w w w . L a w y e r S e r v i c e s . i n



Nakkheeran Publications rep. By its Editor Chennai & Another v/s Dhyanapeeta Charitable Trust rep. By its Trustee Sri Nithya Sadhananda @ T.T. Dhanasekar

    O.S.A.Nos.207 and 208 of 2010 & M.P.Nos.1 of 2010

    Decided On, 19 July 2010

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MRS. JUSTICE PRABHA SRIDEVAN & THE HONOURABLE MR. JUSTICE G.M. AKBAR ALI

    For the Appellants: P.T. Perumal, Advocate. For the Respondent: T.V. Ramanujam, Senior Counsel for G. Bala, Advocate.



Judgment Text

(Appeals against the interim injunction dated 21.04.2010 passed in O.A.Nos.385 of 2010 and 2027 of 2010 in C.S.No.346 of 2010.)


(PRABHA SRIDEVAN,J)


1. These two appeals are filed against the order passed by the learned Single Judge dismissing the application for rejecting the plaint and giving certain directions in the prayer for injunction.


2. The appellants are the defendants. The suit was filed by the respondent against the appellants for an injunction restraining the appellant and any one acting on their behalf from publishing any material, articles, photographs, in their magazines, websites whatsoever either by direct or indirect reference against the plaintiff or any of their trustees and devotees, personally or individually or in the capacity of a trustee or such trustees. In paragraph 15 in the plaint, there is reference to certain reports allegedly containing defamatory materials both verbal and visual. In paragraph 17, it is stated that the articles and photographs violate the respondent's privacy and personal liberty of the trustee and devotee of the trust. In paragraph 22 it is stated that the publications directly affect the reputation of its founder trustee and the Trust and the plaintiff have suffered a huge financial loss. In paragraph 27, there is reference to O.S.No.2321 of 2010 filed before the XV City Civil Court, Chennai for permanent injunction and to the fact that it was withdrawn on 19.03.2010 in view of the undertaking given in W.P.(M.D)No.3015 of 2010 and that suit was dismissed as not pressed. These are briefly the plaint averments. On the basis of similar averments in the affidavit supporting the application, a petition was filed for injunction.


3. The appellants herein filed a counter denying all the allegations and specifically stating that the founder trustee doing a "subject of public gaze and he cannot have privacy" and that "there was no defamation caused and there was no loss of reputation". It is also denied that the appellants gave any undertaking in any writ petition and it is also submitted that the respondent has not made out prima facie case nor balance of convenience and that the Trust has no locus standi to file any bare injunction suit. Paragraph 20 refers to the announcement by the founder trustee that he has resigned from all positions connected to the Peetam and it is therefore submitted that in the absence of authorisation, the plaint must be dismissed as bereft of cause of action. There is also reference to an interview given to the Magazine Junior Vikatan. In paragraph 22 of the counter, there are references to various proceedings which are alleged to be litigations against the media seeking to gag the media freedom and they are,


(i) W.P.No.3015 of 2010 filed by one S.Durairaj


(ii) A Public Interest Litigation filed by one Sekar (W.P.No.5427 of 2010) which was dismissed by this Court leaving the aggrieved persons to take up the issue and that no mandamus can be issued


(iii) W.P.No.3457 of 2010 filed by one Sathishkumar which is pending


(iv) In O.S.No.2321 of 2010, the appellants have filed an application for rejection of plaint and the suit was withdrawn and


(v) Crl.M.P.No.1251 of 2010 filed by one Sarathy.


It is alleged that since no favourable order was obtained in any of these proceedings, this suit has been filed and therefore, the appellants prayed that injunction should be vacated and the plaint should be rejected under Order VII Rule 11 of C.P.C.


4. The learned Single Judge dismissed Application No.2027 of 2010 for rejection of the plaint and ordered O.A.No.385 of 2010 to a limited extent.


5. The learned counsel for the appellants submitted that the extent to which freedom of press has been protected are really delineated by a series of case laws and the principle is that at the stage of interim orders, the right of the publisher should be protected; whereas at the time of trial, after evidence, the right of the person complaining of defamation should be protected.


6. The learned counsel submitted that in fact in the case of R.Rajagopal @ R.R.Goal @ Nakkheeran Gopal and another vs. J.Jayalilitha and another reported in (2006) 2 L.W. 377 the First Bench has laid down the principles for rejection of plaint in such suits. According to the learned counsel these principles have been ignored by the learned Single Judge. The learned counsel also submitted that the learned Single Judge had neither taken note of and had not found prima facie case in favour of the respondent nor the issues of balance of convenience or the injury. The learned counsel submitted that when the founder trustee had filed a suit and had withdrawn it, it is not known how the Trust can maintain the suit. The learned counsel also submitted that the person who is aggrieved by the alleged defamation is entitled to maintain a tortious claim and seek damages. But it is surprising in this case a suit for bare injunction is filed. The learned counsel referred to a decision of the learned Judge of the Delhi High Court (Ritnand Balved Education Foundation vs. Alok Kumar reported in AIR 2007 DELHI 9) where, on the issue of maintainability in a suit for defamation, it was held that all the defamatory statements were directed against the members of the Executive Board of the Plaintiff Society and not against the Plaintiff Society and the allegation that the statement were injurious to plaintiff's reputation was not borne out and therefore dismissed the suit. According to the learned counsel this is squarely applicable to the present case.


