K.L. Bapna, J.
1. This is a revision against an order of the learned Munsif of Hindaun, dated 4-ll-1952.
2. The respondent, Rikhab Das, filed a suit in the court of Munsif, Hindaun, on 28-11-1949' on the allegations that a certain news item sent by one Raghubir Sharan was published in the newspaper 'Janta' in its issue No. 16 of 28-11-1948, in which the plaintiff was much maligned. It was alleged that the defendant, Shri Chiranjilal, was the editor of that paper. It was alleged that the said paper had circulation in various cities of Rajasthan, and when its copy was received in Hindaun, the plaintiff came to know of the news item, which was greatly defamatory. It was alleged that the cause of action arose at Hindaun when the paper was received on 27-12-1948. He claimed Rs. 1000/- as damages.
3. The defendant admitted that he was the chief editor in name but that the editing was done by other persons. He did not admit the jurisdiction of the court, and pleaded bona fides in respect of the article.
4. Various issues were struck, one of which was whether the cause of action arose at Hindaun, and the court of Munsif, Hindaun had jurisdiction, Evidence was led on behalf of the parties, and the court held by order of 4-11-1952, that the court had jurisdiction. The present revision is directed against that order.
5. It may be mentioned that the case of the petitioner was that he had given a declaration Ex. D. 1 of being the printer and publisher of Janta newspaper to be published at Jaipur as the organ of a party known as Lok Parishad, that it was only distributed in Jaipur City, and that he had not by himself or by his agents sent the particular issue or any issue for that matter to Hindaun, and, therefore, there was no publication of the offending article at Hindaun by the defendant or his agents, and for that reason the court at Hindaun had no jurisdiction, On behalf of the plaintiff it was said that the particular copy of the issue of Janta Ex. P. 2 was given to the plaintiff for reading by Surajmal Vakil, who used to receive it from the Janta office as subscriber. It was said that there were other subscribers also of that newspaper at Hindaun and that the despatch of the copy of that issue to Hindaun by the Janta office controlled by the defendant gave jurisdiction to the court at Hindaun.
6. I have carefully gone into the evidence and the judgment of the learned Munsif, and heard detailed arguments. In my opinion, the finding of the learned Munsif is not correct. He has given 6 reasons for coming to the finding to which he arrived :
1. Paras 6, 7 and 10 of the plaint which relate to the publication at Hindaun were not specifically denied.
2. The despatch register and the list of subscribers summoned by the plaintiff from the defendant were not produced, which raised an inference adverse to the defendant.
3. The copy of newspaper of 28-11-1948 received from Surajmal by the plaintiff and produced in court (originally produced in the criminal court and read as evidence in the criminal court and read as evidence in this case) bore postal marks to show that it was despatched from Jaipur, and received at Hindaun by post.
4. The statement of Surajmal P. W. 2 purport-iris to cut at the root of the plaintiff's case was not reliable and was given more in partisan spirit in favour of the defendant, and the other evidence of the plaintiff showing publication by Janta office of the said issue at Hinduun was reliable and should be accepted.
5. The defendant as a leader of the Lok Parishad organised a meeting a few days before the publication of the issue where the matters dealt with in the news item were agitated, which led to an inference that the issue roust have been sent by Janta office for circulation at Hindaun.
6. A reply by the Janta office to a communication by the plaintiff contained a note expressing a hope that the plaintiff must be a frequent reader of the Janta paper and it was taken to support the plaintiffs version that the issues of Janta were regularly despatched at Hindaun by Janta office.
7. The jurisdiction of the court is provided in Sections 19 and 20 of the Code of Civil Procedure. As the defendant docs' not reside or carry on business within the jurisdiction of the court, it has to be found whether the publication was done by the defendant within the local limits of the jurisdiction of the Hindaun court, i. e., whether the cause of action arose wholly or in part within the jurisdiction of the Hindaun Court. A careful examination of the record leads to the conclusion that the reasons given by the learned Munsif are neither accurate nor correct.
