1. This appeal arises out of a suit' brought by the plaintiff to recover damages from the defendant for insult, loss of reputation, and mental pain, caused by the defendant by the use of abusive language. The defendant denied using the alleged abusive language, and objected to the amount claimed as being excessive.
2. The first Court decreed the suit in part; but on appeal by the defendant the Lower Appellate Court has reversed the decision of the first Court and dismissed the suit, on the ground that mere abusive and insulting language, which did not affect the plaintiff's reputation, was not actionable.
3. Against that decision of the Lower Appellate Court this appeal has been preferred, and the learned Judges before whom the appeal came on for hearing, in view of the conflict, or apparent conflict, of decisions, have referred the matter to a Full Bench.
4. The actual question referred is expressed in these terms:
Whether abusive and insulting language, such as that used in the present case, is actionable, irrespective of any special damage.' But as the question referred arises in an appeal from an Appellate decree, under Rule 2 of the rules relating to References to a Full Bench, the whole appeal is referred.
It has been contended for the plaintiff before us that the decision of the Lower Appellate Court is wrong in law, and that abusive and insulting language, such as was used in this case, [the words used being sala (wife's brother), haramzada (base born or bastard), soor (pig), baper beta (son of the father, that is, ironically, bastard)], is actionable. In support of this contention, it has been argued that, in a suit for defamation, based on verbal slander, it is unnecessary to allege or prove such special damage as the English law requires, and that apart altogether from defamation a suit will lie for abuse which causes or is calculated to cause mental distress or pain. The tendency and probable effect of words must be determined in reference to the circumstances under which they are used, and thus in the judgment of the Lower Appellate Court it is said: 'No one who heard him did or could imagine that he really meant to asperse the chastity of the plaintiff's sister or mother or thought the plaintiff a pig. There was no defamation or intent to defame. What the defendant did was insulting, but did not affect the plaintiffs reputation a whit.
5. This finding wholly excludes that which is an essential element of actionable defamation, and it therefore is outside the scope of our inquiry to determine whether or not the English rule which requires special damage to be established in an action for oral defamation should prevail in this country.
6. We therefore only have to consider whether an action will lie for insult or abuse, with resultant pain and distress of mind, apart from defamation. The first question one naturally asks is what is the gist of this actionable wrong
7. In the argument before us it was suggested that the cause of action was the injury to the abused man's feelings, his mental distress and pain.
8. It is difficult to suppose that the causing of mental distress and pain can per se be actionable. Mental condition of this sort may obviously arise from causes other than abuse or insult, and a moment's reflection makes it clear that the proposition thus widely expressed would lead to manifest absurdities. For instance if A and B are sitting in a room together, and A loses his temper, and uses insulting and abusive language towards B, whose feelings are wounded, B may bring an action against A, or if A uses such language of some relation or friend of B, which equally wounds B's feelings, an action will lie. Such a view does not commend itself to one's common sense, nor is it reasonable.
9. It is said that the reported decisions of the Indian Courts, and in particular of this Court, support the position that, to cause mental pain and distress by insult or abuse, as distinct from defamation, is actionable, and a large number of authorities have been cited to us as establishing this. It appears to us, however, unnecessary to discuss these cases in detail. Many of them are so inadequately reported that it is impossible to discover what was the state of facts then under consideration.
