1. This appeal arises out of a suit for damages for defamatory statements made against the plaintiff by the defendants in, their written statement in a suit. The plaintiff is the high priest of the Barpeta Satra. Some Pujaris of the Satra were the plaintiffs in the suit in which the statements were made the plaintiff was no party to that suit. In the written statement in that salt the defendants slated that the present plaintiff misappropriated the funds and misused the seal of the Satra, and also alleged that for a certain reason (which they did not specify) the Brahmans of Barpeta would not eat with him. The defence in the present suit was that the statements were privileged, that they were true and were necessary for the purposes of the previous suit. The Courts below did not attach any importance to the statements about misappropriation and misuse of seal, but they were of opinion that the last statement, viz., that for a special reason the Brahmans of Barpeta will not eat with the plaintiff, the obvious meaning of which was that the plaintiff had been excommunicated for some scandal affecting him or members of his family, was defamatory. The Courts below held that the statements were not absolutely privileged, but would be protected if they were relevant to the suit and made in good faith, that the statements were not relevant to the suit and had no bearing upon the points at issue, that there was no good reason for mentioning the plaintiff at all in the written statement and the allegation was dearly the result of spite, and that the statement was untrue and malicious. Damages, were accordingly awarded to the plaintiff. The defendants have appealed to this Court, and the only question for consideration is whether a defamatory statement in pleadings is absolutely privileged.
2. There is no doubt that in England the statements would be absolutely privileged, As observed by Lopes, J., in Royal Aquarium v. Parkinson (1892) 1 Q.B. 431 : 61 L.J.Q.B. 409 : 66 L.T. 513 : 40 W.R. 450 : 56 J.P. 404, 'the authorities establish beyond question that neither party, witness, Counsel, Jury, nor Judge can be put to answer civilly or criminally for words spoken in office; that no action of libel or slander lies, whether against Judges Counsel, witnesses or parties, for words written or spoken in the course of any proceeding before any Court recognised by law, and this though the words written or spoken were written or spoken maliciously without any justification or excuse, and from personal ill-will and anger against the person defamed.' The question is how far the principle applies in this country, so far as civil liability for damages for defamatory statements made by parties in pleadings is concerned. There is considerable divergence of judicial opinion upon the question how far defamatory statements made by parties, or witnesses are privileged in this country. It is unnecessary to consider the question so far as it concerns defamatory statements made by witnesses, the only question for our consideration being whether defamatory statements made by parties in pleadings are absolutely privileged. So far as criminal liability for defamation is concerned, the law in this country is governed by the provisions of Section 499 of the Indian Penal Code, and defamatory statements are punishable unless they fall within one of the exceptions to that section. In making it criminal to defame another, the Legislature has made it illegal so as to make it a cause of action if the person defamed was, injured.
3. So far as defamatory statements in pleadings are concerned, the actual decisions in our Court (with the exception of only one case) are in favour of the view that they are not absolutely, privileged, though there are obiter dicta in some cases to the contrary.
4. In Shibnath v. Sat Cowri Deb 3 W.R. 198 the defendant in a petition, to the District Judge for transfer of his case from a Munsif made some false charges against the plaintiff (who was the Munsif) and it was contended that the communication was privileged. The learned Judges held that in the absence of any proof of reasonable ground for believing the graver charges to be true, they were not privileged.
5. In Auguda Ram Shaha v. Nemai Chand Shaha 23 C. 867;12 Ind. Dec. (n.s.) 576, where the facts were somewhat similar to those of the present case, it was held that a defamatory statement made in the pleadings in an action is not absolutely privileged, dissenting from the case of Nathji Muleshvar v. Lalbhai Ravidat 14 B. 97 : 7 Ind. Dec. (N.S.) 522. The learned Judges (Petharam, C.J., and Rampini, J.) observed: 'We do not think it possible that a statement may be the subject of a criminal prosecution for defamation, and at the same time may be absolutely privileged as far as the Civil Court a are concerned...by Section 499 the publication of words which lower the character of a person in respect of his caste is defamation and, subjects the publisher to punishment, unless it can be brought within one of the ten exceptions to the section.' The earlier case, Bhikumber Singh v. Becharam Sircar 15 C. 264 : 7 Ind. Dec. (N.S.) 761, it is true, was not referred to, but that case related to immunity of witnesses. The case of Augada Ram 23 C. 867;12 Ind. Dec. (n.s.) 576 was followed in Kali Nath Gupta v. Gobinda Chandra Ram 59 Ind. Cas. 143 : 32 C.L.J. 94 at p. 120 : 24 C.W.N. 982 (S.B.); 22 Cr. L.J. 48 C. 388, where defamatory statements were made in a plaint. In Sandyal v. Bhaba Sundari Debi 7 Ind. Cas.803 : 15 C.W.N. 995 : 14 C.L.J. 31 the learned Judges, following the case of Augada Ram Shaha v. Nemai Chand Shaha 23 C. 867;12 Ind. Dec. (n.s.) 576, held that defamatory statements made in the written statement of a party in a judicial proceedings are not absolutely privileged in this country, and that a qualified privilege on the ground that the defendant had an interest in the subject-matter of the communication, and that the person to whom it was made had some duty to perform in the matter, cannot be claimed in respect of such statements unless they fall within the Exceptions to Section 499 of the Indian Penal Code.
