A.S.NO.514 OF 2000 & Cross Objection

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 17TH AUGUST 2011 / 26TH SRAVANA 1933 AS.No. 514 of 2000(B) & CROSS OBJECTION --------------------OS.735/1994 OF PRINCIPAL SUB JUDGE, KOTTAYAM .................... APPELLANT(S): -------------- DR. KURIAN ABRAHAM, RESIDING AT PATHIYAPPILLIL HOUSE, VAKATHANAM KARA, VAKATHANAM VILLAGE, KOTTAYAM DISTRICT. BY ADV. SRI.JOSE PALLATTUKARAN RESPONDENT(S): --------------- BENNY ABRAHAM, S/O. ABRAHAM, RESIDING AT PAIKKALIL HOUSE, ANAICADU KARA, ANICADU VILLAGE, KOTTAYAM TALUK. ADV. SRI.RAJEEV V.KURUP THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 03.08.2011, THE COURT ON 17/08/2011 DELIVERED THE FOLLOWING: ORDER ON CMP.NO.4899 OF 2000 IN A.S.NO.514 OF 2000 DISMISSED 17.08.2011 SD/= P. BHAVADASN, JUDGE. /TRUE COPY/ P.S. TO JUDGE. cl **P. BHAVADASAN, J.** ........................................... A.S.NO.514 OF 2000 & Cross Objection ............................................. Dated this the 17[th] day of August, 2011. ## **JUDGMENT** The defendant in O.S.No.735/1994 before the Sub Court, Kottayam, who suffered a decree for damages, is the appellant. The parties and facts hereinafter referred to as they are available before the trial court. 2. The suit was one for damages for defamation. According to the plaintiff, he was born blind and continues to be blind. He used to receive financial aid from others and the people offered financial help for his livelihood. On 1.12.1992 the defendant is alleged to have published a notice under the caption “യ�ശ�ക��സ��� ഇന�� അത��ങള ക�വര��ക�ന� **“.** In the said notice there was a sub caption “ ഒര� അന�ഭവ സ�ക�� **“.** The defendant is alleged to have published a statement said to have been given by the plaintiff stating that he gained eye sight after participation in a crusade conducted by the defendant. According to the plaintiff, the notice was published without the knowledge and consent of the plaintiff and the statements contained A.S.NO.514 OF 2000 : 2 : therein are untrue. It was published with malicious intention. As a result of the said false publication, those persons, who were extending financial aid to the plaintiff, stopped giving financial aid and that affected the livelihood of the plaintiff. More over, it has injured the reputation and credibility of the plaintiff in the eye of the public. He is looked down upon by those persons, who were sympathetic to him. As a consequence thereof, the plaintiff suffered mental agony and his reputation among the people is affected. On the basis of these allegations, a suit was filed for damages. 3. The suit was resisted by the defendant. According to him, from 1984 till 1992 the plaintiff had openly declared in various forums and places that he gained eye sight by a divine touch of Lord Jesus Christ at the venue of the crusade held at Geliyadu Nagar, Njaliyakuzhi. The news item relating to the plaintiff had been in publication for over 8 years as he took no objection during all these years. In the religious crusade held at Vakathanam on 27.2.1984 the defendant would claim that the plaintiff voluntarily came forward with a request to offer special prayers to him. At that time he was completely blind and A.S.NO.514 OF 2000 : 3 : had come with the help of another person. As per his request, special prayers were offered to the plaintiff. It is stated that Rev. Dr. Clarans Johsons placed his hands on the plaintiff's head and prayed for some time. Short while thereafter, it is claimed that, the plaintiff openly declared that, he had seen a flash light during that period and that he gained eye sight and full vision. All those persons who had gathered for the crusade were witnesses to the same. Ever since then, the plaintiff and his relatives were regularly attending the services of the Church of God. In many of the gospels, it is stated that the plaintiff voluntarily appeared and spoke about his experience. The allegations on the contrary to the plaint are disputed and denied. It is further contended that as a result of the divine gift, the plaintiff had business of sale of bread. He was travelling freely and selling bread at various places. Further contention is that in March, 1992, the plaintiff approached the defendant and demanded huge amount which was not acceded to by the defendant. In retaliation to the same, the present proceedings had been initiated. Contending that there is no bonafide and merit in the A.S.NO.514 OF 2000 : 4 : allegations in the plaint, the defendant prayed for a dismissal of the suit. 4. On the basis of the above pleadings, issues were raised by the trial court. Evidence consists of testimony of PWs 1 to 3 and documents marked as Exts.A1 to A5 from the side of the plaintiff. The defendant had DWs 1 to 9 examined and Exts.B1 to B5 marked. The trial court found that the publication is not perse defamatory but went on to say that the claim made in the publication that the plaintiff had gained eye sight is false and that false publication had affected his reputation among the public and relatives. A sum of Rs.15,000/= thereafter awarded to the plaintiff. The said decree is under challenge. 