R. Jayaraja Menon v. Mathrubhumi Daily and The Chief Editor, Mathrubhumi Daily

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** **WEDNESDAY, THE 14TH DAY OF AUGUST 2013/23RD SRAVANA, 1935** **AS.NO. 476 OF 1999 ( )** **----------------------------------** ## **O.S. NO.84 OF 1998, SUB COURT, OTTAPPALAM** ## **APPELLANT/PLAINTIFF:** **----------------------------------** **R. JAYARAJA MENON, AGED 62 YEARS, S/O. LATE A.V.K. MENON, DEPUTY SUPERINTENDENT OF POLICE (RETD.) RESIDING AT 'LATHA REMAM' KOPPAM PALAKKAD.** ## **BY ADVOCATES M/S P.V. MADHAVAN NAMBIAR LATHA JAYARAJ & RAJIV JAYARAJ** ## **RESPONDENTS/DEFEDNANTS:** **--------------------------------------------** **1. MATHRUBHUMI DAILY, REPRESENTED BY PRINTER AND PUBLISHER, MATHRUBHUMI DAILY, CALICUT.** **2. THE CHIEF EDITOR, MATHRUBHUMI DAILY, CALICUT.** **BY ADV. SRI.T.G.RAJENDRAN BY ADV. SRI.RAVIKRISHNA** **THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 14-08-2013 ALONG WITH AS. 495/1999 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **THOMAS P.JOSEPH, J. ==================================== A.S. Nos.476, 495, 527, 650 & 651 of 1999 ==================================== Dated this the 14[th] day of August, 2013** ## **J U D G M E N T** The 3[rd] respondent in A.S. No.527 of 1999 and the 1[st] respondent in A.S. No.651 of 1999 expired during the pendency of those appeals. The appellant-plaintiff filed statements in the said appeals that it is not necessary to implead legal representatives of those deceased respondents since liability of the defendants is joint and several. 2. Since the suits can stand even in the absence of respondents 1 and 3 in A.S. No.651 of 1999 and A.S. No.527 of 1999, O.S. Nos.82 and 83 of 1998 cannot abate as a whole. Abatement can only relate to respondents 3 and 1 in A.S. Nos.527 and 651 of 1999, respectively. 3. These appeals are brought from the common judgment and decree dated 19.12.1998 in O.S. Nos.84 of 1998, 82 of 1998, 81 of 1998 and 83 of 1998 respectively, of the Sub Court, Ottappalam. Parties are referred as plaintiff and defendants as in the suits for convenience. 4. Plaintiff, at the relevant time was working as the **A.S. No.476, etc., of 1999** -: 2 :- Deputy Superintendent of Police, Crime Detachment, Malappuram. Defendants are the Printer, Correspondent, publisher, etc., of various dailies and weekly. News items/articles appeared in the said dailies and weekly about suspension/dismissal of the plaintiff from the service (allegedly) for receiving Rs.1,18,000/as bribe. Plaintiff filed O.S. Nos.81, 82, 83 and 84 of 1998 against the respective Printer, Publisher, Correspondent, etc., of the dailies and weekly claiming damages. He alleged that the publications defamed him and that it lowered his reputation among the right thinking people of the Society. 5. Defendants raised a plea of justification by truth, apart from other contentions like limitation, etc. 6. The trial court, by its common judgment and decree dated 19.12.1998 dismissed O.S. Nos.81 and 84 of 1998. Dismissal of O.S. No.81 of 1998 was for the reason that Exts.A1 and A3 are the impugned publications involved in that suit and so far as imputations in Ext.A1 is concerned, there are no sufficient pleadings in the plaint and hence Ext.A1 cannot be looked into. So far as Ext.A3 is concerned, learned Sub Judge concluded that the statement in Ext.A3 is justified by Exts.X2 and X2(a). O.S. No.84 of 1998 was dismissed on a finding that the impugned **A.S. No.476, etc., of 1999** -: 3 :- statement in Ext.A21 is justified by Exts.X2 and X2(a). Plaintiff has preferred A.S. Nos.476 and 650 of 1999 challenging dismissal of O.S. Nos.84 and 81 of 1998, respectively. 7. O.S. No.82 of 1998 was decreed as prayed for directing the defendants therein to pay Rs.50,000/- with interest from date of the decree. That judgment and decree are challenged by the defendants in A.S. No.495 of 1999. Plaintiff is aggrieved to the extent that no interest was awarded from the date of suit until date of decree and has preferred A.S. No.527 of 1999. 