6. In the case of Golab Jan v. Bholanath. 11 Ind. Cas. 311 : 15 C.W.N. 917 at p. 920 : 38 C. 880 the main question considered was whether a suit for malicious prosecution could be maintained under the circumstances of that case. In the concluding portion of the judgment, however, Jenkins, C.J. (Woodroffe, J., agreeing) observed 'but even if the complaint to the Magistrate was defamatory, still the complainant was entitled to protection from suit, and this protection was the absolute privilege accorded in the public interest to those who make statements to the Courts in the course of and in relation to judicial proceedings. I, therefore, hold that the plaint does not disclose facts entitling the plaintiff to relief.' The opinions, of Jenkins, C.J., and Woodroffe, J., are entitled to the highest respect, but the previous cases upon the point were not referred to either in argument or in the judgment of the Court.
7. The case of Crowdy v. L. O'Reilly 18 Ind. Cas. 737 : C.W.N. 554 : 17 C.L.J. 405 was also one for damages for malicious prosecution. In the course of the judgment, however, the cases on the present point were referred to by the learned Judges. Mookerjee, J., after referring to the divergence of opinion on the point, observed as follows: 'As at present advised, I am not prepared to dissent from the rule, recognised in England, not only for the weighty reason assigned in Cutler v. Dixon (1585) 4 Coka 14 b; 76 E.R. 886, but also for the additional reason that if suits of this description were allowed, it would be an encouragement to the institution of what must in many instances be mischievous and speculative litigation. It is not necessary, however, to decide the point finally for the purposes of the present litigation.' Beachcroft, J., was of a contrary opinion, Referring to the cases on the point he observed: No doubt the principle that the Courts should sanction no course which would have the effect of curtailing freedom of speech is one of general application, but freedom of speech must not be allowed to degenerate into license, and in the application of the principle we must, I think, look to the conditions obtaining in this country, so different from the those, in England, and should not slavishly follow. English precedents. I agree with the remarks of Straight, J., in Abdul Hakim v. Tej Chandar 3 A. 815 : A.W.N. (1881) 81 : 6 Ind. Jur. 320 : 2 Ind. Dec. (N.S.) 521 in this connection.'
The strongest reason in favour of the English view appears to me to be that stated by Fry, L.J., in Munster v. Lamb (1883) 11 Q.B.D. 588 at p. 603 : 52 L.J.Q.B. 726 : 49 L.T. 252 32 W.R. 248 : 47 J.P. 805, 'it is not intended to protest malicious and untruthful persons, but it is intended to protect persons acting bona fide who under a different rule would be liable, not perhaps to verdicts and judgments against them, but to the vexation of defending, actions.' But when it is borne in mind in how large a proportion of the pleadings in cases in this country, statements are made, which are not merely exaggerations, but deliberately false, I do not think that a rate should be laid down which would give currency to the idea that a party has carte blanche to make any statement he likes, however defamatory, I should be extremely sorry to favour any view which would encourage what my learned brother aptly terms mischievous and speculative litigation, but I am not aware that the decision in Augada Ram Shaha v. Nemai Chand Shaha 23 C. 867;12 Ind. Dec. (n.s.) 576, which has been the law in this Presidency for 16 years, has had that effect.
8. The observations of Beachcroft, J., as well as those of Mookerjee, J., were obiter. We may state, however, that we agree with the observations of Beachcroft, J. The present case illustrates how the privilege can be, and is, abused. The plaintiff was no party' to the suit in which the defendants made the defamatory statement. The statement was absolutely irrelevant, and was made out of pure malice. Having regard to the fact that statements are made in pleadings in this country in a reckless manner in many cases, we think that the salutary rules embodied in Section 499 of the Indian Penal Code should not be departed from in this country in actions for damages for defamation.
9. The learned Pleader for the appellant placed much reliance upon the case of Satish Chandra v. Ram Dayal 59 Ind. Cas. 143 : 32 C.L.J. 94 at p. 120 : 24 C.W.N. 982 (S.B.); 22 Cr. L.J. 48 C. 388. The reference to a Special Bench in that case arose out of a Rule for quashing a criminal prosecution for defamation, and the question for decision was whether the defamatory statements were privileged under Section 499 of the Indian Penal Code. Mookarjee, A.C.J., in delivering the opinion of the Special Bench in that case, reviewed the decisions on the question of privilege of witness and parties in judicial proceedings, civil and criminal, and summarized the conclusions as follows:
(1) If a party to a judicial proceeding is prosecuted for defamation in respect of a statement made therein on oath or otherwise, his liability must be determined by reference to the provisions of Section 499, Indian Penal Code. Under the Letters Patent, the question most be solved by the application of the provisions of the Indian Penal Code and not otherwise; the Court cannot engraft thereupon exceptions derived from the Common Law of England or based on grounds of public policy. Consequently, a person in such a position is entitled Only to the benefit of the qualified privilege mentioned in Section 499, Indian Penal Code.
