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IN THE COURT OF THE IV ADDITIONAL DISTRICT JUDGE ,

TIRUPATI
A.S.No. 134 /2007
Between:-
K.S.V. Narasimhulu Appellant/Plaintiff

And:-
B.Sambasiva Rao Respondent/Defendant

On appeal from the Judgment and Decree dated 30.08.2007 passed


by the Additional Senior and Civil Judge, Tirupati and made in
O.S. No. 72/2001

WRITTEN ARGUMENT FILED ON BEHALF OF THE APPELLANT

1. The Appellant is unsuccessful Plaintiff in the above appeal.


The suit is an action on Defamation: a Libel in a legal
pleading.
The Appellant , appearing before the Honorable Court as
party in person , has humbly presented the crux of argument
of the case.
The Honorable Court has gracefully gave a counseling that
the matter being in the nature of simple matter and mostly
prevalent in many spheres of life in the Indian context, an act
of compromise may be more desirable.
However , without malice towards the defendant and purely
in the interest of justice, the Appellant is furthering the
matter.
The Appellant , who is a qualified Advocate and a member of
Tirupati bar, hereby humbly begs for the attention of the
Honorable court to the latest case law on the subject of
Defamation, especially in the background of the popular
proverbial belief in the legal profession in India that
Defamation matters are not favorably decreed.
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DEFAMATION MATTERS GENERALLY

V.Mitter, celebrated author of the law book , “Law Defamation and


Malicious Prosecution “ has the following observation in his opening
words of the preface of the book:
“Defamation as a tort is not so much a pet subject in Indian Courts as
it is with the Courts in the European and American Continents.
Possibly the reason is that ours is a poor country and the court-fee
rates with us are very high and the people her e find it difficult to
vindicate their honor by resort to such an expensive remedy. They
prefer to go to criminal courts, but there too they are afraid to have
their whole conduct and family history (past and present) raked out,
with no resultant loss to the defamer, since often it is a question of
fine of a few rupees. The courts , it would seem, do not value the
injury to the honor of the person so much as they would value the
injury to the man’s person or his purse.”
Justice K. Shanmukham , Formerly Judge, Madras High Court ,
writing preface to the tenth edition of the above mentioned book
observed as follows;
“The two fields where there is hardly any appreciable progress are
the Law of Defamation and Malicious Prosecution. Slackness in the
awareness and hesitance in the assertion of the right under these two
branches of law on the part of our society are principle reasons for
absence of its growth.

SUPREME COURT’S LAND MARK JUDGMENT

The subject of DEFAMATION has recently acquired a new


perspective and has asserted its existence with the pronouncement
of landmark Judgment by the Supreme Court of India on 13th May
2016. The celebrated Judgment arose out of Writ Petition (Criminal )
No 184/2014 SUBRAMANIAN SWAMY Vs UNIONOF INDIA,
MINISTRY OF LAW &OTHERS , reported in A.I.R.2016 S.C. page
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2728, filed by famous Advocate and politician Subramanian Swamy,


and the same has been followed by 22 other Petitions on the same
subject. The Apex Court with the Division Bench consisting of Justice
Deepak Mishra and Justice P.C. Panth has delivered the voluminous
verdict upholding the constitutional validity of the provisions of
Defamation in the Indian Penal Code: Sec 499 and 500.
The question of appeal is whether right to reputation is so essential to
citizens as opposed to freedom of speech.
The Apex Court held that the right to reputation is essential part of
Right to Life and sometimes even more essential.
In this context, the Supreme Court has re-examined all the provisions
of the Law pertaining to Defamation and discussed at length the
concept of fame, reputation and character as handed over by the
Colonial Jurisprudence and redefined the nature, tenor, and value of
fame and respect and honor in the Indian context.
In the perception of the above Judgment, the concept of fame and
defamation are not alien subjects to India and furthermore they form
the fundamental ingredients of Ideal life.
In para 23 of the above judgment, the Court highlighted stanzas from
the scripture Bhagavadgita and explained what exactly constitutes
reputation.
Ahimsa satya makrodhaha tyagah shanty rapaisunam
Dayaa bhuutesvaloluptam maardavam hreerachpalam
Non-violence in thought, word and deed, truthfulness and geniality of
speech, absence of anger evern on provocation , disclaiming
doership in respect of actions, queietude or composure of mind,
abstaining from malicious gossipm compassion towards all creatures,
absence of attachment to the objects of senses even during their
contact with the senses, mildness, a sense of shame in transgression
against the scriptures of usage, and abstaining from frivolous
pursuits.”
In para 45 the Supreme court recounted its earlier explanation on the
subject in the case Board of Trustees of the Port of Bombay v.
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Dilipkumar Raghavendranath Nadkari and others (1983 )1 SCC 124
“the court has opined that expression “Life” does not merely connote
animal existence or a continued drudgery through life.
In para 46 of the above judgment the Court mentioned its earlier
decision in Kiran Bedi v. Committee of Inquiry and another(1989) 1
SCC 494 , elucidating that “ The court referred to the words of caution
uttered by Lord Krishna to Arjun in Bhagavd Gita with regard to
dishonor of loss of reputation.
Akirthim chabhi bhutani kathayishyanto tae avyayaam
Sambhavitasya chaa keertihi maranaad atirishyatae (2.34)

(Men will recount thy perpetual dishonor , and to on highly esteemed,


dishonor exceedeth death.)

In para 48 the Apex Court recapitulated its observation in Viswanatha


Agrawal v. Viswanath Agrawal (2013) 10 SCC 591, “ This court
observed that reputation which is not only the salt of life, but also the
purest treasure and the most precious perfume of life. It is revenue
generator for the present as well as posterity.”

Further in para 49 the Court went on to mention its early commentary


in Nilgiri Bar Association v.T.K.Mhalingam and another(1998) 1 SCC
550 as follows:

“The term ‘person’ includes not only the physical body and members
but also every bodily sense and personal attribute among which is the
reputation a man has acquired. Reputation can also be defined as the
good name, the credit, honor and character which is derived from
favourable pubic opinion or esteem , and character of a good
reputation is a valuable privilege of ancient origin. ‘Reputation’ is an
element of personal security and is protected by the constitution
equally with the right to enjoyment of life, liberty and property.

And in para 50 their Lorships recounted the Court’s earlier remarks in


Om Prakash Chautala v. Kanwar Bhan and others (2014) 5 SCC417,
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“It has been held that reputation is fundamentally a glorious amalgam


and unification of virtues which makes a man feel proud of his
ancestry and satisfies him to bequeath it as a part of inheritance and
property. It is nobility in itself for which a conscientious man would
never barter it with all the tea of China or for that matter the pearls of
the sea. The said virtue has both horizontal and vertical qualities.
When reputation is hurt, a man is half-dead. It is an honour which
deserves to be equally preserved by the downtrodden and the
privileged. The aroma of reputation is an excellence which cannot be
allowed to be sullied with the passage of time. It is dear to life and on
some occasions it is dearer that life. And that is why it has become an
inseparable facet of Article 21 of the Constitution. No one would like
to have his reputation dented, and it is perceived as an honour rather
than popularity.”

In para 51 of the same Judgment the Apex court recounted its


perception in State of Gujarat and another v. Hon’ble High Court of
Gujarat:

“An honour which is lost or life which is snuffed out cannot be


recompensated.”

THE CASE IN BRIEF


2. The Appellant/Plaintiff K.S.V.Narasimhulu is a writer and
journalist and at the time of instilling the suit he has completed Law
course and at present he is a member of Tirupati bar. The
Respondent/Defendant B.Sambasiva Rao is a businessman. The
cause of action arose on 17.04.2000 when the
Respondent/Defendant made and published a defamatory statement
as part of his averments in the Plaint filed in O.S.289/2000 on the
file of the Principal Junior Civil Judge’s Court Tirupati and on
03.08.2000 when the Appellant/Plaintiff issued legal notice to the
Respondent/ Defendant calling upon him to withdraw the defamatory
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statement , tender apology and pay Rs.1,00,000/- One Lakh Rupees
towards damages caused to the character and reputation of the
Appellant/Plaintiff as a result of the defamatory statement. The
Respondent/Defendant neither replied to the legal notice nor
complied with the claim of the Appellant/Plaintiff and hence this suit
before this Honourable Court.

