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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 ..... efamatory statement against the petitioner in connection with a land acquisition compensation proceeding pending before the Additional Deputy Commissioner, Lakhimpur and also before the neighbours against the petitioners. Aggrieved thereby, the petitioners had instituted a suit for claiming damages/compensation of Rs. 50,00,000/- for suffering defamation. The said suit was registered as Money Suit No. 5/2015. 4. The respondents/defendants had contested the suit. In paragraph 2 of the written statement, it was stated that "the suit is not maintainable in law and facts. Hence it is liable to be dismissed." Issues were framed and the evidence of PW-2 was filed. While the suit was fixed for further evidence by the plaintiff's side, the respondents herein filed a petition under Order XIV Rule 2 of the Code of Civil Procedure for framing preliminary issue on the point of maintainability. In the said petition, amongst others, it was stated that the defendants had a right to be exempted from the suit under the defence of qualified privilege available in cases of tort involving defamation and it was further stated that the matter arose out of a mutation case, which is still sub-judice, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r could not be amount to a defamatory one as said could not be termed as a civil wrong as defendants were exercising their legal rights of which legality or illegality could be well redress by the said Addl. Deputy Commissioner only. By mere filing objection petition before government authority for exercising legal right the same could not be termed as a civil wrong as if for that action by way of such filing objection petition against which if any civil suit of defamation is allowed to be continued it will tantamount to abusive possess of law. If defendants or any person if not allowed to file any its objection before authority against whom any order is likely to be passed, if restrained it may amount to denial of principle of natural justice also. In this suit from pleading of the plaintiff prima facie it appears that whole relief of the plaintiff is based on the filing objection petition in land matter by defendants before Addl. Deputy Commissioner, Lakhimpur only against which plaintiff filed this suit for defamation against present defendant only on the basis of this objection petition before Addl. Deputy Commissioner, Lakhimpur which is not a civil wrong, rather the same is b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of action and the suit was barred by law, yet the learned trial court proceeded to dismiss the suit as not maintainable and, as such, the said irregularity and illegality can be set right by exercising extraordinary superintending jurisdiction of this Court under Article 227 of the Constitution of India. 8. While the learned counsel for the petitioners relied on the case on Dr. Dwijendra Mohan Lahiri V. Rajendra Nath, AIR 1971 A&N 143. It would be relevant to quote paragraph 10 of the said order, which is as follows:- "10. We may observe that a court should decline to frame an issue as to maintainability of a suit in absence of specific averment in the written statement as to how and in what circumstances the same is not maintainable in law. A mere vague recital in the written statement, without anything more, cannot be the basis for raising such an issue. Issues are framed for a right decision of the case with an object to pinpoint the real and substantial points of difference between the parties specifically and unambiguously emerging out of the pleadings. Vague issues, suggested in a mechanical way, should not be framed to keep the door open for astute casuistry as a suit pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... occasion which was absolutely privileged, the plaintiff's suit to recover damages for the said slander would be not maintainable. 22. In the result, the two preliminary issues are answered in favour of the defendants and consequently the suit is dismissed with costs.". 10. The learned counsel for the respondents has also referred to the case of V. Narayana Bhat V. E. Subbanna Bhatt, AIR 1974 Kant 162, decided on 02.12.1974, wherein also the Hon'ble Karnataka High Court by relying on various decisions rendered in similar matters, had held has follows:- "7. ... ... I would, therefore, prefer to follow the earlier view of the Division Bench of the same High Court in AIR 1939 Cal 477 and the other decisions referred to above which take the view that a complaint to a police officer is absolutely privileged. 8. It must therefore be held that the statements made by the defendant in his complaint to the police officer are absolutely privileged..." 11. Thus, by referring to the said case citations, the learned counsel for the respondent in a very erudite manner and has very painstakingly projected that the law of defamation as prevailing in England and as reported in Halsbur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... criminal cases to the contrary. Section 2 of the Indian Evidence Act before its repeal by the Repealing Act (1 of 1938) provided 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 25th section of the 'Indian Councils Act, 1861' in so far 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 in 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." We may usefully refer to the judgment of the Privy Council in Sris Chandra Nandi v. Rakhalananda (deceased) where the Judicial Committee approved of the statement of the law contained in the judgment of the High Court reading: "It is to be noticed in this connection that s. 2( 1 ) of the Indian Evidence Act repeals the whole of the English common law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of the Evidence Act by referring to English law on defamation. For the foregoing reasons, this court is not inclined to accept that statements made before authorities like Additional Deputy Commissioner, Lakhimpur would be a defence of absolute privilege as argued by the learned counsel for the respondent. 15. Moreover, this court is also of the view that in light of the decision of this court in Dr. Dwijendra Mohan Lahiri (supra), it was incumbent on the learned trial court to decline to frame an issue as to maintainability of a suit in the absence of specific averment in the written statement as to how and in what circumstances the same is not maintainable in law and that a mere vague recital in the written statement that a suit is not maintainable in law is not sufficient material before the court to frame the preliminary issue of maintainability of the suit. 16. It would be proper to refer to the provisions of Order XIV Rule 2 CPC, which reads as follows:- "2. Court to pronounce judgm ent on all issues.- (1) Notwithstanding that a case may be disposed of on a preliminary issue, the court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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