8. Para 6 of the plaint is as follows:
'Janta Newspaper, which is published at Jaipur,is a leading weekly paper, and its copies go to thevarious cities in Rajasthan.'
9. Para 7 is as under :
'On receipt of the issue of Janta newspaper on 7-12-48 at Hindaun the plaintiff road it, which caused him great mental distress, and he felt that he was greatly disgraced by the publication in the said newspaper, which was read by the public in various cities and towns. The plaintiff also suffered damage in his business.'
10. Para 10 of the plaint is :
'The cause of action arose at Hindaun on 7-12-1948, when the issue of Janta newspaper of 28-11-1948, reached Hindaun and the suit was within limitation under Article 24 of the Jaipur Limitation Act.'
11. The replies to these paragraphs in the written statement are as under :
'6. Para 6 of the plaint is admitted.
7. Para 7 of the plaint is not admitted.
8. Para 10 of the plaint is not admitted. No cause of action arose at Hindaun.'
The learned Munsif went wrong in stating that paragraphs 7 and 10 were not specifically denied, and, therefore, the allegations in the plaint should be taken to have been admitted. He relied on Order VIII, Rule 5, of the Code of Civil Procedure. It says -
'Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability: Provided that the court may in its discretion require any fact so admitted to be proved otherwise than by such admission.'
The learned Munsif seems to have read in this rule that every allegation of fact in the plaint when stated to be not admitted in the pleading of the defendant shall be taken to be admitted. The construction of the Rule, however, means that every allegation of fact in the plaint if not stated to benot admitted in the pleading of the defendant shall be taken to be admitted. What the rule says is that any allegation of fact must either be denied specifically or by necessary implication, or there should be a statement that the fact is not admitted. If the plea is not taken in that manner then the allegation shall be taken to be admitted.
In the present case, so far as the publication at Hindaun is concerned, that allegation is found in paragraphs 7 and 10 of the plaint. The allegations in both these paragraphs are denied in paragraphs 7 and 10 of the written statement as stated above. The denial with reference to paragraphs 7 and 10 is not general, as has been construed by the learned Munsif. It was for that reason also that a specific issue had to be framed as to whether the cause of action arose at Hindaun, and for that reason the court had jurisdiction.
12. As to the second point, the observation of the learned Munsif is that the plaintiff had given a notice to the defendant on 13-12-48 that he intended to vindicate his honour and the defendant should preserve the original letter of the correspondent which would be required to be produced in court. A reply was sent by the Janta office that; the letter of the correspondent had been safely kept, and they would have no objection to produce it in court. It was then observed that as the defendant knew of the intended action by the plaintiff, the defendant should have preserved all documents, in particular the documents now summoned by the plaintiff to show the subscribers of the paper, and the places where the paper was despatched from the Janta office. These documents were summoned; and their non-production led to an inference against the: defendant. It was observed that the various explanations given by the defendant or his assistants, who came in the witness box, were unsatisfactory.
13. The despatch register and the list of subscribers which were summoned by the plaintiff, were not produced by the defendant, but on summons being issued, he gave a statement on 12-5-1951, that those documents were not in his possession, because the control over Janta passed from the defendant to Mr. Kishan Lal Advocate some time near about March or April, 1949. He produced a statement of Mr. Kishanlal on oath, which he gave in the criminal case of defamation on the basis of the same article which is in dispute here. In that statement Mr. Kishanlal admitted having received all the record from the previous editorial staff, when he took charge of the Janta newspaper in May, June or July 1949, but stated that it was destroyed by the staff of Kishanlal later on or sold away as waste paper. He said in that statement that Mr. Chiranjilal, when he came to know of it, was very cross with Kishanlal.
