PRESENT: SRI. SAJIKUMAR .S, ADDL. DISTRICT JUDGE-III Thiruvananthapuram
Appellant:J.V N , aged 73 years, S/o Ottasekharamangalam R.J Nair, Manager, J Higher Secondary School, Ottasekharamangalam, Thiruvananthapuram, (Residing at S, Kadakampally Road, Anayara P.O., Thiruvananthapuram)
(By Advocate P.A.Ahammed)
Respondent:V.S, H.S.A (English), J Higher Secondary School, Ottasekharamangalam, Thiruvananthapuram, Residing at S, Edaval, Ottasekharamangalam.
(By Advocate Kulathoor S.V.Premakumaran Nair)
On appeal against the decree and judgment dated 08.11.2018 in O.S No.761/2012 of the Principal Sub Court.
1. This appeal has been filed against the judgment and decree in O.S.761/12 of the Sub Court, whereby the learned Sub Judge dismissed the suit.
2. The appellant herein is the plaintiff in the aforesaid suit.
3. For the sake of convenience, the parties to the present appeal will be referred to according to their ranks in the suit as plaintiff and defendants respectively.
4. The facts in brief are as follows: The plaintiff filed O.S.761/2012 before the lower court on the basis of the following allegations: that the defendant (the respondent herein), who had been working as a teacher (HSA English) in the J High School since 10/2/2005, had altered the entries made by the Head Master of the said school (PW2) in a request put in by the defendant and had submitted the same to the Director of Public Instructions (the DPI, for short) Neyyattinkara for the purpose of getting himself appointed as examiner in connection with centralized valuation. The DPI authorities detected the said irregularity and initiated disciplinary proceedings against the defendant. Eventually, the DPI found him guilty and imposed penalty of barring of one annual increment with cumulative effect. The defendant, who had decided to prefer an appeal against the said decision, had submitted an appeal memorandum to the Head Master of the school along with a request for forwarding the same to the government. The Head Master (DW2), who had perused the said memorandum of appeal had informed PW1 about the defamatory statements (imputation concerning the plaintiff) made in the said appeal memorandum. He had taken a Photostat copy of the statement and had handed over the same to PW1 (the plaintiff) at his house on 29/12/2018. The relevant portion of the said statements is extracted below: “A strong iron chest is there in the office room of the HM. But cash is not kept in the chest, whereas cash is being kept by the Manager, outside the school. The above act on the part of the Manager amounts to temporary misappropriation. Even question papers are not keeping intact inside the chest”. “Further I had asked the Manager to handover the said complaints so that I can answer it and thereby the truth can be revealed. But the Manager was reluctant to handover to me even a copy of any of the said complaints. He had not even shown me the said complaint. From the above also it can very well be seen that the Manager is well planned to trap and defame me”
5. The said statements were totally false and baseless and they were made with an intention to tarnish PW1. It had been made with an intention to depict or describe PW1 as a person siphoning off the money belongs to the school and to create an impression that he had been keeping all the official records relating to the school for his personal use. Notice was issued to the defendant on 29/3/2012 calling upon him to withdraw the imputations within seven days from the date of receipt of the said notice; but, the defendant, who had received the said notice, had given a reply dated 3/4/2012 contending that the said appeal memorandum had been filed before a quasi judicial authority and that it would not amount to defamation. The copy of the appeal memorandum was sent to the DPI and it was published by the defendant. After the said incident, several members of the PTA of the school and certain residents of the locality had contacted the plaintiff and had enquired of him about the said defamatory statements. The plaintiff (PW1), who was an Advocate by profession, is a social worker. His father was a freedom fighter and his father had established the said school during his tenure as MLA. After the death of his father, he had been appointed as the Manager of the school. People from all walks of life had revered him. He had suffered irreparable loss. He had limited his claim to Rs.5,00,000/-.
6. The plaint, which was presented to the lower court on 11/6/2012, was taken into file as O.S.761/2012; the lower court issued process to the defendant.
7. The defendant entered appearance and filed a written statement contending interalia as follows: PW2 was an instrument of PW1. He had submitted the application for centralized valuation and he suspected that there occurred some manipulations with the connivance of PW2. He had submitted his explanation regarding the allegations in the memo of charges served on him. He had preferred an appeal against the decision of the DPI to impose penalty on him. Whatever stated in the appeal memorandum had been raised as a ground for appeal. It was never intended to be published. The statement made therein were not defamatory. The Head Master (PW2) was not bound to peruse the memorandum of appeal. The grounds alleged in the memorandum of appeal were true. He had given a reply to the notice issued by the counsel engaged by PW1.