8. O.S. No.83 of 1998 was decreed in part allowing the plaintiff to recover Rs.25,000/- with interest at 6% per annum from the date of decree till realization. Plaintiff is aggrieved as the entire claim was not allowed and interest was awarded only from date of the decree and has preferred A.S. No.651 of 1999. Defendants in O.S. No.83 of 1998 have not challenged the judgment and decree against them. 9. Following points arise for a decision: (I) Whether finding of learned Sub Judge that since contents of Ext.A1 are not pleaded in the plaint claim of the **A.S. No.476, etc., of 1999** -: 4 :- plaintiff in O.S. No.81 of 1998 is not sustainable is legally correct? (II) Whether the finding that statements in Ext.A3 are justified is correct? (III) Whether learned Sub Judge was right in accepting the plea of justification by truth raised by the defendants in O.S. No.84 of 1998? (IV) Whether damages awarded in O.S. No.83 of 1998 is sufficient? (V) Whether plaintiff is entitled to get interest from the date of suit until date of decree? 10. Point Nos.I & II. These points concern O.S. No.81 of 1998. Exhibit A3 is the news item which appeared in the Malayala Manorama daily dated, 01.12.1985. There, it is stated that one Keeran died of heart disease when he was summoned by the vigilance authorities to give evidence on the allegation that the plaintiff had received bribe in connection with the Sujatha murder case, that plaintiff was suspended on the allegation of receiving Rs.1,18,000/- as bribe and that a show cause notice was issued to the plaintiff in that regard. Exhibit A1 is the news item which appeared in the same daily on **A.S. No.476, etc., of 1999** -: 5 :- 25.12.1988. There it is reported that the plaintiff who was under suspension is being removed from the service under Article 311 of the Constitution of India and that suspension was on the allegation that he had received bribe of Rs.1,18,000/- in the Sujatha murder case. 11. It is alleged that in connection with the Sujatha murder case, the plaintiff had received bribe. It is also alleged that in connection with the case of one Ayyappan, plaintiff was placed under suspension pending enquiry. It is in the above background that Exts.A1 and A3, reports appeared in the Malayala Manorama on 01.12.1985 and 25.12.1985, respectively. 12. So far as Ext.A3 is concerned, learned Sub Judge found that the statement therein, re-reproduced substantially in the plaint is justified by Exts.X2 and X2(a). When it came to the case of the plaintiff that he was defamed by Ext.A1, learned Sub Judge observed that since contents of Ext.A1 are not recited in the plaint, that cannot be taken as plaint allegations. Nor could Ext.A1 be treated as part of the pleadings. Learned Sub Judge refused to go into question whether statements in Ext.A1 are defamatory. Other issues in the suit were also not decided by the learned Sub Judge. **A.S. No.476, etc., of 1999** -: 6 :- 13. So far as Ext.A3 is concerned, I am inclined to accept the finding of learned Sub Judge. Exhibit X2 is the file relating to the proceeding against the plaintiff. There is a communication dated 07.11.1995 from the Director of Vigilance, Thiruvananthapuram to the Commissioner and Secretary to the Government, Vigilance Department, Thiruvananthapuram where details of allegations of corruption against the plaintiff are stated. It is stated in paragraph 4 that the Superintendent of Police, Headquarters conducted investigation into the allegations against the plaintiff and another and that investigation disclosed that the plaintiff, (allegedly conspiring with the second accused therein) had accepted Rs.1,00,000/- as illegal gratification for release of the brother of the complainant. The letter ends by a recommendation that for a fair and proper investigation of the case in which grave misconduct on the part of the plaintiff was disclosed, it is necessary that he is placed under suspension with immediate effect. 14. Following that, the Government have issued Ext.X2 (a), proceeding dated 07.11.1985. There, it is stated that the Government have considered the allegations against the plaintiff, found that the allegations are grave and that for a fair and proper **A.S. No.476, etc., of 1999** -: 7 :- investigation of the case it is necessary that the plaintiff is placed under suspension with immediate effect. By Ext.X2(a), the plaintiff was placed under suspension. Thus Ext.A3, report is justified by Exts.X2 and X2(a) as rightly found by the learned Sub Judge. That finding requires no interference. 