Y.M. Shamshuddin Vs. G.M. Rajashekar
IN THE
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
Regular Second Appeal No. 1564 of 2007
Decided On: 19.12.2014
Appellants: Y.M. Shamshuddin
Vs.
Respondent: G.M. Rajashekar
Hon'ble Judges/Coram:
Rathnakala, J.
JUDGMENT
Rathnakala, J.
1. This is plaintiffs appeal, assailing the judgment passed in Regular Appeal No. 93/2004 by the Civil Judge (Sr.Dn.), Chikmagalur, in reversing the judgment and decree dated 10.8.2004 passed by the trial court/Additional Civil Judge (Jr.Dn.), Chikmagalur, in O.S. No. 254/2001.
2. The parties will be referred to as per their original status before the trial court.
3. The plaintiff/Y.M. Shamshuddin filed a suit for damages of Rs. 15,000/- against the defendant/G.M. Rajashekar, Editor, Printer and Publisher of 'Jilla Suddigaara' Kannada Fortnightly Paper, Chikmagalur, and also for permanent injunction restraining the defendant and his men claiming under him from publishing any false and defamatory news against the plaintiff in any of the future issue of Jilla Suddigaara Bi-weekly.
4. It was the case of the plaintiff that, he is working as an assistant to Dr. T.H. Shamshuddin and eking out his livelihood; the defendant in his fortnightly newspaper for the period 3-7, September 2001 published a news under the head 
(the fake doctor Shamshuddin killed the person by tying a thread) which is defamatory and caused dis-reputation to him. Since the defendant published plaintiffs photo while publishing the news item in respect of Dr. T.H. Shamshuddin, he is subjected to humility amongst his friends circle, well-wishers and public, hence prays for a nominal damage of Rs. 15,000/- from the defendant and for permanent injunction.
5. The defendant though appeared through his counsel, did not file written statement at the proper stage. Hence the case was proceeded without the written statement of the defendant. When the matter was set down for arguments, the defendant tendered his written statement, which was not accepted. However, he was permitted to cross-examine the plaintiff, on his affidavit evidence. The trial court partly decreed the suit by awarding a damage of Rs. 5,000/-, but the relief of injunction was rejected. Aggrieved defendant took the matter to the lower appellate court. After hearing both parties, learned Civil Judge (Sr.Dn.), Chikmagalur, allowed the appeal, by reversing the judgment and decree of the trial court without cost.
6. Sri. Sachin B.S., learned Counsel appearing for the appellant/plaintiff submits that, since the defendant had not filed his written statement, there was no defence material before the court. The trial court had rightly decreed the suit taking into consideration the unrebutted evidence of the plaintiff. The lower appellate court committed material irregularity in setting aside the judgment of the court below and has exceeded his jurisdiction.
7. Though the respondent/defendant is served, he is unrepresented.
8. The case is admitted on 4.2.2010 to adjudicate the following question of law:
"In the absence of a written statement by the defendant and categorical findings by the trial court in decreeing the suit, whether the first appellate court was justified in reversing the same in arriving at findings, which were without any basis?"
9. As could be seen from the lower court records, after the case was proceeded without the written statement of the defendant, the plaintiff placed his evidence by way of affidavit. Apart from reiterating the plaint allegations, he further stated that the newspaper in which defamatory material was published against him was exhibited in the public place so as to give wide publicity in the places where his friends and relatives are residing, with an intention to spread false news against him. The newspaper was marked as Ex. P1 in evidence, however, the so-called defamatory material said to have been published in the newspaper is reiterated in the affidavit evidence. During his cross examination, he stated that Dr. T.H. Shamshuddin under whom he is working is available; he studied upto PUC and knows about piles operation. His ancestors used to operate piles, hence, he knows about the said treatment. A register is maintained in his clinic pertaining to the patients; they used to give treatment for the piles by tying a thread and there will not be any problem for the patients by this treatment. By the false paper publication, he has suffered defamation and also business loss. Since the number of patients is decreased, his doctor stopped payment to him; because of the disorder in their clinic, the number of patients is decreased and he is not aware of the doctor's qualification; he is also not aware that prior to surgery of piles, x-ray, BP and blood test will be taken by the Doctors; the police had registered a case against him for practicing medicine; he was arrested in this regard; he is not aware that they charge Rs. 2,000/- to Rs. 3,000/-for each treatment. He is not aware as to what action is taken by the Doctor against the defendant.
10. The trial court while arriving at its conclusion took note of the fact that Dr. Shamshuddin has not instituted the suit though the derogatory material is published against him, still observed the defendant has not taken minimum care while publishing the photo of the plaintiff; there is every possibility that the public will misconceive that the article published pertains to the plaintiff. In the absence of the written statement, adverse inference was taken against the defendant for publishing the photo of the plaintiff, which is not at all connected to the derogatory material published in the newspaper. Without touching the evidence elicited during cross-examination, it was held that 'there is nothing in the cross-examination evidence of the plaintiff. Though no material was placed by the plaintiff about the loss of Rs. 15,000/- suffered due to publication of the photo in the newspaper, nominal damage of Rs. 5,000/- was granted and prayer for permanent injunction restraining the defendant from publishing baseless news against the plaintiff was declined.