5. Two questions arise for consideration. They are (1) Is the publication defamatory in nature. (2) Was the court below is justified in awarding damages to the tune of Rs.15,000/=. 6. Point No.1: The case of the plaintiff is that without his knowledge and consent a false news has been published about him which has affected his livelihood and reputation among the public and relatives. He denies A.S.NO.514 OF 2000 : 5 : having claimed that he had gained eye sight in a crusade conducted by the Church of God Sect on 27.2.1984. The defendant on the other hand would contend that in fact the plaintiff had attended the prayer in the crusades in which he wanted prayers to be offered to him. In response to the said request, Rev. Dr. Clarans Johsons offered prayers and it is claimed by the defendant that the plaintiff proclaimed that he had gained eye sight after prayers were offered. Further case of the defendant is that publication about the plaintiff's miracle cure has been in news from 1984 onwards and till 1992 no objection had been taken. The defendant would contend that all that has been done is to publish the statement given by the plaintiff and the statements cannot be attributed to the defendant. 7. The learned counsel appearing for the appellant contend that the court below was not justified in awarding damages to the plaintiff. Attention was drawn to the fact that the trial court in fact comes to the conclusion that the publication is not perse defamatory. If that be so, no amount could have been awarded to the plaintiff. It is also A.S.NO.514 OF 2000 : 6 : contended that all that the defendant had done was to publish a voluntary statement given by the plaintiff and the statement was not a claim made by the defendant. According to the learned counsel, the court below was not justified in placing reliance on Ext.A5 which is a medical disability certificate, which according to the learned counsel was not proved in accordance with law. It is pointed out that none of the doctors who issued Ext.A5 has been examined and therefore it was not admissible in evidence. There was no proof regarding the contents of the document. For the above proposition, the learned counsel relied on the decisions reported in **Coral Indira Gonsalves v. Joseph Prabhakar Iswariah** (AIR 53 Madras 858), **Smt. Gopi v. Madanlal** (AIR 1970 Rajasthan 190), **C.J. Balaram v. Rukmannamma** (AIR 1953 Hyderabad 209), **The Merchant Steam Navigation Co. Ltd. v. Mohammed Kunju Appukk** a (1956 KLT 69) and **Panchanan Ghose v. Bhaggu Bari** (AIR 1950 Culcutta 261). The learned counsel also pointed out that there were sufficient evidence in the case to show that the plaintiff had gained eye sight as contended by the defendant and sufficient evidence A.S.NO.514 OF 2000 : 7 : has been adduced in that regard. Those items of evidence were not properly considered by the court below. According to the learned counsel, there is nothing to show that the publication stated to have been made was not a statement made by the defendant and therefore the lower court was not justified in decreeing the suit. 8. Per contra, the learned counsel appearing for the respondent pointed out that the court below has considered the entire evidence on record and had come to the conclusion that the statement had been issued by the defendant and that it is patently false. The learned counsel drew the attention of this Court to the fact that witnesses examined on behalf of the defendant are all followers of the group called Church of God and there was no independent witness to testify to the claim made by the defendant. In fact, the evidence of defendant examined as DW1 would show that there were independent impartial witnesses who could have stated the truth. But for the reasons best known to the defendant, he chose to examine none of them instead he chose to examine few of the followers of the Church of God. The learned counsel pointed out that the A.S.NO.514 OF 2000 : 8 : criticism levelled against acceptance of Ext.A5 is baseless. It has been proved that the plaintiff had been born blind. It was the claim of the defendant that after participating in the crusade and after having received prayers, he gained eye sight. It was for the defendant to establish the said fact. Even though the defendant claimed that the plaintiff had full vision, he was unable to establish the said fact. Ext.A5 is not the document based on which the suit is laid. It was only a document to show that the plaintiff was still blind. The learned counsel went on to point out that even assuming that the evidence of PWs2 and 3 may not be acceptable, as such, the fact remains that as a result of the false publication, the plaintiff has fallen into ridicule and contempt apart from the fact that he has ceased to get financial aid from those persons who are sympathetic to him. 9. The learned counsel for the respondent also pointed out that all that is meant by the trial court in saying that the publication is not perse defamatory is that on the face of it, the publication does not appear to be defamatory but the court has gone into pleadings and ## A.S.NO.514 OF 2000 : 9 : evidence in considerable detail and has come to the conclusion that the statement has been published by the defendant on his own and that it contained false claims. The court below has also found that consequent of the publication, reputation of the plaintiff is affected and it has caused harm to him. These are the findings on facts based on appreciation of evidence. Unless it is show that the findings are perverse or totally unwarranted by the evidence on record, interference by the appellate court is not called for. Merely because a different view may be possible does not clothe the appellate court with the power to interfere with the findings of the trial court. 