3. All the averments in the Plaint are self-explanatory. The


defamatory statement in question is part and parcel of a legal
proceeding which by itself has been brought out by the
Respondent/Defendant as Plaintiff tenant in O.S. 289/2000 with the
ulterior motive of permanently squatting in House bearing door
number 339 Gali Street Tirupati even after prolonged efflux of
agreement period.
In the said suit he sought permanent injunction to retain possession
of the said house and in doing so he denied the title of it absolute
owner K.S.V.Narasimhulu , the Appellant/Plaintiff here-in. Paving
way for multiplicity of litigation he brought out the said injunction suit
showing the Appellant/Plaintiff here-in as Defendant No.2 and added
up the father and two sisters of Defendant No. 2 as Defendants 1,
3 and 4 respectively. He also concocted a fictions allegation that all
the four Defendants in the said suit used force and violent method to
dispossess him from the said house and thereby pleaded for the
intervention of the Court by way of injunction.
It is in this context the Respondent/Defendant here in as Plaintiff in
the said injunction suit plaint made the following statement in Para 8:
“ In fact the second defendant was never taking interest in respect of
the first defendant and he was all along living a way ward life”.
The statement clearly refers to the character of the Appellant/Plaintiff
K.S.V.Narasimhulu since he was shown as the second defendant in
the said injunction suit and the first defendant mentioned in the said
statement is none other than Koneti Venkataswamy , father of the
second defendant there-in. Since the impugned statement is totally
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false and derogatory to the character of the Plaintiff and evoked
curious and suspicious reactions among many sections of society the
Appellant/Plaintiff surmised that it was the result of vengeful act of the
Respondent/Defendant to humiliate him and hold him to ridicule and
contempt in the opinion of the general public. The Appellant/Plaintiff
submitted that the impugned statement is calculated with a willful and
malicious intention of the Respondent/Defendant to take revenge on
the Appellant/Plaintiff since he demanded the Respondent/
Defendant to vacate the said house in Gali Street so as to enable him
to shift his father for providing better ameneties. He had no option but
to bring the instant action in the interest of justice.

4. The Respondent/Defendant in his written statement maintained


that the impugned statement is truth and therefore it is no defamation.
He repeated the statement and asserted that it is made in good faith
and it is honest opinion. He came up with a fresh imputation that the
father of the Appellant/Plaintiff himself made adverse comments
regarding the character of his son the Appellant/plaintiff and that the
father himself described his son as a wayward person. He went on to
make further defamatory statements about the Appellant/Plaintiff
attributing authority to the clerks who worked under the
Appellant/Plaintiff’s father, junior advocates who worked under him
and to several relatives of the Appellant/Plaintiff. He further made an
imputation on the character of the Appellant/Plaintiff referring to the
death of the Appellant/Plaintiff’s wife in suspicious circumstances and
referred to rumors and alleged newspaper publications. He made a
wager the if any relative of the Appellant/Plaintiff can give evidence of
the good character of the Appellant/Plaintiff he has no objection for
the suit to be decreed. The Respondent/Defendant categorically
denied that he made the impugned statement to take revenge of the
Appellant/ Plaintiff since he was asked to vacate the house in which
he was living as tenant. And notably the Respondent/Defendant did
not give out any reason or legal excuse for making the statement.
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5. The Appellant/plaintiff has submitted before the Trial Court 38
documents, all of them Primary evidence. Ex. A 1. is the served copy
of plaint in O.S. No. 289/2000on the file of the Principle Junior Civil
Judge Tirupati, containing the impugned defamatory statement. Ex. A
2 is the office copy of the legal notice given to the Defendant and Ex.
A 3 is the postal acknowledge of delivery of the said notice to the
Respondent/ Defendant. Exhibits A 4 to A 35 are various documents
testifying the educational, extra-curricular, professional and social
activities of the Appellant/Plaintiff. Ex. A 36 is the will and last
testation of the father of the Appellant/Plaintiff in respect of specific
property and this documents contains some recitals of the father
regarding the son. Exhibits A 37 and A 38 are certified copies of Lok
Adalat decrees containing references to settlement of issues
regarding the properties of the Appellant/Plaintiff. The Appellant/
Plaintiff also led before the Honorable Court oral evidence from two
persons having knowledge of the general character of the Plaintiff.
PW 2 is the immediate neighbour of the Appellant/plaintiffs since
more than three decades. PW 3 is the cousin of the
Appellant/plaintiff.

6. The Respondent/Defendant in his chief affidavit he persisted


that his statements are all true and reiterated that the
Appellant/Plaintiff’s father himself made adverse comments against
his son’s character. He claimed personal knowledge of the affairs of
the Appellant/Plaintiff’s family and maintained that relying on hearsay
and alleged news paper publications he commented on the character
of the Plaintiff. He came up with another stunning allegation that “ in
fact the father of the Appellant/plaintiff residing separately by taking a
room on rent as Plaintiff failed to look after the welfare of his father”.
The Respondent/Defendant has not submitted any evidence
whatsoever before the Honourable Court.
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7. All the relevant points in the cross-examination of PW1, PW 2
and PW 3 and of DW 1 were aptly discussed in the written argument
submitted before the Trial court.

8. But the Trial Court dismissed the suit without judicious


consideration of the facts and material placed by the
Appellant/Plaintiff. The judgment is against law, weight of
evidence and probabilities of the case. Hence this Appeal.

9. The essential ingredients under law for in an action for


Defamation are four in number: 1. There should be a statement, 2.
The statement should have been published, 3. The statement
should be a false statement; or, if it is true it should have been
made and published without a justifiable reason, and 4. There
should be damage to the character or reputation of the Plaintiff.

10. In the instant case there a Statement. Since it is typewritten it is


in a permanent form. Admittedly it is part of the Plaint in
O.S.289/2000 on the file of the Court of the Honorable Principle
Junior Civil Judge Tirupati.

11. The said Statement being part of a legal pleading and


submitted before a Court of justice is a public statement and hence
there is publication. Since a period of over a hundred years there
are numerous instances of statements in legal proceedings being
subject of action for Defamation. The present case is no exception
and it is not covered by any privilege.
Furthermore the impugned statement is highly motivated by Malice in
Fact which rebuts the claim of privilege if any.

12. The Respondent/Defendant in his written statement has


emphatically pleaded that the impugned statement is totally truth and
maintained that it is no defamation since it is truth. By such a
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pleading the Respondent/ Defendant has adopted the defense of
justification. Halsbury’s “ Laws of England” explains this stand as
follows:
“ The Appellant/plaintiff must also allege that the statement is false,
but since the law presumes that a person is of good character unless
and until the contrary is alleged and proved, the burden is on the
Respondent/defendant of alleging affirmatively and proving that the
defamatory statement which the Respondent/defendant published is
true. The defense of truth is only required on the assumption that the
Respondent/Defendant has published a defamatory statement. It may
be pleaded alternatively to the whole or part; but it is a separate
defense, and must not be treated as part of the issue of publication.
The allegation is a defense of truth of the statement complained of is
called a defense of justification.
The defense of justification confesses the publication of the statement
justified or so such of the statement as is justified, and asserts that it
is true in substance and in fact.”
Since the Respondent/Defendant asserted that the impugned
statement is true and claimed that it is no defamation it is implied that
he is admitting the statement and also admitting publication of the
statement.

13. In view of the admitted facts that there is a statement and there
is publication the two issues as framed by the Trial Court and
examined are:
“Whether the plaintiff entitled for recovery of Damages as pleaded;
and
To what relief?”

The Plaintiff submits before this Honourable Court that in


consideration of these two issues his main line of argument is that the
statement in question if totally false, it is not made in good-faith, it is a
statement made without any legal excuse, it is a statement made with
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ulterior motive and malicious intention to defame the Plaintiff and


therefore the Plaintiff is entitled for damages as prayed for.

