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TMI Blog1965 (11) TMI 154X X X X Extracts X X X X X X X X Extracts X X X X ..... pleaded an apology for the entry having appeared in the telephone directory through inadvertence and raised contentions in mitigation of the quantum of damages claimed by the plaintiff. It appeal's that the suit was heard on September 20/21, 1961, by Mr. Justice K.K. Desai and on these dates evidence of the plaintiff in chief was recorded. The suit was thereafter adjourned and it again came up on Board before the same learned Judge and was heard for three days viz. on October 10, 11 and 12, 1961, and the case was adjourned to October 16, 1961, on which day arguments were advanced on both the sides before the learned Judge and the suit was adjourned to the following day. It may be stated that defendants, Nos. 5 and 6 were the attorney and counsel representing defendants Nos. 1 and 2 in that case. On October 17, 1961, when the suit reached hearing at about 1.55 p.m. defendant No. 6 instructed by defendant No. 5 applied for an adjournment of the hearing of the suit by making a statement to the Court that their clients (meaning defendants Nos. 1 and 2) had evidence in their possession about certain facts viz. that the plaintiff was a divorcee, that she had been divorced by her husb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement made by defendant No. 6 as counsel of defendants Nos. 1 and 2 in Court on October 17, 1961. Damages are claimed against defendant No-. 5 for having instructed defendant No. 6 to make those statements in Court about the plaintiff and against defendant No. 6 for having actually made those statements against the plaintiff. Defendants Nos. 1 and 2 have been joined to this suit, inasmuch as the alleged defamatory statements were made by defendant No. 6 for and on their behalf. So far as defendants Nos. 3 and 4 are concerned, the plaintiff has alleged that in the proceedings which the plaintiff had taken for setting aside the settlement that had been arrived at between the parties, defendants Nos. 3 and 4 in their affidavits filed by them in those proceedings had repeated and reiterated all that had happened in Court on October 17, 1961. It is in these circumstances that the plaintiff has filed this suit claiming damages in the sum of ₹ 1 lac from all the defendants on the allegations that defamatory statements we're made by defendant No, 6 as instructed by defendant No. 5 for and on behalf of defendants Nos. 1 and 2 maliciously and with intent to lower her in the estimat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s which have been raised by defendants Nos. 5 and 6 in their written statements pertaining to the occasion being absolutely privileged or at any rate one of qualified privilege. 5. Out of the several issues that arose from the rival pleadings of the parties, I directed that two issues should be tried as preliminary issues viz. (1) whether the alleged defamatory allegations were made on an occasion absolutely privileged and (2) if so, whether the plaint discloses any cause of action. On behalf of the defendants it was urged that the entire suit was capable of being disposed of on these two preliminary issues, for if the Court came to the conclusion that the occasion on which the alleged defamatory statements were uttered was one of absolute privilege, the plaintiff's action was liable to be dismissed. On the other hand, the plaintiff urged that without going into the evidence, it would not be possible for the Court even to decide the question of absolute privilege. The learned Counsel for defendants Nos. 5 and 6 pointed out that for the purpose of these two issues, the allegations made in the plaint may be assumed to be true and that on that basis as on demurrer the two issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed outat 1.55 p.m. the defendants Nos. 5 and 0 on behalf of the defendants Nos. 1 and 2 in the above suit, declared that they had evidence against the plaintiff's 'bad character' alleging that she was a divorced wife of an alleged husband who divorced her on the ground of unchastity and immorality and secondly she was making her alleged daughter lead an immoral life which daughter was married to one Bhavsar, and that they wanted to lead the evidence of the alleged husband and son-in-law and therefore, pleaded an adjournment for that purpose, The plaintiff was completely shocked and dazed to hear such false, heinous, unthinkable, mean, callous allegations of the grossest kind of defamatory nature thrown on her all of a sudden as a stupefying surprise when the suit was ripe for judgment and that too without the least notice to the plaintiff or to her counsel or to her solicitor. These are the material and relevant allegations on which the entire cause of action of the plaintiff is founded. Incidentally, it may be stated that in para. 10 the plaintiff has gone on to state how and under what circumstances defendants Nos. 3 and 4 repeated and reiterated the same alleged d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the several averments made by the plaintiff in the plaint it will, therefore, appear quite clear that the alleged defamatory statments made by defendant No. 6 on October 17, 1961, were obviously in the ordinary course of a judicial proceeding and in the proper conduct thereof, before the learned Judge when the case had been called out and that the said statements were obviously relevant to the cause, and therefore', in my view, it is obvious that it was an occasion of absolute privilege. 