1. This appeal arises out of a suit by Mr. Hitchcock, the District Superintendent of Police, South Malabar against five defendants for damages for libel, contained in a report issued in April-May, 1921, by them entitled - 'Police Crimea in Ottapalem.' The Sub-ordinate Judge gave a decree for Rs. 6,000. Only the 4th defendant, the only defendant who filed a written statement (in the proper sense of the term) and defended the case, appeals.
8. Mr. T.R. Ramachandra Iyer, for the appellant argued, at the outset, certain preliminary matters relating to the course of the trial in the Court below. The issues were settled on 15th February, 1922 and the case came on for trial on the 3rd April, 1922 to which day it was first posted. It is now argued (1) that the Subordinate Judge erred in refusing the adjournment prayed for by the 4th defendant on that day and in proceeding with the examination of plaintiff's witnesses; (2) that the Subordinate Judge ought to have recalled the plaintiff for cross-examination in June, the 4th defendant not having cross-examined him on the 3rd April; (3) that the Subordinate Judge ought to have framed the new issue applied for by the 4th defendant (see page 18 of the pleadings), and (4) that the Subordinate Judge ought to have permitted the amendment of the 4th defendant's written statement (vide page 21 of the pleadings).
9. Points 1 and 2 are to a certain extent connected; Point 4 is similarly dependent on point 3.
10. I do not think it necessary to deal with these points in detail as my learned brother has done so at great length - I agree with the Subordinate Judge and with my learned brother in their conclusions. As to the first point, the question now is not whether the Subordinate Judge might not or might have granted an adjournment on the 3rd April but whether his refusal calls for any interference on our part now. Seeing that the trial of the case was not closed on that day but was adjourned to June and that only the plaintiff's witnesses were then examined, I am not satisfied that the procedure of the Subordinate Judge has prejudiced the defence. Nor am I satisfied that there was any justification for the defendant in refusing to cross-examine the plaintiff on that day with the materials then available. It follows that the appellant's contention on the 2nd point also must be disallowed.
11. I do not feel called upon to discuss the large number of English decisions cited by Mr. Ramachandra Iyer on the other points. On a careful perusal of the written statement and having regard to the fact that application for a new issue and for amendment of the written statement were not made on the 3rd April when the case was partially tried but only in June. I am satisfied that the additional defence was not originally intended to be raised by the original written statement. In saying so, I do not mean to say that the 4th defendant took part in the preparation of the report. Perhaps be did not. All that I mean is that, at the time, he was content to sail in the same boat along with the other defendants and not to raise any defence peculiar to himself though available. This is also the conclusion of the Subordinate Judge.
2. I now come to the merits of the case.
3. On the 26th April, 1921, there was a students' conference at Ottapalam. It followed three other conferences - The Kerala Provincial Conference (23rd and 24th), an Ulema Conference and a Khilafat Conference (20h). First we have to ascertain the events that happened on the 26th April. It appears that the District Magistrate ordered the plaintiff to have men for preserving peace. The plaintiff ordered the Special Police to be kept in reserve and not to be in evidence. The three days (23rd to 25th) passed off quietly. The plaintiff says 'All through the week the Sergeant and the men of the Reserve Police were complaining to me of insults by the party calling themselves volunteers. The shorthand Sub-Inspectors were complaining about the treatment accorded to them in the pandal and that they were refused soda-water by the persons outside. The members of the force behaved very well. I have cautioned them against offering insult,' I accept this evidence of Mr. Hitchcock. I believe that, not only he received complaints from his men but that it is likely that petty insults and annoyances (not actually amounting to any violence) were offered by some of the volunteers, though I do not think that the Sub Inspectors have any right to complain if they did not get soda water. The report of the defendant itself Exhibit B supports Mr. Hitchcock's evidence at page 5 it says 'Until then there was every reason to believe that the reserve Police headed by Mr. Hitchcock, the District Superintendent of Police, the Assistant Superintendent of Police and other Officers contributed a good deal to the success of the conference by their non interference.'
4. Mr. Hitchcock was to leave Ottapalam by the mail train of that day which was to arrive at 10-30 A.M. but arrived late at 11-8. Ha want to the Railway station but on being informed that the train would be late went back to the Police Station, having left a Sergeant at the Station to inform him of the arrival of the train. At about the time that the train arrived the Sergeant rushed on a cycle to inform the plaintiff of the train's arrival. Mr. Hitchcock immediately hurried to the station. The train left at 11-13 and he arrived at Calicut at about 1-30 P.M. There is not the smallest doubt about the time mentioned above apart from the fact that Mr. Hitchcock has not been cross-examined for no justifiable reason. During the time that he was at the Police Station between 10-30 and 11 8 the Special Police Constable No. 615 came up with DW. No. 6 Kunhappa Menon, the Captain of the Volunteers for the Conference and told him that he was insulted by the latter. The plaintiff 'told Constable No. 886 to find out what was the matter and sent them away.' Mr. Hitchcock also swears 'During the time I was at Ottapalami there was no complaint made to me against any Police Officers about insults offered to any member of the Congress party or Conference party.' I unreservedly accept this evidence of Mr. Hitchcock.
5. But as a matter of fact other incidents happened at Ottapalam on the 26th April - unknown to Mr. Hitchcock.
6. Here his Lordship discussed the evidence of the M persons who were alleged to have been insulted or roughly handled by the Police men of the Reserve Police and continued:
My conclusions as to the incidents of the 26th are:
(1) The Reserve Policemen received sundry petty insults from the volunteers and others; but kept themselves under restraint during the first three days (23rd to 25th).