15. So far as Ext.A1 is concerned, referring to Rule 9 of Order VI of the Code of Civil Procedure (for short, “the Code”) learned Sub Judge has held that though Ext.A1 is referred to in the plaint, the recitals in the document should have been substantially repeated in the plaint. 16. Learned Sub Judge has failed to note the scope of Rule 14 of Order VII of the Code and the relevant decisions on the point. Under Rule 14 of Order VII of the Code, the plaintiff is required to produce along with the plaint the documents on which he sues or relies. In **Commercial Financiers v. Thressia** (1990 (1) KLT 774) and **Rajappan v . Presiding Officer** (ILR 2013 [3] Kerala 275) it is held that when a document on which the plaintiff sues or relies is produced along with the plaint with a list appended to the plaint, those documents would form part of the pleadings. In **Kunhambu v. Sojath** (1989 (1) KLT 305) in a case where the proceeding related to criminal **A.S. No.476, etc., of 1999** -: 8 :- prosecution it is held that when the document which is stated to be defamatory and which is subject matter of the prosecution is produced along with the complaint, that would be substantial compliance. Exhibit A1 is a document on which the plaintiff (in O.S. No.81 of 1998) has sued or relied. Exhibit A1 was produced along with the plaint in O.S. No.81 of 1998. Hence Ext.A1 ought to have been treated as part of pleadings of the plaintiff. Learned Sub Judge was not right in discarding Ext.A1 and the statements therein. 17. Learned counsel for the plaintiff contended that since Ext.A1 is per se defamatory, this Court can go into that question and grant relief in the suit. Learned counsel states from Ext.A1 that even though Exts.X2 and X2(a) related to the suspension of the plaintiff pending enquiry, what is stated in Ext.A1 is removal of the plaintiff from the service under Article 311 of the Constitution. It is argued that a reading of Ext.A1 would indicate that allegation of bribe made against the plaintiff was found in favour in the enquiry and consequently the plaintiff was removed from the service. According to the learned counsel, Ext.A1 cannot be justified by Exts.X2 and X2(a). 18. I am not inclined to go into that question in this **A.S. No.476, etc., of 1999** ## -: 9 :- appeal since that is a matter which the trial court has to decide. I also notice that the defendants in O.S. No.81 of 1998 have raised a contention regarding limitation for the suit. That question also has to be decided by the learned Sub Judge. Assuming that Ext.A1 is found to be defamatory and the plaintiff is entitled to get damages, the trial court has to quantify the damages if any payable to the plaintiff. I leave those matters to the decision of the trial court. 19. In the light of my above finding, dismissal of O.S. No.81 of 1998 as a whole cannot be sustained. Question whether statements in Ext.A1 are defamatory, whether that lowered reputation of the plaintiff in the estimation of the right thinking people of the Society, whether the statement is justified, what is the damages if any payable and other questions involved in the suit are to be decided by the learned Sub Judge. Dismissal of O.S. No.81 of 1998 to the extent it concerns Ext.A3 calls for no interference. 20. Point No.III: This point concerns dismissal of O.S. No.84 of 1998. It is challenged in A.S. No.476 of 1999. Exhibit A21 is the impugned publication in the Mathrubhumi daily dated 23.01.1986. The caption given for Ext.A21 is that the Deputy **A.S. No.476, etc., of 1999** ## -: 10 :- Superintendent of Police who investigated the Sujatha murder case is being dismissed. It further states that the then Home Minister of the State disclosed while inaugurating the Police Sub Division at Thamarassery that notice has been given to the Deputy Superintendent of Police for his dismissal as he was found guilty in connection with the Sujatha murder case. 21. According to the plaintiff, the news item in Ext.A21 concerned him. Having regard to the evidence on record I do not find reason to reject that plea of the plaintiff. 22. That, Ext.A21 is per se defamatory cannot be disputed. For, it says that the Deputy Superintendent of Police (found to be the plaintiff) who investigated the Sujatha murder case was found guilty in connection with the Sujatha murder case and that notice has been given for his dismissal from the service. 