10. Well, the case falls in a very narrow compus. The complaint of the plaintiff is that without his knowledge and consent a false news has been published about him. The evidence shows that the plaintiff was born blind. According to the defendant, the plaintiff had occasion to participate in the crusade conducted by the Church of God Sect on 27.2.1984. The defendant would contend that the plaintiff had voluntarily attended the crusade and had come along with another person since he was blind. After A.S.NO.514 OF 2000 : 10 : having received prayers in the crusade going by the defendant's version, the plaintiff openly declared that he had gained eye sight. This claim of the defendant is disputed by the plaintiff. 11. There can be no doubt regarding the fact that the plaintiff was born blind as would be revealed from the evidence. As rightly pointed out by the learned counsel for the respondent it was the defendant who claimed that the plaintiff had gained eye sight in a crusade and therefore it was for him to establish that the said fact. The defendant simply cannot escape by saying that he simply published a statement stated to have been made by the plaintiff and that he had no responsibility for the publication. He had necessarily to show that the statement was in fact made by the plaintiff as claimed by him. 12. The plaintiff had examined himself as PW1. He asserts that at no point of time he had given any statement or issued letters to the defendant claiming that he had gained eye sight after participating in the prayers in the crusade held on 27.2.1984. He would also say that he had never given consent for publication of Ext.A1. He says A.S.NO.514 OF 2000 : 11 : that he was born blind and continues to be blind. He however admits that he had taken part in the crusade held on 27.2.1984 but denies having made any announcement that he had gained eye sight. He would state that as a consequence of the false publication, people had started to hate him and have started to look at him as a untrustworthy man. He denies the suggestion in cross examination that the statement was published as desired by him. The evidence of PWs 2 and 3 are only to the effect that they were extending financial aid to the plaintiff and after seeing the publication, they felt that they had been cheated and they stopped extending financial aid to him. One of them is closely related to the plaintiff. 13. Now one may come to the evidence of the defendant. He examined himself as DW1. He says that on 27.2.1984 a crusade was conducted by the Church of God Sect at Vakathanam. About 5000 persons had participated in the said function. Rev. Dr. Clarans Johnsons lead the crusade. He would say that the plaintiff along with the father had come there for the prayers. He would concede that at the time the plaintiff was lead by his father since the A.S.NO.514 OF 2000 : 12 : plaintiff was blind. According to him, they requested him that prayers may be offered to the plaintiff. DW1 would say that they acceded to the request made by the father of the plaintiff and in the midst of several people Rev.Dr.Clarans Johnsons placed his hands on the head of the plaintiff and prayed for a while. He claims that thereafter the plaintiff proclaimed that he had seen a flash and he could see thereafter. DW1 would say that thereafter the plaintiff was taken to the house of pastor P.G. Mathew. DW1 asserts that the plaintiff had mounted the stage and had proclaimed that he had gained vision. He then goes on to say that the plaintiff wrote a letter to him requesting him to publish his experience in Jyothimargam, a publication of which the defendant was the editor. He states that it was in pursuance of the request made and desire expressed by the plaintiff that the publications were made, the first of which was in 1985. He claims that before publication was made, persons had gone from the press and verified the claim of the plaintiff and they were satisfied that the claim was true. He goes on to say further that as a result of the plaintiff gaining eye sight, his friends A.S.NO.514 OF 2000 : 13 : rejoiced at the miracle and there were celebrations in his school as well. He also says that in a subsequent crusade held in 1995 the plaintiff had participated and he had distributed the copies of Ext.B4. He admits that Ext.A1 publication was made by him. He claims that before publishing Ext.A1, he and one K.K. Mathew had gone to the house of the plaintiff. He says that it was the plaintiff who told him that Ext.A1 publication should be made. He further says that he wrote down what was narrated to him by the plaintiff and it was read over to the plaintiff. The plaintiff insisted that the same should be published. He also states that after the case had been filed, he had visited the plaintiff and he was convinced that the plaintiff had full vision. 