(2) The pant up feelings burst forth on the 26th and they were guilty of discreditable conduct. I say, 'discreditable' in spite of the insults they received, for bodies of trained, disciplined and organised servants of the Government acting under instructions and directions of superior officers (such as the Police and the Military) are expected not to give way to feelings of vengeance and to observe a higher standard of conduct than untrained, undisciplined, and unorganised rabble in the street among whom the former are expected to keep order.
7. If the report had contented itself with criticising the. conduct of the Reserve Policemen or even said that Mr. Hitchcock committed an error of judgment in not keeping the Reserve Policemen under greater control on the 26th (for he admits 'I know that the people would insult them and it would be difficult to keep one's temper when insulted') the report would not have been libellous.
8. But, as it is, the report has gone far beyond the limits of justifiable criticism; just as we expect a higher standard of behaviour from the Military and the Police as compared with the crowds in the streets, similarly we expect from a body of cultures, highly educated gentlemen preparing to make an enquiry, a calmer attitude and a more judicial attitude than casual narrators. The defendants have grievously fallen from this high standard. Even with reference to the statements before them, their report contains grossly inaccurate statements of fact. At page 24 the report says about Kunhappa Menon 'Is was in their presence that his Khilafat badge was removed. He explained to them how he was beaten, kicked, and dragged to their presence by the Police.' These statements are not supported by his deposition before them.
9. The following statements in the report (viz.), '(I) it also shows that the superior officers are accessories before the fact and after the fact,' (2) 'there is evidence on record to show that the attack was the result of a conspiracy carefully designed beforehand'-may not necessarily refer to the plaintiff. As to the third sentence complained of in the plaint, viz., 'it was a decided victory, etc.,' I do not think it has any thing to do with the incidents of 26th April. At page 25 the report refers to an article by Mr. Ramunni Menon in the Hindu dated 3rd March, 1921 under the title of ' Vagaries of the District Authorities' and proceeds to summarise it. The next sentence refers to Mr. Thomas. The last sentence remarks 'after referring to various other vagaries of these District Officers Mr. Ramunni Menon pointed out that...the people maintained perfect non-violence and that it was a decided victory etc.' If the last sentence is an unfair summary of Mr. Ramunni Menon's article, it may be libellous but not with reference to the incidents of 26th April.
10. The next sentence complained of is 'we consider that the evidence is conclusive and unimpeachable about the complicity of Mr. Hitchcock in the transaction.' The two incidents discussed in the sentences immediately preceding this conclusion relate to Unni Krishna Menon and Kunhi Koya. I have already observed that the former's identification of Mr. Hitchcock is now known to be wrong. Kunhi Koya never named him. One would have thought that the defendants before using the words 'conclusive and unimpeachable' took greater care to satisfy themselves of the connection of Mr. Hitchcock with these two men, instead of being content with the statement of Unni Krishna Menon. As the facts had now turned out, we know Mr. Hitchcock did not see these men, and the conclusions stated without proper enquiry and manifestly erroneous cannot be held to be justified. The fifth sentence complained of is 'Is it believable that the Mallapuram Reserve Police could have thought of attacking the innocent people of Obtapalam without being aided by the superior officers and the local Police.' Leaving aside the doubtful innocence of the Ottapalam people one would think the answer is 'yes.' The natural explanation of the occurrences is not to bring in the aid of the superior officers but to attribute it to the men themselves. In the present case, the petty insults of the preceding days are enough to explain the fracas. Assuming these petty acts of insult were not known to the framers of the report, even then the prima faice conclusion should be to attribute the conduct of the Policemen to the men themselves and not to explain with reference to a supposed aid or instigation by superior officers.
11. I do not think it necessary to refer to the 6th and 7th sentences complained beyond saying that they were unjustified.
12. If the facts stated are correct, reasonable and even plausible criticism may be justified as fair comment Hunt v. Star Newspaper Co. (1908) 2 K.B. 309 but if there are no facts to warrant the imputation, the defence of fair comment cannot be maintained in an action for libel Joynt v. Cycle Trade Publishing Co. (1904) 2 K.B. 292. The defendants cannot justify the libel by saying they believed in the presence of Mr. Hitchcock in the Police Station when Unni Krishna. Menon and Kunhi Koya were taken there, for the enquiry on which such belief could be based was incomplete and they could easily have ascertained the actual facts if they took greater care to ascertain it. The statement about the evidence of his complicity being conclusive and unimpeachable was made at their risk and they cannot escape liability; merely because they made it honestly but without due care. See also Halsbury's Laws of England, Vol. 18, Sections 702-3 and, page 706).
13. In Cooper v. Lawson (1838) 8 A. E. 746 it was held' that the statement 'there can be but one answer to these very natural and reasonable queries, he is hired for the occasion' was rightly held to be libellous as it contained a statement of fact which the defendant failed to prove.
14. As to damages, this is not a case for nominal damages which will be awarded only when the plaintiff is content to clears up his character and does not cave to put; money in his pocket. (Odgers on Libel and Slander, page 374). The libel is also serious. The appeal is also dismissed with costs.
15. The plaintiff has filed a memorandums of objections for enhancement of damages. I do not think it necessary to enhance-the amount of damages for the following reasons.
