John Woodroffe, J.
1. This is a suit for defamation against a Pleader. The defamation is alleged to have taken place during the course of the defence to an action brought for rent. It is alleged in the plaint that the plaintiff, who is a lady, was described as a cheat, It is alleged the defendant had said that that she had forged papers fraudulently, that she was a rogue, etc., and that the defendant 'expressed wrath and contempt towards the plaintiff by making various accusations against her.'
2. In the defence to the suit the defendant stated that these allegations were not true and that he merely commented upon certain Exhibits, Nos. P and Q, after reading them and that he did not use the expressions alleged by the plaintiff. Farther, the defendant Lays that he never used the expressions 'Badmash,' etc. The case in which the defamation is said to have occured was tried in the Court of the Munsif who made a note at the time of the incident and stated in his evidence that he remembered one expression only, namely, that '(she) forged documents by means of fraud.' This is also recorded in order 51 of the order sheet on the 8th May 1917. The learned Subordinate Judge, who has tried and dismissed this suit, has accepted the Munsif's evidence and held that the defendant need the expression 'Juachuri Kariya Kagaj Patra Jal Kariyache,' The Subordinate Judge in his judgment says that: It seems to me probable that be added to the aforesaid expression words, importing---it has been held so in the previous rent suit.' He further says that he cannot hold upon the evidence that he (the defendant) used the expression ' Juachor' or Badmash.' Accepting the Judge's finding as to that, the question is, whether the defendant is liable for defamation. If this be a t question of absolute privilege, the answer would be in the negative. If the question is one of qualified privilege, then it has to be shown that the statement was made pertinently and so forth. There is no need in the present case to go into the question of law bearing upon the general question of liability of Counsel and Vakils in respect of defamatory statements made by them in the acurse of proceedings in which they were professionally engaged having regard to the finding en the facts. Upon the question of malice it is to be observed that the plaintiff herself states in her evidence (hat there was no enmity between her and the defendant before the institution of the suit. And it has not been contended by the learned Vakil on behalf of the appellant that there was any enmity or any malice in fact. The malice alleged is such as, (it is said), should be inferred from the fact that the statement was not justifiable. The circumstances leading up to the statements complained of are these: The plaintiff's husband had previously brought a suit for rent. In the judgment of that suit, the learned Munsif who tried the suit made the following observations:
As to the Collection Papers filed on behalf of the plaintiff, they seem to have been manufactured for the purposes of the present suit, for they were produced long after the written statement had been put in,' After that suit by the plaintiff's husband, the plaintiff herself filed another suit for rent as her husband bad done before her, and relied upon the Collection Papers which were produced on her behalf. Her suit was also dismissed and in the course of that suit, the Munsif who tried the suit, in his judgment observed, with reference to enhancement, that, 'the enhancement must have been surreptitiously made and the tenants refuted to pay further rent.' The Munsif alto says that: ' The landlord attempted on two occasions to realise a larger amount by suit but could not get more than Rs. 36.
3. In the suit in respect of which this claim for damages arose, the learned Vakil for the defence referred to the previous proceedings in the suit brought by the present plaintiff's husband and in doing so, he made the remark which the learned Subordinate Judge has stated in his judgment and which I have quoted.
4. It is contended on behalf of the respondent that it has been found by the learned Subordinate Judge that the remarks, such as he has found them to be, were justifiable on the part of the defendant as Pleader who was making legitimate comments on the case. As I have already observed, the Subordinate Judge has found that it is not proved that the Pleader used the words ' Juachor ' or 'Badmash.' As to the other statement which is found by the Judge to have been used, it seems to me that it does not by itself necessarily imply that any charge was made against the plaintiff of having herself personally and knowingly instituted a fake suit. The comment made was, that the suit by the plaintiff was, in fast, false; and reliance was placed on the earlier suit by the plaintiffs husband for the purposes of establishing that fact. This, as I have said, is not necessarily a personal charge against the lady in question, who, so far as we can see from the evidence on the record, may have had nothing personally to do with the suit, beyond the fact that she was the plaintiff in it. Probably the suit was, as is generally done in such cases, looked after by officers of the plaintiff, one of whom was named Chandra Sanyal whom the Subordinate Judge has found to have had a grievance against the present defendant. The Subordinate Judge says: ' The present suit is the outcome of malice that the plaintiffs man, Sanyal, bore against the defendant,' In any case I am of opinion that the learned Subordinate Judge has tome to a right conclusion in holding that what the defendant did was in the professional discharge of his duty and in good faith for the protection of the interest of his client, and that his remarks were not irrelevant but pertinent to the enquiry which was being made before the Judge and had a direst bearing on the case. I am of opinion, therefore, that the learned Subordinate Judge's decision in holding that it has not been shown that the defendant is liable for damages should be affirmed.
5. The appeal is accordingly dismissed with costs.
6. I agree.