10. This is so of the cases of Kanoo Mundle v. Rahamoollah Mundle (1864) W.R., Gap. No. 269; Gholam Hossein v. Hur Gobind Dass (1864) 1 W.R., 19; Tukee v. Khoshdel Biswas (1866) 6 W.R., 151; Osseemooddeen v. Futteh Mahomed (1867) 7 W.R., 259; Gour Chunder Puleedundee v. Clay (1867) 8 W.R., 256; and Sreenath Mookerjee v. Komul Kurmokar (1871) 16 W.R., 83. From a perusal of those cases in which the facts are set out, it is apparent that in each there was sufficient to support a suit for defamation. In none of the cases on which the plaintiff relies, as we read them, was the point raised or at any rate determined, whether abuse, as distinct from defamation, was actionable, the question rather being whether proof of special damage was an essential condition of the plaintiff's success. On the other hand, this precise point was clearly raised and determined adversely to the view now advanced by the present plaintiff in the case of komul Chunder Bose v. Nobin Chunder Ghose (1868) 10 W.R., 184: B.L.R.S.N., 112, and that decision has been followed in the case of Mahomed Ismail Khan v. Mahomed Tahir (1873) 6 N.W.P.H. 0., 38. It will thus be seen that the weight of authority is not in the appellant's favour as he has urged.
11. Apart then from authority, ought mere personal insult or abuse, as distinct from defamation, and not touching the plaintiff's credit or reputation, to be actionable in this country, if it produce mental pain or distress? It has been urged that insult being punishable under the Penal Code, as it was under the old Hindu penal system, it must be sufficient ground-work for a civil suit. But we think the assumption underlying this argument has no justification, for though the facts, which go to make a penal offence may, in general, suffice to constitute a civil wrong, it requires no exhaustive examination of the forms of civil and criminal liability to show that the latter is no infallible guide to the former. This appears to us to be made clear by the very section of the Penal Code which prescribes a punishment for insult, for the purpose of the penalty imposed is to prevent a breach of the peace.
12. Do then considerations' of public policy demand that we should decide in favour of the proposition for which the appellant contends? We think not. If illustrations were needed of the mischief to which such a decision would lead, it is furnished by this present case. For words of idle abuse uttered in the heat of excitement, incapable of touching the plaintiff's reputation or credit, the defendant has been prosecuted and punished in the Criminal Courts: and then, as though that were not enough, the plaintiff has sued him in the Civil Courts carrying the case for that purpose, through three separate Courts, though it has been found, as is obvious to any one, that the words used 'did not affect the plaintiff's reputation a whit.' Section 504 of the Penal Code provides a remedy, and that an ample remedy, for conduct such as that of the defendant's; and in our opinion there is no principle of public policy which requires that, in addition, the party complaining should have a remedy by civil suit.
13. We would, therefore, answer the question embodied in the reference by expressing the view that abusive and insulting language, not amounting to defamation, is not actionable. Section 95 of the Penal Code indicates that harm of a trumpery nature, i.e., 'so slight that no person of ordinary sense and temper would complain of it,' is not to be treated as an offence. If mere vulgar abuse, uttered in a moment of anger, abuse to which no person of ordinary sense and temper would attach the slightest importance, is, if it cause mental distress, to afford a ground of action, it is lamentable to think to what an alarming extent the floodgates of litigation would, in this country, become open. We are but little disposed to favour any such view. On the contrary we agree with the expression of opinion of Pontifex, J., in the case of Nil Madhub Mookerjee v. Dookeeram Khottah (1874) 15 B.L.R., 161 (166), that actions for verbal slander ought not to be encouraged.
14. The appeal must be dismissed with costs.
15. The question referred to the Pull Bench in this case is 'whether abusive and insulting language, such as that used in the present case, is actionable irrespective of any special damage.'
16. The words of abuse used by the defendant towards the plaintiff were sala, (wife's brother), haramzada (bastard), soor (pig), baper beta (son of father, ironically, bastard) which, according to the finding of the Court of First Instance, not displaced by the Appellate Court, must have caused mental pain to the plaintiff. It appears from the judgment of the Munsif that the plaintiff is a respectable person, and much above the defendant in social position, and that there were several persons present on the occasion when the defendant thus abused the plaintiff.
17. The learned Judge of the Court below was, however, of opinion that 'no one who heard him did or could imagine that he (the defendant) really meant to asperse the chastity of the plaintiff's mother or thought the plaintiff a pig, There was no defamation nor intent to defame: what the defendant did was insulting to the plaintiff, but did not affect the plaintiff's reputation a whit.'