1. No special damage has been proved.
2. The trial Court has made an honest endeavour to arrive at a figure which will fairly compensate the plaintiff for the annoyance and mental suffering which the libel must undoubtedly have caused. It is for the respondent to satisfy us that it is inadequate. Besides the Rs. 6,000 awarded in this case, he obtained a decree for another Rs. 1,000 in the suit against the Hindu for the same libel. He never filed an appeal against the other defendants.
3. The learned Advocate-General referred to the fact that the 4th defendant; continued in this appeal to justify his libel.
But while the conduct of the defendant may be considered in assessing the damages, such conduct is only the conduct in the First Court. The repetition in the Appellate Court of the defence in the Court below cannot be considered as aggravating conduct.
4. While the reckless conclusions of the defendant may amount to malice in law no private malice or personal grudge has been proved in the case. The defendants acted throughout in the public interest. Therefore, it is not a case for exemplary damages.
5. The incidents of 26th April leads to the fair comment that Mr. Hitchcock might have more efficiently postponed his departure for another day and in any event, did not on the 26th April exercise such efficient control over the men of the Reserve Police as the public had a right to expect and as be exercised on the previous days. This is also a ground of disallowing exemplary damages.
16. In the result the memorandum of objections is dismissed but without costs.
17. The plaintiff who was District Superintendent of Police, South Malabar, sued the five defendants for damages for certain statements contained in Exhibit B a printed pamphlet entitled ' Police Crimes in Ottapalam, being the report of the Emergency Committee appointed to investigate and report on the Police tyranny in Ottapalam on 26th April, 1921,' at the end of which are printed the names of the defendants with the symbol 'Sd.' before each as if each had signed the original, and contained also in a copy of the report which appeared over the names of the 5 defendants in the issue of the Madras newspaper The Hindu for 11th May 1921, Exhibit A Defendant No. 4 alone contested the suit. The Subordinate Judge made a decree for Rs. 6.000 and costs against the defendants. Defendant No. 4 appeals.
18. Mr. Ramachandra Iyer for defendant No. 4 argued grounds Nos. 4 and 7 of his appeal as preliminary grounds. They are to the effect that the Subordinate Judge misconstrued the pleadings in the suit and misunderstood appellant's defence, that he erred in dismissing the appellant's petition to frame a special issue whether appellant wrote or published or caused to be published the report in question and that if there was any ambiguity in appellant's written statement the Subordinate Judge should have allowed appellant's application for its amendment. In considering these contentions, it is necessary to examine the pleadings in some detail. In para. III(c) of the plaint, it is-set out that some incidents are said to have occurred at Ottapalam on 26th April, 1921, in which some members of the Mallapuram Special Police Force are said to have taken part, and that plaintiff was apprised of some of the said incidents for the first time when he reached Calicut Railway Station from Ottapalam between 1 and 2 P.M. on that day. In para. III(d) it is alleged that defendants constituted themselves or were constituted into what has since been described as an 'Emergency Committee' with the professed object of investigating the causes and details of the said incidents and wrote and published and caused to be published the so called report Exhibit B. In para. III (e) are set, out 7 extracts from the report Exhibit B, which plaintiff alleges were written, published and caused to be published by defendants falsely, maliciously and without probable cause and constitute grave-and serious libels against plaintiff personally and in the way of his office as superior District Officer of the Police-Force of South Malabar. In para III(f) it is stated that the so-called investigation into the alleged incidents was unauthorised, highly coloured by bias and used as a convenient pretext for the malicious vilification of the executive heads of the Malabar District, of whom plaintiff was-one. In para. III(h) plaintiff charges defendants with having in their so-called report fastened upon him, out of malice-and spite, unworthy motives and criminal acts with full consciousness of his absolute innocence and with deliberate object of holding him up to public odium as an official tyrant unworthy of his office, In para. III (h) plaintiff states that he has been greatly injured by the libels in his reputation and by way of his office and has been brought into public odium, ridicule and contempt; and in para. III(f) he claims damages from defendants, which he assesses at Rs. 20,000. Defendant No. 4 filed his written statement in the suit on 24th October, 1921. In para. 1 of the statement he says : This defendant does not admit all or any of the allegations in the plaint except such as have been expressly admitted herein, and as regards those allegations (by which I understand the allegations not expressly admitted) this defendant puts the plaintiff to the proof of the same.' Then in para. II he submits that the report Exhibit B embodies the conclusions arrived at honestly and in good faith at an inquiry held openly and impartially on a matter of public importance and is based upon evidence which there is no reason to disbelieve and states that the report is fair comment made in good faith and without any malice or spite on a matter of public interest and is in law justified and privileged. In para. 3 he submits that the extracts from the report quoted in para III(e) of the plaint constitute no libel and afford no cause of action to plaintiff and states that he does not admit the correctness of the various inferences drawn and the innuendoes, suggestions and interpretations made in respect of them in the plaint. In para. 4 of the statement defendant No. 4 denies para 3(f) of the plaint. In para. 5 he denies the charge of malice and spite in para III(h) of the plaint in para 6 he denies that plaintiff has been injured or brought into public odium, ridicule and contempt; and in para 7 he denies that he is liable to plaintiff in damages. It will be noticed that this written statement, besides raising pleas of justification and fair comment specifically traverses every material averment in the plaint except the allegations that defendant No 4 was one of those who constituted themselves or were constituted into the 'Emergency Committee' and that he wrote and published and caused to be published the report in question. On 15th February, 1922 the following issues were settled in the presence of the Vakils of plaintiff and defendant No. 4 viz:
(1) whether the report mentioned in the plaint and the extract therefrom quoted in the plaint constitute a libel on the plaintiff.
