Ramendea Mohan Datta, J.
1. This appeal arises from the order dated 14th January, 1976 passed by Sabya-sachi Mukharji, J. allowing amendment of the plaint in a suit for defamation.
2. The suit was originally filed in the Court of the 9th Sub-Judge at Alipore in 24 Parganas on or about 4th July 1973 and was marked as Money Suit No. 18 of 1973. An application was made under Clause 13 of the Letters Patent 1865 on behalf of the defendants in the suit, being Matter No. 709 of 1973 of this Court and an order was made therein on 26th January 1974 whereby the suit was directed to be transferred from the Alipore Court to this Court for being tried in its extraordinary Original Civil Jurisdiction. The suit was then marked as Extraordinary Suit No. 12 of 1974 of this Court.
3. In August 1975 an application for amendment of the plaint, which is the subject matter of this appeal herein, was filed in which Sabyasachi Mukharji, J. made the said order herein allowing the amendments as prayed for.
4. The plaint as originally filed was in Bengali language and character but an unofficial translation thereof was annexed to the petition praying for amendments as indicated in red ink thereon. It is to be noticed that neither the plaint filed in the Bengali language and character nor the writing containing the defamatory statements were placed before the court or annexed to the said petition for amendment or with the plaint sought to be amended.
5. The suit relates to certain alleged defamatory statements in writing alleged to have been made by the defendants and/or published by them concerning the plaintiff-respondent No. 1 herein. Surprisingly enough, although serious allegations have been made in the plaint against a particular group of the Vaish-navas, even by transgressing all sense of proportions and decency, yet the plaint singularly lacked in most essential particulars relating to material facts which are required to be pleaded in a suit for defamation, so much so that even the actual defamatory words have not yet been set out or annexed to the draft plaint. From the materials before us it appears that the original plaint contained 35 paragraphs out of which paragraphs 2 to 14 and 16 to 29 were totally sought to be deleted from the body of the plaint and a considerable number of new paragraphs were sought to be introduced by way of amendment. It is not necessary to go into the details of the pleadings which have been deleted except to observe that the same contained language and expression which were quite unbecoming to persons who have taken upon them the sacred duty of preaching religious faith amongst the devotees.
6. Admittedly, the plaint contains averments which are not only scandalous but also wholly unnecessary for the purpose of the suit but, as observed hereinbefore, it did not contain even the most vital and material facts without which the plaint would remain defective to such an extent that no court would be in a position to pass any decree thereon. It would be liable to be rejected for want of a complete cause of action.
7. The matter, inter alia, relates to a periodical named 'SRIDHAM NABA-DWIP PATRIKA' in which an article complained of herein was alleged to have been published. The said article is alleged to be containing many false and defamatory remarks in the Bengali language and character whereby the plaintiff and all the members of his group were alleged to have been defamed. Certain leal-lets to the above effect is also alleged to have been published.
8. Mr. A. K. Ranerjee appearing on behalf of the plaintiff-respondent No. J herein, contends that paragraphs 30 and 31 of the plaint, as pleaded and as originally filed, which have since been renumbered as paragraphs 3 and 5 respectively, contained the cause of action in defamation. The learned advocate, however, admits that the said cause of action was pleaded in incomplete form and lacked in material particulars which are now sought to be supplied by way of amendment. The said paragraphs 30 and 31 of the unofficial translation of the plaint as originally filed and as renumbered respectively as paragraphs 3 and 5 as appearing in the unofficial translation annexed to the said petition for amendment are as follows :--
'3. On the 26th Jaistha of 1380 B. S. corresponding to the English date the 9th June 1973 A.D. in a periodical named 'Sridham Nabadwip Patrika' the defendants Nos. 2, 3 and 4 by publishing many false and slanderous remarks, defamed the plaintiff and all the members of his community and the statements, facts and remarks made therein are so acrimonious and derogatory that the high dignity of the plaintiff and a person of international reputation has been disparaged and thereby irreparable loss has been and is being caused.'