18. The circumstances under which the insult was offered to the plaintiff are thus described by the District Judge: 'What happened in this case? The appellant believed or affected to believe that the plaintiff had encroached on his land and ought to retire a particular fence or hedge. Nothing happened when the fence was erected or repaired; but later the appellant sought out the plaintiff at home. He did not begin vilification at once. The plaintiff's witness, Tarini Kundu, says the defendant began by hailing the plaintiff as kaka-babu and dada-babu, but the plaintiff remaining indoors and preserving silence the defendant got angry and launched into abuse of the plaintiff. What the defendant's precise provocation was we don't know. He must have had or thought he had a grievance.' According to the opinion of the learned Judge, the plaintiff did not suffer any special damage; but the fact remains that grave insult was offered to him in the presence of other people, and his feelings were outraged, and that the defendant, without any provocation that we know of, but apparently influenced by a desire to avenge the plaintiff for a supposed grievance, vilified him in the manner alleged. And the question is whether for this the plaintiff is entitled to maintain an action.
19. There is no written law on the subject either in this country or in England, except what is provided for in the Slander of Women's Act, 1891 (54 and 55 Vic, ch. 51). The law is to be gathered from the opinions of Judges expressed in different cases from time to time, and from what may be the common law of the country. According to the English law 'slander is an actionable wrong when special damage can be shown to have followed from the utterance of the words complained of, and also in the following cases: Where the words impute a criminal offence; where they impute having a contagious disease, which would cause the person having it to be excluded from society; where they convey a charge of unfitness, dishonesty or incompetence in an office of profit, profession or trade; in short, where they manifestly tend to prejudice a man in his calling. This is not so in the case of libel, for it is enough to make a written statement prima facie libellous, that it is injurious to the character or credit (domestic, public or professional) of the person concerning whom it is uttered or in any way tends to cause men to shun his society or to bring him into hatred, contempt or ridicule.' (See the Law of Torts by Pollock, p. 230, 5th edition.)
20. This distinction, however, has been disapproved by several eminent Judges in England [see the observations of Mansfield, C.J., in Thorley v. Lord Kerry (1812) 13 Rev. Rep., 635: 4 Taunt., 355 (363); Lynch v. Knight (1861) 9 H.L.C. 577 (594); Roberts v. Roberts (1864) 33 L.J., Q.B., 249.] In the case of Parvathi v. Mannar (1884) I.L.R., 8 Mad., 175, Turner, C.J., sitting with Muthusami Ayyar, J., condemned the distinction which exists under the English law between slander and libel. He thus expressed himself:
The difference between the extent of the publication of defamatory terms, according as to whether they are committed to print or uttered orally, is in reality accidental. Defamatory matter, when written, is frequently addressed only to a single person; when printed, its publication may be arrested immediately. The publication of a defamatory imputation in a newspaper circulated extensively in a place where the person defamed is unknown may cause him far less injury, whether pecuniary or sentimental, than its publication orally in the neighbourhood in which he resides, to his acquaintances or to persons who can influence his advancement in life. In this country we are not bound to adopt the rules regulating compensation for injuries which are recognised by the English Courts, though it has been the practice of Judges in British India to regard the decisions of the English Courts with the highest respect as embodying the wisdom and experience of a judiciary, whose reputation is second to none for independence and ability. But the distinction drawn by the English law between written or printed and oral slander, which is said to have had its origin in the circumstance that the most frequent instances of oral slander were at one time punishable by Ecclesiastical Courts (2 Salkeld, 694) has been condemned by many eminent English lawyers. Mr. Starkie observes that the distinction 'must be regarded as an absolute peremptory rule not founded in any obvious reason or principle.' In Roberts v. Roberts (1864) 33 L.J., Q.B., 249, Cockburn, C.J., and Crompton, and Blackburn, JJ., pronounced the law of England unsatisfactory and regretted they were bound by it. In Lynch v. Knight (1861) 9 H.L.C. 577 (594), the Lord Chancellor Campbell expressed the same views, and Lord Brougham, in the same case, declared that the English law was in this respect not only unsatisfactory but barbarous. The Indian Law Commission, of which Lord Macaulay was a member, in its report on the proposed Penal Code, demonstrated that the English law regarding defamation was inconsistent and unreasonable (Introductory Report, note, p. 7, Macaulay's Works, p. 546). The civil law does not recognise the distinction, nor does the Law of Scotland, and the recommendations of Lord Macaulay's commission were approved and accepted by the British Indian Legislature. We, therefore, feel justified in giving effect to our conviction that the rule we are considering is not founded on natural justice, and should not be imported into the law of British India.