(2) whether the report in question is a fair and bona fide comment on a matter of public interest;
(3) whether the report was justified and privileged;
(4) whether the plaintiff is entitled to any damages and if so what;
(5) whether the report was published maliciously.
19. It will be noticed that there is no issue about publication of the alleged libels from which it appears that the Judge understood that there was no controversy about publication and that defendant No. 4 admitted publication. On the issues so settled the parties went to trial, the final hearing being fixed for 3rd April, 1923.
20. On that day defendant No. 4 put in a petition for adjournment (I.A. No. 156 of 1922) which was dismissed. Plaintiff's witnesses were then examined and the suit was adjourned to 19th June; 1922 for the examination of defendants No. 4's witnesses after a petition (I.A. No. 152 of 1922) that the cross-examination of plaintiff's witnesses might be reserved had been dismissed. On the next day defendant No. 4 presented a petition (I.A. No. 158 of 1922) that plaintiff's witnesses might be summoned for cross-examination at the next hearing. That was dismissed by the Judge on 7th April, 1922. On 4th April, 1922 defendant No. 4 also put in another petition (I.A. No. 159 of 1922) in which he prayed that summons might be issued for the production of certain official records; but that too was dismissed on 7th April, 1922, when defendant No. 4 applied to this Court for the transfer of the suit to some other Court; but that application was dismissed on 5th May, 1922. When the suit came on for hearing on 19th June, 1922, defendant No. 4 applied (I.A. No. 183 of 1922) for the framing of an additional issue, viz., 'whether the 4th defendant wrote and published and caused to be published report in question.' In the affidavit, Exhibit B., accompanying this petition, defendant No. 4 says that in his written statement he said that plaintiff's allegation that the defendants wrote and published and caused to be published the report was not admitted and that plaintiff should prove it, no issue was framed about the signing or publication of the report; but in his order of 7th April, 1922 en I.A. No. 158 of 1922, that is, the petition for summoning plaintiff's witnesses to attend again for cross-examination the Subordinate Judge had remarked that defendant No. 4 was one of the persona who signed the report; as a matter of fact defendant No. 4 did not take any part in writing the report or in its publication, nor did he sign it. As a mis-apprehension in regard to defendant No. 4's responsibility for the preparation and publication of the report had 'crept in,' a specifies issue should be framed on the point. The Subordinate Judge dismissed this application for framing an additional issue, his view being that the proposed issue did not arise on the pleadings, on which it must be held that defendant No. 4 had admitted the allegation in the plaint that he among others, wrote and published and caused to be published the report. On the failure of his petition for a new issue defendant No. 4 on the same day put in a petition, I.A. No. 184 of 1922, for the amendment of his written statement by the addition of a paragraph denying that be even was a member of the Emergency Committee and denying that he was in any way responsible for the report and that he wrote and published it or caused it to be published. The Subordinate Judge dismissed this petition for amendment also and proceeded with the trial of the suit on the issue originally framed.
21. Mr. Ramachandra Iyer's argument for defendant No. 4 on this part of the case is twofold: firstly, that publication is sufficiently denied in his client's written statements as it stands; and secondly that if that is not so defendant No. 4 should have been allowed to amend his written statement so as to bring out the denial of publication which he intended originally to plead. The question whether defendant No. 4 in his written statement did deny publication sufficiently for the purpose of pleadings depends on the construction of Rules 3 and 5 of Order 8. C.P.C., Rule 3 of that Order lays down that 'It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages.'
22. That rule gives directions how denials are to be made. Defendant No. 4's denial of publication in his written statement has to be found, if anywhere, in para. 1 of that statement. In that paragraph he says that he 'does not admit all or any of the allegations in the plaint except such as have been expressly admitted,' and as regards the unadmitted allegation he 'puts the plaintiff to the proof.' No one can contend that this paragraph contains a specific denial of publication. The paragraph is clearly a general denial such as the rule states to be insufficient; Rule 5 of the Order goes on to state the consequence of a defendant failing to observe the directions of Rule 3. It states that 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). Now it is clears that the allegation in the plaint, that defendant No. 4, among others wrote and-published and caused to be published the report in question is not specifically denieds in defendant No. 4's written statement. Nor in my opinion, can that allegation be. said to have been denied by defendant No. 4 in his written statement 'by necessary implication' within the meaning of Rule 5 on the ground that a general denial includes the particulars within the purview; as that would be to construe Rule 5 in a sense inconsistent with Rule 3. Similarly the words stated to be not admitted' in Rule 5 must be taken to mean if we are to ready the two rules together, as we must 'specifically stated to be not admitted.' To my mind the strict interpretation of the two rules presents no difficulty. It is true, as urged by Mr. Ramachandra Iyer, that it has often been recognised that rules of pleading should net be enforced to a party's detriment so strictly in this country as in England; but I am here confining myself to the interpretation of the two rules in question. In this connection Mr. Ramachandra Iyer has drawn our attention to two English cases, Adkins v. North Metropolitan Tramway Co. (1894) 63 L.J.Q.B. 361 and Grocott v. Lovatt (1916) 61 S.J. 28. In the former case to eaoh paragraph of the plaintiff's, statement of the claim the defendants' replied that they denied each and all the several statements and allegations se out in paragraph so and so of the statement of claim; and it was admitted that the defendants intended to traverse all the material allegations in the statement of claim. The decision was that there was no ground for striking out the defence so framed. In Grocott v. Lovatt (1916) 61 S.J. 28 the-plaintiff alleged in para. 3 of his statement of claim that the defendants on or about a certain date falsely and maliciously wrote, printed and published a certain handbill. The first paragraph of the defence was : 'The defendants deny the facts alleged in para. 3 of the statement of claim.' The Court of Appeal decided that, although the defence was pleaded in a loose and irregular form, the Trial Judge was wrong in treating the case as one in which defendants had admitted publication. It will be seen that neither of the cases quoted is really similar to the present cane. In each of the cases quoted the defendant went much further towards a specific denial of the allegations in the plaint than defendant No. 4 has done in the general expressions used in Para. 1 of his written statement. To my mind on a strict interpretation or indeed on any reasonable interpretation of Rules 3 and 5 of Order 8, C.P.C., defendant No. 4 cannot be held to have sufficiently denied the allegation of publication and must, therefore, be held to have admitted publication.