'5. One Kalipada Ganguli, the defendant No. 5 in this suit a member of the Sahajia Sect being instigated by the said defendants Nos. 2, 3 and 4 has been, by causing an undated leaflet containing defamatory, false and acrid remarks, published from the printing press of the defendant No. 6 making attempts to belittle the plaintiff in the estimation of the public and he is (still) doing so.'
9. Dr. Das on the other hand contends that the plaint as framed did not contain any cause of action in libel inasmuch as the actual words complained of have not been stated in the body of the plaint as originally filed. If amendments would be allowed, an entirely new cause of action would be allowed to be pleaded in the shape of furnishing particulars of the averments already made. It would then be a new case altogether inasmuch as initially it lacked any cause of action which is now sought to be completed by way of amendment. The plaint, as it is, cannot be decreed and is likely to be rejected for want of proper cause of action and, accordingly, the amendments should not be allowed to enable the plaintiff to introduce a new case and cause of action therein. It must be noted, however, that even now no attempt has been made to plead in the plaint the actual defamatory statements which were alleged to have been published in the same language and character, the same were published.
10. This is a case where it is alleged that the libel complained! of was contained in the Bengali periodical dated 26th Jaistha 1380 B. S. corresponding to 9th June 1973 and in certain leaflets. In a suit for defamation one of the material and essential fact which needs to be pleaded is the actual words which are complained of as containing defamatory statement referable to the plaintiff. If it has been published in the Bengali language and character, it is necessary that the same should be made a part of the plaint in the same language and character so that the court deciding the question would be in a position to appreciate whether the publication contained defamatory statements and whether the same were referable to the plaintiff and what damages, if any, the plaintiff suffered on account thereof. It appears that the exact legal position has not been appreciated at all and as such the rules of pleadings have not been followed or complied with in this case. The Rules of pleading as provided in the Code require that in the plaint the cause of action, as and when it arose, must be pleaded. Order 7, Rule 1 (e) of the Code of Civil Procedure provides :--
'1. The plaint shall contain the following particulars--particulars to be contained in plaint:
(a) to (d) .....
(e) the facts constituting the cause of action and when it arose.'
11. Under Order 6, Rule 2 it is provided, inter alia, as follows :--
Pleading to state material facts and not evidence :--
'2. (1) Every pleading shall contain,and contain only, a statement in a con-cise form of the material facts on whichthe party pleading relies for his claim ordefence, as the case may be, but not theevidence by which they are to be proved.
* * *'
12. The law relating to pleading in an action for defamation was laid down a century back in the case of Harris v. Watre, (1879) 4 CPD 125 at pp. 127 and 129 and the same continues to be good law till today. The said decision is also reported in (1879) 48 LJQB 310. Lord Cojeridge, C. J. in his judgment relying on a passage in Starkie on Libel, 3rd Edition, 343 observed:
'in cases of libel and slander, the very words are the very facts, and it is these defamatory words, and not the defamatory expressions generally, which form the ground of action. It is stated in a book of the highest authority-- Starkie on Libel, 3rd Edition, page 343, 'generally the very words used should be set out, for it has frequently been held that it is not sufficient to describe them by their sense or meaning, substance, purport or effect.' This principle was strongly reaffirmed in a recent case in the Court of Appeal. The Queen v. Bradlaugh (1878-46 LJMC 286) and the practice in pleading, therefore, was perfectly clear before the Judicature Acts. But Mr. patheram contends that Order XIX, Rule 4 enables him to do what he has done here. The answer is that in libel the words are 'the material facts' mentioned in that rule. It is evident also that no alteration in the practice was intended to be made, for there is no form of a statement of claim for libel in the forms appended to the Rules of Court. The old practice, therefore, must be retained.'
In Gatly on Libel and Slander, a part of the above observation has been quoted.
13. In Atkin's Court Forms, 2nd Edition, Volume 25, page 68 it is stated:
'The statement of claim must set out the precise words complained of and should not allege that the defendant published words 'to the following effect.' If the plaintiff fails to plead with reasonable certainty the words of which he complains he can be required to give particulars of the publication complained of, to show that he has a proper case to put before the Court and is not merely fishing for one. Where the words complained of appear in a long article or a book, the plaintiff should plead only those passages which are alleged to be defamatory: since the words complained of must be construed in their context, the jury will be entitled to see the whole article or book, as the case may be.'
