1. The plaintiff and the defendant are rival candidates at an election and the plaintiff called the defendant 'a rowdy and a suspect'. The defendant retorted by saying that the plaintiff was a 'drunkard.' The defendant was elected as one of the Panchayatdars at the meeting. After the election was over the defendant was asked by some people as to what happened inside and he seems to have told them that the plaintiff was a drunkard. The plaintiff has brought this suit for damages on account of the expression used by the defendant. The District Munsif gave a decree to the plaintiff for a sum of Re. I as damages and also costs of the suit. The Subordinate Judge has on appeal confirmed the decree of the District Munsif but varies the order as regards costs. The defendant has preferred this second appeal.
2. The contention of Mr. Rajamannar for the appellant is that there was vulgar abuses at the time and that the word 'drunkard' therefore is not actionable. Reliance is placed on Konee Subhadra v. Subbarayadu : (1900)10MLJ83 . In that case a Bench of this Court held that if words of abuse are used during the course of a heated quarrel such words of abuse would not be actionable. In the case of vulgar abuse in the course of a quarrel no doubt it cannot be said that the person using the words intends to defame the person whom he abuses, but the case is different where a person in order to injure another person's reputation uses any expression which is defamatory or which, he knows, is likely to lower the other in the estimation of others. The District Munsif has rightly disallowed the plaintiff's claim as regards the use of the word at the meeting. He has given a decree in respect of the word used after the meeting was over and outside the meeting hall.
3. The question is whether the defendant was justified in telling the people who asked him as to what happened inside, that the plaintiff was a drunkard. Reliance is placed upon Dwyer v. Esmonds. That case does not apply to the present case. In that case the defendant in order to justify his conduct in ejecting the plaintiff told the circumstances under which he had to eject him. There was an election pending and the plaintiff published in the Freeman's Journal, which had a large circulation in Water-ford, statements which would go to show that the defendant was an undesirable landlord and was unfit to be a candidate. The defendant in order to justify his conduct wrote to the Journal detailing the real circumstances under which the plaintiff was evicted from his holding. He had also explained why he could not get a tenant for his land. The Court of Appeal held that the defendant was justified in writing the article in order to explain his conduct. In other words, he pleaded privilege and the Court of Appeal upheld the plea of privilege In this case the defendant cannot set up the plea of privilege with regard to the expression used outside the meeting. So far as the expression used inside the meeting is concerned he was no doubt privileged because he was directly attacked by the plaintiff and he retorted by saying that the plaintiff was an undesirable candidate inasmuch as he was a 'drunkard'. But that privilege does not extend to anything which the defendant did outside the meeing and after the meeting was over. 1 therefore hold that the defendant's action was not justifiable and the lower Courts were right in awarding the plaintiff nominal damages.
4. The next question is whether I should allow the costs of this appeal. In ordinary cases no doubt costs would follow the event. But in this case the two parties are on a par. It is like the pot calling the kettle black and I do not think I would be justified in allowing costs to the respondent.
5. The second appeal is dismissed without costs. The memorandum of objections is also dismissed without costs.