23. Mr. Ramachandra Iyer's contention that defendant No. 4 should have been allowed to amend his written statement so as to bring out clearly the denial of publication which he intended originally to plead is more serious. Mr. Ramachandra Iyer has referred to several cases. Tildesley v. Harper (1879) 10 Ch. D. 393 Cropper v. Smith (1884) 26 Ch. 710 Hollis v. Burton (1892) 3 Ch. 266 and Kisandas Bupahand v. Baahappa Vithoba (1912) 33 Bom. 644 as showing the principles on which leave to amend pleadings should be granted. Those cases do not go beyond the well-recognized principle that, however the necessity to amend may have arisen, leave to amend should always be granted and at any stage in the proceedings in order to allow the real question at issue between the parties to be raised on the pleadings unless the party applying for leave has acted in bad faith or the amendment will cause some injury to the opposite party for which he cannot be fully compensated by costs or otherwise. At this time of day it is hardly necessary to quote authorities to support that principle, which has certainly not been disputed by the learned Advocate General in the case of Hollis v. Burton (1912) 33 Bom. 644 may perhaps be noticed for a moment as in that case Burton, who was Solicitor, and, therefore, might have been expected to know better, made a very serious admission by mistake and was subsequently allowed to withdraw it by amendment. That case is of some particular interest in comparison with the present case as it appears that defendant No. 4 is a High Court Vakil of long standing and large experience, who is no doubt well-acquaintad with the rules of pleading. But a High Court Vakil like anyone else may make a mistake or omission in his pleadings, and, if he has really done so, be is as much entitled as any one else to put the matter right by amendment in order that the real question in controversy between him and his opponent may be decided. So far from being slow to grant leave to amend pleadings or from pinning the parties to the strict letter of their pleadings, it is the duty of the Court to assist parties, in bringing out clearly the real questions in issue between them. But, when we speak of the real questions in issue or in controversy between the parties we must be careful as to the stage of the proceedings to which we refer. The questions in controversy between the parties which have to be brought out clearly and decided are, save in exceptional cases, the questions in controversy when the parties join issue, that is, when the defendant puts in his written statement. They do not include new questions which the defendant neither wished nor intended then to dispute, but which, at a later stage, in the proceedings either because he has changed his mind or because something has happened after he filed his written statement, he thinks, it profitable to dispute. A defendant, who has deliberately and under no mistake or misapprehension admitted a material fact in his written statement cannot be allowed at a later stage in the proceedings to change his front and make a new case for himself by denying that fact. As I understand him, Mr. Ramachandra Iyer does not urge that defendant No. 4 should be allowed to do anything of this sort. His contention is that defendant No. 4 when he filed his written statement really intended to deny that he had published the report in question. What we have to consider is whether it is possible to accept that contention.