21. Later on, he observed. 'Nevertheless, reason suggests that a distinction should be drawn between cases where the slanderer acts from mere carelessness or in an honest but mistaken belief as to his duty, and cases where the slanderer is insolent without any provocation or is influenced by a desire to gratify his enmity. The person defamed may be content to accept a sum sufficient to establish his innocence of the charges made in the former case; in the latter he is entitled to full compensation for the pain inflicted on him.'
22. It is, I think, a well-known maxim of law that all members of a community are under a general duty towards their neighbours to do them no hurt without lawful cause or excuse; and the question here arises whether the act of the defendant is not a violation of the personal right of the plaintiff--a right of protection against any outrage or affront by others, and whether it is not an injury to the plaintiff. Justinian thus defines the word 'injury ': 'Injuria, in its general sense, signifies every action contrary to law: in a special sense it means sometimes the same as contumelia (outrage), which is derived from contemnere the Greek sometimes the same as culpa (fault), in Greek as in the lex Aquilia, which speaks of damage done injuria; sometimes it has the sense of iniquity, injustice, or in Greek for a person against whom the proctor or judge pronounces an unjust sentence is said to have received an injuria. Injuria, then, is used in three senses--(1) a wrongful act, an act done nullo jure; (2) the fault committed by a judge who gives judgment not according to jus; (3) an outrage or affront. An injury is committed not only by striking with the fist, or striking with clubs or the lash, but also by shouting till a crowd gathers round anyone, by taking possession of anyone's goods, pretending that he is debtor to the inflictor of the injury, who knows he has no claim on him; by writing, composing, and publishing a libel or defamatory verses against any one; by maliciously contriving that another does any of these things; by following after an honest woman or a young boy or girl; by attempting the chastity of any one;' and, in short by numberless other acts. (See Institutes of Justinian by Sandars, p. 509). And in Section 44 of the Indian Penal Code we find the following definition: 'The word 'injury' denotes any harm whatever illegally caused to any person, in body, mind, reputation or property.' Though this definition is given with reference to a criminal offence, I think it may well be followed in determining the question, whether a civil action may be brought where the plaintiff has sustained an injury either in body, mind, reputation or property.
23. Bentham in his 'Theory of Legislation,' observes: 'To perceive all the evil which may result from these offences, it is necessary to put all remedies out of view; it is necessary to suppose there are none. Upon this supposition, these offences may be repeated at will; an unlimited career is opened to insolence; the person insulted to-day may be insulted to-morrow, the next day, every day and every hour; each new affront facilitates another, and renders more probable a succession of injuries of the same kind. Now under the notion of a corporal insult is comprehended every act, offensive to the person, which can be inflicted without causing a lasting physical evil, every act which produces a disagreeable sensation, inquietude or pain. But an act of this sort, which, if single, would be scarcely sensible, may produce, by force of repetition, a very painful degree of uneasiness, or even intolerable torture;' and later on he said 'what is signified by these verbal assaults is this, that the person assailed is thought worthy of public contempt; but on what particular account is not specified. The probable evil which may result is the renewal of similar reproaches. We may fear, too, lest a profession of contempt publicly made may invite other men to join in it. It is in fact an invitation which many will be ready to accept. The pride of censure, the pleasure of triumphing at another's expense, the spirit of imitation, the inclination to believe all strong assertions, give weight to these sorts of injuries. But they seem to owe their principal importance to the negligence of the laws, and to the usage of duelling--that subsidiary remedy by which the popular sanction has attempted to supply the silence of the laws.' And it seems to be obvious that for the peace and well-being of society, verbal abuse, if it is calculated to bring another into contempt, ought to be discouraged.
