1. The Plaintiff a First Grade Pleader was retained by defendant to defend him in a prosecution instituted against him by the Taluq Board of Kumbakonam in December 1900. After a trial which lasted till April 1901 the defendant was acquitted, and some months later on the 8th November 1901 gave a notice to the President of the Taluq Board, threatening a suit for damages for malicious prosecution. The suit was instituted and the present plaintiff conducted it for the defendant who was then plaintiff. An account which accompanied notice of suit shewed that among the expenses of the Criminal Proceedings for which it was sought to recover compensation from the Taluq Board, was a sum of Rs. 850 paid as fees to the present plaintiff for conducting the case on 16 days on which the trial proceeded, and 7 days on which the case was set down for trial but was not actually taken up. For the 16 days the fees were entered at Rs. 40 per day and for the 7 days at Rs. 30 par day. At the trial of suit a similar but more detailed account (Exhibit C in the present suit) was supported by a 'receipt of 29th November 1901 given by the pleader to the present defendant acknowledging payment of Rs. 850 in three instalments toward fees for the criminal case and by the evidence of one Subramanya Mudaliar an agent of the present defendant. The suit was dismissed.
2. The plaintiff continued for some years to work for the defendant and from time to time forwarded him accounts of the fees due to him with...requests for payment. No rate of fees had been arranged bat in one of his accounts the plaintiff suggested that he should get Rs. 40 per day for work done in Courts outside Kumbakonam and Rs. 30 for work done in Kumbakonam. The defendant did not, so far as the evidence shows, accept this suggestion but did not fix any rates of his own, or take any objection to the plaintiff's proposal, but made some lump payments now and then to the plaintiff on account of his fees generally; and after some correspondence forwarded to the plaintiff in July 1907 an account showing a balance due from him (plaintiff) to the defendant. In this account (Exhibit N) a sum of Rs. 270 was set down as the amount of fees payable on account of the Criminal Case in 1900-and fees in all cases were entered at lower rates than those which had been suggested by the plaintiff. The plaintiff replied by a registered letter Exhibit J. 15, and in reference to the allegation regarding rate of fees, containing the following passage. 'The truth is that since you began conducting the case for our Adinam up to this day no rate has been fixed regarding your fees. But at the time of filing the suit for damages, for the purpose of showing the expenses of the proceedings in the criminal case you yourself fixed a rate, wrote a receipt and filed it. How are you thereby justified in sending me an account claiming fees at the same rate for all cases. The aforesaid receipt was not taken by me for money paid in that manner and at that time.' The plaintiff replied complaining that this letter was defamatory and again demanding his fees, and the defendant rejoined that it was not defamatory but that all that was said was true (Exhibit M 2). The plaintiff then instituted this suit for damages for Rs. 6000, and basing the claim on the passage in the letter (Exhibit A) which I have extracted above.
3. The Subordinate Judge has dismissed the suit in a judgment which unfortunately loses much of its value from the fact that a very large part of it dealt with matters entirely irrelevant to the questions in suit, and from the fact that tfhe Subordinate Judge has drawn in some cases inferences against the plaintiff from a number of entries in his accounts and diaries, which he was given no opportunity to explain while in the witness box.
4. The Subordinate Judge finds that the passage complained of is defamatory, but that it was true in fact and in substance, and the occasion being privileged and no express malice proved, the plaintiff is not entitled to recover any compensation.
5. Mr. Section Srinivasa Aiyangar has very skilfully presented an argument contending that the latter Exhibit A is not defamatory, but on this point I am in agreement with the conclusion of the Subordinate Judge). The passage complained of clearly suggests that the receipt put in the malicious prosecution suit was incorrect and that the money for the payment of which it was given was not in fact money paid for fees in the criminal case, and it implies that the receipt was the plaintiff's work and not that of the defendant.
6. The. defendant's intention was no doubt to contest the daily rate of fees claimed by the plaintiff and to do this he thought fit to assert that the plaintiff had deceived the court by presenting an account of fees as received which in fact had not been settled or paid, in order to swell the damages in the malicious prosecution suit. The correctness of this interpretation is supported by (Exhibit N.) where the defendant in fixing the fees for the criminal case altogether ignores the receipt and account filed in the malicious prosecution case.
7. Considering that the plaintiff was a legal practitioner that, it seems to me, amounts to an accusation of professional misconduct which is highly defamatory.
8. The defendant, though in the written statement he says the letter is not defamatory has not, whether owing to ill health or dis-inclination, I will not too closely enquire, given evidence in support of his own case and his agent Subramania Mudaliar also though he knows the facts, has given no evidence in the suit.