6. In the plaint there is clear allegation that defendant No. 4 among the other defendants wrote, published and caused to be published the report in question, and with the plaint was filed the pamphlet Exhibit B and the issue of the Hindu Exhibit A in each of which defendant No. 4's name is printed at the end of the report in such a way as to indicate that he had signed its original. Defendant No. 4 in his written statement traversed the other material allegations in the plaint individually; but according to his own account be did not think it necessary to refer to the very important allegation of publication except in his general refusal to admit in the omnibus paragraph with which he opened his statement. At a very late stage of the hearing Mr. Ramachandra Iyer has drawn our attention to the fact that in his written statement defendant No. 4 has not specifically denied the allegation in the plaint that plaintiff was apprised for the first time of some incidents which happened at Ottapalam on 26th April, 1921 when he reached Calicut, that day. That statement, Mr. Ramachandra Iyer contends, the whole course of defendant No. 4's conduct of the suit shows he intended to deny but there is no specific denial of it from which Mr. Ramachandra Iyer asks us to infer that defendant No. 4 intended to deny it in his general refusal to admit in para. 1 of his written statement, and from this again he asks us to infer that it may be true that defendant No. 4 intended to deny also the allegation of publication in the same general paragraph. The answer to that is that logically it was not necessary to defendant No. 4's case to deny that plaintiff was first apprised of the incidents at Calicut and that, so far as that statement in the plaint was in any way material, it was sufficiently traversed by implication in the plea of justification set up by defendant No. 4. The Subordinate Judge has fallen into an error in para. 19 of his judgment in saying that the plea of justification set up by defendant No. 4 itself implied an admission of authorship. Defendant No. 4 was quite at liberty if he wished, in such a case to deny publication and then to set up alternative pleas of justification, etc. It is not because a denial of publication would conflict with a plea of justification that we can infer in this case that defendant No, 4 never intended to deny publication. But the learned Advocate General has asked us to compare the written statement with the plaint and to note the particularity with which other allegations in the plaint are traversed and to contrast the vagueness of the general refusal to admit, by which it is now contended defendant No. 4 intended to deny the allegation of publication. He asks and it may well be asked, is it likely that any reasonable man, intending to contest such a case as this and to pub forward the cardinal plea that he did not publish the alleged libels and had nothing whatever to do with them would have put in a written statement containing no specific mention of the plea though traversing in detail almost every other allegation in the plaint. And here it must be remembered that defendant No. 4 is not an ignorant or illiterate man, but a lawyer of experience. As I have said a lawyer like anyone else may make a mistake or omission in the pleadings in his own case. But is it likely that a lawyer of experience intending in such a case as this to deny publication would have filed such a written statement as that of defendant No. 4 in this suit? The statement was verified and signed by defendant No. 4 himself. Defendant No. 4 is asking us to believe in spite of the form of his pleadings that he did intend to deny publication. In the circumstances I think we may legitimately look into his further conduct in the suit to see whether there is anything in it to make it probable or improbable that he had that intention. Issues in the suit were framed on 15th February, 1922. If one had never seen the pleadings in the suit the first thing that would attract one's attention on looking at the issues would be that there is no issue about publication. That shows at least that the Subordinate Judge was under the impression when framing the issues that no question of publication was in controversy but that on the contrary defendant No. 4 had admitted publication. If, as is represented, defendant No. 4 intended to deny publication and believed that by his written statement he had denied publication, how was it that his Vakils in whose presence the issues were framed and who must have understood that that was a cardinal part of his defence, did not protest at once that a most important issue had somehow been omitted? The denial of publication was not only an obvious plea, which it would be almost impossible for them to forget it was a line of defence which, if seriously intended would be far more easy to maintain than most of the other pleas raised. Can it be believed that defendant No. 4 and his vakils were so negligent that they did not observe that on the issues as framed the most valuable line of defence was not available to them. But the matter does not end there. The Subordinate Judge has mentioned in his judgment that defendant No. 4's senior Vakil submitted draft issues in the case and that it does not appear from those draft issues that there was any intention to deny publication. The draft issues have not been submitted to this Court, but the Subordinate Judge's statements regarding them are rot disputed. This shows at least how defendant No. 4's senior Vakil understood his written statement. It is possible that defendant No. 4 really intended to deny publication, but his Vakil was under the misapprehension that he had admitted it? And when the suit came on for final hearing, it is clear that defendant No 4 contested it strenuously. As has been stated, he put in petitions for adjourning the trial, for reserving the cross examination of plaintiff's witnesses, for re calling plaintiff's witnesses and for the production of further documents, and he also applied to this Court for the transfer of the suit from the Subordinate Judge's file. As he has shown by his affidavits in support of those petitions, defendant No. 4 himself was watching his interests in the suit keenly. But in spite of all this, we are asked to believe that it was not until some time after the examination of plaintiff's witnesses had been concluded that defendant No. 4 discovered that such an important part of his defence as denial of publication had been omitted from the issues. An examination of the pleadings and defendant No. 4's own conduct in the suit leave no doubt upon my mind that be did not intend to deny publication when he filed his written statement. In my opinion, therefore, the Subordinate Judge was right in refusing to allow him at a later stage to change his front and to put forward by amendment a new case denying publication.
24. At the very close of the hearing of this appeal Mr. Ramachandra Iyer in his reply has suggested that the averment of publication in the plaint is not sufficiently specific, that it does not state where or to whom publication was made nor how defendant No. 4 was responsible for publication either in Exhibit A or Exhibit B. Nothing was said about this before the Subordinate Judge, and the point is not raised in the appeal memorandum. If there would ever have been anything in the objection, it has been raised too late. Mr. Ramachandra Iyer has also brought to notice at the same stage of the proceedings the fact that there appears to be a mistake in the plaint in giving the date of the cause of action. That point too should have been raised before the Subordinate-Judge if of any importance.
25. Mr. Ramachandra Iyer has urged that the Subordinate Judge should have granted defendant No. 4's petitions of 3rd and 4th April, 1922, for reserving his cross-examination of plaintiff's witnesses and for recalling those witnesses on another day for cross-examination on the ground that defendant No. 4 had not then obtained the originals of the statements; appended to Exhibit B, on which that report was professedly based. The statements as printed at the end of Exhibit B-were in defendant No. 4's hands; but; Mr. Ramaohandra Iyer has urged that for the purpose of cross examining plaintiff the original statements were required. He has not been able, however, to explain to us why equally effective questions could not have been put to plaintiff on the basis of the printed statements as on that of the manuscript originals. In his order on I.A. No. 150 of 1922 the Subordinate Judge has remarked that defendant No. 4's adopted a defiant attitude at the hearing' of 3rd April, 1922, and declined to cross-examine plaintiff's witnesses. Defendant No. 4's conduct in this matter appears to have been very unreasonable; and when a party behaves in such a way at the trial, he puts those who have to defend his conduct in the appellate Court in an unenviable position. Neither in this matter nor in the other interlocutory applications which I have mentioned do the Subordinate Judge's orders appear to be improper.