24. The distinction between oral and written slander, as it exists in the English law, does not, as I understand it, obtain according to Scotch law, where anything defamatory, which produces uneasiness of mind, is actionable; and so it is under the Roman Law, according to which a party is not only entitled to sustain an action for contumelious words spoken concerning himself, but also in respect of those spoken of others of his family, if they tend collaterally to subject him to degradation and contempt (see Starkie's Law of Slander and Libel by Folkard, 4th edition, p. 19).
25. If a man commits an assault upon another, though he may not actually touch him at all, or if he lifts up his cane or his fist in a threatening 'manner at another, or strikes him, however slightly, he is liable to an action for damage; and one fails to see what difference in principle exists between a case like this and a case where a man offers another gross insult in the presence of other people--insult calculated to bring him into contempt and to cause him mental torture.
26. According to the common law in this country, as expounded in the text of the sages, verbal abuses are punishable (see the Sacred Books of the East by Professor Max Muller, vol. 7, p. 270 and vol. 33, p. 207; Mandlik's Byabahara Mayukha, p. 232). And I find that ever since the establishment of the High Court in this province, it has almost invariably been held that verbal abuse, though no actual damage has been caused, is actionable. In the case of Kanoo Mundle v. Rahamoollah Mundle (1864) W.R., Gap. No. 269, Norman, C.J., expressed himself as follows: 'The words, which are of the coarsest abuse, do undoubtedly impute that to the plaintiff which would, if believed, have been hurtful to the feelings of his family and have lowered his character in respect of his caste, and the uttering of them, therefore, amounts to an offence under Section 499 of the Penal Code. Applying the test familiar to English law, the uttering of the words in question, standing by itself, was a wrong, and therefore gave to the individual aggrieved by it a right of action independently of any proof of special damage or actual pecuniary injury;' and later on he observed: 'No doubt actions for slander are often vexatious. But to prevent people from taking the law into their own hands, and for the preservation of peace and order, it is a matter of the greatest importance that Courts of Justice should afford an effectual remedy to persons feeling themselves aggrieved by wanton and virulent abuse.' The same view was adopted in the case of Gholam Hossein v. Hur Gobind Dass (1864) 1 W.R., 19; in Tukee v. Khoshdel Biswas (1866) 6 W.R., 151; in Osseemooddeen v. Futteh Mahomed (1867) 7 W.R., 259; Gour Chunder Puteedundee v. Clay (1867) 8 W.R., 256; as also in the case of Sreenath Mookerjee v. Komul Kurmokar (1871) 16 W.R., 83, where Mitter, J., in delivering the judgment of the Court, observed as follows: 'We think that the Judge is wrong in holding that the abusive words complained of by the plaintiff in this case are not actionable. It is true that the plaintiff might have instituted proceedings against the defendant in the Criminal Court; but his failure to do so does not deprive him of his right to bring a suit in the Civil Court. The case is governed by the ruling of a Division Bench of this Court in the case of Kali Kumar Mitter v. Ramgati Bhattacharjee (1870) 16 W.R., 84, note: 6 B.L.R., Ap., 99. The words alleged to have been used were certainly such as to wound the feelings of the plaintiff.' And he remanded the case for the purpose of a finding upon the question whether the defendant did use the words imputed to him or not. In the case of Srikant Boy v. Satcoori Shaha (1878) 3 C.L.R., 181, Mitter and Maclean, JJ., took the same view of the matter. I find also that in the case of Ibin Hossein v. Haidar (1885) 1. L.R., 12 Cal., 109, Field, J., sitting with O' Kinealy, J., took practically the same view of the law; and he observed: 'We do not