14. Even before considering the veracity of the impugned


statement the Plaintiff pleads for the attention of the Honourable
Court to the very nature of the statement and particularly to the words
used in the statement. The statement reads:
“ In fact the second defendant was never taking interest in respect of
the first defendant and he was all along living a way ward life”.
The statement consists of two aspects: son taking interest in respect
of father and his general character as evident in his way of life. The
first aspect as alleged by the Defendant is a question of fact. But the
words “wayward life” as used to depict the second aspect before
being a question of fact are basically defamatory, that is to say, prima
face defamatory.
Nelsons’ commentary of the Indian Penal Code(1970.Vol 3. p
2766) deals with this condition as follows:
27.Expressions relating to nature, character etc.: Expressions
which tend to blacken the character of a person which are calculated
to vilify a man and bring him into hatred, contempt or ridicule would
be ground for indictment, or those which set the complainant in
discreditable scurrilous, ignominious, or ludicrous, light, would be
defamatory.
It would be defamatory to characterize a person as “goonda”
which is a well understood term, or to allege that the complaint sings
indecent songs in the public, is a drunkard and abuses girls and
women and is a goonda, or to describe a person in the heading of a
defamatory pamphlet as “shariff badmah” , or to say that Nethaji
Subhash Chandra Bose was a traitor who was a Japanese
quisling, or to call a person “worthless” and “despicable blackguard”,
or to impute dishonesty, or immorality, or to charge a person with
blackmailing, or to say that all officer of the British Government “
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were all beasts and pigs in their conduct”, or to write of a man that he
has the itch, and stank of brimstone, would be defamatory.”

On the question of prima face defamation Halsbury’ Laws of England


(p 620) categorizes as follows:

“A statement which reflects upon the character of another may be


defamatory, although it does not expose him to hatred. It is enough
that it tends to hold a person to contempt or ridicule. In general, any
charge of immoral conduct is defamatory, although in matters not
punishable by law.
It is beyond question defamatory to charge another with fraudulent,
dishonest, or dishonourable conduct or motives. More that a hundred
years ago it was held that it was defamatory to call a man a villain, a
swindler,a rogue or a rascal. Such words obviously through
contumely on the person traduced.
So at common law it has always been defamatory to impute
unchastity to a woman or girl, and such imputation is now actionable
per se.”
In the light of these commentaries it is necessary to consider the
import of the words “ wayward life” used by the defendant in the
impugned statement. It is understood by the Appelant/Plaintiff to
mean an undisciplined behaviour and the Defendant in his written-
statement conceded that in fact the word is used in the same
meaning. Apart from the meaning of the word the sense it carries is
derogatory and shows the Defendant in low standing. In the English
language it used as an adjective denoting persons behaviour.
Cambridge Advanced learner’s Dictionary gives the meaning to the
word wayward as “( especially of a person’s behaviour) changeable,
selfish, and difficult to control.”
The famous Sankaranarayana’s English-Telugu Dictionary explains
the word wayward as “ avidheyudaina, anagani , cheppinattu vinani,
disobedient, froward, perverse, wilful, taking one’s way”.
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In considering the meaning of a word in an issue of defamation total


reliance may not be placed on the lexicons alone. Yet it is desirable
to note the meaning which imports according to the linguists and
evaluate its appropriateness in the actual use of the word. Admittedly
the plaintiff understood the word to mean an irresponsible behaviour
and the Defendant readily endorsed it and further attempted to justify
its use. Though it is an expression in English the sense it is
understood in Telugu is not so limited to its meaning in the lexicons.
And there appears to be no equivalent word to wayward in Telugu but
there are other word carrying the same sense with shades of differing
application. At least three word frequently used in Telugu are nearer
to the English wayward. They are poramboku, aavaara and bekhatar.
The word bekhatar is of urdu origin and mostly in use in Telangana
region and it means a temperment and behaiour defying any norms
of social behaviour. The word aavaara is of Hindi origin and reflects
a character who generally wanders around without any commitment
to any thing. The word poramboku is mostly used to denote wasteful
or wasted as applied to land, it applies also to an entity not belonging
to any one particularly. Applied to a person poramboku means an
aimless, indisciplined, wasteful person. By common usage and
common understanding the English word wayward carries shades of
all the three telugu words aavaara, bekhatar and poramboku.
It is one thing to call a peson a selfish person,yet another thing to
describe one as an indisciplined person or of ungentlemanly person
but to describe one a wayward person is to depict him in the public
eye as an unsociable low character. In the light of this explanation it
is pleaded that the word wayward used in the impugned statement is
prima face defamatory and hence actionable per se. Since the
Defendant admitted that he has used the word in the same sense the
Plaintiff understood and took objection to, the very act of using the
word is to be considered as intentional use and its aim is none other
than showing the plaintiff in low light.
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15. The trial court committed an error in coming to conclusion that


the Respondent/Defendant not in good faith simply based on his
assertion . the trail court failed to take cognizance of the ill-will
patently reflected in the written statement and the addition of further
defamatory statements..
OS.289/2001 is a title suit. And in a title suite there is absolutely no
validity for character evaluation.
Even to serve his alleged cause of action the impugned statement
will be of no consequential support under section52 Evidence Act.
Any reference to a person’s character even as a purported
evidentiary value will never be treated as relevant. Section 52
Evidence Act is :
“ In civil cases , the fact that the character of any person
concerned is such as to render probable or improbable any conduct
imputed to him is irrelevant except in so far as such character
appears from facts otherwise relevant”
The trial court has not taken in to consideration the above mentioned
statutory provision .

BURDEN OF PROOF
16. The trialCourt committed an error in placing the burden of proof
on the Appellant/Plaintiff instead of the Respondent/Defendant that
the impugned statement is made in bad faith. It is settled law that the
person who made the defamatory statement has to prove that he has
made the same in good faith and the statement is true and it is
covered by an exception under the law of Defamation.
The Trial court in para 13 of its Judgement has stated:
“However the plaintiff is not able to establish that the said statement
is made in bad faith or with a view to lower the reputation of the
plaintiff herein”
This is clearly against the provision of law.
And here are the stipulations of the Supreme Court in its 2016
Judgment(Supra)
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Para 165 reads:

“To constitute the offense there has to be imputation and it must have
been provided in the provision with the intention of causing harm or
having reason to believe that such imputation will harm the reputation
of the person about whom it is made. Causing harm to the reputation
of a person is the basis on which the offense is founded and mens
rea is a condition precedent to constitute the offence. The
complainant has to show that the accused had intended or known or
had reason to believe that the imputation made by him would harm
the reputation of the complainant. The criminal offence emphasizes
on the intention or harm.”

In the same paragraph the Court highlighted the stipulation made


earlier in its Judgment in Jeffrey J.Diermeter and another v.State of
West Bengal and another (2010) 6 SCC 243:

“ It would be sufficient to show that the accused intended or knew or


had reason to believe that the imputation made by him would harm
the reputation of the complainant, irrespective of whether the
complainant actually suffered directly or indirectly from the imputation
alleged.”

GOOD FAITH

Dealing with the issue of GOOD FAITH in Defamation matters the


Supreme Court in its 2016 verdict (Supra) has emphasized the
burden on the defendant. Quoting its earlier three-judge Bench
decision in Harbajan Singh v.State of Panjab and another , the Court
said

in para 177:

“good faith and public good are both to be satisfied and failure of the
appellant to prove good faith would exclude the application of Ninth
Exception in favour of the accused.”
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And

“ what the Ninth Exception requires an accused person to prove is


that he made the statement in good faith”

In para 178 the Court recounted from its earlier decision in Sukra
Mahto v. Basdeo Mahto and another and said

“The Court further opined that good faith and public good are
questions of fact and emphasis has been laid on making enquiry in
good faith and due care and attention for making imputation.”

In para 182 the Court recollected its earlier decision in Jeffrey J.


Diermeier (2010) 6 SCC 243 and observed:
“…The mere plea that the accused believed that what he had stated
was in ‘good faith’ is not sufficient to accept his defense and he must
justify the same by adducing evidence. “As regards the question of
good faith claimed by the Defendant the burden is heavy on him to
prove that at the time of making the impugned statement he has
acted with “ attention and due care”.

CONCEPT OF GOOD FAITH


The concept of good faith as applicable in legal proceedings is
enshrined in Section 52 Indian Penal Code:

“Nothing is said to be done or believed in “good faith” which is done


or believed without due care and attention.”