23. Exhibit X1 is the copy of show cause notice dated 7596/H1/85/Home dated 26.11.1985 issued to the plaintiff. There, it is stated that the plaintiff, while working as Assistant Commissioner of Police, Crime, Ernakulam City from 09.06.1978 to 15.10.1979 committed grave dereliction of duty by indulging in serious misconduct, violated standing orders and circulars of **A.S. No.476, etc., of 1999** ## -: 11 :- the Police Department by not giving correct information to the higher authorities regarding arrest and death of Ayyappan, an accused in Crime No.263 of 1979 of the Central Police Station and that plaintiff did not transfer the case file in Crime No.311 of 1979 to the Assistant Commissioner of Police (law and order) Ernakulam City who was investigating that case. Exhibit X1 further states that the Government have provisionally decided to dismiss the plaintiff from the service and he was asked to show cause why that provisional decision of the Government should not be confirmed. 24. Exhibit X1 does not relate to the allegation of bribe in the Sujatha murder case. It concerned misconduct, irregularities, etc., in connection with the arrest and death of Ayyappan and failure of the plaintiff to hand over the case file in Crime No.311 of 1979 to the Assistant Commissioner of Police (law and order) for investigation. Justification must be for the imputation contained in Ext.A21. The defendant who pleads justification must prove that the whole statement is true. In a plea of justification the words complained of should be proved true in substance and in fact it means that all those words were true, and covers not only the bare statements of fact contained in **A.S. No.476, etc., of 1999** ## -: 12 :- the alleged libel, but also any imputation which the words in their context may be taken to convey (See _**Sutherland v. Stopes**_ - 1925 AC 47). The defendant, taking up a plea of justification can only succeed on producing proof of truth of the matter charged as libellous and not by leading evidence as to his own belief in its truth (See _**Harbajan Singh v. State of Punjab**_ - AIR 1961 Punjab, 215). Exhibit X1 cannot be a justification for the report in Ext.A21. 25. Exhibit X2 is the file relating to Ext.X2(a), order. I stated a little above that Ext.X2 related to the recommendation made by the Director of Vigilance (investigation) for immediate suspension of the plaintiff from the service pending investigation and that Ext.X2(a) is the proceeding dated 07.11.1985 by which the plaintiff was placed under suspension pending investigation. Exhibits X2 and X2(a) also cannot be a justification for the report in Ext.A21 since Exts.X2 and X2(a) only referred to or related to the suspension of the plaintiff from the service while, what is stated in Ext.A21 is about notice given to the plaintiff for his dismissal (form the service) as he was found guilty in connection with the Sujatha murder case. Reading Ext.A21, the impression that one can gather is that the plaintiff was found guilty of the **A.S. No.476, etc., of 1999** -: 13 :- allegations made against him in the Sujatha murder case and following that, he was given notice for dismissal. Exhibits X2 and X2(a) cannot justify the statements in Ext.A21. 26. Learned counsel for the defendants in O.S. No.84 of 1998 has contended that the defendants therein have only reported what the Minister for Home, Government of Kerala had disclosed in his speech on the occasion of inauguration of the Police Sub Division at Thamarassery. 27. I am unable to accept that contention. A repetition of the libel is not a defence. Just like the person who made the statement originally, the person who repeats the libel is also under an obligation to justify the statement. Hence it is no answer to say that the Minister for Home had made any such statement. 