14. In cross examination he says that he has not retained the letter stated to have been sent to him by the plaintiff requesting him publish about the experience which the plaintiff had after taking part of the crusade held on 27.2.1984. He continues his assertion in the cross examination that publication was made as requested by the plaintiff and the statement was given by the plaintiff himself. However, A.S.NO.514 OF 2000 : 14 : he admits in cross examination that he had not seen any document to show that the plaintiff had gained vision as a result of the participation in the crusade on 27.2.1984. DWs 2 to 6 are members of the sect called Church of God and they speak in tune with the evidence of DW1. DWs 7 and 8 are two beneficiaries of the crusade. They do not speak anything about the miracle that benefited the plaintiff. DW9 is the videographer who proved Ext.B5. 15. The court below has considered the evidence of all these witnesses and found the evidence furnished by the defendant to be unacceptable. 16. One may recollect here the evidence of DW1. His evidence is to the effect that the publication happened to be made on the basis of the request made by the plaintiff through a letter. That letter has not been produced. He would also say that he and Mathew had gone and verified before publishing Ext.A1. For the reasons best known to the defendant, the said Mathew was not examined. DW1 says that proprietor of the press had verified the claim made by the plaintiff before publishing Ext.B4. The proprietor is not examined though he is alive and available for A.S.NO.514 OF 2000 : 15 : examination. Instead DW3 has been examined. He is the brother of the proprietor of the press where Ext.B4 was published. His evidence is interesting. He says that when he had gone to see his brother, he happened to see papers and magazines lying on the table. He happened to come across the article relating to the plaintiff. He says that he felt suspicious and decided to conduct an inquiry. He then says that he then set out to the house of the plaintiff. According to his evidence, he spoke to the plaintiff as well as members of his family and came to know that the plaintiff was born blind but gained eye sight after taking part at the crusade at Vakathanam. He goes on to say that he examined the eyes of the plaintiff and was convinced that he has vision. Strangely enough in cross examination he says that he does not know the name of his brother. He was unable to state about the details of the press. DW1 has no case that it was DW3 who had conducted the enquiry. His case was that it was the proprietor of the press who had conducted the necessary enquiries. That is belied by the evidence of DW3. 17. Going by the evidence of DW1, there are A.S.NO.514 OF 2000 : 16 : innumerable, impartial and independent evidence to show that the plaintiff had stated that he had gained eye sight and also about his proclamation in the open stage. One may recall the evidence of DW1 to the effect that there were celebrations in the school in which the plaintiff was studying then and all of his teachers and Headmaster were aware of the fact. If the claim of the defendant is true, nothing prevented him from examining any one of those witnesses to substantiate his contentions. It is also significant to note that none of the neighbours of the plaintiff is also examined to testify to the fact stated by the defendant. 18. In the facts and circumstances of the case, the argument based on Ext.A5 has no significance. Even going by the evidence of DW1 it is clear that the plaintiff was born blind. It is claimed that in the crusade held on 27.2.1984 the plaintiff had participated and had gained eye sight. His further claim is that the proclamation was made by the plaintiff himself and it was at his instance that all the publications were made. It is him to establish those facts. Even after the suit had been filed, there was no attempt of the defendant to show that the claims made by the A.S.NO.514 OF 2000 : 17 : defendant were true. It is pointed out that the publications were made at the request and behest of the plaintiff and that it was not an independent publication. 19. In the absence of any independent or impartial evidence to show that the claim made by the defendant is true, lower court was justified in coming to the conclusion that the claim made by the defendant regarding Ext.A1 publication is false. The initial publication was in a magazine brought out by the sect called Church of God and the defendant was its editor. It is not necessary that the plaintiff should have been aware of the same. None of the contentions taken by the defendant in justification of his act stands proved. It is therefore clear that the publication of Ext.A1 was made at the instance of the defendant himself and not as a result of the request of or at the instance of the plaintiff. There also no evidence to show that the publication was only a narration of what had been stated by the plaintiff to the defendant. 