7. The learned counsel submitted that it has subsequently come to light that all those photographs were genuine and there was no morphing and when the person aggrieved has not come before this Court and when there are no allegations against the Trust, the plaint will have to be rejected. According to the learned counsel, the directions given by the learned Single Judge are vague and they are contrary to the principles laid down by the Supreme Court and the High Court in cases involving identical issues.


8. The learned Senior Counsel appearing for the respondent submitted that as regards the scope of appellate jurisdiction against an interim order, it is very limited and unless the discretion has been improperly exercised, the appellate Court will not interfere. The learned Senior Counsel submitted that in the present case, the learned Single Judge had come to the conclusion that the injunction application would have to be granted to a limited measure since the learned Single Judge felt as the harm will ensue by publication and this Court cannot interfere in that regard. The learned Senior Counsel submitted that the appellants can seek the relief of rejection of plaint if at all only under Order VII Rule 11 (a) or (d) and in the present case the appellants in their plaint have referred to various publications which according to them make out a cause of action and as regards any legal bar to the suit, the question of res-judicata being a mixed question of law and fact will have to be tested by production of oral and documentary evidence and the plaint cannot be rejected outright. The learned Senior Counsel submitted that the consequence of withdrawal of suit is also laid down in Order XXIII Rule 1 and that will also be decided at the time of trial and in the present case, the plaintiff in the earlier suit is not the plaintiff in the present suit and the writ petition filed was by a third party and even if there were findings on the same issues, the question whether they will operate as res-judicata cannot be decided without going into the evidence. The learned Senior Counsel submitted that the learned Single Judge had found that the series of publications constituted a continuous cause of action and this Court cannot interfere.


9. In Dalip Singh vs. State of Uttar Pradesh and others reported in (2010) 2 Supreme Court Cases 114 the Supreme Court expressed its anguish on false statements being made on oath to mislead the Courts and also has held that if the appellant does not come with clean hands and has not candidly disclosed all the facts that he is aware of and he intends to delay the proceedings, then the Court will not suit him on the ground of contumacious conduct. The learned counsel submitted therefore the issue of rejection of plaint must be tested not only on touching stone of Order VII Rule 11 but also on the conduct of the person claiming the relief, especially in a case where he seeks injunction, which is an equitable remedy and therefore, the duty on the plaintiff to seek this remedy is totally onerous and he must disclose that he has come to Court with clean hands.


10. In Multichannel (India) Limited vs. Kavitalaya Productions Pvt. Limited reported in (1998) II CTC 689 the Division Bench of this Court had occasion to consider the correctness of the injunction granted in respect of the telecast of two serials. The question for consideration was whether the negative covenants or stipulations contained in the letter of intent can be enforced by grant of an interim injunction disregarding the balance of inconvenience, irreparable loss or comparative hardship. Therefore, before the Division Bench, the appellant submitted that all these principles were ignored by the learned Single Judge. The Division Bench referred to series of decisions of this Court and the Supreme Court and referred to the observations of the Supreme Court in Uttar Pradesh Co.operative Federation Limited vs. Sunder Brothers, Delhi reported in AIR 1967 SC 249, wherein it is held as follows:-


"If the discretion has been exercised by the trial Court reasonably and in a judicial manner, the fact that the appellant Court would have taken a different view may not justify such interference with the trial Court's exercise of discretion. If it appears to the appellate Court that in exercising its discretion the trial Court has acted unreasonably or capriciously or has ignored relevant facts, then it would be open to the appellate Court to interfere with the trial Court's exercise of discretion".


The Division Bench also referred to the Privy Council in Charles Osenton and Company vs. Johnton, 1943 A.C. 130, where the Privy Council observed that "the appellate Court must defer to the judge's exercise of his discretion". In that case, the Division Bench was of the opinion that it will not be proper to interfere with the discretion exercised by the learned Single Judge and dismissed the appeal. The area of discretion exercised by the Court lies in a field of gray where there is white on the one side and black on the other. In this field of gray, one Judge may feel light gray is the best option and another Judge may feel that dark gray is the best option, but that alone cannot justify interference with the choice of light gray. But if no Judge can choose dark one.