10. I may observe that for the purpose of arriving at this conclusion, it was not necessary that any evidence should have been placed before the Court and I have come to this conclusion on the basis of the averments made in the plaint and I am proceeding on the basis that all the averments made in the plaint are to be assumed to be true. 11. The next question that I have to consider in this case is as to what is the legal position pertaining to this doctrine of absolute privilege. In this behalf Mr. Diwan has invited my attention to certain passages in Halsbury's Laws of England, Third edn. Vol. 24, paras. 89 onwards at pp. 4'9 to 52 and in Gatley on Libel and Slander. Before T go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er civilly or criminally for words spoken in office; that no action for libel or slander lies whether against judges, counsel, witnesses, or parties for words spoken in the course of any proceeding before any court recognized 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 immaterial whether such proceedings take place in open court or in private, whether they are of a final or preliminary character, whether they are ex parte or inter partes, and whether the court has jurisdiction to deal with the matter before it or not. The authorities are clear, Uniform, and conclusive that no action of libel or slander lies, whether against judges, counsel, witnesses, or parties, for words written or spoken in the ordinary course of any proceeding before any court or tribunal recognized by law. 12. Mr. Diwan also invited my attention to certain observations of Chief Baron Pigott in Kennedy v. Hilliard (1859) 10 Ir. Cr. L.R. 195, at p. 209, S.C. 1 L.T. 78 which make it clear that the aforesaid rule of English common law is founded on sound public policy. The relevan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but to the vexation of defending actions. Reference may also be made to the case of Pedley and May v. Morris (1891) 65 L.T. 520 where a solicitor was sued in libel for having filed objections containing reflections upon the conduct and character of the plaintiff's solicitor, whose bill of cost was being taxed and it was held that the occasion being absolutely privileged no action in libel lay against the solicitor. It will thus appear from what I have said above that in England the common law rale has always been recognized that if anything is said or uttered by either a Judge, party, witness or counsel or attorney in the ordinary course of a judicial proceeding, no action in libel or slander lies for such words spoken or uttered, inasmuch as the occasion is regarded as an absolutely privileged one and it is also clear that the above rule is based on sound public policy to enable a Judge, party, witness, counsel or attorney to discharge his duty with a free mind uninfluenced by any feat of being sued for defamation or prosecuted for such libel. 13. The next question is as to whether this rule of common law obtaining in England has been recognized and applied by Indian Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It had to be conceded before us that the High Courts of Bombay and Madras have applied it without hesitation, and that the latter has even gone to the extent of applying it to criminal cases, on the correctness of which we abstain from expressing any opinion. There is no Statute in India dealing with civil liability for defamation. We have, therefore, to apply the rule of equity, justice and good conscience. This has been interpreted by the Privy Council in Waghela Rajsanji v. Shekh Masluddin (1887) L.R. 14 I.A. 89, S.C.I.L.R. 11, Bom. 551, to mean the rules of English Law if found applicable to Indian society and circumstances. On behalf of the plaintiff respondent it is urged that in the present instanco the rule of English law is inapplicable to the circumstances of this country, and that, whatever may have been the rule applied prior to 1860, the Legislature in introducing the Penal Code in that year did not apply the rule of English Law to criminal cases and may be said,, by implication, to have amended the civil law... Reference has also been made to several decisions in criminal cases; but we decline to discuss them, for the reasons already given. In regard to the fir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision of the Allahabad High Court, it may be stated, was not pointed out to the learned Judges of the same Court, who decided a subsequent case reported in Rahim Bakhsh v. Bacheha Lall and it was held that the rule of English common law should not be applied to civil actions in libel in India. In Sumat Prdsad Jain v. Sheodatt Sharma [1945] All. 702, the entire ease law has been discussed and following the Full Bench decision reported in Chunni Lal v. Narsingh Das, it has been held that on grounds of public, policy, an advocate, acting professionally in a cause, is absolutely protected from a suit for defamation for words spoken or