The definition of Good Faith in this section is a negative definition


and means if an act is done without due care and attention it will not
be deemed to have been done in good faith. What is due care and
attention depends upon the position in which a man finds himself and
varies in different cases. The care and attention required by Law
must have relation to the occasion and the circumstances and the
question has to what would be due care and attention must be
determined with reference there to.
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Nelson’s Indian Penal Code (1966 , volume 1, page 193) quotes the
following observation relying on A Madras High Court decision , in re
Ganapathaiah Pillai A.I.R.1953 Madras , 936
“ The question of good faith is a question of fact and must be
gathered from the surrounding circumstances. Mere actual belief
without any reasonable grounds for believing is not simultaneous with
good faith. But good faith doesn’t require logical infallibility but due
care and caution which must in case be considered with reference to
the general circumstances and the capacity and intelligence of the
person whose conduct is in question.”
In the present case the Defendant is a businessman,
presumably a man of the world and as stated by him, a family man of
two grown-up children. While being a tenant in a house and on
proceeding legally in order to retain possession he has acted under
expert legal guidance and as asserted by him he has gathered
information regarding the Plaintiff’s family particulars, apart from
particulars regarding the property he is residing in. It will only be
reasonable to expect from such a responsible person due care and
attention while making a severe allegation regarding the character of
the Plaintiff. If in fact he has taken due care and attention, he ought to
have produced before this Hon’ble court relevant evidence, either
documentary or oral to substantiate his claim that he has acted in
good faith. His incapacity to produce any evidence what so ever only
categorically proves that his claim of good faith is absolutely false.

17. The trial court in para 14 of its Judgemnt averred:


“As per the written arguments filed by the plaintiff itself shows that
wayward life means and includes life without taking care of other
things”
The above observation is totally a misreading of the letter and spirit of
the written arguments of the Appellant/Plaintiff.
The Appellant/Plaintiff has never stated or indicated that he was not
taking care of “other things”.
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18. The trail Court came to erroneous conclusion that the


Appellant/Plaintiff was not looking after his father on the basis of the
evidence of P.W.3 that he was in Bangalore for sometime due to his
employment.
The trial court has completely ignored the corroborative evidences
filed by the Appellant/Plaintiff. It is highly unimaginable to conclude
that a committed journalist, an organizer of a spiritual concern and
also an Advocate and a person held in high esteem by his father
himself could neglect in taking care of his family and father simply
because he is employed in a different place for some time and there
is absolutely nothing to prove that the Plaintiff and his father were
adversely disposed or that they were cut off in contacts or mutual
visits.
19. The trial Court has not mentioned anywhere in its Judgment the
decisions cited by the Appelant/Plaintiff and it has not given any
reason to ignore them.

20. In the present suit character is the issue. In order to establish


his credentials in respect of character and reputation the
Appelant/Plaintiff has submitted before the Trial court several
documents, which bear direct testimony to his intellectual pursuits,
literary achievements, social activities and commitment to spiritual
goals. While some documents are testimonials of high appreciation of
the Plaintiff’s literary merits some documents are directly relevant to
the present case in as much as they throw light on some of the issues
between the Plaintiff and the Defendant.

21. The trial court has totally ignored to take note of EX.A4
Presidents’ Scout Certificate received by the Plaintiff way back in
1966 while he was a high school student. Duely signed by the
erstwhile President on India Late Sri S.Radhakrishan the certificate
appreciates the dedication of the Plaintiff to the cause of the
international Scout movement. If adolescence is the age in which
:: 19 ::

foundations are laid for the overall development of an individual a


spirit of dedication to the Scout should be valued as clear evidence of
character building.
A Scouts motto is to serve humanity irrespective of any barriers
whatsoever. It is well said and oft-repeated that “once a Scout always
a Scout”.
The document being primary document and being a Certificate
awarded by the President of India, it is a public document and its
contents are authentic and bear the seal and authority of the highest
office in the land.
It is highly unimaginable that an acclaimed service minded Scout
would lead a wayward life and ignore his own family .

22. The Plaintiff is a double postgraduate with an M.A. Degree in


English and another M.A. Degree in Telugu. Ex. A 6 is a testimonial
by former Professor of English Dr.G.Nageswara Rao appreciating the
Plaintiffs scholarly pursuits and literary merits. Dr. Nageswara Rao
also made a specific mention of the plaintiff being a “ gentleman”. Ex.
A 7 is a testimonial by former Vice-Chancellor of S.V.University Late
Shri G.N.Reddy regarding the academic and literary qualities and
qualifications of the Plaintiff. Ex. A 4 being a Certificate by the United
States Information Service testifies the Plaintiffs dedication to
international understanding and enthusiasm towards continental
cultures.

23. As a journalist the Plaintiff worked for two popular Telugu news-
papers:Andhra Prabha and Andhra Jyothi. While Ex.A8 to Ex.A 11
testify his employment in Andhra Prabha Bangalore , Ex.A 12, A 13
and A 14 are the evidences regarding his serivice in Andhra Jyothi in
Tirupati. It is evident from these documents that the Plaintiff has
worked in Bangalore as journalist in Andhra Prabha for a period of
four years from 1982 to 86 and worked for Andhra Jyothi Tirupati
from 1986 onwards.
:: 20 ::

A career as working journalist for a period of over a decade in daily


newspapers establishes beyond any doubt punctuality, dedication to
work and excellence in profession.
It can be anything but true that an active responsible journalist can be
described as a wayward person.

24. Ex.A 15 is Constitution and Articles of association of Sri


Sugnanananda Ashramam Tirupati. The Ashram is an institution
established by the Plaintiffs father Koneti Venkataswamy in memory
of his late brother and Guru Sri Sugnanananda Swamiji. It can be
ascertained from this document that in fact while the Plaintiff’s father
was functioning as the president of the Ashram Association, the
plaintiff was bearing office as its secretary reflecting his dedication to
the noble cause.
25 . Ex. A 16 “ IRAVATHY “ is an anthology of short stories written
and published by the plaintiff during the year 1973 . It contains stories
written in different periodicals which were popular in the state of
Andhra Pradesh . This exhibit establishes that at a very young age
the plaintiff was having a very wide popularity in the state. Ex. A 17 is
a novel entitled “ PREMA ” written by the plaintiff during 1975. It is
actually a re-publication of the novel which was originally published
as a weekly serial in the popular telugu weekly “PRAGATHI” and
shows that in fact the plaintiff was always engaged in continuous
writing work which requires a spirit of dedication and commitment.
Ex.A 18 “RAATRI” is a long poem written and published by the
plaintiff in the year 1978. This publication has acquired wide literary
recognition and shows the plaintiff not only as a writer of popular
fiction but also a poet of very distinct merit.

26. Ex. A 19 is a novel “RENDU OKATE” written by the plaintiff and


published by the Chittoor District Writers’ Co-operative Publication
Association , Chittoor during the year 1977. This exhibit establishes
:: 21 ::

without any doubt that the plaintiff was engaged in literary and
publication activity and widely recognized in Chittoor district.

27. Ex. A 20 “KALIYUGA DAIVAM” is the story of Lord


Venkateswara written by the plaintiff in the year 1982.The plaintiff
begs for the kind attention of the Honourable court to consider the
special significance regarding this book . Being the story of the
presiding deity of Tirupati , Lord Venkateswara , the book reflects the
plaintiff’s religious bent of mind and commitment to moral values.
And this book is dedicated to Sri Sugnanananda Swamiji who is the
late brother and Guru of the plaintiff’s father Late Sri Koneti
Venkataswamy . It can be seen from the inner page that the book
was actually published with the financial assistance of Tirumala
Tirupati Devasthanams, which clearly establishes that the plaintiff’s
literary merit is recognized and patronized by the TTD. Ex. A 34 is
further proof of the proceedings of TTD regarding the financial aid to
the plaintiff for publication of these books. Ex. A 21is classical
metrical poetry “SUGNANA SATAKAM” composed by the plaintiff in
the year 1993. This book was released in a special function presided
over by the then District Collector in the premises of “ SRI
SUGNANANANDA ASHRAM” founded and managed the plaintiff’s
father late Sri Koneti Venkataswamy . A particular mention of this
publication can be found in paragraph 16 of the Will of the plaintiff’s
father, which is Ex.A 36. Ex.A 22 is poetical and philosophical
composition by the late Sri Sugnanananda Swamiji with the title
“SUGNANA GEETHA” which was edited and published by the plaintiff
during the year 1994. These three publications KALIYUGA DAIVAM,
SUGNANA SATAKAM and SUGNANA GEETHA clearly reflect the
whole hearted commitment of the plaintiff to the high ideals cherished
by his family elders and also establish that he has been using his
literary talent to serve the noble cause of the Ashramam established
by the plaintiff’s father.
:: 22 ::

To describe a person running a spiritual concern established by his


father as a wayward person can be far from truth.