28. Though learned Sub Judge has gone into the oral evidence let in by the parties as regards version of the plaintiff that the Minister for Home had told him that he had not made any such disclosure in his speech, I am not inclined to think that oral evidence in that regard has any relevance. For, as aforesaid, repetition of a libel is no justification. Defendants can succeed only on proving truth of the matter charged as libellous and not **A.S. No.476, etc., of 1999** ## -: 14 :- by leading evidence as to their own belief in its truth or that they have repeated only what another person has said. Moreover, even if the statement was made by the Minister for Home as pleaded by the defendants, that is no justification since Exts.X1, X2 and X2(a) do not justify the statement contained in Ext.A21. In that view of the matter I am inclined to hold that plea of justification by truth raised by the defendants in O.S. No.84 of 1998 must fail. 29. So far as O.S. No.82 of 1998 is concerned, Ext.A16 is the relevant publication in the weekly of the defendants therein. Learned counsel for the plaintiff has brought to my attention Ext.A16 series to contend that grave allegations are made against the plaintiff without any justification. Learned counsel for the defendants would contend that what is relevant is Ext.A16 (a) and (i) which do not refer to the plaintiff receiving bribe, defendants were only repeating what D.W.5 had told the Correspondent and therefore the finding against the defendants cannot stand. 30. I have been taken through Ext.A16(a) and (i). What I can find is that the defendants have proceeded as if the plaintiff has received bribe of Rs.1,18,000/- in connection with the **A.S. No.476, etc., of 1999** ## -: 15 :- Sujatha murder case and that he has been removed from the service. A reading of Ext.A16 would show that it is a more aggravated form of libel than other publications involved in the case. May be part of the investigative journalism but before making serious allegations there was a responsibility on the defendants concerned to make proper enquiry. 31. Plea of justification based on Exts.X2 and X2(a) cannot stand for the reasons I have stated above. For the sake of brevity I refrain from repeating Exts.X1, X2 and X2(a). It follows that the statements in Ext.A16 are not justified by truth. 32. Learned counsel for the plaintiff has invited my attention to the responsibility of the Correspondent, Printer, Publisher, etc., while publishing reports of the nature involved in this case. My attention is also drawn to the commentaries in the Law of Torts by Ratan Lal and Dhiraj Lal and 'Defamation and Malicious Prosecution' by Mehrotra. The gist of commentaries given by the respective authors is that news papers are subject to the same rules as other critics and has no right or special privilege and in spite of the latitude allowed to them, they have no special right to make unfair comments. They must have made proper enquiries and acted in good faith before making the **A.S. No.476, etc., of 1999** ## -: 16 :- impugned publications. 33. Learned counsel for the defendants in O.S. No.82 of 1998 (appellants in A.S. No.495 of 1999) has relied on the decision in **R. Rajagopal v. State of T.N** . ([1994] 6 SCC 632) and in particular, the observations in paragraph 26(3). There, it is stated that in the case of public officials, right of privacy or for that matter remedy of action for damages is not simply available with respect to their acts and conducts relevant to discharge of their official duty and that unless the official established that the publication was made by the defendants with reckless disregard of truth and action for defamation would not stand. In such case it would be sufficient if the defendant, whether he is a member of the press or media to prove that he has acted after a reasonable verification of the fact. It is not necessary for him to prove that what he had written is true. But where the publication is proved to be false and actuated by malice or personal animosity, the defendant would not have no defence. 34. The thrust of the argument of learned counsel for the defendants in O.S. No.82 of 1998 is that the defendants have made proper enquiry as revealed by the evidence of D.W5 on **A.S. No.476, etc., of 1999** ## -: 17 :- whom the trial court was not inclined to believe. 35. I must state that there is no sufficient evidence to show that the defendants in O.S. No.82 of 1998 (and for that purpose defendants in any other suits also) had made enquiry as referred to in paragraph 26(3) of the decision cited supra. On the other hand they simply gave the impugned news items and the defendants in O.S. No.82 of 1998 simply relied on what D.W5 is said to have told them. The trial court rejected the evidence of D.W5 for cogent reasons. Simply reporting what D.W5 (allegedly) told them is not an enquiry which would save the defendants. Finding of the trial court in O.S. No.84 of 1998 that the impugned statement is justified by truth is erroneous. Dismissal of O.S. No.84 of 1998 is not justified. 