Sabyasachi Mukharji, J.
1. This is an application by defendant No. 1 K. B. Ghosh & Co. a firm carrying on business and having itsoffice at 6, Old Post Office Street, Calcutta in Suit No. 510 of 1977 asking that the suit against the applicant, K. B. Ghosh & Co. be dismissed, the name of M/s. K. B. Ghosh & Co. be deleted from the cause title of the plaint and the plaint be amended by deleting or striking out the allegations against K. B. Ghosh & Co. It appears that there was a partnership firm under the name and style of Calcutta Decorators of which Purna Roy Chowdhury, Smt. Mallika Roy Chowdhury, one Amit Roy Chowdhury and Ajit Kumar Roy Chowdhury, who are defendants Nos. 2, 3 & 4 in the present suit, were the partners. There were certain disputes and there was a reference to arbitration and the arbitrators were one Tarapado Majumdar and Pari-mal Kumar Roy Chowdhury. In respect of the said arbitration proceedings, the defendant No. 1, K. B. Ghosh & Co. wrote a letter to Sri Tarapado Majumdar, who was one of the arbitrators on the 19th July, 1977 which contained, Inter alia, the following allegations:
'By a letter dated 18th May, 1977 written by the Joint Arbitrator our clients were directed not to interfere with the activities of Sri Ajit Kumar Roy Chowdhury, who was described as a manager. The said letter was addressed to all the four parties concerned and was dated 18th May, 1977. From a note written by Sri Ajit Kumar Roy Chowdhury on 17th May, 1977, it transpired that he recorded the exact wordings of your said letter dated 18th May, 1977. The said fact was brought to the notice of the joint arbitrators in the meeting held on 19th June, 1977 and also by letter dated 28th June, 1977. Out of the two arbitrators, you came to the rescue of Sri Ajit Kumar Roy Chowdhury and said that to quicken the matter, you personally communicated the said fact to Sri Ajit Kumar Roy Chowdhury over the phone on 17th May, 1977. This is surely an act of misconduct on your part. You have contacted a party and discussed with him regarding the pending arbitration behind the back of others namely our clients.
But our clients were really upset when they discovered that on 20th June, 1977, Sri Ajit Kumar Roy Chowdhury and his family took you and Sri Jiten Banerjee, a common friend of you and Sri Ajit Kumar Roy Chowdhury along with them to Pondicherry by 3 Up Madras Mall at his own cost and expenses. You will appreciate that as an Arbitrator whenthe arbitration is pending you should not accept such treatment from a party to the proceedings. You are surely guilty of moral turpitude and legal misconduct.
On Sunday last 17th July, 1977 Mr. & Mrs. Ajit Kumar Roy Chowdhury took you and Mr. & Mrs. Shyamal Ghosh for entertainments.
On 6th July, 1977, you accepted Rs. 56.30p in cash from Sri Ajit Kumar Roy Chowdhury.'
The letter further went on to state that the clients of K. B. Ghosh & Co. who were stated to be Sri Aparna Roy Chowdhury, Smt. Mallika Roy Chowdhury and Sri Ajit Kumar Roy Chowdhury had no hesitation to say that Sri Tarapado Majumdar could not act as an impartial arbitrator and in the fitness of things he should resign from the office. It was further alleged that the letter in question was being written on the instructions of the clients. It appears that the defendants Nos. 2, 3 and 4 who were the clients of the petitioner made an application to this Court under Sections 5, 8, 9, 11 and 41 of the Arbitration Act, 1940 more or less on the same allegations and the said letter was annexed to the petition. Sri Tarapado Majumdar was also made a party to the said application. The said application was heard by me and on 7th Sept., 1977 by consent of the parties, I had revoked the authority of the arbitrators and umpire and had removed them and appointed a member of the Bar as the arbitrator. In those circumstances the plaintiff, Sri Tarapado Majumdar on 26th August, 1977 instituted a suit being No. 510 of 1977 against the applicant, M/s. K. B. Ghosh & Co. as defendant No. 1 and defendants, Puma Roy Chowdhury, Smt. Mallika Roy Chowdhury and Sri Ajit Kumar Roy Chowdhury. The plaintiff has alleged in the suit that he was a businessman and had a reputation in the market. He had referred to the letter dated 19th July, 1977 written by the defendants Nos. 2 to 4 which according to him contained serious and untrue defamatory words. It was further alleged that the allegations in the said letter were false and malicious and the allegations were published to the stenographer, typist to the defendant No. 1, to the clerk and (sic) the plaintiff and to Ajit Kumar Roy Chowdhury and to P. K. Roy Chowdhury to whom the copies of the letters were sent. It was, further, alleged in the said letter the defendant meant and was understood tomean that the plaintiff was a dishonest person, completely lacking in particular, the integrity, the plaintiff was open to illegal gratification and susceptible to bribery. In the aforesaid circumstances, the plaintiff has instituted the suit claiming damages for defamation for Rupees 50,000/- and consequential reliefs.