Now a presumption can only arise if a relevant document in the possession of the opposite party is not produced in spite of notice to produce it. In the present case, the documents though relevant, were stated to have been destroyed at least some time before 5-8-1950, when Kishanlal gave the statement on oath in the other case. It has not been shown positively that the documents stall exist. It was possible, at any rate, in the criminal case, to obtain a search warrant for the said documents which could prove that the statement on oath made by Kishanlal was false. Be that as it may, the statement of Mr. Chiranjilal that the documents which passed from his hands to Kishanlal got destroyed when in the charge of Kishanlal furnishes the explanation why the document could not be produced.
Where there is an explanation, which is plausible, there is no ground for raising any adverse inference. It depended upon the arrangement between the previous editors and the subsequent editors of Janta newspaper as to how the documents were to be disposed of', and it is not unnatural for the subsequent editors to receive the correspondence papers or registers which were then current at the time of the change in the editorial staff. The responsibility of being the editor, printer or publisher is not denied by the defendant, and the defendant could only think that he may be called upon to answer for any act attributable to him in a competent court.
He had obviously no necessity to keep the correspondence or registers, for he could not then think that he would be answerable in a court whose jurisdiction could also be questioned. At any rate, the defendant was not under any obligation to assist the plaintiff to prove that the court had jurisdiction, and he could not at the time of handing over charge keep -these documents for the purpose of assisting the plaintiff, if he chose to institute a suit in court other than at Jaipur where the editing, printing and publication of the paper was known to have been made.
14. As regards point No. 3, the postal mark of despatch is not discernible, but assuming that the postal mark was discernible when the case was before the learned Munsif, and it bore the Jaipur Post Office mark of despatch, it would only show that it was despatched from Jaipur, but would not be sufficient to show that the defendant or his agents had a hand in that despatch.
15. Point No. 4 relates to evidence, and will be discussed later.
16. As to point No. 5, publication of news items from Hindaun has no connection with the despatch of the paper to Hindaun, and while one can see that the newspaper will publish an account of the meeting organised by the editor at some place, there is no reason to presume that the editor will despatch that paper to any person at the particular place. That is a fact which, in a case like this has o 'be proved.
17. Point No. 6 may be dealt with here. The plaintiff through his lawyer wrote to the defendant on the 13th of December, 1948, as follows:
'Whereas in your newspaper Janta, issue No. 16 of 28-11-1948, at page 10, under the head of Editor's Dak, a news letter by Raghubir Sharan Nirbheek under the heading 'Chor Bazar in Burmah Shell Company, open loot by the agents' has been published. This letter is defamatory of the firm Chauthmal Rikhab Das agents (plaintiff). The facts alleged are wholly false and without basis, and for that reason the plaintiff is desirous of taking action in a competent court against the correspondent. It is requested that the original letter, which the correspondent has sent, may be kept at a safe place so that it can be summoned from you when necessary, and it is for that reason that notice has been given so you(?) may please send a complete address of your correspondent.'
To this the editorial staff of Janta gave two replies. One was sent by the office under signatures which cannot be discerned acknowledging the letter and saying that the original letter by Raghubir Sharan has been duly preserved. The other letter, which is relied upon by the plaintiff and commented on by the lower court, is under the signature of Tara Chand, Assistant Editor, dated 24th December, and addressed to the plaintiff himself. It is as follows:
'A registered post card was received from your behalf. The name of the person who sent the news published in issue No. 16 is given below the article, and the original letter is lying safe with us. All such letters are kept safe with us, and it shall be produced in any court where you wish. We haveno objection to it. We rely on your good will. We presume you are a reader of Janta newspaper.'
The learned Munsif has inferred from this reply that the office of Janta newspaper by the last clause gave it out that it had been despatching the newspaper to Hindaun also. I cannot read that inference in that letter. As the plaintiff said that he read a particular article, the editors wanted to communicate their pleasure that the plaintiff was a reader of that newspaper. There is nothing in this letter which can show that the office of Janta newspaper had arrangements to despatch the newspaper to Hindaun. As the plaintiff at that time only showed his intention to proceed against the correspondent, the editor was trying to be homely with the plaintiff.