9. I have no doubt that the occasion on which Ex. A. was written is privileged ; the defendant was writing to plaintiff on business which concerned them both and was justified for the protection of his own interests in pointing out the truth in his letters, whether that involved making accusations against the plaintiff or not.
10. The burden is therefore, it may be conceded, on the plaintiff to show malice, but it will be enough if he shows that the allegation complained of was untrue to the knowledge of the defendant when he made it.
11. Now on this point the Subordinate Judge is against the plaintiff, but the Subordinate Judge has formed his conclusion on a consideration of so much irrelevant matter that I cannot attach any great weight to it.
12. I am not prepared to accept plaintiff's allegation that the agreement as to the rates of fees was arrived at in January or February 1901. Exhibit K is against that and plaintiff has given no satisfactory explanation on this point. Indeed I am not sure that he did not practically abandon that allegation when in his cross-examination on the 18th November, 1908, he said that the settlement of the fees was made on the 8th November. This cannot mean payment, as payment was not made till the 29th of November. It may mean settlement of the number of days for which fees should be charged but that is not clear. However that be I do not believe that there was any settlement of rates before 8th November. Admittedly there was no settlement of rates in any other of the many cases conducted by plaintiff for defendant and the reason why there had to be a settlement in this one case was, because it was necessary to prepare a bill of expanses for recovery by way of damages from the Taluk Board: that reason did not exist in January or February 1901.
13. The plaintiff's evidence shows that in September 1901, he had received two payments on account of fees generally, and that these two payments together with a payment on the 29th of November, 1901, made up the sum of Rs. 850 which it was argued should be his fees in theCriminal Case. It does not matter whether the payments of September, 1901, were at that time appropriated before the receipt (Exhibit D) was presented to the court and in the absence of the defendant and his agent from the witness box, I do not know why the plaintiff should not be believed to this extent at any rate that the defendant agreed on the 8th of November to appropriate the payments to the fees in the criminal case on a basis of a daily rate of fee. That this sum of Rs. 850 was settled as the fees in the criminal case is no new assertion by the plaintiff. He made it in the account (Exhibit K.) in 1905 and even if the defendant thought the fees claimed were high it is not improbable that he was willing to agree to pay them believing that the Taluk Board would have to bear the expense and not he himself.
14. I did not understand Mr. Section Srinivasa Aiyangarto maintain the Subordinate Judge's view that if (Exhibit A.) is defamatory as charging the concoction of a receipt with false recitals it is none the less true in substance and fact. He was prepared to concede that it might possibly be true that there was in November, 1901, an agreement to fix Rs. 850 as the amount of fees payable in the criminal case and in the absence of any evidence on the side of the defendant, I think I must hold in spite of some suspicion which it seems to me attaches to some of the plaintiff's statements on the subject that there was in November, 1901, an agreement before the date of Exhibit D to pay Rs. 850 as fees to the plaintiff for the criminal case.
15. That being so, the allegation made in Exhibit A must be held to be not true in fact and if it was not true in fact that no agreement was arrived at, and that is to my mind undoubtedly the effect of the passage complained of, I do not think there can be any doubt that defendant must have known it was untrue. He has never said that he made the accusation in the bona fide belief that it was true.
16. In these circumstances it seems to me that the plaintiff has done all that lies upon him to do. He has shown that the defendant made the statement knowing it to be false. Then he has shown sufficient malice to enable him to recover damages for libel. None of the cases cited by Mr. Srinivasa Aiyangar are cases in which the libellous statements were found and proved to be untrue, that is to be deliberately untrue to the knowledge of the maker. If then the defendant is found to have published the libel he will be liable to pay compensation to the plaintiff.
17. Now as regards the publication Mr. Section Srinivasa Aiyangar called our attention to several cases to support his point that since the communication direct to the plaintiff would have been privileged, so much publication as may be necessary in the ordinary course of the business or duty of the person making the communication, as may be ordinarily reasonable and necessary to enable him to make the communication in due course would be privileged also. But that is not this case and it seems to me there is no reason why I should discuss all those cases, for none of them touches the present point. The present point is this, as was pointed out in Venkatanarasimha v. Kotayya I.L.R. (1889) M. 374 that where the imputation is made with the knowledge of the defendant that it is false, there is an end of the privilege; the occasion ceases to be privileged and therefore there is no privilege which can attach to the publication; there will be no privileged publication, when the libel was false to the knowledge of the defendant when he made it. He permitted any publication of any sort subsidiary or other of a maliciously false libel and no case cited to us suggests that the law permits such publication. I find therefore that the libel has been published and that the defendant, is liable to compensate the plaintiff. As regards the compensation it seems to me that the plaintiff is not entitled to any very large amount of damages. The publication was not after all very wide; it was not publication in a newspaper; it was publication only at the most, to the defendant's own clerks. The plaintiff has adduced no evidence beyond a statement of his own that he was distressed by the libel. He has got no evidence to show anybody has lost respect for him or that he lost money by the publication. However the charge is a serious charge and rendered more serious by the position in which the plaintiff stood as a legal practitioner and damages should not be merely nominal.