propose to lay down as a general rule that the use of every kind of abusive language is actionable. But we think that language, which, having regard to the definition of defamation in the Indian Penal Code, is calculated to injure the reputation, language which, having regard to the respectability and position of the person abused, is calculated to outrage his feelings, lower the estimation in which he is held by persons of his own class, and so bring him into disrepute, is actionable. We think there is no doubt that the language alleged to have been used in this case comes within this principle:' and in so deciding the learned Judges followed the rulings to which I have adverted. In the case of Trailokyanath Ghose v. Chundra Nath Dutt (1885) I.L.R., 12 Cal., 424, Prinsep and Macpherson, JJ., adopted the same view, and followed the case of Srikant Roy v. Satcoori Shaha (1878) 3 C.L.R., 181, and the opinion expressed in Parvathi v. Mannar (1884) I.L.R., 8 Mad., 175, to which I have already referred. And, lastly, we have a very recent case decided by Banerjee and Wilkins, J.J., (unreported) where the learned Judges, upon the point whether slander is actionable in the absence of special damage, expressed themselves as follows: 'Though the rule of English law requires proof of special damage to sustain an action for slander except in certain cases, and though there is some conflict of authority in this country, the later cases are in favour of the view that where the abusive language used is such that, having regard to the respectability and position of the person abused, it is calculated to outrage his feelings or lower the estimation in which he is held by persons of his own class, and so bring him into disrepute, it is actionable without proof of special damage.' [Dina Ram Sarma v. Jogeswar Sarma (1898) 2 C.W.N., cxxiii].
27. In the other provinces also, very nearly the same view of the law has been adopted. In Kashiram v. Bhadu Bapuji (1870) 7 Bom., H.C., A.C., 17, Couch, C.J., followed the rulings of the Calcutta High Court, and he held that the case must be decided according to the principles of justice, equity and good conscience; and he was of opinion that mere verbal abuse without proof of actual damage was actionable. In the case of Parvathi v. Mannar (1884) I.L.R., 8 Mad., 175, the learned Chief Justice, among other matters, observed: 'It is often impossible to bring specific proof of the damage which a man may suffer in his business or in his friendships from such an injury. The injury may be occasioned before he has any opportunity of rebutting the slander, and the memory of the slander may survive its contradiction, and may at any time influence his neighbours unconsciously to his disadvantage; nor is the suffering trivial which such a wrong may inflict on its victim.' It will be observed that although Turner, C.J., in one portion of his judgment, expressed that 'mere hasty expressions spoken in anger or vulgar abuse to which no hearer would attribute any set purpose to injure character would of course not be actionable,' still he held that 'the action should be allowed where the defamation is such as would cause substantial pain and annoyance to the person defamed, though actual proof of damage estimable in money may not be forthcoming, 'and that' a distinction should be drawn between cases where the slanderer acts from mere carelessness, or in an honest but mistaken belief as to his duty, and cases where the slanderer is insolent without any provocation, or is influenced by a desire to gratify his enmity. 'In the case of Abdul Hakim v. Tej Chandra Mukarji (1881) I.L.R., 3 All., 815. Straight, J., held that the law of defamation, which should be applied in suits in India for defamation, is that laid down in the Penal Code, and not the English law of libel and slander, and he observed that 'the state of society and the condition of things in the two countries is wholly dissimilar, and to lay it 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.'