(2) If a party to a judicial proceeding is sued in a Civil Court for damages for defamation in respect of a statement made therein on oath or otherwise, his liability, in the absence of statutory rules applicable to the subject, must be determined with reference to principles of justice, equity and good conscience. There is a large preponderance of judicial opinion in favour of the view that the principles of justice, equity and good conscience applicable in such circumstances should be identical with the corresponding, relevant rules of the Common Law of England. A small minority favours the view that the principles of justice, equity and good conscience should be identical with the rules embodied in the Indian Penal Code.
10. The respondents rely upon the second paragraph quoted above. But it was a criminal case, and the question which we have to deal with viz., whether a party to a judicial proceeding can be tried in a Civil-Court for damages for defamation in respect of statements made in pleadings, or whether they are absolutely privileged, did not arise, nor was decided in that case. The second conclusion quoted above, purports to be a summary of decisions relating to immunity of witnesses and Parties generally. The question of immunity of parties in respect of defamatory statements was not separately dealt with Although, therefore, the opinion of the Special Bench in entitled, to the highest respect, it is not a decision upon the point which arises in this case. So far as the actual decisions of this Court upon the question whether for purposes of an action for damages, defamatory statements in pleadings of parties are absolutely privileged, are concerned, the majority of the decisions are in favour of the view of a qualified privilege. The only case in which a contrary opinion is expressed is Galap Jan v. Bhola Nath 11 Ind Cas. 311 : 15 C.W.N. 917 at p. 920 : 38 C. 880. where the previous decisions were not referred to, and the obiter dictum, of Mookerjee, J., in Crowdy v. L. O'Reilly 18 Ind. Cas. 737 : C.W.N. 554 : 17 C.L.J. 405.
11. The decisions of the other High Courts are not uniform. In Abdul Hakim v. Tej Chandur 3 A. 815 : A.W.N. (1881) 81 : 6 Ind. Jur. 320 : 2 Ind. Dec. (N.S.) 521 Straight, J. (and Tyrell, J) were of opinion that the law of defamation which should be applied to suits in India for defamation is that laid down in the Indian Penal Code, and not the English Law of libel and slander, and that defamatory statements are not privileged merely because they are used in a petition preferred in a judicial proceeding. The learned Judges observed: 'The state of society and the condition of things in the two countries is wholly dissimilar, and to lay down as an inflexible rule that any false and malicious statements, no matter how defamatory, may be made with impunity if only embodied in a petition filed in reference to some pending case, could not but entail the most mischievous consequences.' The observations were obiter, as it was found that the defendant made the statements in good faith.
12. In the Bombay High Court a contrary view was taken in Nathji Muleshvar v. Lalbhai Ravidat 14 B. 97 : 7 Ind. Dec. (N.S.) 522, following the English rule. In the Madras High Court in Hinde v. Baudry 2 M. 13 : 1 Ind. Jur. 81 : 1 Ind. Dec. (N.S.) 281 it was held that defamatory statements made in a petition by a person not a party to the suit are entitled to absolute protection (in an action for damages), at any rate entitled to the qualified privilege of persons acting in good faith for protection of their own interest. In Venkata Narasimha v. Kotayya 12 M. 374 : 13 Ind. Jur. 334 : 4 Ind. Dec. (n.s.) 610 the defamatory statements made in a petition were found to have been made bona fide (there was also ground for some of the imputations) and were held to be privileged.
13. We have not referred to any cases of our Court nor of the other High Courts relating to defamatory statements made by witnesses, and our decision is confined to defamatory statements in pleadings of parties so far as civil actions for damages for such statements are concerned.
14. In Baboo Gunnesh Dutt Singh v. Mugneeram 17 W.B. 283 : 11. B.L.R. 321 : 2 Suth. P.C.J. 547 : 3 SAR P.C.J. 179; (P.C.) the Judicial Committee observed that 'witnesses cannot be sued in a Civil Court for damages in respect of evidence given by them upon oath in a judicial proceeding. Their Lordships hold this maxim, which certainly has been recognized by all the Courts of this country, to be one based upon principles of public policy. The ground of it is this,-that it concerns the public and the administration of justice that witnesses giving their evidence on oath in a Court of Justice should not have before their eyes the fear of being harassed, by suits for damages; but that the only penalty which they should incur if they give evidence falsely should be an indictment for perjury.' We think, however, that pleadings of parties stand on a different footing from statements made on oath by witnesses, and we agree with the observations of Beachcroft, J., in Crowdy v. L. O'Reilly 18 Ind. Cas. 737 : C.W.N. 554 : 17 C.L.J. 405. viz: 'it is clear that witnesses and parties stand on a very different footing. This was recognized in the case of Kali Nath Gupta v. Gobinda Chandra Basu 5 C.W.N.298. A witness can be compelled to give evidence and to answer any question relevant to the subject matter of the suit but the statements of a party in his pleadings are entirely within his own discretion.' It is unnecessary, however, to consider under what circumstances the privilege of witnesses is an absolute one.
15. We are of opinion that defamatory statements made by parties in pleadings are not absolutely privileged. The appeal is accordingly dismissed with costs.