14. In Bullen and Leake's Precedents and Pleadings, 12th Edition, at page 626 it is stated:
'The libel must be set out verbatim in the statement of claim; it is not enough to set out its substance, or the effect as 'the precise words of the document are themselves material.' (See Order 18. Rule 7 (2), Collins v. Jones (1955) 1 QB 564).
In Form No. 363 thereof it is provided that the claim for damages for libel in foreign language should be set out in the same language verbatim in the body of the plaint and thereafter the English translation is also required to be set out, 14-A. It. is true that if the defendants had asked for the particulars of the said averments as pleaded in paragraphs 30 and 31 of the plaint as originally filed and if such particulars would have been furnished in accordance therewith, then there could not have been any difficulty in completing the cause of action which remained incomplete or defective for want of those material facts. Similarly, the Court might also have directed the plaintiff to furnish such particulars if the defendants had applied for the same in an application for particulars and pursuant thereto particulars might have supplied and thereby the defect, if any, could have been cured, but such is not the case before us. The particulars are now sought to be introduced in the body of the plaint by way of amendment.
15. According to Dr. Das, the averments which are now sought to be intro duced in the body of the plaint by way of amendment would constitute a new case altogether and the cause of action is thereby sought to be made out in the body of the plaint; and this is now sought to be made out at a time when the suit, if filed, on the date of the order for amendment would have been barred by limitation. That being so, if the amendment would now be allowed it would relate back to the date of filing of the suit and thereby the bar of limitation would be removed. According to Dr. Das, a valuable right had accrued to the defendants and the same should not be taken away by allowing the amendments. The whole question now before us is whether the amendment now sought to be introduced by supplying the particulars would amount to a new case or pleading a new cause of action.
16. The question as to whether this is a new cause of action or whether it is only supplying the particulars in the same cause of action which was originally pleaded, assumes importance and requires to be decided for the purpose of determining whether the defendants' valuable right, if any, would be taken away if the amendment would be allowed. That consideration would also be relevant for the purpose of determining whether an appeal would lie under Clause 15 of the Letters Patent, 1865.
17. As to what constitutes a new cause of action or a new case in relation to the amendment of a plaint has been repeatedly considered by the Supreme Court in its various decisions. The Supreme Court in its decision in the case of Ganesh Trading Co. v. Moji Ram, : 2SCR614 reviewed various decisions of its own and summarised the principles of law in relation thereto in the said case of Ganesh Trading Co. (supra). The Supreme Court also referred to its previous decision in the case of A. K. Gupta & Sons v. Damodar Valley Corporation, : 1SCR796 in which at p. 98 it was observed :--
'The expression 'cause of action' in the present context does not mean 'every fact which it is material to be proved to entitle the plaintiff to succeed' as was said in Cooke v. Gill, (1873) 8 CP 107 (116), in a different context, for if it were so, no material fact could ever be amended or added and, of course, no one would want to change or add an immaterial allegation by amendment. The expression for the present purpose only means, a new claim made on a new basis constituted by new facts. Such a view was taken in Robinson v. Unices Property Corporation Ltd., (1962) 2 All ER 24, and it seems to us to be the only possible view to take. Any other view would make the rule futile. The words 'new case' have been understood to mean 'New set of ideas': Dorman v. J. W. Ellis and Co. Ltd., 1962-1 All ER 303. This also seems to us to be a reasonable view to take. No amendment will be allowed to introduce a new set of ideas to the prejudice of any right acquired by any party by lapse of time'.