2. In this application the applicants have stated that the letter in question was written by the applicants under instructions from their clients and the applicants did not personally know the plaintiff. The petitioners had further affirmed that the statements contained in the said letter were based on informations derived from defendants Nos. 2, 3 and 4 and the petitioners had no personal knowledge of the allegations contained therein. It is further the case of the petitioners that the said letter was written under instructions received from defendants Nos. 2, 3 and 4 and in discharge of the duties as Advocates. It is further mentioned by the petitioners that the petitioners had never seen the plaintiff. The petitioners alleged that they were never personally acquainted with the plaintiff and never heard of the plaintiff prior to the receipt of the instructions from defendants Nos. 2, 3 and 4 in connection with the disputes with Sri Ajit Kumar Roy Chowdhury regarding the firm, Calcutta Decorators. The petitioners have no grievance or enmity with the plaintiff.
3. In the affidavit-in-opposition, the plaintiff after setting out the facts and circnmstances has denied the bona fides and the legality of the alleged instructions. The plaintiff has further stated that the said allegations were made and published 'falsely and maliciously to squeeze him out of the reference by character assassination'. The plaintiff has stated 'I say that the allegations made In the letter dated 19th July, 1977 are maliciously false and wrongfully and deliberately made to lower me in the estimation of the right thinking member of the public and to injure me in my credit in the business.' The plaintiff admits that the plaintiff is not known to the petitioner firm. The plaintiff has further stated that Mr. B. B. Ghosh who is a partner of the petitioner firm is an uncle of defendant Sri Purna Roy Chowdhury and as such it is alleged that he is personally interested in the matter, The plaintiff further alleged that the petitioners wrongfully and illegally identified themselves with their clients inwriting and publishing the malicious, false and defamatory letter. In the affidavit in reply on behalf of M/s. K. B. Ghosh & Co. it was stated that Mr. B. B. Ghose of M/s. K. B. Ghosh & Co. did not deal with the matter. It is in the background of these facts of the case and averments that the claims of the plaintiff against defendant No. 1 M/s. K. B. Ghosh & Co. have to be decided.
4. Before I deal with this point, I may notice the relevant authorities both in England and in India on this subject of the matter. In Cordery on Solicitors 15th Edition, page 39 it has been observed as follows:
'A Solicitor acting as an advocate cannot be sued in respect of anything he may say in course of a judicial proceeding, even though the statement made is clearly malicious and has no relevance to the case in which he is engaged.
The privilege is absolute and applies equally to proceedings before a tribunal recognised by law which whilst not in the ordinary proceedings a judicial Tribunal, acts in the same way as a Court of law acts In respect of any proceedings before it.
The Advocate enjoys an absolute privilege of speech because it is in the public interest as well as in the interest of his client that the administration of justice should be entirely unfettered.