18. The inferences thus raised against the defendant are not supported by the material on record, and we have to look to the evidence that has been led by the plaintiff in the case, and that lead to point No. 4.
19. There is no documentary evidence to show that the particular issue of the Janta newspaper was despatched by the defendant or his agents. The oral evidence consists of four witnesses ;
P. W. 1 Rikhaba Das,
P. W. 2 Surajmal,
P. W. 3 Kajori,
P. W. 4 Pooranmal.
20. Rikhab Das said that the issues of Janta, used to come to Hindaun from Jaipur. That issue which is Ex. P. 2 was received by the plaintiff from Surajmal, and Surajmal received it by post from Jaipur. He said that Surajmal was a subscriber to this paper, and he knew that he and certain other persons were its subscribers. In cross examination he said that in his statement of 10-5-1950, in the criminal court he had admitted that he did not know who were the subscribers of the Janta newspaper in Hindaun. He himself was not a subscriber.
21. Surajmal P. W. 2 said that he used to receive Janta in 1949 and 1950. He did not receive issue No. 16, which is of 28-11-1948, and that Ex. P. 2 newspaper was not received by him. He said that he was not then a subscriber. Having denied the receipt of Ex. P. 2, he obviously denied having made over the paper to the plaintiff. The learned Munsif has not believed this witness because Ex, P. 2 bears post marks, and on it is written the name of Mr. Surajmal. It has not been proved that the address was written by any person in the Janta office or had been written before its being put in the post. Assuming, however, that the plaintiff received the newspaper from Surajmal, it would only mean the publication of the news item by Surajmal, but did not connect the defendant with such publication, for there is no evidence to show that it was posted by the defendant or his agents from Jaipur, assuming that it was posted from Jaipur.
The declaration that a certain person was the editor, printer and publisher of a particular newspaper to be issued from a particular place, only raises a presumption of publication at that particular place, and does not extend to the publication of any issue of newspaper at any other place. Unless there was evidence that any issue of the newspaper emanated either from if the office of the newspaper or under instructions of the publisher the publication at the place where it reaches or is read is not attributable to the publisher defendant.
22. Kajori P. W. 3 said that he purchased a newspaper 'Janta' at Hindaun. That again only connects the publication to the agents or to the person who sold the newspaper to Kajori. There is no evidence that the person from whom Kajori purchased was an agent of the defendant.
23. Pooranmal P. W. 4 said that he also got issue No. 16 from Jaipur, but he said even in hisexamination-in-chief that he did not know who usedto send it from Jaipur. He said that some agent ofJanta Patra had come from Jaipur and had made hima subscriber. He, however, said that he did notknow his name, nor could he tell his address. Whenpressed further, he admitted that the subscriptionwhich he paid did not find any entry in his account,books. He did not send any money order nor received the newspaper by V. P. P. He explained thatthe money paid as subscription did not rind mentionin his account book, because he paid it from hishouse. The whole evidence is vague, and does notconnect the defendant with the despatch of the Jantanewspaper to Pooranmal as well.
24. On a careful consideration of the evidence therefore, the connection of the defendant with the publication of the news item at Hindaun is not proved. It is not necessary to comment on the evidence led by the defendant that the newspaper 'Janta' was only distributed in Jaipur City or to certain officers of the Government of India, whose attention was deemed necessary to invite to certain state of affairs in certain parts of Rajasthan. This evidence may or may not be true or convincing but the point at issue is whether it has been proved that the publication of the news item was made by the defendant at Hindaun. That point has not been proved. In the circumstances the finding of the lower court that it had jurisdiction to try the case is not correct, and is hereby set aside. The case will be sent back to the court of Munsif Hindaun, who would pass an order returning the plaint to the plaintiff for presentation to the court having jurisdiction.
25. The revision is allowed. The petitioner(sic) his costs from the respondent.