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TMI Blog2017 (3) TMI 1711X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel for the respondent. The court may postpone the settlement of other issues until after the issues relating to jurisdiction of the court or a bar to the suit created by any law for the time being in force. However, in the present case, the suit was pending at the stage of evidence of the plaintiff's side and, as such, the hearing of the suit had begun after framing of issues and, as such, there cannot be any further occasion to postpone settlement of other issues. Revision allowed. - C.R.P. NO. 328/2016 - - - Dated:- 9-3-2017 - Mr. Kalyan Rai Surana, J. For the petitioner : Mr. RJ Bordoloi, Mr. R. Ali, Ms. S. Goswami, Advs. For the respondents : Mr. K. Pathak, Adv. JUDGMENT Mr. Kalyan Rai Surana Heard Mr. Rup Jyoti Bordoloi, learned counsel for the petitioners and Mr. Kaushik Pathak, learned counsel for the respondent. 2. By filing the present application under Article 227 of the Constitution of India, the petitioners have challenged the order dated 06.08.2016 passed by the learned Civil Judge, North Lakhimpur in M.S. No. 5/2015, by which the suit was dismissed after framing preliminary issue of whether the suit is maintainable in law o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its order dated 30.07.2016, framed preliminary issue - whether suit is maintainable in law or not and fixed the suit on 06.08.2016 for order. On 06.08.2016, the learned Civil Judge, North Lakhimpur passed the following order:- One preliminary issue was framed whether this suit is maintainable in law or not. On this point Ltd. Counsel for the defendants already submitted that filing objection by defendants before Land Acquisition Department, Lakhimpur against plaintiffs no civil wrong arises. After bare perusal of the pleading of the plaintiff it appears prima facie that plaintiffs suit is based on the objections filed by defendants before Land Acquisition Board, i.e., Addl. Deputy Commissioner, Lakhimpur and plaintiff's allegation is that said objection petitions are false, defamatory and on the said objection petitions the plaintiff has suffered injury and reputation and filed this suit for compensation for defamation against defendants. Admittedly it appears from the pleading of the both sides that the defendants are not stranger to the property against which defendants filed objection petitions before Land Acquisition Board, Lakhimppur as defendants are also successors o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect of the first finding that no cause of action arises , the learned counsel for the petitioner submits that if there was no cause of action for the suit, the proper recourse for the learned court ought to have been to pass appropriate orders to reject the plaint by invoking the provisions of Order VII Rule (a) of the Code of Civil Procedure, which on its own force would not have precluded the petitioners from presenting a fresh plaint in respect of the same cause of action. Similarly, in respect of the second finding that the suit is barred by law as this suit does not fall on law of defamation under law of tort , the learned counsel for the petitioners has submitted that assuming but not admitting that there is any Act of Legislature called the law of tort or law of defamation , then also the learned trial court ought to have invoked the provisions of Order VII Rule 11(d) of the Code of Civil Procedure to reject the plaint. It is submitted that as the suit was dismissed, the petitioners have lost such a right. Per contra, the learned counsel for the respondent has submitted that in view of the dismissal of the suit on the ground of maintainability, it amounted to passi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also been made therein to the Full Bench decision of the Hon'ble Calcutta High Court in the case of Satith Chandra Chakravarti V. Ram Doyal De, (1920) ILR 48 Cal 388, and to the Full bench decision of the Hon'ble Calcutta High Court in Sundar Das Loghani V. Firdun Rustom Irani, (1939) 1 Cal 474, Hon'ble Madras High Court in Hindustan Gilt Jewel Works V. Gangayya, (1943) Mad. 685, Privy Council decision in Baboo Gunnesh Dutt Singh V. Mugneeram Chowdhry, (1872) 11 Beng L.R. 321, Hon'ble Madras High Court decision in Hanumantharow V. Seetharamayya, AIR 1942 Mad 343 and Tiruvngada Mudali V. Tripurasundari Animal, (1926) ILR 49 Mad 728 (FB), Hon'ble Patna High Court in Ramkirat Kamkar V. Biseswar Nath, (1932) ILR 11 Pat 693 and several other cases were also considered. Thereafter, the Hon'ble Bombay High Court gave its following finding:- 21. Having regard to the aforesaid discussion of the several authorities, it is clear to me that the English Common law rule pertaining to absolute privilege enjoyed by Judges, advocates, attorneys, witnesses and parties in regard to words spoken or uttered during the course of a judicial proceeding is applicable in India, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of the repealed section 2 of the Evidence Act, which prior to its repeal, read as follows:- 2. On and from that day (1st September, 1872) the following laws shall be repealed: (1) All rules of evidence not contained in any Statute, Act or Regulation in force in any part of British India. (2) All such rules, laws and regulations as have acquired the force of law under the twenty-fifth section of the Councils' Act, 1861', insofar as they relate to any matter herein provided for; and (3) The enactments mentioned in the schedule hereto, to the extent specified in the third column of the said Schedule. But nothing herein contained shall be deemed to affect any provision of any Statute, Act or Regulation in force in any part of British India and not hereby expressly repealed. 13. Thus, after repeal of section 2 of the Evidence Act, 1872, the said Act has become a complete self-contained code in itself. In order to appreciate the effect of the said repeal, it would be useful to refer to the decision of the 3 Judge Bench of the Hon'ble Supreme Court of India rendered in the case of Hira H. Advani V. State of Maharashtra, (1969) 2 SCC 662: AIR 1971 SC 44, of whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecause to him it appears that the irregular evidence would throw light upon the issue. The rules of evidence, whether contained in a statute or not, are the result of long experience, choosing no doubt to confine evidence to particular forms, and therefore eliminating others which it is conceivable might assist in arriving at truth. The question there related to the admissibility of evidence which according to the Judicial Committee should not have been adduced. The question before us is somewhat different but if the Indian Evidence Act is a complete Code repealing all rules of evidence not to be found therein, there is, in our opinion, no scope for introduction of a rule of evidence in criminal cases unless it is within the four corners of Section 132 or some other provision of the Evidence Act. As the Act does not apply to interrogations by a Customs Officer exercising powers under s. 171-A of the Sea Customs Act Section 132 of the Evidence Act cannot be attracted. . 14. Thus, the inevitable conclusion of this court is that there being no codified law for defamation or in respect of tort, a person can avail civil remedy under the four corners of Specific Relief Act, 1963 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was pending at the stage of evidence of the plaintiff's side and, as such, the hearing of the suit had begun after framing of issues and, as such, there cannot be any further occasion to postpone settlement of other issues. Moreover, as indicated above, there is no law of defamation or tort in India which can be said to create any bar to the institution of the suit as presented by the petitioners and, as such, the said issue is quite different to the one envisaged under Sub- Rule (a) of Rule 11 of Order VII of the Civil Procedure Code. Therefore, the issue of maintainability ought not to have been framed and/or decided as a preliminary issue under the provisions of Order XIV Rule 2 of the Code of Civil Procedure. 18. Thus, in the singular facts of the present case in hand, by relying on British law on defamation as to 'defence of absolute privilege' and dismissing the suit on issue of maintainability as indicated above, in the opinion of this court, the learned court below appears to have exercised his jurisdiction with material irregularity, which is within the jurisdiction of this Court to be remedied by exercise of powers under Article 227 of the Constitution of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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