Although the cases In support of these statements referred to counsel, a solicitor when acting as Advocate enjoys the same privilege,
The privilege is not confined to the spoken word but extends to pleadings settled by the Solicitor (or Counsel) and other written matter introduced by him for the purpose of proceedings even though they have no relevance or authority to support them.'
5. Gatley on Libel and Slander, 7th Edition also deals with the subject. At page 382 of the book dealing with absolute privilege, the learned authors note that there are certain occasions on which public policy and convenience require that men should be free from responsibility for the publication of defamatory words. But the Courts are unwilling to extend the number of those occasions on which no action would lie even though the defendant published the words with full knowledge of their falsity and with the express intention of Injuring the plaintiff. According to the learned authors, an absolute privilege attachedto the statements, inter alia, were: statements made during the course of judicial proceedings or statements made in the course of quasi judicial proceedings and/or statements contained in documents made in judicial or quasi judicial proceedings. At page 383 of the book, the learned authors note that the authorities establish beyond all question that neither party, witness, counsel, jury nor judge could be put to answer civilly or criminally for words spoken in office and no action for libel or slander would lie whether against a judge, counsel, witnesses or parties for words spoken in course of any proceedings before any Court recognised by law and this although the words were written or spoken maliciously, without any justification or excuse and from personal ill-will or anger against the party defamed. It is also immaterial whether such a proceeding takes place In open court or in private. This rule is not founded on the absence of malice In the party sued but Is founded on the public policy which requires that these functionaries when performing their right in a judicial proceeding be free from any fear and be uninfluenced by any fear of an action for defamation or prosecution for libel. The rule exists not because the conduct of those persons ought not of itself to be actionable but because (f their conduct was actionable, actions would be brought against judges and witnesses in cases in which they had not spoken with malice, in which they had not spoken with falsity.
6. The learned authors of Gatley have further dealt with the extent of privilege at page 400. Apart from this, as noted by the said authors at pages 442 and 443, there are occasions upon which, on grounds of public policy and convenience, a person may, without incurring legal liability, make statements about another which are defamatory and in fact untrue. On such occasions a man, stating what he believes to be the truth about another, Is protected in so doing, provided he makes the statement honestly and without any indirect or improper motive. These occasions are called occasions of qualified privilege, for the protection which the law, on grounds of public policy, affords is not absolute but depends on the honesty of purpose with which the defamatory statement is made. The rule being founded on the general welfare of society, new occasions for its application will necessarily arise withcontinually changing conditions. The learned authors of Gatley on Libel and Slander at page 443 have dealt with the main classes of qualified privileges and one of the classes is statements made by the defendant in the conduct of his own affairs in a matter In which his own interest is concerned. Counsel for the plaintiff in this case also drew my attention to the observations of the learned authors at page 407 where dealing with statements made in a judicial proceeding the learned authors have noted that the privilege has never been extended beyond courts of justice and tribunals act-ing in a manner similar to that in which such courts act. They have further noted that a domestic forum which derives its authority solely from the submission or consent of the parties does not enjoy this privilege. This passage was relied on in support of the theory that the allegations having been made in the instant case in respect of an arbitrator in this case, who derived his authority on the submission of the parties, the statements did not qualify for either absolute or qualified privilege.