18. In the case of Ganesh Trading Co. : 2SCR614 (supra) the Supreme Court at p. 486 observed :--
'But, mere failure to set out even an essential fact does not, by itself, constitute a new cause of action. A cause of action is constituted by the whole bundle of essential facts which the plaintiff must prove before he can succeed in his suit. It must be antecedent to the institution of the suit. If any essential fact is lacking from averments in the plaint the cause of action will be defective. In that case, an attempt to supply the omission has been and could sometime be viewed as equivalent to an introduction of a new cause of action which, cured of its shortcomings, has really become a good cause of action. This, however, is not the only possible interpretation to be put on every defective state of pleadings. Defective pleadings are generally curable if the cause of action sought to be brought out was not ab initio completely absent.'
19. In the instant case before us, the cause of action which was pleaded originally was in defamation. The alleged defamatory statements constituting the defamation were conspicuous by their absence from the body of the plaint. Even the journal the leaflets containing the defamatory statements were not made annexures to the plaint. That being so, although the cause of action was pleaded it could not be denied that it was in an incomplete and defective form. Now what is sought to be done is to introduce by way of particulars certain averments so that the cause of action in defamation might be properly pleaded and the defect might be cured. We, however, do not come to any final decision as to whether by making these amendments the plaintiff/respondent No. 1 herein has stated in his plaint the entire cause of action or not but that is a separate thing to be considered at the time of the trial of the suit and the same is left open to be decided there. All that we are concerned with here, as already observed, is to consider whether it is a new cause of action or a new case that is sought to be introduced by way of amendment so that if the defendants' accrued rights would be in any way impaired, the defendants might contend that the order allowing the amendment would be an appealable order under Clause 15 of the Letters Patent, 1865.
20. In our opinion, no new ideas are being introduced by way of amendment but only some particulars are being sought to be introduced in the body of the plaint by making this application for amendment.
21. Dr. Das relied on the Calcutta High Court decision in the case of M. B. Sirkar & Sons v. Powell & Co., : AIR1956Cal630 but in our opinion, in the facts and circumstances of the case before us the said decision has no application inasmuch as we are of the opinion that no new cause of action is sought to be introduced by way of amendment.
22. In his reply Dr. Das has made an attempt to argue that a new party has been sought to be added in the cause title to the plaint and, that being so, as against such party, the amendment could not be allowed inasmuch as the cause of action in defamation is already barred as against him. Originally what was pleaded in the cause title reads as follows :--
'(7) Proprietor, Town Press, Naba-dwip.'
23. That was all that was pleaded for the purpose of suing the said proprietor of the said press of Nabadwip but by way of amendment his name has been supplied only and the amendment now reads as follows :--
'(6) Indu Bhusan Chatterjee, Proprietor, Town Press, Nabadwip, in the district of Nadia.'
Hence all that has been done is to supply the name of the person who continued to remain the proprietor Town Press, Nabadwip but whose name was not mentioned and the words, 'in the district of Nadia' have been added. We do not think that a new party has been added thereby and by supplying the name of the proprietor any prejudice has been caused to the defendants except that the plaint has been sought to be cured of its defect in pleading in so far as the cause title is concerned.
24. We should deal with another point which is relevant for the purpose of his appeal. By the said order dated January 14, 1976, Mukharji J., inter alia, ordered that upon payment of 30 G. Ms. as costs within a certain time mentioned therein the amendment would be allowed and the time for filing the written statement was extended by a fortnight from the date of the service of the copy of the plaint so to be amended as mentioned in the said order. At that stage, however, when the said cost was offered for payment the recorded Advocate on behalf of the defendants appellants declined to accept the same and this appeal was preferred from the said order of Mukharji J. The Appeal Court, however, passed an order on May 10, 1976, inter alia, to the effect that the ad interim order passed by the Appeal Court stood vacated.
25. The order proceeded:
'The date of payment of costs by respondent No. 1 as ordered by the trial Court is extended by a fortnight from today. The time to file written statement is extended by a month from date.'
26. There was further order, inter alia, expediting the hearing of the appeal and giving directions in accordance therewith. Pursuant to the said order the recorded Advocate of the respondent No. 1 by and under cover of his letter dated May 10, 1976 addressed to the recorded Advocate of the appellant sent a cheque along with the said letter for a sum of Rs. 510 towards payment of the said assessed costs for amendment of the plaint and asked for a receipt in respect thereof.