written in his professional capacity in the course of the administration of the law in respect of that cause, even though the words are uttered without justification and maliciously and are irrelevant to any issue then before the Court. On the point as to -what is the effect of the Indian Penal Code on the immunity claimed under the English common law, it has been observed as follows in that case (p. 720) : ...Whatever may be the proper view of the effect of the Indian Penal Code on the immunity of these classes from criminal proceedings for defamation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ility and the other in regard to civil liability have been summarised in the aforesaid manner at pages 425 and 426 of the report. This Full Bench decision has been followed in a subsequent decision of the same Court -reported in Sundar Das Loghani v. Fardun Rustom Irani. [1939] 1 Cal. 474. 16. The Madras High Court has also taken a similar view. In Hindustan Gilt Jewel Works v. Gangayya [1943] Mad. 685, it was held: In civil action for defamation, there is absolute privilege for a statement made in a pleading provided that the statement has reference to the inquiry. In deciding a question of this nature a Court should not take a too restricted view of what is pertinent but must give the words 'having reference to the enquiry' a very wide and Comprehensive application. After referring to the Privy Council decision in Baboo Gunnesh Dutt Singh v. Mugneeram Ghowdhry (1872) 11 Beng L.R. 321, p.c. their Lordships observed as follows (p. 688) : We consider that the English rule should apply in civil proceedings. In fact a contrary opinion does not appear to be open in view of the decision of the Privy Council in Baboo Gurineah Dull Singh' v. Mugneeram Chowdhry, but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate for the purpose of getting him to act within the scope of his authority, must be governed by the rule of English Common law which makes such statements absolutely privileged. 18. I may now refer to some decisions of this Court. In Bhaishanker v. L.M. Wadia (1899) 2 Bom. L.R. 3 F.B. though the case was under the High Court's disciplinary powers, the Full Bench has made observations on the aspect of the law applicable to civil suits for defamation. The principle of the English decision of Munster v. Lamb was accepted as laying down the correct law on the point. I may usefully refer to a Division Bench ruling of this Court reported in Nathji Muleshvar v. Lalhhai Ravidat (1889) I.L.R. 14 Bom. 97, which was a case dealing with a civil action for damages for libel and slander where it was held that no action for slander lies for any statement in the pleadings or during the conduct of a suit against a party or witness in it. Chief Justice Sargent, after referring to several English cases including Seaman v. Nethercliff (1876) L.R. I.C.P.D. 540, at p. 545. Minister v. Lamb and Hawkins v. Lord Rokeby (1875) L.R. 7 H.L. 744, at p. 753, observed as follows (p. 99) : This view o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dentally, it may be stated that both these Bombay decisions dealt with cases in which parties were concerned in making defamatory allegations in judicial proceedings. 19. I shall now refer to a decision of this Court reported in Tulsidas v. Billimoria. . That was a case dealing with a criminal prosecution for defamation and it was held that in India a member of the bar has no privilege. The relevant portion of the head-note runs as follows: ...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 exception 9 to Section 499, and under Section 105 of the Indian Evidence Act the burden of proof is normally upon him. In practice, however, an advocate is entitled to special protection, and 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. It is, no doubt, true that in this case it has been held that a member of the bar in India has no absolute privile ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n law rule should continue to apply in fields other than those covered by the exception. I may incidentally mention that the decision reported in Govind Ramchandra v. Gangadhar Mahadeo pertaining to civil action for damages in libel was a decision later in point of time than the decision reported in Tulsidas v. Billimoria and in that decision it has been positively held that so far as civil liability for defamation is concerned the English Common law rule pertaining to absolute privilege or immunity enjoyed by advocates has been held applicable in India. 20. In my view, as has been rightly pointed out in one of the Madras, decisions to which I have already referred, it is not open to take a contrary view having regard to the binding pronouncement of the Judicial Committee of the Privy Council in the case of Bahoo Ganesh Dutt Singh v. Mugneeram Chowdhry, where the rule of English Common law of absolute privilege was held applicable to a civil action against a witness, who while giving evidence was alleged to have made false and defamatory statements. 21. Having regard to the aforesaid discussion of the several authorities, it is clear to me that the English Common law rule per ..... X X X X Extracts X X X X X X X X Extracts X X X X
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