7. The liability of lawyers for defamation has been considered in several decisions in England. Reliance was placed on the well-known decision of the Court of Appeal in England in the case of Munster v. Lamb, (1883) 11 QBD 588. There the Court has observed that no action would lie against an advocate for defamatory words spoken with reference to and in the course of an enquiry before a judicial tribunal, although these were uttered by the advocate maliciously and not with the object of supporting the case of his client, and were uttered without any justification or even excuse and from personal ill-will or anger towards the person defamed arising out of a previously existing cause, and are irrelevant to every issue of fact which is contested before the tribunal. There H was charged before a Court of petty sessions with administering drugs to the Inmates of M's house in order to facilitate the commission of a burglary at it. M was the prosecutor, and L, who was the solicitor, appeared for the defence of H. There was some evidence, although of a very slight character, that a narcotic drug had been administered to the inmates of M's house on the evening before the burglary, and H had been at M's house on that evening. During the proceedings before the court of petty sessions. L, acting as advocate for H, suggested thatM might be keeping drugs at his house for immoral or criminal purposes. There was no evidence that M kept any drugs for those purposes. It was held that no action by M for defamation would lie against L. There at page 600 Brett, M. R. observed that so long as an advocate acted bona fide and said what was relevant, owing to the privileged occasion defamatory statements made by him did not amount to libel or slander although those would have been actionable if they had not been made while he was discharging his duty as an advocate. The Master of Rolls further observed at page 603 that if upon the grounds of public policy and free administration of the law the privilege be extended to judges and witnesses, although they spoke maliciously and without reasonable or probable cause, St was all the more for the benefit of the administration of the law that counsel also should have an entirely free mind. The Master of Rolls, however, was speaking there with reference to counsel actually conducting a case before the tribunal. Similar view was expressed by Fry, L. J. at page 607 of the report. In the case of Royal Aquarium and Summer and Winter Garden Society v. Par-kinson, (1892) 1 QB 431 : (1891-4 All ER 429) It was observed by the Court of Appeal that absolute privilege attached to all judicial proceedings and also to the proceedings of tribunals which had the attributes of a court of justice but it did not extend to the proceedings of a tribunal acting administratively, although such a tribunal had to decide judicially in the sense of acting fairly and impartially. The statement of a member of a county council on such an occasion, however, will, if made bona fide and without malice, be entitled to qualified privilege. It was further observed that malice could be established by proof of a state of mind short of deliberate falsehood, but which led the person publishing the words complained of, from anger or some other wrong motive to be reckless whether the aspersions he cast on other people were true or false, regardless of the truth. The burden of proving malice was on the plaintiff in an action for defamation. Lopes, L. J. at page 436 of the reprint report observed, inter alia, as follows:--
'The authorities establish beyond all 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 libelor 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. This absolute privilege has been conceded on the grounds of public policy to ensure freedom of speech where it is essential that freedom of speech should exist and with the knowledge that courts of justice are presided over by those who from their high character are not likely to abuse the privilege, and who have the power and ought to have the will, to check any abuse of it by those who appear before them. It is, however, a privilege that ought not to be extended. It belongs, in my opinion, to courts recognised by law, and to such courts only.'
In the case of Boxsius v. Goblet Freres, (1894) 1 QB 842 the Court of Appeal was concerned with a case where a solicitor acting on behalf of his client, wrote and sent to the plaintiff a letter containing defamatory statements regarding her. The letter was dictated to a clerk in the office, and was copied into the letter-book by another clerk. In an action against the Solicitor for libel it was held that the occasion was privileged, since the communication if made by the solicitor direct to the plaintiff would have been privileged, and the publication to his clerks was necessary and usual in the discharge of his duty to his client, and was made in the interest of his client. Similarly in the case of Baker v. Carrick, (1894) 1 QB 838, a solicitor acting on behalf of his client, gave written notice to an auctioneer not to part with the proceeds of the sale of certain goods, entrusted to him for sale, on the ground that the owner of the goods had committed an act of bankruptcy upon which an order of bankruptcy might be made against him. In an action by the owner of the goods against the solicitor for libel It was held by the Court of Appeal that the action was privileged, since the solicitor was acting in the ordinary course of his duty to his client and the occasion would have been privileged had the client himself written the letter.
8. In the case of Adam v. Ward reported in 1917 AC 309, it was similarly held that a lawyer acting on behalf of his client in course of a pending judicialproceeding would enjoy absolute privilege.
9. The question was similarly examined in India in the case of Nikunja Behari Sen v. Harendra Chandra Sinha, ILR 41 Cal 514 : 18 Cal WN 424 : (AIR 1914 Cal 255 (1). There was the question of criminal liability and the Court held that there was absolute privilege. The law on this aspect of the matter was stated by a Special Bench of this Court in the case of Satish Chandra v. Ram Dayal reported in 24 Cal WN 982 : (AIR 1921 Cal 1). There the Court observed at page 1001 of the report:
'If a party to a judicial proceeding is sued in a civil court for damages 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.'