28. In Dawan Singh v. Mahip Singh (1888) I.L.R., 10 All., 425, where, upon the plaintiff being cited as a witness in a suit, and where after giving his evidence the defendant was examined by the Court and stated that there was enmity between him and the plaintiff, and upon the Court inquiring what the reason of this enmity was, he, the defendant, used words conveying the meaning that plaintiff's descent was illegitimate, it was held by Brodhurst, J., that under the circumstances the statement complained of had been made by defendant while deposing in the witness-box, and therefore it was privileged. But Mahmood, J., took a very contrary view, and he discussed at length the law upon the subject, and held that the statement was not privileged. He expressed the opinion that the law as laid down by the Calcutta High Court was correct, and he showed why the distinction which obtains in the English law between verbal and written slander should not be adopted in this country; and he observed as follows (at page 444 of the report): 'The reasons ordinarily employed against this view are that 'abusive, insulting and unmannerly language which affects not a man's liberty or estate are of too indefinite and uncertain a character to be the subject of an action for pecuniary damages. Such injuries, rather affronts to the feelings, are as incapable of definition as they are of admeasurement. They depend upon the rank, situation and condition of the parties, and on circumstances which may be felt but not defined; they may depend on the tone of voice, the gestures, even looks, by which they are accompanied, and in some instances, silence may be more contemptuous and insulting than direct expressions' (Starkie, p. 17). It is submitted that these objections apply equally to almost all personal injuries (such as assault, defamation, false imprisonment, etc.), in which mental suffering is recognized as an element of assessing damages; so much so that there is no fixed rule for estimating damages in such cases, and the matter is usually left to the discretion of the jury with reference to the circumstances of aggravation or mitigation as the case may be. In India such questions would have to be decided by the Judge, and I can anticipate no impossibility in arriving at a fair assessment of damages in cases of personal insult as distinguished from defamation.' Later on (at page 445) he observed: 'Unadvanced countries like India present a state of society where personal insult needs more check than in more civilized countries like England.' He also said (at page 446): 'Another objection, so far as I can gather from the English text books to recognizing personal insult as a distinct tort, is that it would afford far too large a scope for vexatious litigation, and the ordinary intercourse of society would be impeded and fettered by the apprehension of vexatious and harassing suits for trifling causes. The answer to such an argument is, I think, furnished best by the celebrated dictum of Lord Hall in Ashby v. White, 1 Smith L.C. (10th Ed.) 231 (268): 'As in an action for slanderous words, though a man does not lose a penny by reason of the speaking them; yet he shall have an action. So, if a man gives another a cuff on the ear, though it cost him nothing, no, not so much as a little diachylon, yet he shall have this action, for it is a personal injury. And it is no objection to say that it will occasion multiplicity of actions; for if men will multiply injuries, actions must be multiplied too, for every man that is injured ought to have his recompense.'
29. Against this large array of cases in support of the plaintiff's contention, some cases have been quoted on the other side. In the case of Komul Chunder Bose v. Nobin Chunder Ghose (1868) 10 W.R., 184, where a suit was brought to obtain damages for defamation contained in a letter written and sent by the defendant to plaintiff, and where the only damage alleged was the injury to plaintiff's feelings, it was held that such injury was not in itself a ground for awarding damages in a civil action. No authority is quoted for the decision, and the earlier rulings of this Court do not seem to have been brought to the notice of the learned Judges. In the case of Phoolbasee Koer v. Parjun Singh (1869) 12 W.R., 369, it was held that mere verbal abuse without proof of actual damage is not actionable. Here also no authority is quoted and the earlier cases of this Court do not appear to have been considered. In the case of Chunder Nath Dhur v. Isurree Dossee (1872) 18 W.R., 531, Kemp and Glover, JJ., held that though mere verbal abuse without consequent injury would give no claim for damages, yet where a person of some position had been assaulted and grossly abused, and where her reputation must have been injured and her feelings outraged, she was entitled to damages. In the case of Nil Madhub Mookerjee v. Dookeeram Khottah (1874) 15 B.L.R., 161, where the question was raised whether an action for slander could be brought jointly against several defendants, it was held by Pontifex, J., that it could not be so brought, because each person sued for verbal slander was responsible only for what he himself had uttered. And leave was granted to the plaintiff to elect any one of the defendants to sue. The learned Judge, however, seems to have then expressed a doubt whether the words complained of were libellous per se; and it was thrown out that unless special damage was proved the Court would be very much reluctant to give any damage. I take it that the question which arises in this case was not really decided then. In the case of Mahomed Ismail Khan v. Mahomed Tahir (1873) 6 N.W.P., H.C. 38, where an action was brought for damage for defamation contained in two letters written and sent by the defendant to the plaintiffs, but where no other publication was alleged and no other injury than the injury to the feelings was caused, Turner, J., followed the decision in the case of Komul Chunder Bose v. Nob in Chunder Ghose (1868) 10 W.E., 184, and held that the suit was not maintainable. The earlier rulings of the Calcutta High Court do not seem to have been then brought to the learned Judge's notice, and I take it that he considerably modified his opinion when as Chief Justice of the Madras High Court he decided the case of Parvathi v. Mannar (1884) I.L.E., 8 Mad., 175.