11. In his classic "Judicial Discretion" Justice Barak writes Judicial Discretion then means the power the law gives the Judge to choose among several alternatives each of them being lawful. "The reasonable exercise of judicial discretion requires the choice of one of the possibilities located inside the zone. The Judge is not entitled to choose a possibility situated outside the zone..... the choice ... must be made in a reasonable manner". This is why the scope of appellate interference in discretionary orders is limited to seeing that it is located within the zone of possibilities and is not erratic or off-course".


12. In R.Rajagopal @ R.R.Goal @ Nakkheeran Gopal and another vs. J.Jayalilitha and another reported in (2006) 2 L.W. 377, in paragraph 13, the First Bench of this Court has held as follows:-


"13. We may mention at this stage that we have been taken through all 24 impugned articles published in the appellants magazine Nakkheeran. At the outset we may mention that none of the articles other than the article dated 20.05.2003 referred to in the order of the learned Single Judge and the article published on 06.06.2003 can be said to be relating to the personal life of the first respondent. The article dated 06.06.2003 is about the first respondent taking advice from an astrologer in respect of certain criminal case pending against her. The rest of the articles are about her actions pertaining to official and public function. In some of the articles it is alleged that the first respondent is behaving in a dictatorial manner and using police to suppress dissent and had been likened with Hitler. In some there are allegations of misdeeds and misdemeanor in official duties. Out of 24 articles the name of the second respondent appears only in 5 articles. None of the articles/imputations are reproduced in the plaint. In paragraph 9 of the plaint, it is merely stated that the respondents are restricting the description of such defamatory articles since they are fully indicated in Document No.1 filed along with the plaint. Document No.1 is compilation of the 24 publications which are said to be defamatory. It is nowhere stated in the plaint that in what way the articles and the materials in the articles are defamatory and if they are not per se defamatory the innuendo implied in the articles is also not set out. It is well settled that in a libel action defamatory words must be set out in the plaint where the words are per se or prima facie defamatory and where the defamatory sense is not apparent on the face of the words, the defamatory meaning as it is technically known in law, the innuendo must also to be set out in a clear and specific terms. In the absence of these necessary averments the plaint would be liable to be rejected on the ground that it does not disclose any cause of action. (See Brijlal Prasad vs. Mahani Lal Das. AIR 1940 Nagpur 1956 Nagpur 264, W.Hay vs. Ashwini Kumar, AIR 1958 Calcutta 269, Purushottam Lal vs. Prem Shankar, AIR 1966 Allahabad 377)".


The present appellants were the appellants there also.


13. In the case of Shanmugavel vs. Associated Publishers (Madras) Limited reported in 1995-2-L.W. 458, the Division Bench of this Court considered the question of how prima facie case should be decided. In paragraph 14, it is held as follows:-


"....The mere fact that a prima facie case exists for the grant of an injunction or even the additional intelligence that a party seeking for it would suffer irreparable harm or inconvenience by this, may not be sufficient criteria for the granting of an interim injunction. Before the Court exercises its jurisdiction, to grant such an interim relief, which is essentially an equitable and discretionary remedy "the Court will have to be further satisfied that the comparative mischief or inconvenience which is likely to arise from withholding an injunction will be greater than that which is likely to arise from granting it".


14. Therefore, we find that even the fact that the prima facie case exists or the question of irreparable harm or convenience may not be sufficient and that the Court must be satisfied that the mischief caused by withholding injunction will be greater than the mischief that will be caused by granting it.


15. Now we see what prevailed upon the learned Single Judge to grant injunction in the manner that he did. The injunction was granted restraining the defendants from making derogatory, unparliamentary statements and use of unparliamentary words and photos containing male and female in compromising position and the learned Single Judge felt that if the appellants felt that their message will not reach the public unless such photographs are published, they would do so at their own risk by blurring the faces of the persons concerned and the learned Single Judge had also held that the appellants shall adhere to the mandates contained in the judgment of the Apex Court in Jessica Lal's case.


16. Paragraphs 60, 73, 75, 76, 77, 78 and 79 of the learned Single Judge read as follows:-


"60. Indulging in vilification campaign or using scurrilous, vituperative, disparaging, degrading words, including blankety-blank words in order to describe certain incidents, should be avoided by the media.


73. I would like to agree with the learned counsel for the plaintiff that the Press, while informing the public about certain events, more specifically matters relating to sexual activities, should have some self restraint, as otherwise, the mind of the youngsters would get polluted and instead of the publications having good effect on the public to save themselves from being cheated, their minds would get polluted and titillated and the consequences would be much the worst. In such publications gestalt factor is involved and that is why criminolgists are very particular that in media, crime scenes and scenes connected with sexual activities should not be published in a magnified way manner. In a minimalist fashion news has to be purveyed or disseminated. A printed magazine, it is quite axiomatic, like Nakeeran, other than various other electronic device, could easily and permanently be kept by susceptible youngsters if it contains objectionable and titillating photos with objectionable comments.