20. It is necessary to consider the contention raised by the learned counsel for the appellant that the court below has not considered Ext.B5. That is a cassette which A.S.NO.514 OF 2000 : 18 : according to the defendant would reveal that the plaintiff had vision. It was DW9 who has videographed the incident. A reading of his evidence would show that he is unable to even give the necessary details regarding the video graphing done by him. He says that in the videograph the plaintiff was going through a rubber plantation. There is no evidence to show that the plaintiff was familiar to him. If, as a matter of fact, the defendant had a case that the plaintiff had eye sight or vision, the easiest thing he could have done is to seek medical examination through court. Without resorting to that method, the defendant says that he had placed reliance on DW9 and Ext.B5 which lacks credibility. 21. The next question that arises for consideration is whether Ext.A1 publication is defamatory. Deformation is not defined anywhere. Therefore it is incapable of precision. It is difficult to say what would constitute deformation. Normally a statement is stated to be defamatory, if a person on whom it is published tends to lower his status among members of the society or giving rise to an expression of hatred, contempt or ridicule A.S.NO.514 OF 2000 : 19 : causes the person to be shamed or avoided. The statement may be perse defamatory or otherwise. In deciding what is defamatory, the test appears to determine the meaning of the word would convey to an ordinary man. It is often accepted that if the statement creates an adverse feeling among group of the community that would be sufficient. 22. In the case on hand, the evidence disclosed that the plaintiff was born blind. Ext.A1 publication when laid is the impression that after participation in the crusade held on 27.2.1984, the plaintiff had gained vision. Ext.A1 publication would have the effect of indicating that even after getting vision, he continued to act blind and betrayed the trust reposed in him. One needs only to refer to the evidence of DW1 in this regard. The relevant portion reads as follows: “�ണ���ണ�വ�ന ഒര�ള അനന��� അഭ�ന��ക�ന���� യ��ന���ല അ��ള$ �റ� യ&�ശ&�� അഭ�ക���� യ��ന��. അനനല�� ഒര�ള അനന�ളണന� �റഞ� &റ�ളവര�ല ന�ന�� എള-ങ�ല�� ഔദ�ര�� സ23�ര�ച�ല അ��ള വഞ�ന�ളണന� യ��ന�യല(? Q) യ��ന�� (A ”) 23. The impression one would gather about the plaintiff is that he cannot be trusted and he becomes an A.S.NO.514 OF 2000 : 20 : object of hatred, contempt and ridicule. He is thereafter held in very low esteem by the people because of his conduct. Certainly his reputation is affected. 24. There can be no doubt regarding the fact that the publication is defamatory. 25. Issue No.2: It is said about the quantum of award made to the plaintiff. The main contention taken is that after having found publication is not perse defamatory, the court below was not justified in granting any sum to the plaintiff. First of all, merely because the court below has stated that the publication is not perse defamatory, it does not mean that the publication is defamatory. Perse defamatory only means that on the face on which publication appears to be defamatory. Just because a statement is not perse defamatory, it does not mean that statement cannot be defamatory. It only has the consequence that in such cases the plaintiff is to issue a innuendo. He has to narrate in detail in the plea regarding the statement and its consequences. If by applying the tests the publication is found defamatory, then that would be sufficient. Therefore the argument that merely because the lower A.S.NO.514 OF 2000 : 21 : court has observed that it was not perse defamatory, damages could not have been granted without any basis. 26. Of course there is no proof regarding the quantum of damages. The court below was persuaded to grant Rs.15,000/= as damages considering the fact that after the publication, financial aid to him has ceased and that he was in dire circumstances. Even though the said conclusion cannot be supported, it could not be said that the plaintiff is not entitled to any damages. Considering the nature of the publication made and the result it had generated and also loss of reputation and credibility suffered by the plaintiff, it does not appear that the amount awarded is excessive. 27. The award of Rs.15,000/= by the lower court can be supported on other grounds. The quantum of damages is found to be justified as it appears to be just and reasonable. The result is that the appeal and cross objection are without any merits and they are liable to be dismissed. I do so with costs to the respondent throughout. ## **P. BHAVADASAN, JUDGE.** ## **cl** A.S.NO.514 OF 2000 : 22 : ## **P. BHAVADASAN, J.** ........................................... A.S.NO.514 OF 2000 & Cross Objection ............................................. 17[th] day of August, 2011. ## **JUDGMENT**