30. I have now referred to all the Indian authorities upon the subject that have been brought to our notice, and I have also referred to what is the common law in this country as expounded by sages; and it seems to me that the balance of authority is decidedly in favour of the proposition that the action does lie.
31. It may no doubt be said, as it has been said, that it is very difficult to measure the damage caused to a person's feelings by reason of insult offered to him, and that if the view I have expressed be adopted, it would lead to the logical result that an action may be brought for damage if a person defames another's nearest relations in his presence, causing thereby mental pain.
32. As regards the first mentioned matter, all that I desire to say is that the question of the amount of damage is always left to the judge of facts, and he has to consider with reference to all the circumstances, under which the insult was offered, and the character thereof, whether any and what damage should be awarded.
33. The Indian Penal Code in Section 95 lays down 'that nothing is an offence by reason that it causes, or that it is intended to cause, or that is known to be likely to cause any harm, if that harm is so slight that no person of ordinary sense and temper would complain of such harm.' This rule of law may, I think, well be adopted by the Civil Courts in determining suits for damages by reason of an insult offered. I do not myself apprehend that a judge of facts would be under any real difficulty in assessing damage in any given case. Indeed no such difficulty is said to have been experienced in any of the various cases that I have referred to.
34. As regards the other matter, it seems to me that in such a given case, an injury would be rather indirect or remote; and for my own part I should hesitate to hold that an action would lie for such an injury, though I find that according to the Roman law an action does lie, and so perhaps according to the Scotch law, as expounded in the case of Mackenzie v. Bead, (2 Murray's Rep., 149); for there, if there is anything that produces uneasiness of mind, it is actionable. But it is not necessary to express any decisive opinion upon the point in this case, and I should prefer to confine myself to the facts of the case before us. I am bound, however, at the same time to say, having regard to the fact that other systems of law allow actions for verbal abuse, without any proof of special damage, that the contention raised on behalf of the plaintiff in this respect cannot be said to be unreasonable.
35. As a consideration of public policy, it has been pointed out that Section 504 of the Indian Penal Code provides sufficient remedy for conduct such as the defendant's, and that it is not desirable that a party should have, in addition thereto, a remedy in the Civil Court. The Penal Code, however, affords a remedy to a person only where the slanderer intends or knows it to be likely that the insult offered will cause him to break the peace, or commit any other offence. But this does not cover other cases of the kind that may arise, and where the slanderer without any justifiable cause grossly vilifies another. I may add that where the person abused is known to the slanderer to be a person of meek and quiet disposition--one who would not under any circumstance break the peace--he would be left without any remedy, because in that case the wrong-doer could not be punished under Section 504 of the Penal Code. And yet this would be a case which stands most in need of remedy. A case like this, as it seems to me, should be decided according to the principle of justice, equity and good conscience (See Section 37, Act XII of 1887). And, having this principle in view, I am of opinion that it is but just and right that a person thus vilified should be entitled to maintain an action.
36. I would answer the question referred to the Full Bench in the affirmative.