28. Ex. A 23 is a copy of “TIRUPATI SHAKTI” weekly edited and


published by the plaintiff and shows the plaintiff as a dynamic person
engaged in very serious journalistic work.

29. Exhibits A 24,A 25,A 26,A 27,A 28,A 29,A 30 and A 31are all very
popular novels written by the plaintiff and serially published in most
popular telugu weekly magazines: SWATHI WEEKLY,
ANDHRAPRABHA WEEKLY, ANDHRAJYOTHI WEEKLY. Even the
very volume of these publications running in to several hundreds of
pages and being publications in popular magazines establish that the
plaintiff was always engaged in productive literary work which was
not only giving him name and fame but also getting him high
remunerations.
30. The plaintiff humbly prays the attention of the Hon’ble court
Ex.A 32 being a bunch of 25letters submitted before the Hon’ble court
as samples of responses from readers belonging to different cross
sections of society. These letters of admiration and appreciation and
fanfare received by the plaintiff undoubtedly demonstrate the
popularity of the plaintiff in the general public.

31. Ex. A 35 is a testimonial of appreciation given to the plaintiff by


the late poet-laureate of Andhra Pradesh Dr.Dasaradhi. The contents
of the testimonial place the plaintiff in a very high order of literary
brilliance and achievement.

32. The plaintiff prays for the mercy of the Hon’ble court to note the
contents of this exhibit which is a post card written to the plaintiff by
Late Vidwan Sri Korlagunta Krishnaiah which is irrefutable evidence
on the most idealistic harmonious and glorious relationship between
:: 23 ::

the plaintiff and the plaintiff’s father. It can be read in this letter that
the writer of the letter Sri.Krishnaiah was participating in programmes
in the ashram run by the plaintiff’s father which was meticulously
assisted by the plaintiff. And late Sri Krishnaiah was witness to
numerous occasions in which the plaintiff and his father shared the
same dias in conducting “DHARMIKOPANYASAM” programmes.

FATHER’S OWN TESTIMONIAL


33. Ex.A 36 dated 5.2.1996 is a certified copy of the registered Will
executed by the father of the plaintiff Late K.Venkataswamy in favour
of the plaintiff. This document is very significant in establishing
beyond any reasonable doubt the character, reputation, literary merit,
commitment, integrity and dedication of the plaintiff. This is the Will
and last testation of the plaintiff’s father in respect of specific property
in Survey no: 694 in Tirupati town. A self-acquistion by the plaintiff’s
father, this property has been enjoyed and preserved by
Late.K.Venkataswamy for the noble ideal of running the Ashramam
as a spiritual concern in memory of his late brother and Guru Sri
Sugnanananda Swamiji since over a period of 50years and the
absolute rights over the property with the responsibility of the
Trusteeship of the ashramam was handed over in this testation and
all the contents of this document have great relevance to the absolute
trust of the plaintiff’s father reposed in the plaintiff here-in. In
paragraph 15 of the Will, Late Sri Venkataswamy recited a significant
occasion on 13.3.1993 being the PUNARUJJEVANA UTSAVAM ,
from which date the activities of the ashramam gained a new
dimension and high popularity. In paragraph 16 of the Will
Venkataswamy stated
“Whereas under the above background my only son by name
K.S.V.Narasimhuu herein after called K.S.V. who is a holder of two
Masters’ Degrees in Arts, aged about 43years and widower with only
one son, prolific writer and poet, Author of books and Journalist and
:: 24 ::

who is also a born sage without ambition for money and with utter
disregard for worldly affairs came forward to give assistance to the
Ashramam from 1991 and made excellent arrangements in the
matters of Ashramam and organized big functions during Aradhana
Utsawam in 1993 ,1994 and 1995 and other programmes for the
conduct of weekly-Saturday-dharmikopanyasam by beginning from
13-3-1993 and running even now without any break gave a big fillip to
the spread of the name of SUNANANANDA ASHRAMAM in tirupati
town and ooutside places and releaseof his book of poems called
SUGNANA SATAKAM which isafter the name of Sri Swamijihas
received universal acclaim in telugu literary field and above all
starting and running an elimentary school as Ashramam school in the
Ashramam premises indicating the whole hearted devotion and his
dedication to the late Swamiji and the Ashramam”
Further in Para 17 Sri Venkataswamy stated “present trustee
K.S.V. has already statutorily commenced his work as an
unregistered trustee from 1993 onwards”
In paragraph 18 Sri Venkataswamy recited “ and whereas the
said property was acquired by me for the purpose of running an
Ashramam in accordance with the noble and pious wishes of Sri
Swamiji and whereas it was maintained as an Ashramam for more
than 50 years up to my present age of about 74 years. It is my pious
wish that it should be preserved as an Ashramam and I consider that
my son is the best qualified and fit and proper person to be entrusted
with the Ashramam work, I do hereby appoint him as trustee of the
Ashramam and bequeath the same to him to maintain the same as
an ashramam as long as possible and practicable for him by
continuing the worship of Samadhi , conducting the meditating
classes in its premises , running of schools and colleges , Yoga
institutions , arranging of Dharmikopanyaasams , spreading of feeling
of brotherhood in all classes of society, uplifting of womanhood ,doing
social, spiritual and cultural activities and such other things.”
:: 25 ::

All the above recitals by the plaintiff’s father in favour of his son
are self-explanatory. Late Sri Venkataswamy was a very eminent
advocate and a person of great integrity and honour and in running
the Ashramam he was cherishing the high ideals of commemorating
the memory of his late brother, the Swamiji, and also serving
humanity for spiritual upliftment.
The very fact that he has bequeathed very valuable property with all
of its historical institutional background of over 50years to the plaintiff
establishes beyond any sort of doubt that the father had high
appreciation of the character and capabilities of the plaintiff.
The recitals reflect not only the father’s love and affection but also his
high appreciation of the commitment of the son to high ideals and
integrity in respect of performing the assigned duties.
The recitals undoubtedly show that the father had absolute trust in
the work and way of life of the son.

34 . It is submitted that the Appellant/Plaintiff has lead oral evidence


from two persons having intimate knowledge of his general character
and reputation. P.W. 2 Sri T.Rangaswamy is a serious citizen of
76years age residing in house bearing 123,G.S.Mada Street and
next-door neighbour of the plaintiff. Sri Rangaswamy in his affidavit
has stated all the facts regarding the Plaintiff’s career as a journalist
and services to the Ashramam established by his father and he
enjoys reputation in the public. He has specifically stated that the
plaintiff has always been looking at his family affairs as responsible
member of the family and that he was looking after his father till his
death with love and affection providing all necessities to him. Sri
Rangaswamy categorically stated that the plaintiff never lead
wayward life and he has been leading responsible life committed to
his family.
The Defendants’ cross-examination of P.W. 2 proved nothing against
the facts asserted by P.W. 2. In the light of documentary evidences
produced by the plaintiff regarding the employment of plaintiff as also
:: 26 ::

services to the Ashramam , it is of no material consequence that it if


P.W. 2 in the cross has stated that he has never visited the place of
employment of the plaintiff and that he was not a subscriber of
weeklies and other magazines. Significantly in the cross, P.W. 2 has
categorically stated that late Venkataswamy “ was living with his wife
and two daughters and the plaintiff” Sri Rangaswamy has also denied
the suggestion that the plaintiff was not living with his father Late Sri
Venkataswamy. The testimony of Sri Rangaswamy cannot be refused
on the ground that because he is a neighbor he may be deposing to
help the plaintiff. Sri Rangaswamy is a man of advanced age and
being a neighbour for over four decades he is acquainted with the
family of the Plaintiff and there cannot be any reason to refuse his
statements.