In the case of Fakir Prasad Ghose v. Kripasindhu Pal Bhuti, AIR 1927 Cal 303, the Division Bench of this Court observed that a pleader must use a certain amount of commonsense and caution in asking a defamatory question. There might be cases where, under proper instructions, he is entitled to ask questions which are defamatory to the person, so as to impeach his credit. But where the questions were asked with utter recklessness, and without regard to seeing whether there was any truth in them, and with absolute disregard of whether he was entitled to ask them or not and they were asked not for the good of the case but with no other view than publicity to injure the reputation of the witness, it was held that the questions were asked in absolutely bad faith. In the case of Anwaruddin v. Fathim Bai Abidin, AIR 1927 Mad 379, it was held that utterances calculated to be defamatory by a lawyer in the course of his professional duties and required by his duty to his client were absolutely privileged. It was further held that when a lawyer acting in the course of professional duties makes a prima facie defamatory statement, good faith is to be presumed and bad faith is not to be assumed unless there is independent allegation or proof of private malice.
10. In the case of Tulsidas Amanmal v. S. F. Billimoria, AIR 1932 Bom 490, an Advocate was charged under Section 499 of the I. P. Code with defamatory statements made in course of duties as advocate. It was held that the Court ought to presume on grounds of public policy that he had acted in good faith and upon instructions and ought to require other party to prove express malice. It was held by the Division Bench of the Bombay High Court that a member of the Bar in India has no absolute privilege. Strictly speaking an advocate who makes defamatory statements in the conduct of a case has no wider protection than a layman, that is to say, he has to bring his case within the terms of Excep. 9 of Section 499 and under Section 105 of the Evidence Act; the burden of proof would normally be upon him. But in practice the Courts have held on grounds of public policy that an advocate is entitled to special protection and that if an advocate is called in question in respect of defamatory statements made by him in the course of his duties as an advocate, the Court ought to presume that he acted in good faith and upon instructions and ought to require the other party to prove express malice. In the case of Rajender Singh v. Uma Prasad, AIR 1935 All 117, the court was concerned with the question of contempt and it was held that advocate has to exercise his own judgment and discretion and in case where scandalous or defamatory matters are to be communicated he has to warn his client much more so where the offence would amount to one of contempt of Court Full Bench of the Madras High Court in re a Pleader, Gudivada, AIR 1946 Mad 538, was concerned with the Legal Practitioners Act, 1879. It was held by the Full Bench that -- although an advocate has his duty towards his client, he has other duties and responsibilities as well. He should not on the instructions of his client, make a charge of fraud without satisfying himself that there are reasonable grounds for the allegation. In the case of Mt. Zulekha Khatoon v. Bishnu Chandra Dhar, 1964 Cal LJ 263, Arun Kr. Mukherjee, J. was concerned with a case where one B acted as the Solicitor for M. and in discharge of his ordinary duties to his said client, addressed letters to Z and Z thereupon sued both B and M for damages on ground of having been defamed by such letters, but failed to allege or establish any malice on the part of B towards Z, It was held that was acase of improper addition of party to the suit and the name of B was struck out from the cause title, records and proceedings of the suit.
11. Mr. Justice S. C. Ghose in the un-reported decision in the case of Bhupa-tish Roy Chowdhury v. Soven Tagore in Suit No. 1689 of 1968 (Cal), judgment delivered on 13-4-1972 more or less took the same view. In the case of Rustom K. Karanjia v. Krishnaraj M. D. Thackersey, : AIR1970Bom424 , it was observed by the Division Bench of the Bombay High Court that it was not sufficient to attract the protection of qualified privilege that the subject matter was one of general public interest. Malice, in law, which was presumed in every false and defamatory statement stood rebutted by a privileged occasion. In such a case, in order to make a libel actionable, the bur-den of proving actual or express malice was always on the plaintiff.
