as the occasion is absolutely privileged. Astley's case deals specifically with statements made by a party in the case.
10. These decisions have been followed by courts in England after the turn of the twentieth century also. See Watson v. Jones (1905) AC 480, Lincoln v. Danials (1962) 1 QB 237, Marrinan v. Vibart (1963) 1 QB 538. I may also notice two decisions of the High Court of Australia where this rule is approved, See : Cabassi v. Vila (1940) 64 CLR 130 and Clyne v. The New South Wales Bar Association (1960) 104 CLR 186.
11. It is imperative that Judges, counsel, parties and witnesses participating in a judicial proceeding must be able to conduct themselves without any apprehension of being called upon to answer a claim for damages for defamation. They must be able to act uninfluenced by any such fear. Freedom of speech on such occasions has to be totally safeguarded. Hence it is necessary to protect the maker of statements on such occasions. The privilege arises on account of privilege attached to the occasion and not to the individual It is possible that sometimes counsel or the parties or witnesses may take advantage of the occasion and indulge in false or malicious statement which has the effect of bringing down the reputation of some other person; that would certainly be mischievous. But to say that statement would be privileged only in the absence of malice would put these persons in considerable strain and apprehension on such occasions. Basis of privilege is not absence of malice or the truth of statement or the intention of the maker but public policy. Any restriction on privilege during the occasion would create constraints in the process of administration of justice.
12. The reason for the rule has been thus explained by Fry L.J. in Munster's case (1883-11 QBD 588) :--
'The rule of absolute privilege exists not because the conduct of those persons ought not of itself to be actionable, but because if their conduct is actionable, action would be brought against them in cases in which they had not spoken with malice, in which they had not spoken with false word. It is not the desire to prevent action from being brought in cases where they had to be maintained that has led to the adoption of this rule; but it is the fear that if the rule were otherwise numerous actions would be brought against persons who were merely discharging their duty. It must always be borne in mind that it is not intended to protect malicious and untruthful persons, but that it is intended to protect persons acting bona fide, who under a different rule, would be liable, not perhaps to verdicts and judgment against them, but to the vexation of defending actions'.
In public interest it is not desirable to enquire whether the words or actions of these persons are malicious or not. It is not that there is any privilege to be malicious, but that so far as it is a privilege of an individual and a right of the public, the privilege is to be exempted from all enquiries as to malice.
13. The Common Law rule of absolute privilege in a civil action for slander in regard to statements made in the course of judicial proceedings has been followed by courts in India. The Privy Council accepted the principle in Baboo Gunnesh Dutt Singh v. Mugneeram Choudhary (1873) 11 Beng LR 324. See also Sullivan v. Morton (1887) ILR 10 Madras 28 (FB), Bhaishanker Nanabhai v. L. M. Wadia (1900) 2 Bom LR 3 (FB), Adapala Adivarnamma v. Ramachandra Reddy (1911) 21 Mad LJ 85, Hindustan Gilt Jewel Works v. Chilamkurti Gangayya, ILR (1943) Mad 685 : (AIR 1943 Mad 350), Nannumal v. Ramprasad AIR 1926 All 672. After reviewing practically the entire Indian case law on the point Tulzapurkar, J. (as he then was) in Kamalini Manmade v. Union of India (1967) 69 Bom LR 512 held that the English Common Law Rule pertaining to absolute privilege enjoyed by judges, advocates, attorneys, witnesses and parties in regard to words spoken or uttered during the course of a judicial proceeding is applicable in relation to a civil suit filed for damages for defamation.
14. The rule of absolute privilege is different from the rule of qualified privilege as obtaining in Indian Criminal Law. To qualify the rule of absolute privilege by insisting that only those statements which are absolutely or necessarily relevant is to seriously impair the vigour and efficacy of the rule. Take for example, a witness who is asked a question which is strictly not relevant and gives an answer which is seen to be defamatory. To require that the witness must analyse the question and the proposed answer he is giving and satisfy himself whether the question is relevant for the purpose of that case and then give the answer would be to render the rule nugatory; that would be against public policy. In Munster's case (1883-11 QBD 588) Sir William Brett MR. observed that all witnesses speaking with reference to the matter which is before court, whether what they say is relevant or irrelevant are exempted from any liability in any action in respect of what they state. In Dwakin's case (1875 LR 7 HL 744) it was observed that statements which are protected are those made in the ordinary course of any proceeding before Court. In Seaman's case (1876-2 CPD 53) it was observed that there is no privilege for statements dehors the matter in hand or having no reference to the case of matter of enquiry.