28.Oral evidence given by P.W. 3 Sri K.V.Prasad is equally of


appreciable merit. He has endorsed all the facts regarding the
professional and family life of the plaintiff. It is true that P.W. 3 is the
cousin brother of the Plaintiff. The defendant in the cross-examination
has elicited from P.W.3 that he has received a gift of 45cents of
property from the plaintiff and the said property received by him is
worth around 10lakhs of rupees. But on this ground alone , his
testimony regarding the character of the plaintiff cannot be dismissed.
Considering the fact that the amount of damages claimed by the
plaintiff in this suit is one lakh rupees, it would be illogical to assume
that the plaintiff would have gifted a property worth ten lakh rupees to
P.W. 3. The gifting of the said property is an act long subsequent to
the filing of this suit and it can in no way be considered as a
hindrance to evaluate the P.W.3’s testimony. The plaintiff begs the
attention of the Hon’ble court to the fact that the defendant in his
written statement Para 7 has made a mention of the relatives of the
plaintiff and challenged “ these are the blood relation of the plaintiff
and everyone of them are aware about his conduct and the contents
:: 27 ::

of the plaint are totally correct and the same is supported by the
version of the deceased wife of the plaintiff. At least some of them
comes to the Box and says that he is not of that sort, the plaintiff has
no objection to decree the suit.” Very much as a response to the
Defendant’s wager the plaintiff has lead P.W. 3 ,his cousin brother ,to
depose in this matter in the interest of justice. It is humbly submitted
before this Hon’ble court that P.W.3 is not a well-educated person
and not used to testations in courts of Justice. His statement that
“while Late Venkataswamy was alive , the plaintiff was mostly
residing at Bangalore” can only be considered to mean that the only
time the plaintiff was away from home was while he was at Banglore
by way of employment. In the light of documentary evidence exhibits
A 8, A 9, A 10 and A 11, it can clearly be seen that plaintiff was in
employment in “Andhra Prabha” at Bangalore ,for a period of four
years only and this fact can in no way be interpreted that the plaintiff
was leading a wayward life since if it were so, all employees around
the world living away from parents can be dubbed as wayward
persons and not caring for their parents.
And there is absolutely no iota of suggestion that he plaintiff was not
frequently coming down from Bangalore to Tirupati to look after his
father and family or that the father was not visiting his son at
Bangalore.

35 . The testimonies of P.W2 and P.W.3 clearly indicate that the


plaintiff is committed to his profession and also his family with equal
importance and that he is never negligent in respect of the welfare of
the family. It has been well observed in various legal commentaries
that evidence regarding a person’s character can be effectively given
by relatives and close friends only, since character is something
which is not exposed to the general world and it cannot be judged by
total strangers.
:: 28 ::

36. By the presentation of abundant authentic documentary


evidence and also reliable oral evidence the plaintiff hereby submits
that he has established his credentials as a highly educated person, a
prolific writer, a committed journalist and a spiritual person devoting
his energies to the ideals set by his late father and he has always
been a person of integrity, honesty and discipline. It will be very
desirable to note that as a very young adolescent of about 16years
the plaintiff has received a certificate of merit for his services for the
scout movement from the President of India and during his academic
life he was well qualified for the pursuit of a career in literature and
journalism. Apart from his contribution to the literary world and his
enjoyment of high reputation as a popular writer and poet, his later
years of middle age are devoted to the various issues concerning his
family and he is meticulously guarding his professional and personal
necessities.

37. The Respondent/Defendant in his written statement pleaded


that impugned statement is “totally correct” he maintained that it does
not lower the moral or intellectual character. The statement is “in
good faith and honest opinion” is the assertion of the defendant. In
para5 of the written statement, towards the end of the Para, the
Defendant has categorically stated, “There are no defamatory
allegations made against the Plaintiff and in fact it is truth which he
commented upon.” In para4 of the chief affidavit filed by the
Defendant, he stated “The factual aspects taken place on that date
was pleaded in O.S.No: 289/2000 and subsequent to the same the
plaintiff might have changed his behaviour and attitude but the facts
which are in my knowledge is pleaded by me in O.S.No:289/2000 and
as such the question of defamatory statements made by me against
the present plaintiff doesn’t arise” It will be illogical to assume or to
believe that the Plaintiff might have changed his behaviour and
attitude as a result of the Defendant’s imputation of leading a
wayward life.
:: 29 ::
38. In an action of Defamation once the Plaintiff has established the
presence of a statement and established the publication of the
statement and alleged that the statement is prima face defamatory,
the question of burden of proof is of immediate consideration.

Under section 499 of the Indian Penal Code it is the intention of the
Defendant that makes the statement a defamatory statement. A
careful examination of the definition of Defamation under section 499
is essential

“Whoever by words either spoken or intended to be read, or by


signs or by visible representations makes or publishes any imputation
concerning any
person intending to harm, or knowing or having reason to believe that
such imputation will harm, the reputation of such person, is said,
except in the cases herein after excepted, to defame the person.”

It can be observed that the definition of defamation by itself doesn’t


contain any reference to either truth or false truth. Its main concern is
about a statement published with an intention or with knowledge or
reason to believe that the statement will cause harm to the Plaintiff.
While the plaintiff establishes the publication of a statement
prima face defamatory, the burden of proof that the statement in
question doesn’t amount defamation is on the defendant. The general
principle of Law involved on the part of the Defendant in this aspect is
that every person is presumed to be honest, good and decent unless
the contrary is proved. In pursuance of this principle it is settled Law
that the owners of proof is shifted on the Defendant under section
105 Evidence Act.
Section 105 Evidence Act reads:
“When a person is accused of any offence, the burden of proving the
existence of circumstances bringing the case within any of the
:: 30 ::

General Exceptions in the Indian Penal Code (45 of 1860), or in any


other part of the same Code, or in any law defining the offence, is
upon him, and the court shall presume the absence of such
circumstances.”
Field’s Law of Evidence (1972, Volume 5 , page 4460)
explains this position :
Defamation: If A is accused of defamation, the burden of
proving that he comes within the exceptions in the penal code ,
section 499 , is on A held that the burden of proof of good faith in a
charge of defamation lay on the accused and section 105 left no
doubt on that point. In a prosecution for defamation, assuming the
words to be prima face defamatory, it would be incumbent on the
accused to prove either that his statement was actually true or that he
believed in good faith that it was so , in order to entitle him to the
benefit of section 79 , or of Exception 1 or 9 to section 499 , Penal
Code.

39. The Respondent/ Defendant has only asserted in his written


statement that he has made the impugned statement in good faith but
has not submitted any third party evidence before this Hon’ble court.
Nor did he adduce any oral evidence to the effect that he has acted in
good faith while he was making the impugned statement. Both in the
written statement and in the Affidavit the Defendant has loquaciously
pleaded that many junior advocates and clerks who worked under the
Plaintiff’s father and also the close blood relatives of the Plaintiff “are
fully aware about the truth of the statement” Even so his inability to
produce any of them as oral evidence indicates that his claim is
absolutely false. In essence by operation of section 105 Evidence Act
, the defendant can only be presumed to be having no evidence at all
to substantiate his contention that the impugned statement is truth. It
is false because it is base-less.
:: 31 ::

40. The Appellant/Plaintiff pleads for the attention of the Hon’ble


court to take judicious note of various contradicting, evasive and
negligent statements the Respondent/Defendant had made in his
written statement, in his affidavit and during his cross examination.
A) While in the written statement the Defendant in concluding line
of para5 stated: “When the Defendant joined as a tenant for
several years he was always residing separately near
Jayabharath theatre for taking room for rent , leaving his father
, his mother and sisters aloof”. In his affidavit in the concluding
line of para6 he came up with a totally different picture by
saying “in fact the father of Plaintiff residing separately by
taking a room on rent as plaintiff failed to look after the welfare
of his father ” and in cross examination he states Plaintiff’s
father namely Koneti Venkataswamy was living in door number
124 , Govindaraja Swamy south mada street , till his death.

