found in the plaint will make it clear that the plaint averments are
not enough to spell out a cause of action for suing the petitioners
for damages for the alleged commission of the tort of defamation.
Furthermore, the filing of the suit, claiming damages to the tune of
Rs.10,00,000/- for the respondent, his brother and his family
members who were facing the criminal trial will make it clear that
the suit itself has been filed as an abuse of process to escape from
the criminal prosecution and also to make the second petitioner to
come to terms in the matrimonial cause that is pending before the
Family Court at Chennai. If every complainant, who lodges a
complaint with the Law Enforcing Agency for imputation against
the persons accused are to face civil cases for defamation on the
premise that the imputations, according to the accused, are false,
many people fearing such actions on the part of the accused, may
not come forward to lodge a complaint to the Law Enforcing
Agency. When an imputation has been made in a complaint made
to the Law Enforcing Agency with the belief that such Agency
would take criminal action against the persons against whom such
imputation are made, the same will provide a valid exception
taking such act outside the scope of tort of defamation. Besides,
the lodging of the complaint with the police could not be
considered to be a publication of a defamatory statement. If at all
any wrong is committed by lodging a false complaint with the police
and thereby setting the criminal law in motion, it may amount to
malicious prosecution, for which action can be taken only after the
disposal of the criminal case, wherein a specific finding shall be
given to that effect.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09.01.2015
CORAM
THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR
C.R.P (PD) No.547 of 2012
and
M.P.No.1 of 2012
1) A.N.Shanmugam
2) S.Poornima @ Anisha
... Petitioners
vs.
G.Saravanan
Citation;AIR 2015(NOC)670 Mad
The defendants in O.S.No.14803/2010 on the file of the
Additional District and Sessions Judge, Fast Track Court No.IV,
Chennai (now re-designated as Court of the 18th Additional Judge,
City Civil Court, Chennai) have filed the present civil revision
petition invoking the power of superintendence of this court over
the subordinate courts under Article 227 of the Constitution of
India and challenging the order dated 12.11.2011 made in
I.A.No.193/2011 filed by the petitioners herein for the rejection of
the plaint in the above said suit under Order VII Rule 11 CPC.
2. The respondent is the brother of the second petitioner's
husband. The first petitioner is none other than the father of the
second petitioner. Due to difference of opinion between the second
petitioner and her husband and aggrieved over the alleged second
marriage contracted by her husband Manoharan with another
woman, the second petitioner made an attempt to commit suicide
by dousing her with kerosene and setting her on fire. Fortunately
or unfortunately she survived. Thereafter she gave a statement to
the police narrating the circumstances leading to the above said
occurrence, accusing her husband to have driven her to make an
attempt to commit suicide. However, in her statement, she also
3
made a reference to the alleged unparliamentary words used by
the respondent herein, when the first petitioner went to meet the
husband of the second petitioner to request him and his family
members to pay a visit to his house, wherein the second petitioner
and the child, after their discharge from the hospital were, the
respondent, who is none other than the brother of the husband of
the
second
petitioner,
scolded
the
first
petitioner
using
unparliamentary words. However in the statement, she had prayed
that action should be taken against her husband and his parents
for conducting the second marriage of her husband as bigamous
marriage.
3. Based on the statement, the police registered a case in
Crime No.4/2009 on the file of W1 All Woman Police Station,
Thousand Lights, Chennai - 6 for alleged offences punishable
under Sections 498-A, 406, 494 and 506(ii) IPC and also for
offences punishable under Sections 4 and 6 of the Dowry
Prohibition Act.
4. Contending that the imputations made against the
respondent herein, which formed the basis of the FIR, would
amount to defamation, the respondent chose to file the above said
4
suit claiming damages to the tune of Rs.10,00,000/- against the
petitioners.
5. After appearance in the said suit, the petitioners
herein, filed the petition in I.A.No.193/2011 under Order VII Rule
11 of the Code of Civil Procedure for rejection of the plaint, as no
cause of action had been spelt out in the pleadings made therein.
6. The learned trial judge, after hearing both sides, passed
the impugned order dated 12.11.2011 dismissing the petition
making the following observations:
"Though it is contended that there is no
cause of action in the suit, the complaint was given
by the 1st petitioner with regard to the accident that
took place to the gas leakage and further more
complaint given before W1 All Women Police and
has stated false allegation against him and his
family as if scolded her in filthy language. Therefore
there are issues involving law and the issues
involving facts. Therefore these could be made clear
only by way of trial through oral and documentary
evidences.
Moreover
as
contended
by
the
respondent, on perusal of exhibits filed along with
the plaint the FIR dated 2.7.09 the name of this
respondent finds place as the 2nd accused. Even
the exhibit filed along with the plaint which is the
5
intimation memo finds place the name of the
plaintiff/respondent
as
2nd
accused.
Though
according to respondent in the plaint it is stated that
the police has wrongly investigated and made him
accused basing on the complaint filed by the
petitioner, the plaint cannot be rejected on this
ground alone. Therefore this court fees that a
detailed trial with evidence is necessary to decide,
whether the suit filed is with merits or not."
7. Contending that the learned trial judge has not
considered the issue in proper perspective which led to the passing
of the impugned order, the petitioners have approached this court
under Article 227 of the Constitution of India to set aside the order
of the learned trial judge and to allow I.A.No.193/2011 and thereby
reject the plaint in O.S.No.14803/2010.