8. On the basis of the rival contentions in the plaint and written statement, the following issues were formulated for trial by the lower court:
9. At the trial, Exts.A1 to A6 and A7 series were marked. The plaintiff himself had taken the stand as PW1. The witness cited by him was examined as PW2. The defendant had taken the stand as DW1. The documents produced by DW1 were marked as Exts.B1 and B2.
10. Thereafter, after hearing the learned counsel on either side, the learned sub judge dismissed the suit on the basis of the finding that the plaintiff has failed to prove the damage caused to him due to the publication of the libellous matter.
11. Feeling aggrieved by the aforesaid verdict, the plaintiff preferred the present appeal on the following grounds: that the Judgment and decree passed by the lower court were erroneous. The court below had found that the submission of the appeal memorandum containing defamatory statements amounts to publication. The defendant had admitted in his testimony that the plaintiff was a person having high reputation.The court below had rejected the claim for damages on the basis of the finding that the plaintiff had failed to prove the damage caused to him. It was well settled that even if actual damage is not proved general damages can be granted. The reasons given by the lower court for rejecting the claim for damages illogical. are illegal and
12. I have heard the learned counsel on either side and have scoped out the entire records.
13. The points that arise for consideration are:
14. Point No.1 The learned counsel for the plaintiff has contended that the verdict of the lower court will clearly suggest that the imputation concerning PW1 made in Ext.A2 memorandum of appeal are perse defamatory. According to him, the lower court ought to have granted compensation and general damages for loss of reputation- even though PW1 was not able to prove that he had suffered special damage on account of the impugned publication.Reliance has been placed on the decision of the Hon’ble High Court of Kerala in Editor Rashtradeepika Ltd. and Othrs vs Vinaya NA reported in 2017 (3) KHC 804. In response, the learned counsel for the respondent has contended that the defendant had submitted the appeal memorandum to PW2 along with a request for transmitting the same to the Government and that there was no intention on the part of DW1 to publish the same. The learned counsel has further contended that the statements, which were allegedly made in Ext.C2 were made in the course of the proceedings relating to a quasi judicial function (ie., submission of the appeal memorandum against the order passed by the disciplinary authority) and therefore, DW1 is entitled to absolute privilege. Reliance has been placed on the decision of the Hon’ble High Court of Kerala in Gopalan Kutty Nair vs Shanmukhi Ezhuthassan reported in 71 KHC 81. However, the learned counsel for the plaintiff has pointed out that the defendant (DW1) has not challenged the finding that he had published the defamatory statement and that DW1 had not raised the plea of absolute privilege before the trial court; therefore, according to him, the defendant cannot fall back on the legal propositions laid down in the decision reported in 71 KHC 81. 14(a). The fact that the lower court had found that Ext.A2 contains imputations concerning PW1 and that DW1 had published the same is not in dispute. But, it had observed that PW1 had failed to adduce the evidence to show that the publication of the said imputations had actually caused loss to PW1. Concededly, both PWs1 and 2 have no case that the libellous matter written in Ext.A2 had actually been read by the members of the public and the persons referred to in the plaint. There is not even an iota of evidence to suggest that it had actually caused damage to PW1. The testimony of PW1 (vide the asseverations in the proof affidavit (last paragraph of page No.4) indicates that several persons had put querries regarding the said allegations and that it had caused great mental pain and injury to him; however, he has not disclosed that it had caused loss. But, at the same time, DW1 has not specifically raised any contention regarding plea of absolute privilege before the trial court during his examination. Hence, in the absence of any challenge regarding the finding rendered by the lower court regarding the publication of the libellous matter, I do not think that DW1 is entitled to claim absolute immunity on the basis of that plea. The contentions which are raised for the first time in appeal seem to be unacceptable.
15. Now coming to the claim for damages, as I pointed out herein before, the learned counsel for the plaintiff has placed reliance on the observations made by the Hon’ble High Court of Kerala, in the decision reported in 2017 (3) KHC 804. In the said decision, the Hon’ble High Court has observed that once it is proved that the statement made is perse defamatory, and it is likely to affect the reputation of the person intended, then the person affected is entitled to get compensation and general damages for loss of reputation- even though the person affected is not able to prove that he has sustained any special damage on account of the impugned publication.