B) In the affidavit the Defendant in Para 5 stated “the colleagues ,


persons worked under his father and the close relatives of the
Plaintiff was fully aware about the truth and genuineness of the
statements made by me”. But in his cross examination , he
denies it by saying “ the juniors and clerks of Venkataswamy
did not tell anything against Plaintiff to me”
C) It is very curious and astounding that the Defendant is making
confusing statements regarding the advocate engaged by him
while filing O.S.No:289/2000 on the file of The Principle Junior
Civil Judge , Tirupati. While the cause title of the said suit
plaint clearly mentions the address of the Plaintiff for the
purpose of notices etc as c/o Sri.P.Jyotimurthy , advocate ,
Tirupati , in his cross-examination on affidavit he states that “it
is not true to suggest O.S.No:289/2000 was not filed by
Sri.P.Jyotimurthy , advocate on my behalf. I do not know
Sri.P.Jyotimurthy , advocate at all.
:: 32 ::

D) In the chief affidavit, para 2. he makes out a plea that “the


plaintiff being an advocate by profession filed the present suit
with false and untenable allegations”. In the cross he says that
“ he is not an advocate” and further emphatically denies the
suggestion and says “ It is not true to suggest that the plaintiff
is a practicing advocate and that I am stating he is not a
advocate”
E) In the very written statement in para3, the Defendant has
stated that O.S.No:289/2000 was not filed on the Plaintiff alone
“ but all the family members of the Plaintiff”. In the cross he
says, “ I do not remember if I have shown the sisters of the
Plaintiff as parties of the suit in O.S.289/2000”

All the above observations will only lead to a conclusion


that the Defendant is highly negligent and abnormally reckless in
conducting himself in legal proceeding and it will be improbable to
give any weight to his claim that he has acted in good faith at
whatever point of time in the filing of suit O.S.No: 289/2000. It is
settled principle of Law that negligence negativates good faith.

41. In pursuance of a careful examination of definition of defamation it


is necessary to consider the motive with which the Defendant has
made the impugned statement. Neither in the written statement nor in
the Affidavit did the plaintiff mention any particular reason or legal
excuse for making the said statement. It can only be inferred that he
is regardless of the necessity of a reason to make such an
imputation. His repeated assertion that it is truth in good faith and
therefore not defamation is not acceptable in Law. The said
statement has been made in a legal pleading seeking a civil remedy.
His locus standi in O.S.289/200 is that of a tenant and he has
expressly denied the title of the Plaintiff here in. The cause of action
set forward by him is that the Plaintiff herein along with his sisters and
:: 33 ::

also instigated by his father have adopted a violent and forceful


attempt to evict him from house no: 339 , Gali street , in which he
was tenant.
In essence, evidence of character or reference to character is
absolutely irrelevant in civil cases where as in criminal cases under
certain circumstance it may be of some relevance. In the light of this
legal provision it is evident that the impugned statement is totally
irrelevant for the alleged cause of action in O.S.No 289/2000. Since
the impugned statement is not at all relevant in the said suit it can
only be surmised that he has made the statement with an ulterior
motive of taking revenge on the Plaintiff since the Plaintiff has asked
him to vacate the house. And in so doing he has got a MALICIOUS
INTENTION to defame the Plaintiff.

42. Apart from making the impugned statement in the plaint of O.S
289/2000 the Respondent/Defendant has made repetition of the
statement during his pleadings in his written statement and also his
affidavit. It is settled Law that repetition of defamatory statement can
lead to a fresh cause of action on defamation. Nelson’s Penal code
(page 2759) explains as follows :
“ A person who hears a libelous statement made
concerning another has no right to take it for granted that it is true.
The previous publication by another of defamatory words is no
justifications for their repetition. The mere fact that some such are
similar accusation against the complainant had been made by some
other person as well would not be a valid defiance for the accused.
Wrong is not to be justified or excused by wrong because one man
does an unlawful act to any person another is not permitted to do
similar act to the same person”

43. The defendant has blatantly made further defamatory


imputations on the Plaintiff in his written statement by saying that
:: 34 ::

there were news items published regarding the death of the Plaintiff’s
wife in suspicious circumstances. And in so doing he stated that he
relied in hearsay and rumours in the society. It is settled Law that
words charging a person with having committed punishable offenses
without a justified cause is itself defamation. The unwarranted
context in which the Defendant made these imputations clearly
indicate a mind bent on causing harm to the plaintiff some way or the
other.
Nelson’s Penal Code (page 2764) explains:
“ An imputation against another person although made in the
absence of actual ill-will is not on that account to be accepted as
being made bonafide. Conscious violation of Law to another’s
prejudice is sufficient though there may be no malice in fact. When
defamatory words are prima face libelous, legal malice must be
presumed until the case of privilege is made out.”

44.Even though the presence of malice is not necessary to establish


an intention to defame the plaintiff in this particular case the
Defendant has express proclaimed and clear malice towards the
Plaintiff. The plaintiff pleads emphatically on this point since this is a
case of an act of defamation in a legal pleading and the Defendant is
an opponent in the legal proceeding and so has got a natural
tendency to be maliciously disposed towards the Plaintiff, which is
described as Malice in Law.

45. In the written statement in O.S.289/2000 as Defendant the


Appellent/Plaintiff here in has categorically pleaded that the suit itself
is a collusive suit and though the house bearing no: 339 , Gali Street ,
absolutely belonged to the Plaintiff the tenant has filed a suit for
injunction on a fabricated cause of action and only in order to pave a
way for multiplicity of litigation he has added the family members of
the Plaintiff here in as Defendants 1, 3 and 4 in that suit. The Plaintiff
pleads for the kind attention of this Hon’ble court to consider Exhibits
:: 35 ::

37 and 38. The Plaintiff in the cross examination by the Defendant


has stated that these documents are in no way related to the present
suite. Being related to a suit is altogether different from being
relevant. Being related implies identical or similar cause of action in
the nature of res judicata. Being relevant is having reference in
respect of merit and comparative evaluation. Exhibits 37 and 38 are
relevant to the case in the same way as all the other Exhibits
submitted by the Plaintiff. The plaintiff here by asserts that Exhibits
37 and 38 are very much relevant for the present suit.

46. Exhibit 37 dated 28/4/2006 being Lok Adalat award in


O.S.no:26/2002 on the file of Fourth Additional District Court , Tirupati
contains a term of reference with regards to settlement of properties
between the Plaintiff here in and his two sisters.
In the above suit for partition the sisters of the Plaintiff here-in have
added the Defandant here-in as Defandant No: 4 as a purported
measure of caution to get the rents deposited in the Court pending
disposal of the partition suit. It can be seen from Para 12 of the
compromise decree in Exhibit 37 that the Plaintiffs have not pressed
the suit against Defenadants 3 to 13 and the suit is dismissed against
them.
The Defandant here in is thoroughly aware of the partition suit and in
fact he readily paid three months rent to the court Receiver appointed
in the matter. The Plaintiff hereby pleads for the kind attention of
the Hon’ble court to note Para3 of the said award proclaims that
“the house bearing door no:339 , Gali street , tirupati , in ward no:6
described in plaint C schedule was absolute self acquired property of
Late Sri Koneti venkataswamy and he has gifted away the same in
flavor of his son , the first defendant here in under a registered gift
deal dated 11/6/1987 and the 1st Defendant has constructed an RCC
house in the same with his own earnings , ,hence the house bearing
door no” 339, in Ward number 6 in Gali Street , tirupati described in
Plaint C schedule is absolute property of the 1st Defendant.”
:: 36 ::

47. The Appellant/Plaintiff here-in as a sequel to O.S 289/2000


has filed a suit O.S.151/2000 on the file of Principle Senior Civil
Judge, Tirupati for eviction of the Defendant from the said house in
Gali street and the suit has concluded in a settlement before the Lok
Adalat Exhibit 38. The award is only a legal requisite since the
Respondent/Defendant has in fact vacated the said house and
handed over vacant possession of the same to the Plaintiff. In the Lok
Adalat award in exhibit A38 the Defendant has stated that he has
given vacant position of the Plaint scheduled house to the Plaintiff on
28/4/2006. In Para 4 of the said award the Defendant has conceded
to allow the Plaintiff to receive the three months’ rent paid by him to
the court receiver in O.S.26/2002 on the file of Fourth Additional
District Judge. Under this Exhibit it can also be seen that the
Defendant has paid all arrears of rents to the Plaintiff here-in which
means that the Plaintiff was always the owner of the house in
question. In Para 3 of the same document the Defendant has
stated that the plaintiff is entitled to receive Rs. 77,550/- the total
rents deposited by him In the Court.