8. The arguments advanced by Mr.P.K.Rajagopal, learned
counsel for the petitioners and by Mr.R.Rajesh Kumar, learned
counsel for the respondent are heard. The copy of the impugned
order and the copies of the relevant documents produced by both
the parties in the form of typed set of papers are also taken into
consideration.
6
9. The first and foremost contention of the learned
counsel for the petitioners is that the allegations made in the plaint
do not spell out a cause of action for the respondent to maintain
the suit and that hence the plaint is liable to be rejected under
Order VII Rule 11(a) of the Code of Civil Procedure. Taking the
court through various averments made in the plaint, the learned
counsel for the petitioners argued that the entire plaint did not
spell out a cause of action for seeking damages against the
petitioners herein and that the learned trial judge, without properly
appreciating the pleadings incorporated at the plaint and without
correctly considering the scope of Order VII Rule 11(a) of the Code
of Civil Procedure, passed the impugned order dismissing the
petition filed by the petitioners herein.
10. On the other hand, it is the contention of the learned
counsel for the respondent that though the grievance of the
petitioners was against the husband of the second petitioner, the
respondent was unnecessarily dragged into the picture by making
an averment that he used unparliamentary words against the first
petitioner when he approached the husband of the second
petitioner to request him to pay a visit to the ailing second
petitioner and her child.
7
11. As rightly pointed out by the learned counsel for the
petitioners, even if it is assumed that the 2nd petitioner made
imputations against the respondent/plaintiff, the plaint does not
contain necessary averments as to in what way his reputation was
lowered, excepting the fact that the respondent had to obtain an
order of anticipatory bail to avoid arrest in the criminal case
registered based on the complaint of the second petitioner. It is the
further contention of the learned counsel for the petitioners that
the respondent himself admitted in categorical terms that the
complaint did not contain any imputation against him attracting
the penal provision for which criminal case came to be registered,
but still the police erroneously arraigned him as one of the accused
and that the said admission itself will make it clear that the plaint
does not spell out a cause of action for the relief sought for. The
following excerpts from the plaint will support the case of the
petitioners:-
" The plaintiff and his brother were arrested on
22.07.2009 on the basis of the false complaint
given by the 2nd defendant and remanded in
Central Prison, Puzhal. The plaintiff submits the
defendants have given a complaint and there is no
averment in the complaint against this plaintiff
but the police without investigation filed a case
against the plaintiff under Section 498-A, 406,
8
494 and 506(ii) and Section 4 and 5 of the Dowry
Prohibition Act."
12. In the paragraph containing cause of action it has
been stated that frivolous complaint was given by the second
petitioner at the instigation of the first petitioner on 22.07.2009
against the respondent's brother and the respondent, alleging that
the respondent's brother was demanding dowry from the second
petitioner
and
due
to
the
mental
tension
caused
by the
respondent's brother, the second petitioner set herself on fire after
pouring kerosene over her body.
13. A proper consideration of the above said averments
found in the plaint will make it clear that the plaint averments are
not enough to spell out a cause of action for suing the petitioners
for damages for the alleged commission of the tort of defamation.
Furthermore, the filing of the suit, claiming damages to the tune of
Rs.10,00,000/- for the respondent, his brother and his family
members who were facing the criminal trial will make it clear that
the suit itself has been filed as an abuse of process to escape from
the criminal prosecution and also to make the second petitioner to
come to terms in the matrimonial cause that is pending before the
Family Court at Chennai. If every complainant, who lodges a
9
complaint with the Law Enforcing Agency for imputation against
the persons accused are to face civil cases for defamation on the
premise that the imputations, according to the accused, are false,
many people fearing such actions on the part of the accused, may
not come forward to lodge a complaint to the Law Enforcing
Agency. When an imputation has been made in a complaint made
to the Law Enforcing Agency with the belief that such Agency
would take criminal action against the persons against whom such
imputation are made, the same will provide a valid exception
taking such act outside the scope of tort of defamation. Besides,
the lodging of the complaint with the police could not be
considered to be a publication of a defamatory statement. If at all
any wrong is committed by lodging a false complaint with the police
and thereby setting the criminal law in motion, it may amount to
malicious prosecution, for which action can be taken only after the
disposal of the criminal case, wherein a specific finding shall be
given to that effect.
14. The learned trial judge, had not chosen to take into
consideration all the above said aspects. Had he taken into
consideration all the above said aspects and applied the provisions
of law found in Order VII Rule 11(a) of the Code of Civil Procedure
10
properly to the facts of the case, he ought to have allowed the
petition for rejection of the plaint. Unfortunately, the learned trial
judge has done the opposite. Hence, this court does have no
hesitation in coming to the conclusion that the order of the trial
court, which is impugned in this revision, cannot be sustained and
there is every justification for this court to interfere with the same
and set aside the same in exercise of its power of superintendence
under Article 227 of the Constitution of India.
In the result, the civil revision petition is allowed. The
order of the learned Addl. District and Sessions Judge, Fast Track
Court No.IV, Chennai dated 12.11.2011 made in I.A.No.193/2011
in O.S.No.14803/2010 is set aside. I.A.No.193/2011 shall stand
allowed with the result that the plaint in O.S.No.14803/2010 shall
stand rejected. However, there shall be no order as to cost in the
revision. Consequently, the connected M.P.No.1 of 2012 is closed.
09.01.2015
Index
: Yes
Internet : Yes
asr
To
The 18th Additional Judge, City Civil Court, Chennai
11
P.R.SHIVAKUMAR, J.
asr/-
C.R.P (PD) No.547 of 2012
and
M.P.No.1 of 2012
09.01.2015
No comments:
Post a Comment