26. On the merits of the case it is unnecessary for me to add much to the judgment just pronounced by my learned-brother with the result of which I agree. Mr. Ramachandra Iyer has urged that most of the extracts from the report which have been set out in the plaint do not necessarily apply to plaintiff. It is, true that the first two extracts, viz. (1) 'it shows also that the local Police and superior officers are accessories before the fact and after the fact' and (2) 'there is evidence on record to show that the attack was a result of a conspiracy carefully designed beforehand' taken by themselves, do not necessarily refer to plaintiff. The 3rd extract, viz., : It was a decided victory for non-co-operation movement and a correspondingly decided, failure for the authorities as their attempts to goad the people to violence had so thoroughly and signally failed' appears in the report only as a remark made by D.W. No. 5 in a newspaper article published by him in March, 1922. But when we come to the 4th extract, viz. : 'We consider that the evidence is conclusive and unimpeachable about the complicity of Mr. Hitchcock in the transaction,' the reference to plaintiff is specific. In regard to this extract Mr. Ramachandra Iyer has contended that the 'transaction' referred to is merely the taking of one Kunhi Koya to the Police Station, which is mentioned in a few lines earlier in the report. But we must go further in the report to see what the 'transaction' was. At the bottom of page 26 of Exhibit B we find 'hence the necessity for a conspiracy to provoke a breach of the peace at Ottapalam on the morning of the 26th of April, and, if any untoward casualties or injuries were caused to the Police, to bring in all their instruments of destruction into play and then attribute the whole thing to the movement of non-co-operation. There is ample proof on record that the Reserve Police of Mallapuram committed in furtherance of the common object the various offences with which they have been charged, house-breaking, robbery, grievous hurt, robbery, assault and mischief as mentioned on page 8 of the report. Then on page 28 we find 'what do all these expressions prove? They prove not only a pre-existing conspiracy but also the method and manner of execution resolved upon by the conspirators. They establish beyond even a shadow of doubt that all these conspirators, before they started out, resolved to get at the Captain of the volunteers, Vakil Ramunni Menon, all Khilafat workers and volunteers, the Khilafat flags and any others who might oppose them and assault them as roughly as possible so as to provoke violence and then use their arms and ammunitions in the name of order and peace. They also show that it was pari; of their campaign that the local Police should abet and aid the Reserve Police by accompanying them to point out the persons they wanted. In this connection the important question is whether Mr. Hitchcock, the District Superintendent, and the Sergeant of the Reserve Police had left Ottapalam before the riot commenced with full knowledge of the same.' Then on page 31 we find the extract in question, viz. : 'We consider that the evidence is conclusive and unimpeachable about the complicity of Mr. Hitchcock in the transaction.' The argument of the report from the bottom of page 26 until we reach this extract is continuous, and it is clear that the 'transaction' referred to is the alleged conspiracy and the facts alleged to have been done in carrying out its object. In the 5th extract viz., 'is it believable that the Mallapurum Reserve Police could have thought of attacking the innocent people of Ottapalam without being aided by the superior officers and the local Police,' it is clear I think from the context that plaintiff is included in 'the superior officers.' The 6th extract is 'At Calicut there was no riot and housebreaking by the Police, whereas at Ottapalam riot and house-breaking proceeded with the attack on the Khilafat emblems and workers. Mr. Hitchcock and his Assistant did all that was necessary to use this' unlawful assembly of the Reserve Policemen as an instrument to serve their own purpose, without directly implicating themselves. And the next sentence of the report explains the last words of this extract by saying : 'Mr. Hitchcock hurried to the station with full knowledge of what was going on with a view to avoid responsibility and save his reputation.' The 7th and last extract appears in the report after the words 'on a review of the whole evidence' and is 'we are of opinion that the Reserve Police of Mallapuram, the local Police of Ottapalam and the superior Police Officers were, before the commencement of the riots, engaged in a criminal conspiracy for the purpose of provoking a breach of the peace and violence on the part of non-co-operators and then using reprisals and finally fixing the responsibility on the movement of non-co-operation. We are also of opinion that all the above named offences were committed by the Reserve Police of Mallapuram in furtherance of their common object and that they failed to secure the desired result.' Here again it is clear that plaintiff is included in 'the superior officers' mentioned. It must also be remembered, on page 19 of the report it is stated that one of the questions for consideration is' if it (i.e., the conduct of the Police) was the result of the previous conspiracy, whether the District Superintendent of Police Mr. Hitchcock, and the Assistant Superintendent of Police and the local Police were parties to the conspiracy and to what extent, if any.' Taken with their context there can be no doubt, I think that the 4th, 5th, 6th and 7th extracts set out in the plaint refer to plaintiff.
27. It has not been contended by Mr. Ramachandra Iyer that if these extracts refer to plaintiff, they are not defamatory. Indeed they are most gravely defamatory. Hardly a graver allegation could be made against an officer in the position of plaintiff whose duty it was to preserve the peace of his district than that he played the hateful and shameful part of deliberately provoking a section of the public to break the peace in order that the Police might have an excuse to bring 'all their instruments of destruction into play'. Further it is alleged that plaintiff entered into a conspiracy with his subordinates to carry out this disgraceful plan. And finally it is alleged that he was guilty of the crowning meanness of deserting his men and leaving Ottapalam while the plan was being carried out in order to conceal his part in it. These are atrocious allegations.