48. These two facts of admissions by the Defendant in Ex.A 38


clearly indicate his previous conduct and knowledge that in fact that
the Plaintiff is the absolute owner of the said house in Gali street and
the Defendant has not acted in good faith at all in filing the said
injunction suit OS 289/200 and might have acted recklessly a under
misguidance from the adversaries of the Plaintiff. Hence it can be
inferred that the Defendant has acted only with the intention of
squatting in the house anyhow by recorsing to legal proceedings in
which he is not at all sure to succeed. In so far as the absence of a
justifiable reason on the part of the Defendant to make any
defamatory statement affecting the character and reputation of the
plaintiff , his intention is clearly malice in fact . This attribute and
state of mind of the Defendant has prompted in acting with legal
malice.
:: 37 ::

49. While the impugned statement is designed and made part of the
pleadings in the injunction suit OS 289/200 and the cause of action
itself is fabricated to enable the Defendant to squat in the house of
the Plaintiff for as long a period as possible, the very nature attributes
of the pleadings in the said suit plaint have latent malice aimed and
calculated to show the Plaintiff here-in in low light. In fact the
Defendant has mischievously made it a point to humiliate not only the
Plaintiff here-in but also his father Sri. Koneti Venkataswamy. The
Plaintiff begs for the kind attention of the Honourable to court to the
cause title of the plaint in OS 289/2000 where- in the calling of the
Defendant K.Venkataswamy is stated only as ‘ Landlord’ and not
mentioned as Advocate. The said Venkaraswamy lived and died as
an Advocate and while at the time of instilling the said he was very
much attending his practice. Subsequent to the suit and in the month
of December 2001 Sri Venkatawamy passed away and his death was
condoled by the Tirupati Bar Association. The Defandant who claims
to have close personal acquaintance of Late Sri Venkataswamy has
committed an act of omission by ignoring the calling of Sri
Venkataswamy and described him as Landlord only in order to
humiliate him in the course of a legal proceeding.
In respect of describing the calling of the Defandant 2 that is the
Plaintiff here-in the same malicious method is adopted by the
Defendant here-in. Defendant 2 in OS 289/2000 that is
K.S.V.Narasimhulu is described as “Dependant” and not as a writer
as journalist. This is another example of the malicious intent of the
Defendant in the nature and spirit of the plaint in OS 289/2000. It is a
legal requisite that document should be read as a whole though
particular examination of the portions in question is more severe. In
Para 8 of the said plaint which contains the impugned statement, the
Defandant here-in described that “ the first defendant became totally
dependant on the second defendant and the other defendants and he
has no disposing capacity of his own due to extreme age.” By
:: 38 ::

describing that the father is depending of his son and daughters and
in the cause title itself describing the son as a “ dependant” a
calculated and designed attempt has been made to give a very
pathetic picture of both the father and son being dependants on the
daughters which altogether is false in the light of the abundant
evidence produced by the Plaintiff here-in. All this demonstration is to
explain the malicious state of mind of the Defendant in filing the suit
OS 289/2000 and particularly his calculated intention to defame the
Plaintiff in the course of a legal proceeding.

50 . Venkataramaiah’s Law Lexican explains malice as follows :


“Venkataramaiah’s “ LAW LEXICON ”( PAGE 840)
MALICE
Malice means the presence of improper and wrongful motive, that is
to say, intent to use the legal process in question for some other than
its legally appointed or appropriate purpose.
It is an element that can be established by inference from
circumstances and cannot be proved by evidence.
Malice is “ a wish to injure the party, rather than to vindicate the law.”
It is indicative of an evil mind, which is disdainful of duties, social or
legal, and disregards the duties of others. In common parlance,
malice means ill-will against a person but in legal acceptance it
means a wrongful act done intentionally, without just cause or
excuse. It is the doing of wrongful act to another without legal excuse
or justification willfully purposely. Malice indicates varying shades of
wickedness and includes cool depravity and harshness of heart,
vindictiveness, perpetration of injurious acts without lawful excuse,
cruelty, and recklessness of consequences and regardless of one’s
obligation. It is a disposition, which implies injury to another without
cause from a spirit of revenge or from personal gratification. It may
be implied from a deliberate intention to do a wrong without
justification.It is not necessarily hate or ill will, but it is a state of mind,
which is reckless of law and of the legal rights of others.
:: 39 ::

All acts done with an evil disposition or unlawful motive with an


intention to cause injury and without legal excuse may be
characterized as malicious.
Malicious act is not one which is done accidentally, thoughtlessly or
negligently but designedly, willfully and wantonly.”
In the light of the above citation theAppellent/ Plaintiff prays the
Hon’ble court to take in to consideration express and patent malice
that has prompted the Respondent/Defendant to make the impugned
statement and in the interest of the Justice award suitable damages
for the loss of reputation sustained by the Plaintiff.
ISSUE OF DAMAGES
51. The Trial Court made an erroneous conclusion regarding the
issue of Damages in holding in Page 8 line 18-21 of the judgment:
“The plaintiff could not produce any positive evidence to show the
statement made by way of pleading before the court in O,S,289/200
has damaged the personal character or reputation of the plaintiff
herein.”
What the Plaintiff claimed is only general damages and it is settled
law in defamation cases that general damages are always decided by
the Courts and need not be proved by the plaintiff.
Here are excerpts from legal treatises on the subject:

Excerpts from V.Mitter’s book On Defamation and Malicious


Prosecution (1960 Edition)

Page 161

Damages

1. Main classification: Damages are of two kinds, general and


special. General damages are such as the law will presume to
be the natural and probable consequences of the defendant’s
words or conduct. They arise by inference of lay and need not
therefore be proved by evidence. Special damages on the
:: 40 ::

other hand are such as the law will not infer from the nature of
the words themselves, they must therefore be specially claimed
on the pleadings and evidence of them be given at the trial.

Page 162 para 2

“ The damages granted under the head ‘general damages’may either


be contemptuous , nominal, substantial, or vindictive. Contemptuous
damages are granted when the jury consider that the action should
never have been brought, The defendant may have just overstepped
his line, but if the jury find that the plaintiff also was somewhat to
blame, and he should not have rushed into litigation, they may rest
content with granting only contemptuous damages. As regards
nominal damages, these are granted only when the plaintiff is content
to clear up his character and does not care to put money into his
pocket. Substantial damages are awarded where the jury honestly
endeavor , as men of business, to arrive at a figure which will fairly
compensate the plaintiff for the injury which he has in fact sustained,
and vindictive or retributory damages are awarded wher the jury
desire to mark their sense of the defendant’s conduct, and therefore
punish him by awarding the plaintiff damages in excess of the amount
which would e adequate compensation for the injury inflicted on his
reputation.

52. The Plaintiff is a writer and journalist of over 30years standing


and a prominent citizen in Tirupati town and also a member of the
Tirupati Bar. He enjoys wide reputation all over Andhra Pradesh as
an intellectual dedicated to social justice and the kind of injustice
perpetrated on him by the Respondant/Defendant in the present case
cannot be adequately compensated in terms of money, even so since
any compensation should be something in the eye of Law, it is
submitted that the claim of one lakh rupees as general damages for
the loss of reputation sustained by him will only be reasonable and
justifiable.
41 ::

It is, therefore, prayed that the Hon’ble Court may be pleased to


set aside the Decree and Judgment dated 30.08.2007 passed in
O.S.No. 72/2001 on the file of Additional Senior Civil Judge Court,
Tirupati and decree the same by allowing this appeal with costs
throughout.

Advocate for Plaintiff.

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