18. In my opinion the appeal must be allowed and the plaintiff should be given damages to the amount of Rs. 200 and his full costs of the suit throughout.
Abdur Rahim, J.
19. In this appeal which arises in a suit for the recovery of damages for defamation the first question discussed before us relates to the interpretation of Exhibit A which is said to contain a libel. The passage with which we are concerned was this. 'It is true since you began to conduct cases for our Adinam (Mutt) up to this day no rate has been fixed regarding your fees. But at the time of filing the suit for the damages for the purpose of showing the expenses of the proceedings in the criminal case, you yourself wrote a receipt putting a certain rate and filed it. On account of this circumstance how are you justified in sending me an account claiming fees at the same rate for all cases, the aforesaid receipt was not taken by me for money paid in that manner and at that time.'
20. It has been strenuously contended by Mr. Srinivasa Aiyangar who appeared for the respondent that all this passage means is that the statements in (Exhibit D) the receipt alluded to in the letter (Exhibit A) that the payments were made on a particular date and that 'the rates were fixed previously are not accurate. I cannot accept this interpretation as correct. What the passage plainly means is that even at the date on which this letter (Exhibit A) was written to the plaintiff no rate had been fixed at all regarding his fees, not only for the criminal case in which the present defendant was prosecuted by the Taluq Board, but also in another case in which the plaintiff appeared for the defendant. Then it says the receipt was written for the purpose of showing the expenses of the proceedings in the criminal case and it was the plaintiff that wrote the receipt and fixed the rate himself. I think this clearly implied that the receipt was not as it purported to be a real bona fide settlement of the dues of the plaintiff but was merely put forward in order to make out that certain fees had been paid to the plaintiff while as a matter of fact such was not the case-that is to say the imputation is that the receipt was got up by the plaintiff for purpose of deceiving the Court in the suit for malicious prosecution. That is, undoubtedly a serious allegation and highly defamatory.
21. The next question which was argued before us was that the statement though not quite accurate to the extent that two of the payments that is to say of Rs. 100 and Rs. 50 did not purport to be made on account of the criminal case at the time the payments were made. But the gist of the imputation in the passage which I have quoted is that the receipt for Rs. 850 was got up for the purpose of the suit for malicious prosecution. Mr. Srinivasa Aiyangar has made no attempt to show that, as a matter of fact on the date of the receipt it was not agreed upon between the plaintiff and the defendant that the payment of Rs. 850 was made in settlement of the fees due to the plaintiff for conducting the defence in the criminal charge against the defendant and in view of the correspondence which has been filed such contention would be entirely hopeless.
22. The next question is whether there was any publication of Exhibit A. It was not written by the defendant but admittedly by a clerk of his office. That, in a case like this is sufficient publication.
23. The learned pleader for the respondent then strenuously argued that this was a privileged occasion and the communication to the clerk was also privileged; and he cited a number of rulings in support of his position. To my mind none of those cases has any bearing on the facts of the present case. All that those cases lay down is that if a statement though defamatory is made bona fide on a privileged occasion then in that case the person making the statement cannot be held liable for defamation, unless express malice is shown. But there could be no question of a libellous statement being made on a privileged occasion if that statement in fact was false to the knowledge of the defendant at the time he made it and I have-already stated that there could be no question that the statement in question was false; and having regard to its nature it must have been false to the knowledge of the defendant.
24. There is no authority whatever for the proposition that if a libellous statement is made and that statement is false to the knowledge of the person making it there could be any privilege with respect to that statement leaving out of account statements made in pleadings or in the witness box or similar statements which are covered by the doctrine of absolute privilege. It may be that the statement was made in order to repel a liability but that in itself would not make it a privileged communication.
25. On the question of damages no evidence has been given by the plaintiff of any actual damage in the shape of pecuniary loss. The publication, so far as it appears from the evidence, was confined to clerks in the office of the defendant, and it is not shown that the libel has been circulated beyond the defendant's office. No doubt having regard to the fact that the plaintiff is a pleader, the libel is of a serious character. At the same time having regard to the nature of the publication and other circumstances of the case, I do not think this is a case for exemplary damages. But the plaintiff is certainly entitled to substantial damages as suggested by the learned pleader for the respondent.
26. I agree with my learned brother that Ks. 200 would be sufficient, and there should be a decree in favour of the plaintiff for that amount and he will have his costs from the defendant in this Court and in the court below.