28. Defendant No. 4 has set up the plea of justification, to make out that plea he has produced evidence that Madhava Menon, D.W. No. 6, the local chief of the 'Khilafat volunteers' was beaten by a Police constable at the Ottapalam Railway Station on the morning of 26th April, 1922, was kicked by some other constables and was then taken to plaintiff at the Ottapalam Police Station but made no complaint to plaintiff and was sent away, that Ramunni Menon, D.W. No. 5, the local Congress Secretary after hearing about 10-30 A.M., that some shopkeepers and others had been beaten went with D.W. No. 10 and another man towards the Railway Station, and then towards the Court building of which the Police Station forms part and on their way passed plaintiff who was going to the Railway Station, but did not speak to him, that when got to the shop of Narayana Menon, D.W. No. 11, which is opposite the Court building, they found that he had received a wound on the nose, that his brother, D.W. No. 11, had been beaten and that D. W. No. 12 had an injury on his leg, that after an altercation with a Police constable, a student who was with Ramunni Menon was hit on the back of his neck by the same constable and that a little later Ramunni Menon Was seized by some constables and dragged towards the Police Station but was released before he reached it. The evidence of D.Ws. Nos. 11, 12 and 14 is to the effect that when they were all in the shop of D. Ws, Nos. 11 and 14 some Police constables who had been chasing another man entered the shop D.W. 14 resisted them; the constables hit him, and he jumped down into the road; his brother D.W. No. 11 went to his rescue; he in turn was hit by the constables and pulled out of the shop,' he fell into the road drain and injured his nose breaking one of its bones; D.W. No. 12 was also beaten by the constables and fell down and hurt his hand and knee. It is not clear from the evidence of D. Ws. Nos. 11, 12 and 14 when all this happened. D.Ws. No. 11 and 14 say it was between 10 and 11 A.M., D.W. No. 12 says he posted a letter 'about 10 or 11 A.M.' and was sitting in the shop after that when the constables arrived. From the evidence of D.W. No. 5 Ramunni Menon, it appears that D.Ws. Nos. 11, 12 and.14 had been beaten before he reached the shop, which was very soon after he passed plaintiff going to the Railway Station from the Court building opposite to the shop. But how soon after Ramunni Menon and his companions met plaintiff he got to the shop has not been made clear. D.W. No. 2, a correspondent of the Madras Mail says that he saw the assaults of Ramunni Menon and on D.Ws., Nos. 11, 12 and 14 and that all these incidents happened within 10 minutes. D.W. No. 14 says that after he had been beaten by the Police he was taken to the Police Station; he saw two sahibs there he heard that they were Superintendents but he cannot say that they were not Sergeants. It does not appear that D.W. No. 11 or 12 or 14 had anything to do with the non-co-operation movement and their evidence suggests rather that some Police constables had some private reason for attacking them. There is evidence that plaintiff left Ottapalam Railway Station by the train for Calicut at 11-13 that morning. D.W. No. 3, who was in charge of the Ottapalam branch of a Calicut Bank says that he saw some men in khaki shirts chasing a man in front of his office. They abused him and made preparation to get into his office, desisted when one of them read the notice board; he sent a telegram about the incident to his head office at Calicut about 11-15 A.M. that day. It will be seen that, if every word of evidence produced by defendant No. 4 is true, it does not show that plaintiff knew before he left Ottapalam that any one had been assaulted by the Police and that it is ludicrously insufficient as a basis for the other allegations made against him. I agree that the plea of justification falls.
29. There remains the plea of fair comment. The right of fair comment on matters of public interest is a right which it is our duty carefully to guard and liberally to interpret. But can the statements in question be brought within even the widest interpretations of fair comment? The conduct of the Police is undoubtedly a matter of public interest. If the evidence adduced by the defendant No. 4 regarding the conduct of the Police at Ottapalam on 26th April, 1922, is true and it must be remembered that it was not necessary for plaintiff's purpose in the suit to controvert that evidence, it was a subject on which comment, very strong comment, was legitimate. But the report goes far beyond that Mr. Ramachandra Iyer has harped upon the argument that, if Police constables at Ottapalam acted in the way the evidence shows they acted on the morning of 26th April, 1922, while plaintiff was still in the village or immediately after he left, it might reasonably be said that plaintiff was responsible for their conduct. In one sense the head of the District Police Force is responsible if the discipline of the force breaks down and the men get out of hand. If the evidence in this case is true, strong language might have been used on the way in which plaintiff appeared to have discharged that responsibility without overstepping the legal limits of fair comment. But from the position that plaintiff must be held responsible for the conduct of his subordinates to the allegation that he joined them in a conspiracy for the vile object attributed to him in the report we have to jump over an unbridged chasm in the argument. The 4th, 5th, 6th and 7th extracts quoted in the plaint contain unjustified allegations of fact. It makes no real difference in this respect that the 5th extract is put in the form of a rhetorical question and that the 4th and 7th extracts are stated as conclusions of fact drawn from evidence. As the learned Advocate-General has contended, these extracts are not fair and they are not comment. The plea of fair comment also fails.
30. In regard to damages I agree that there is no sufficient reason to interfere with the Subordinate Judge's decree.
31. I agree that the appeal should be dismissed with costs and the memorandum of objections should be dismissed without costs.