16. In the instant case, as I noticed herein before, the lower court has rightly found that the defamatory statements made in Ext.A2 were legally unnecessary for making the appeal and that DW1 cannot claim absolute privilege on the ground of justification of truth or otherwise and that it had come to a conclusion that the defamatory statements were made without any justification and that there was no legal necessity for making the said imputations. Thus, in view of the observations made by the Hon’ble High court in the decision cited supra, the lower court should have considered the request for granting damages. Hence, in the light of the observations made by the Hon’ble High court in the aforesaid decision, I do not think that this court can countenance the view taken by the lower court regarding the claim for damages. Obviously, the lower court’s decision to dismiss the suit on the basis of the finding that there was no proof regarding loss is liable to be interfered with. 16(a). Ofcourse, it is true that the learned sub judge had placed reliance on the legal propositions laid down in the decision of the Hon’ble High Court of Kerala in Joseph vs Benny Markose reported in 2016(4)KLT 161 for the purpose of buttressing his decision to reject the claim for damages. It was a case wherein damages was claimed on the basis of the allegation that the building scheduled in the said case had been damaged due to unlawful blasting of a rock by the defendant in the said case. Concededly, the facts in the said case are entirely different from the facts alleged in the case in hand. Hence, the finding rendered by the learned sub judge on the basis of the legal proposition laid down in the said case and his decision to reject the claim for damages for publication of libellous matter, cannot be sustained. It appears that the lower court had applied the legal propositions laid down in the said decision to the facts of the case in hand without appreciating the legal position in its correct perspective. In the said case, the Hon’ble High Court had discussed the questions regarding the scope and extent of an inquiry to determine the cause of damage, test to be applied to determine the cause of damage and the requisite standard of proof to prove the cause of damage. Here, in the case in hand, as I pointed out herein before, the question is entirely different.
17. Now coming to the question regarding the quantum of damages to be awarded, it is well settled that the status of the plaintiff, his reputation in the society, his profession, loss of reputation caused on account of the impugned publication are relevant to consideration. Here, PW1 had testified that he is a lawyer by profession and that he is a social worker. It has come out in evidence that he has been selected as the Director of a governing body, namely Kerala Dairy Farmers Welfare Fund Board (vide Ext.A1). DW1 was a teacher in a school of which PW1 is the manager. Significantly, even DW1 had admitted during his examination that PW1 is a respectable person and that he had made such impugned statements for the purpose of protecting his own interest while making the appeal. He had admitted that he did not know whether PW1 had misappropriated the funds belonging to the school. He has feigned ignorance regarding the allegation that PW1 had taken the iron chest of the school to his house. He has opined that PW1 is a gentleman (vide his version on page No 4 cross examination). Even according to him, the said allegations were made to notify PW1 (manager) of the irregularities in the management of the school. The above revelations are more than enough to convince the court of the fact that the allegations levelled against PW1 in Ext.A2 were fallacious and are perse defamatory. 17(a). True, the revelations made by DW1 may suggest that it was unintentional. However, it appears that the said defamatory statements were made recklessly. Ext.B2 reply does not disclose any such plea. Undeniably, It has been alleged that DW1 was retired from service. It is well settled that damages recoverable in an action for defamation will depend upon the nature and character of the libel, the extent of circulation, the position in life of the parties and the circumstances of the case.
18. Here, in the instant case, I have referred to the party’s position in life and the circumstances, which led DW1 to make the objectionable statements against PW1. Further, even though the defamation was deliberate, the language used is not violent. However, the contention of DW1 that there was no malice can not be accepted for the purpose of mitigation of damages.
19. Hence, considering the status of PW1, his reputation in the society and loss of reputation caused on account of the publication of the objectionable statement and considering the mitigating aspect that DW1 was retired from service and that the publication was unintentional, I feel that payment of Rs.40,000/(Rupees forty thousand only) towards compensation to PW1 will be just, reasonable and proper and that it will be sufficient to compensate him for the loss caused to him due to the publication of the defamatory statement. True, PW1 had claimed Rs.5,00,000/- towards compensation. However, as I pointed out herein before, no materials have been produced to show that he had suffered such a huge loss. No witnesses had been cited to prove that it had actually caused such a loss or damage to PW1. From the foregoing discussions, it can be deduced that the verdict given by the lower court is liable to be interfered with: Accordingly, point No1. is found in favour of the appellant.
20. Point No.2 In view of my finding under point No.1, the appeal is allowed in part and the verdict of the lower court is reversed in appeal; the suit is decreed in part and the plaintiff is given a decree as follows: the defendant is directed to pay Rs.40,000/- (Rupees forty thousand only) towards damages to PW1 within 60 days from today; if he fails to pay the said amount within the said period, PW1 will be entitled to recover the said amount with interest thereon at the rate of 6% p.a from the date of such default to the date of realisation. Considering the facts of the case, the parties are directed to bear their respective costs.