IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH) C.R.P. NO. 328/2016 Sri Mohini Gohain Baruah & another..petitioner -Vs- Smt. Putali Gohain Baruah & another.respondents For the petitioner : Mr. RJ Bordoloi, Mr. R. Ali, Ms. S. Goswami, Advs. For the respondents : Mr. K. Pathak, Adv. BEFORE HON BLE MR. JUSTICE KALYAN RAI SURANA Date of hearing : 03-03-2017 Date of Judgment : 09-03-2017 JUDGMENT & ORDER(CAV) 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 or not. The learned CRP No. 328/16 Page 1 of 12
counsel have been heard at the admission stage and owing to the nature of dispute, which arises on the issue of law, no requirement is felt to call for the records from the learned trial court. 3. The brief introductory fact is that in the plaint it is alleged that the respondent herein had allegedly made defamatory 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, as such, the right, title and interest of the parties had not accrued. It was prayed for framing a preliminary issue, viz., whether this suit is maintainable in the eye of law as well as facts? and for dismissing the suit. The petitioners filed their written objection to the said petition, wherein it was stated that CRP No. 328/16 Page 2 of 12
in their written statement, the respondents had nowhere stated any clear point of law against them, therefore, the question of preliminary issue did not arise at all and it was also stated that the issue whether the suit is maintainable in the eye of law as well as facts is purely a question of facts and it can be decided after examining the evidence and whether the defence of qualified privilege is available are matter of facts and not a question of law. Hence, it was prayed for dismissing the petition. 5. The learned trial court by 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 of late Mihi Kt. Gohain Baruah as appear from C.R. and though Late Mihi Kt. Gohain Baruah plaintiff is claiming compensation before Addl. Deputy Commissioner, Lakhimpur for lands. Mere filing objection petition before government authority i.e. Addl. Deputy Commissioner, Lakhimpur by the defendants against plaintiff in an acquisition matter 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 CRP No. 328/16 Page 3 of 12
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 barred by law as defendants were exercising their legal rights by way of principle of natural justice only before Addl. Deputy Commissioner, Lakhimpur in land acquisition matter against plaintiff and that was even in the official matter. Considering those aspects, prima facie I have not found anything in the case of plaintiff as there is no cause of action arises as well as suit is barred by law as this suit do not fall on law of defamation under law of tort. In view of the above this suit is dismissed. No order as to cost. 6. The learned counsel for the petitioners has argued that the learned trial court had ultimately arrived at two distinct findings while dismissing the suit, firstly, it was held that no cause of action arises and secondly, suit is barred by law as this suit does not fall on law of defamation under law of tort. 7. In 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 CRP No. 328/16 Page 4 of 12
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 passing of a decree within the meaning of section 2(2) of the Code of civil Procedure and, as such, the present revision was not maintainable. In reply, the learned counsel for the petitioners has submitted that as the court had exercised jurisdiction illegally and with material irregularity by arriving at a specific finding that there was no cause 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:- CRP No. 328/16 Page 5 of 12
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 proceeds at different levels leading inevitably to the laws delay. The court has to own its own responsibility in framing issues.. 9. Per contra, in order to support the impugned order, the learned counsel for the respondents has relied on the judgment dated 19.11.1965 by the Hon ble Bombay High Court in Miss. Kamalini Manmade V. Union of India, (1967) 69 Bom L.R. 512 by referring to its print-out from the internet website of Virtual Legal Assistant. In the said case reference was made to the Full Bench decision of the Hon ble Allahabad High Court in the case of Chunni Lal V. Narsingh Das, (1917) ILR 40 All. 341 (FB), where it has been held that. In the absence of statute law in India regarding civil liability for libel, there was no reason why the English law applicable thereto should not be followed. Further references has 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, CRP No. 328/16 Page 6 of 12
(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, at any rate, in relation to civil suits filed for damages for libel or slander. The preponderance of authority obtaining in the matter, as I have indicated above, favours this view and I, therefore, feel no hesitation in coming to the conclusion that having regard to the fact that the alleged defamatory statements were made by defendant No. 6 on an 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 Halsbury s Law of England, applies to India as CRP No. 328/16 Page 7 of 12
confirmed by various judicial pronouncements as reflected in the said two citations referred herein before. 12. This court is of the view that the English statutes cannot be relied upon in India and it may not have any persuasive value to the courts in India in view of the repeal of section 2 of the Evidence Act in India by Repealing Act, 1938 (Act 1 of 1938) Sec.2 and Schedule. While a foreign judgment stands on a separate footing because it may have some persuasive value, but a foreign statute stands on a completely different footing altogether. Hence, I respectfully disagree with the decision by the Hon ble Bombay High Court and the Karnataka High Court which were cited by the learned counsel for the respondent. At his juncture, it would be relevant to refer to the said provisions of the repealed section 2 of the Evidence Act, which prior to its repeal, read as follows:- 2. On and from that day (1 st 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 CRP No. 328/16 Page 8 of 12
rendered in the case of Hira H. Advani V. State of Maharashtra, (1969) 2 SCC 662: AIR 1971 SC 44, of which the paragraph 39 is reproduced below:- 39. Mr. Jethmalani however relied on certain observations of Coleridge, J. in his dissenting judgment. In our view the maxim of the English Common Law can have no application here. Our law of evidence which is a complete Code does not permit the importation of any principle of English Common Law relating to evidence in 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 on evidence so far as it was in force in British India before the passing of the Indian Evidence Act, and that provision of the law in effect prohibits the employment of any kind of evidence not specifically authorised by the Act itself." Lord Atkin who delivered the judgment of the Judicial Committee pointed out that evidence which was not admissible under the Indian Evidence Act could not be let in for the purpose of bringing out the truth and said: CRP No. 328/16 Page 9 of 12
"What matters should be given in evidence as essential for the ascertainment of truth, it is the purpose of the law of evidence, whether at common law or by statute to define. Once a statute is passed, which purports to contain the whole law, it is imperative. It is not open to any Judge to exercise a dispensing power, and admit evidence not admissible by statute, because 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 and the rules of evidence as prescribed under the provisions of Evidence Act, 1872 would govern such suits. Moreover, the absolute privilege under Evidence Act, 1872 can only be found from the provisions of section 121 to 129 thereof. The foreign law, being not applicable to India, presumption of absolute privilege cannot be made outside the scope of the provisions 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. CRP No. 328/16 Page 10 of 12
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 judgment 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. (2) Where issues both of law and of fact arise in the same suit, and the court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to (a) the jurisdiction of the court, or (b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue. 17. From the said provisions it is clear that 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 CRP No. 328/16 Page 11 of 12
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 India, notwithstanding that an order dismissing the suit as not maintainable is otherwise appealable. 19. Therefore, the revision stands allowed. The parties are left to bear their own cost. 20. The proceeding of Money Suit No. 5/2015 is restored to file of the learned Civil Judge, Lakhimpur. The parties are directed to appear before the court of the learned Civil Judge, Lakhimpur on 27.03.2017 to seek further instructions from the said learned court. mks JUDGE CRP No. 328/16 Page 12 of 12