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Sohonlal Daga Vs. Sreechand Daga and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1941Cal247
AppellantSohonlal Daga
RespondentSreechand Daga and anr.
Excerpt:
- .....in my opinion, in order to found a cause of action in tort, it must be alleged that the defendant committed the tort. it seems fairly obvious this is not the pleading. in point of fact, defendant 2 was the guardian of defendant 1; but in my opinion this is not a pleading of a sufficient or proper nature alleging that defendant 1 committed the tort alleged. dealing therefore with the issues raised by mr. khaitan, which are before me, i answer issue 1 in the negative, issue 2 in the negative, issue 3 in the negative and issue 4 in the negative, the meaning of which i have just explained. this being the case, it will hardly be necessary to proceed to any evidence. the suit must be dismissed with costs. certified fit for two counsel.
Judgment:

Ameer Ali, J.

1. This suit can be dealt with upon the pleading, and Mr. Khaitan was quite justified in asking ma to deal with the issues of law, including those by way of demurrer. There are, in my opinion, two points where the plaint breaks down. In para. 2 the only publication alleged is to the plaintiff. That, according to the law, is not publication. I accept the position as set out in Bullen and Leake that it is an essential part of a cause of action for libel, to allege publication which means to a third party, or of course, such circumstances as will lead the Court to presume publication to a third party. This pleading in terms excludes publication to a third party. From this it follows that there is no cause of action, and secondly, no cause of action arose in Calcutta, the two points overlapping.

2. The other point on which the plaint fails is in the same paragraph, so far as defendant 1 is concerned. It is alleged that defendant 2 purported to act on behalf of defendant 1 through his lawyer. In my opinion, in order to found a cause of action in tort, it must be alleged that the defendant committed the tort. It seems fairly obvious this is not the pleading. In point of fact, defendant 2 was the guardian of defendant 1; but in my opinion this is not a pleading of a sufficient or proper nature alleging that defendant 1 committed the tort alleged. Dealing therefore with the issues raised by Mr. Khaitan, which are before me, I answer issue 1 in the negative, issue 2 in the negative, issue 3 in the negative and issue 4 in the negative, the meaning of which I have just explained. This being the case, it will hardly be necessary to proceed to any evidence. The suit must be dismissed with costs. Certified fit for two counsel.


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