15. Courts in India also have considered this question. In Adivaramma's case (1911-21 Mad U 85), Madras High Court held that while statements in order to be protected need not be absolutely relevant, statements which have no earthly connection with the case may not be protected. In Hindustan Guilt Jewel Work's case (AIR 1943 Mad 350) Madras High Court observed that the statements must have some reference to the enquiry and not entirely irrelevant though the expression 'reference to enquiry' must be given a very wide and comprehensive application.
16. There is logic behind this rule. When participating in a judicial proceeding, persons concerned must be able to devote their entire attention to the conduct of the proceedings; be they Judges, counsel, parties or witnesses. At every stage they should not be compelled to pause and analyse the absolute relevancy of the statements they proposed to make in the course of proceedings; to insist that they should do so would seriously hamper and weaken judicial process. At the same time statements which are absolutely irrelevant or are made dehors the matter in hand or have no reference to the matter of enquiry cannot be privileged. It must always be borne in mind that in deciding whether a statement has reference to the matter of enquiry, the widest and most comprehensive interpretation must be given.
17. I have already referred to the statements made in the prior litigation and the context in which they were made. I have also referred to the appellate judgment in that case. The statements attempted to explain the background of the prior relationship between the parties and to establish that appellant had a strong motive to put forward a false money claim to harass the respondent. In the light of these materials it cannot be said that the impugned statements were absolutely irrelevant or were made dehors the matter in hand or had no reference to the enquiry in that case. The statements were made on an occasion protected by the rule of absolute privilege. I therefore agree with the view taken by the Courts below that the respondent cannot be held liable for damages for defamation.
18. Learned counsel for the appellant vehemently contended that if such a view of the law is taken, there is every likelihood of judicial proceedings being misused for hurling slander and abuse at parties or witnesses. It is further argued that even counsel and judges may not be safe. This argument ignores the rule of contempt of Courts on the one hand; it also ignores that law permits Criminal action for defamation or malicious prosecution and prosecution for perjury. These are reasonably adequate safeguards. Of course the best safeguard is proper and responsible attitude on the part of the parties, counsel and the Court. Court has a tremendous responsibility in ensuring that the judicial forum and judicial proceedings are not abused. It is not as if Court is powerless to prevent such abuse. The court is invested with powers and duties to ensure that trial takes place in a free and fair manner to the advantage of all and to the detriment of none.
19. If it is a matter of cross-examination of witnesses, the Indian Evidence Act contains several provisions to ensure that the process of the Court is not misused. Chapter 10 of the Evidence Act lays down the rules for examination and cross-examination. One may with advantage notice the scope of cross-examination as laid down in Section 146 of the Evidence Act. The Court has a duty to decide whether a witness is to be compelled to answer a question not relevant to the proceeding but seeking to impeach the character of the witness. Ample power in this behalf is vested in the Court under Section 148. Section 149 enacts a wholesome statutory caution against asking question covered by Section 148 without reasonable grounds. Section 150 of the Act empowers the Court to report the circumstances of case, where any question is asked without reasonable grounds, to the High Court or other authority to which the counsel is subject in the exercise of his profession. Section 151 enables the Court to forbid questions or enquiries which are indecent or scandalous though such questions or enquiries may have some bearing on the questions before the Court unless they relate to the facts in issue or the matters necessary to be known in order to determine whether or not the facts in issue existed. If the parties make an honest approach to the Court, counsel fulfil their duties and responsibilities consistent with high professional standards and if Courts are knowledgeable and vigilant abuse of judicial process could certainly be avoided. The privilege extended by law should not be allowed to be used either to blackmail any of the persons participating in the judicial process or to secure partisan or improper ends for that would be contrary to public policy which after all dictates the rule of absolute privilege.
20. I do not find any ground to interfere with the dismissal of the suit; no substantial question of law arises for decision by this Court. This appeal is accordingly dismissed.