27. Thereupon at that stage, the said cheque was accepted and encashed and the said fact was recorded by a letter dated 7th June, 1976 written by the recorded Advocate of the respondent No. 1 in favour of the appellant, inter alia, recording that the cheque drawn in favour of the appellant for payment of cost of Rs. 510 for amendment of the plaint was encashed on 19th May, 1976. By the same letter the said recorded advocate asked for a formal receipt for payment of the said sum of Rs. 510. Formal receipt was produced before us and the same did not contain any remark to the effect that the sum was being accepted without prejudice. In the written statement filed on behalf of the respondent Nos. 1 to 5 what has been pleaded in paragraph 14 thereof is as follows:
'The Hon'ble Mr. Justice Sabyasachi Mukharji passed an order dated the 14th January 1976 allowing the proposed amendments. The defendants preferred an appeal being Appeal No. 135 of 1976 and the appeal Court passed an order directing the defendants to file written statement without prejudice to the defendants' rigts and contention. These defendants filed written statement subject to final decision of the appeal Court and without prejudice to the said appeal.'
28. It has to be noted that no such order has been produced before us whereby the appeal Court had given direction to file written statement without prejudice to the defendants' rights and contentions as alleged therein.
29. That being the position, it was contended on behalf of the plaintiff respondent No. 1 herein that the appellant should not be allowed to challenge the order dated 14th January, 1976 passed by Sabhyasachi Mukharji, J because he has accepted the cost which was directed to be paid by the said order and thereby has complied with the order and has taken advantage thereof. Mr, Banerjee has referred to the decision in the case of Banku Chandra Bose v. Marium Begum, reported in 21 Cal WN 232 : (AIR 1917 Cal 546 (SB) wherein it was held that parties having taken advantage of the order were precluded from appealing against the same. The learned Advocate contended that on this ground also the appeal becomes not maintainable. Dr. Das, however, tried to disttinguish this case by contending that in the above case advantage was sought to be taken before filing the appeal from the order but in the instant case advantage, if any, was taken after the filing of the appeal and secondly, that the same amount was accepted on the basis of the order as made by the appeal Court,
30. In any event, we are of the view that by the acceptance of the amount by way of cost as ordered by the court below, the appellant has taken advantage of the said order even though at a later stage i.e. after having filed the appeal and thereby the appeal has become misconceived by reason thereof. The defendants appellants cannot take advantage under the said order allowing the amendments by accepting the costs allowed in their favour and at the same time appeal against the said order> They cannot both approbate and reprobate from the aforesaid conduct of the appellant by filing the written statement, on the plaint as amended, and by accepting the costs, a? awarded by the court below, the appellant has made it clear enough that it wanted to abide by the said order oi amendment and did not want to contest the same at the hearing of the appeal.
31. The result, therefore, is that we are bound to hold that the order appealed from cannot amount to a judgment within the meaning of Clause 15 of the Letters Patent, 1865 and, accordingly it must be held on that ground alone that the appeal is not maintainable. We, accordingly, dismiss the appeal but in the facts and circumstances of this case, we order that the costs of this appeal, would abide by the result of the suit.
32. We make it clear, however, that we have decided this appeal only on the above preliminary point as to maintainability and/or appealability and whatever observations have been made hereinabove in connection with the pleading in a suit for defamation, were so made solely for the purpose of finding out whether or not by the order for amendment a new cause of action or a new case was allowed to be pleaded in the plaint by way ol amendment. Accordingly, any observation made hereinabove in that connection will not in any way be read as certifying that by reason of the amendment being allowed by the Court below and on the basis of the amended plaint as it stands now, the defects in the plaint have all been cured. This order will not in any way affect the right of the parties to take such points at the hearing of the suit, as they might be advised, in respect of the sufficiency of the pleadings in the plaint as it stands even after amendment thereof.
33. It is recorded that various decisions were cited at the Bar but in view of our decisions herein, we think it is not necessary to deal with each and every one of them and as such we have restricted ourselves to deal with such decisions only which are relevant for the purpose of deciding this case.
C.K. Banerji, J.
34. I agree.