36. Point No.IV:The next question is whether damages awarded in O.S. No.83 of 1998 is sufficient? Plaintiff is aggrieved as the entire claim of Rs.50,000/- was not awarded. Learned Sub Judge has referred to the impugned publications. While dealing with O.S. No.82 of 1998 where a decree for recovery of Rs.50,000/- is granted, learned Sub Judge has observed that the impugned publication in O.S. No.82 of 1998 is in a more aggravated form and granted a decree for **A.S. No.476, etc., of 1999** -: 18 :- Rs.50,000/-. The imputations in O.S. No.83 of 1998 are in a milder form. Learned Sub Judge has thought that a decree for Rs.25,000/- would be sufficient. Having gone through the judgment I am not inclined to interfere with the jurisdiction exercised by the learned Sub Judge in awarding damages. 37. Point No.V:So far as claim for interest from the date of suit is concerned, learned counsel for the plaintiff has placed reliance on the decision in **K.S.E.B. v. Union of India** ( **1992 (1) KLT 306)** . It is argued that even when the claim is for damages the entitlement of which is decided by the judgment in the case, interest can be awarded from the date of suit. Learned counsel points out that in the reported case compensation was awarded from date of the suit. Reference is also made to Sec.34 of the Code. 38. Under Sec.34 of the Code, court is given the discretion to grant interest from the date of suit as revealed from the expression that the court 'may' award interest from the date of suit. Learned Sub Judge found that interest need be awarded from the date of decree. Unless the discretion exercised by the learned Sub Judge is capricious, arbitrary or perverse, the appellate court is not required to interfere. Hence I do not find **A.S. No.476, etc., of 1999** -: 19 :- reason to interfere with the grant of interest from the date of decree in in O.S. Nos.82 and 83 of 1998. 39. In the light of my above findings judgment and decree in O.S. Nos.82 and 83 of 1998 are to be confirmed and consequently A.S. Nos.495, 525 and 651 of 1999 are to be dismissed. 40. In the light of my finding on point Nos.I to III, dismissal of O.S. Nos.81 and 84 of 1998 calls for interference and those suits are to be remitted to the trial court for decision on other issues involved in those suits. Resultantly, ## (1) A.S. Nos.495, 527 and 651 of 1999. These appeals stand dismissed in confirmation of the judgment and decree of the Sub Court, Ottappalam in O.S. Nos.82 and 83 of 1998. ## (2) A.S. Nos.476 and 650 of 1999. These appeals are allowed by way of remand as under: (i) Judgment and decree of the Sub Court, Ottappalam in **A.S. No.476, etc., of 1999** -: 20 :- O.S. Nos.81 of 1998 and 84 of 1998 dismissing those suits are set aside. (ii) Finding of learned Sub Judge in the common judgment dated 19.12.1998 to the extent it concerned O.S. No.81 of 1998 that Ext.A3, publication is justified by truth is confirmed. (iii) Finding of learned Sub Judge in the said judgment to the extent it concerned O.S. No.81 of 1998 that since the contents of impugned report in Ext.A1 are not pleaded in the plaint, those allegations cannot be looked into is set aside. (iv) Learned Sub Judge is directed to treat the impugned statements in Ext.A1 as part of the plaint averments and decide other issues involved in O.S. No.81 of 1998. (v) Finding of learned Sub Judge in the judgment that the impugned publication in O.S. No.84 of 1998 is justified by truth is set aside. (vi) O.S. No.84 of 1998 is remitted to the learned Sub Judge, Ottappalam for decision of other issues involved in the suit consequent to the finding that the statements in Ext.A21 are not justified by truth. (vii) In the appeals which are allowed by way of remand, the appellant shall be entitled to get refund of one half of the **A.S. No.476, etc., of 1999** -: 21 :- court fee paid, as per the law. (viii) Parties in O.S. Nos.81 and 84 of 1998 are directed to appear in the trial court on 23.09.2013. (ix) Parties shall suffer their costs in the appeals. All pending Interlocutory Applications will stand dismissed. **THOMAS P. JOSEPH, JUDGE.** vsv