Venkataramana Rao, J.
1. This second appeal arises out of an action for damages for libel filed by the plaintiff against the defendant in respect of certain allegations made by the latter in writing to the Superintendent of Post Offices concerning an appointment to the branch post office at Vedapalli. This was in December, 1932. On the 8th February, 1933, the plaintiff sent a notice to the defendant requiring him to tender an unconditional apology within fifteen days of the date of receipt of this notice and threatening a civil or criminal action in case he failed to do so. On the 26th February, 1933, the defendant sent a reply stating that the allegations made by him in his petition were not false, that he never intended to harm his reputation and that he was sorry that the allegations which he had made should have given rise to any misapprehension in regard to his intention. Of course this was not an unconditional apology as required by the plaintiff. Thereupon the plaintiff filed a criminal complaint. The defendant justified his action and the criminal complaint was dismissed. A revision petition was preferred against the said order and after a lengthy argument addressed by both sides as observed by the Sessions Judge who disposed of the case, the defendant herein withdrew his allegations against the plaintiff and expressed regret. In view of the unconditional apology the plaintiff withdrew the criminal complaint, and made an endorsement to that effect on the complaint petition. Subsequent to this, some misunderstandings apparently arose and this suit had been filed for damages. In the written statement filed by the defendant he justified his action, pleaded qualified privilege and also alleged that he having tendered an apology in the Criminal Court, the suit ought not to have been filed. The learned District Munsif went elaborately into all the questions and found against the plea of qualified privilege and that the apology was no defence to a civil action in tort and in assessing damages he observed as follows:
I do not think that damages to the extent of Rs. 100 should be granted to the plaintiff, because if the defendant acted meanly in sending the petition with a view to cause loss to his enemy and gain to his own relative, the plaintiff acted at least equally meanly in filing the criminal case and more meanly in filing this suit.
2. He therefore thought that the plaintiff was entitled to-nominal damages and gave him Rs. 5 for damages and also the costs of the suit. It would have been better if both the parties had contented themselves with this decision, but the defendant chose to file an appeal against that decision to the learned Subordinate Judge. The appeal was dismissed and against that dismissal this second appeal has been preferred.
3. Mr. Krishnaswami Aiyangar for the defendant has urged before me two points: (1) that his client was justified in sending the petition containing the allegations because he was a person interested as a villager in making the complaint to the Postal Superintendent and therefore his client was protected by qualified privilege and (2) that the unconditional apology given in the Sessions Court and accepted by the plaintiff who in consequence withdrew the criminal revision petition operates as an accord and satisfaction of the action for damages for libel. In regard to the first point I fail to see what interest the defendant had in a matter concerning an appointment by the Government. I think that the view taken by the learned Subordinate Judge is perfectly sound and no question of qualified privilege arises in this case. In regard to the second point raised by Mr. Krishnaswami Aiyangar there was undoubtedly some force in his argument that the defendant while giving an apology never contemplated that a civil action would again be brought against him. But the question is not what his client thought, but the question is, what is the effect of the unconditional apology given before the Criminal Court? A certain act might give rise to a cause of action in tort and at the same time furnish a ground for a criminal complaint. Ordinarily in English law where a certain act gives rise to an indictment for felony and also to a civil action in tort, it is usual to have recourse to criminal proceedings before an action in tort for damages is filed. One remedy is different from the other and any adjustment of the criminal complaint would not operate as an accord and satisfaction of the civil action for damages. In one case in the interests of the state the wrongdoer is punished whereas in the other compensation is awarded to the person who suffers by the injury. Therefore unless at the time of giving the unconditional apology it was specifically agreed between the parties that the acceptance of the apology should also operate as an accord and satisfaction of the civil action, prima facie I must take it that the parties intended to terminate the criminal litigation by the unconditional apology. I am inclined to agree with the lower Court and hold that the endorsement in the criminal complaint made by the Sessions Judge terminates only the criminal complaint and cannot be construed as a release of the plaintiff's right of suit for damages. It appears that even after the termination of the criminal proceedings, this apology was published in the newspapers and the plaintiff may well have been content with that. But he has chosen to assert his legal right to get redress for the injury he has sustained and he cannot be deprived of his legal right, though discretion may be vested in the Court in assessing damages. That is what the first Court has done and I cannot say that the damages awarded is excessive nor does Mr. Krishnaswami Aiyangar complain that it is. I am also of opinion that the order for costs is not wrong, because the defendant did not content himself With pleading that the unconditional apology given by him in the criminal case operated as an accord and satisfaction but began to justify his action by pleading qualified privilege and the Court had to investigate into the matter. If he had not taken this other plea, I would probably have deprived the plaintiff of his costs of the litigation, but in the circumstances I cannot say that the exercise of discretion by the lower Court in awarding costs to the plaintiff is wrong.
4. The second appeal fails and is dismissed with costs. Leave to appeal refused.