12. In the background of these authorities above, in my opinion, the position is that public policy demands that in the scheme of administration of justice the lawyer should enjoy certain privilege. I am not concerned here in this case with any statements made in the course of any judicial proceedings. It has been said on good reason that in the judicial proceedings the Advocates and witnesses enjoy greater immunity because there are Judges to control the said proceedings so that scandalous and irrelevant matters are not recklessly brought in the said proceeding. The controversy as to whether in a statement made in the course of arbitration proceeding this immunity would also be attached or not, in my opinion, is also not relevant in this instant case because the statements made in the letter of 19th July, 1977 which are alleged to be defamatory were not made during the hearing of the arbitration proceeding but were made in a letter written to the arbitrator. But, even apart from the question of statements made during the pending proceeding, if a lawyer in respect of an impending proceeding indicates the views of his client, can he be made liable for defamation is really the question that arises for consideration. On the one hand, there is the need for public policy and public convenience that in the scheme of administration of justice those who are concerned, and in such cases Lawyers and Advocates are very much concerned, must be given full freedom for the vindication of the rightsof the clients. It has to be borne in mind, at the present stage, when there s erosion of sense of responsibility and dignity and deterioration of the standard of carefulness there is a clamour for accountability for the actions for all concerned. It has been said that a lawyer is not like a loose canon to inflict any discriminatory damages wherever he announces that he is acting within his pro-fessional capacity. Therefore justice, equity and good conscience and the standard to be followed in case of this na-;ure demands that between the public policy and between the freedom of the citizen, a balance has to be struck and such a balance, in my opinion, would be struck well in this case by stating that on occasions like this in respect of an impending judicial proceedings, if a lawyer acts in his professional capacity on the instructions of his client then his statements are immune from being the basis of action of defamation, unless express malice is pleaded and when challenged established. In this case there is no doubt and indeed it is not disputed that the statements written by K. B. Ghosh & Co. were written on instruction of clients the defendant Nos. 2, 3 and 4. There is no dispute that the statements were written in connection of an impending proceeding, indeed based on the statements contained in that letter. An application was soon thereafter made which resulted in the order of 7th Sept., 1977 which I have set out hereinbefore. It is also common case that personally K. B. Ghosh & Co. was not known to the plaintiff except the allegations that one of the partners of K. B. Ghosh & Co. was an uncle of one of the parties. No other allegation or fact has been made, from which an inference of malice may be drawn in this case. If that is the position, in my opinion, malice has not been sufficiently pleaded and on challenge made in this application the plaintiff has not indicated prima facie any facts from which it can be said that the question of malice requires investigation in this case. Counsel for the plaintiff argued that on a point of demurrer, the statements of the plaintiff should be taken to be correct and upon this basis the claim of the defendant No. 1 should be adjudged in this case. He drew my attention to Bul-len & Leake on Pleadings, 12th Edition, 1948. It is true that on a point of demurrer the allegations of the plaint should be deemed to be correct but, as I have noticed before, in a case of lawyer actingon an occasion of qualified privilege, absence of malice is presumed by law and in order to dislodge that absence of malice, the mere statement that the defendant did something maliciously is not sufficient averment of malice in case when a challenge is thrown to him to aver or allege such facts from which such malice can be inferred. In this case such a challenge has been thrown and the plaintiff has met this challenge only by stating that one of the partners of K, B. Ghosh & Co. was the uncle of one of the parties. From that, no inference of malice to dislodge the presumption of bona fides of a lawyer when he acts on instruction and in the furtherance of the interest of the clients can be inferred. If that is the position, in my opinion, there is no cause of action against the defendant No. 1 and the suit against the defendant No. 1 must accordingly fail.
13. There will be an order in terms of prayer (a) of the notice of motion. In the facts and circumstances each party will pay and bear its own costs.