11. It is evident that the learned Trial Judge did not go to the cross-examination evidence of the plaintiff to find out whether the evidence on record is in corroboration to the pleadings. Per contra, the lower appellate court has gone in detail to the material on record and finds infirmity in the case of the plaintiff. According to the lower appellate court, it was for the plaintiff to convince the court that the so-called article was published with an intent to harm him and that such publication will harm the reputation of the plaintiff; the learned Judge observes that since the name of the plaintiff is Y.M. Shamshuddin and the article is targeted against Dr. T.H. Shamshuddin, one may confuse the photo of the plaintiff with that of the doctor, still the plaintiff is connected to the so-called Doctor T.H. Shamshuddin and his clinic. Further, the learned Judge draws inference that plaintiff and his employer are very much engaged in treating the piles by tying thread to the piles and the method they adopt in conducting the piles operation without any prior test; since the plaintiff admits that he was behind the bars on the allegation that he is a fake doctor practicing medicine and he has expressed his ignorance about the fact that he collects Rs. 2,000/- to Rs. 3,000/- for piles treatment and he does not wear uniform in his clinic, learned Appellate Judge holds that the article published in the newspaper was not with any malafide intention and there is material to show that the real fact has been published in the newspaper, he has not denied the facts alleged in the newspaper and the sufferings undergone by one of the patient. The learned Judge has also taken note of the fact that said Doctor has not lodged any complaint against the defendant and has not appeared in the court to support the plaintiff. It is clear that the plaintiff is a part and parcel of Dr. T.H. Shamshuddin and is indivisible component of Dr. Shamshuddin; publishing his photo with the article has its own relevance with the article. In the absence of any evidence from the friends, relatives and public showing that they undervalue the dignity of the plaintiff, and uncorroborated statement of the plaintiff with regard to the damages he suffered, and further admission from his side that in view of the disorder in the clinic, there is decrease in the number of patients and he is not aware of the educational qualification of his employer, the learned Judge records that the loss suffered is not because of the article published. On the above, the learned Appellate Judge records that publishing of the photo of the plaintiff with the article is not defamatory and the article contains only true fact and is published for the benefit of the public against the rude method adopted in treating the piles. On the above line, the judgment of the trial court is intercepted by setting aside the same.
12. Within the scope of Order XLI Rule 22 of the Code of Civil Procedure, it is in the power of the first appellate court to re-appreciate the evidence. The first appellate court also being a fact finding authority, on the basis of the evidence on record, has found the infirmities in the case of the plaintiff, which was omitted by the trial court.
13. It is worthwhile here to quote the judgment reported in MANU/SC/0320/2012 : 2012 AIR SCW 2510 in the matter of C.N. Rmappa Gowda v. C.C. Chandregowda (Dead) by LRs. & Another. While dealing with the effect of non-filing of written statement, in the context of Order VIII Rule 10 of CPC, which reads as under:
"Where any party from whom a written statement is required under rule 1 or rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up."
it was held that, Court cannot pass a decree in a mechanical manner, it should be a little more cautious even facts stated in the plaint are admitted - judgment cannot be passed without requiring plaintiff to prove facts so pleaded - it is only when the court, for recorded reasons is fully satisfied that there is no fact which needs to be proved at the instance of the plaintiff in view of the deemed admission by the defendant, the court can conveniently pass a judgment and decree against the defendant who has not filed the written statement. But, if the plaint itself indicates that there are disputed questions of facts involved in the case arising from the plaint itself giving rise to two versions, it would not be safe for the court to record an ex parte judgment without directing the plaintiff to prove the facts so as to settle the factual controversy. In that event, the ex parte judgment although may appear to have decided the suit expeditiously, it ultimately gives rise to several layers of appeal after appeal which ultimately compounds the delay in finally disposing of the suit giving rise to multiplicity of proceeding which hardly promotes the cause of speedy trial. However, if the court is clearly of the view that the plaintiffs case even without any evidence is prima facie unimpeachable and the defendant's approach is clearly a dilatory tactic to delay the passing of a decree, it would be justified in appropriate cases to pass even an uncontested decree. What would be nature of such a case ultimately will have to be left to the wisdom and just exercise of discretion by the trial court, who is in the midst of the trial of the suit. Hence it is clear that even in the absence of a written statement, Court is not obliged to pass a decree for mere asking. Here is the case where the defendant tried to file the written statement at a belated stage but was not permitted to file. He was rightly permitted to participate in the proceedings.
14. It is permissible for the defendant to take part in the hearing of the suit even without filing of the written statement as required under Order XIII 8 Rule 9 of CPC and non-filing of written statement would not amount to admission of all facts pleaded in the plaint and address argument on the basis of plaintiffs case. However, such defendant cannot be permitted to cross examine plaintiffs witness on question of fact, which he himself has not pleaded nor allowed to adduce evidence on question of fact which have not been pleaded by him in the written statement, as held by various judicial pronouncements, viz., MANU/SC/0283/1988 : (1988) 4 SCC 619 (Modula India v. Kamakshya Singh Deo); AIR 1972 Patna 81 (82) : AIR 1982 J & K 93 (94, 95) : AIR 1978 Orissa 209 (210) and 1985 REV LR 287 (Punjab). In the case on hand, having allowed the defendant to participate in the proceedings by cross examining the plaintiffs witness and after giving audience to him, the trial court was in omission in not considering the evidence that emerged during cross examination of PW-1. The entire tenure of cross examination was not on defence but brought out the inbuilt discrepancy in the case of the plaintiff himself which is rightly made good by the first appellate court.
15. The observations made by the lower appellate court during appreciation of evidence is well reasoned and well founded. It is not necessary that the plaintiffs suit has to be decreed for mere asking only for the reason that the defendant has not filed written statement. The trial court had recorded its finding on overall view of the matter. The lower appellate court has arrived at its finding on a judicious appreciation of the evidentiary material on record. Hence, the substantial question of law is answered against the appellant.
Accordingly, the appeal is dismissed. Parties to bear their own costs.
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