....


75. Regarding publications of photos are concerned, I would like to point out that even though those photos might not be as obscene as obscenity could be or they may not be as obscene as some of the scenes which are occurring in the censored films themselves, nevertheless and nonetheless when certain photos are published as the ones depicting the real acts occurred in real life, they would have a virulent effect on public mind than the photos which are projected as part of art and entertainment. While observing so, not even for a moment, I hesitate to find fault with such censored films containing obscene scenes and objectionable materials. I would like to point out that under the caption of reality, if photos, evincing the compromising positions of male and female are projected, they would have far worse effect in the mind of the public, especially the younger generation than the photos which are published under the caption of entertainment. Once again I would like to point out that I am not in any way condoning the entertainment industry indulging in such sort of activities but I condemn them in unmistakable terms.


76. Wherefore I order that the defendants shall refrain from making derogatory, unparliamentary, vilifying, scurrilous, and vituperative statements, which are not necessary for the purveying or dissemination of the news item. Touchy feely descriptions or use of blankety-blank words also, in making publications should be avoided. In connection with this matter, photos containing male and female in compromising position also shall not be published. Except to this limited extent, there is no other mandate as against the defendants and accordingly A.No.2027 of 2010 for rejection of the plaint is dismissed and O.A.No.385 of 2010 is ordered to the limited extent as above.


77. At this juncture, the learned counsel for the defendants would submit that if there is a blanket injunction restraining the defendants not to publish any photo of male and female in compromising position, it would account to gagging the Press, for which, I would like to observe that my ratiocination in passing the aforesaid order relating to Nithyananda and the cine actress would also be applicable to others that in an identifiable manner if any such photos in compromising position are published, it would be deleterious to the younger generation and the public. Such photos evincing compromising postures of male and female should not be published is my firm opinion.


78. However, the learned counsel for the defendants would submit that unless such photos are published, news item will not reach the public, for which, I would hold that if the defendants at their own risk feels that such publication is absolutely necessary from their point of view, then not only the faces should be blurred, but the photos concerning the objectionable acts also should be blurred, as otherwise, the purpose of injunction would be futile.


79. As such, injunction is granted only to the extent indicated above and concerning the rest of the prayer, no injunction is granted. The defendants are at liberty to publish any news item in pari materia with the views expressed in this order and they shall also adhere to the mandates as contained in the judgement of the Hon'ble Apex Court in Jessica Lal's case".


Therefore, these are the reasons why the learned Single Judge had granted injunction in the manner in which he directed so.


17. In R.Rajagopal @ R.R.Goal @ Nakkheeran Gopal and another vs. J.Jayalilitha and another reported in (2006) 2 L.W. 377, this Court gave certain directions to the publishers whenever they propose to publish any article purely concerning the personal life of the plaintiff in that case. These discretions may be different but on that score alone we cannot set aside the conclusions of the learned Single Judge. The reasons for which he had exercised his discretion fall within the zone of possibilities and we apply the ratio in Multichannel (India) Limited vs. Kavitalaya Productions Pvt. Limited reported in (1998) II CTC 689.


18. Now, we come to the question of rejection of plaint. The learned Single Judge considered the question whether the plaint has to be rejected on the ground of res-judicata on the ground that the respondent Trust has no locus standi and on the ground that the plaint is bereft of subscription of alleged defamatory statements. In this regard the Delhi High Court Judgment does not apply to the present case since that was after the full trial whereas here the rejection sought for is by way of interim application. It is possible that the trial Court may come to the same conclusion of Delhi High Court after the entire evidence is before it. But we cannot shut out the plaint at the threshold on this ground. The learned Single Judge also at paragraph 16 was of the opinion that the nature of the accusations inextricably link together the trust and the trustees. Therefore, one cannot be separated from the other though the Trust is only a legal person and the founder trustee is different. In view of the fact that the activities of the Trust cannot be separated from the fact of the conduct of the trustee, the learned Single Judge was not inclined to accept the objection relating to locus standi.


19. As regards the withdrawal of the suit in O.S.No.2321 of 2010, the learned Single Judge held against the appellant on the ground that the plaintiff in that suit was not the plaintiff in the suit and that the plaintiff in the earlier suit is not raking the same issues. In this regard, the learned Single Judge had extracted the cause of action paragraph and held that the dismissal of the previous suit would not be an embargo for the plaintiff to file this pres

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ent suit. 20. As regards the non re-production of the defamatory statement in the plaint, the learned Single Judge was of the opinion that there is no law that defamatory statements should be reproduced verbatim in the plaint and referred to two English decisions and excerpts from "Law of Press" by Durga Doss Basu (Fourth Edition 2002) to come to the conclusion that the non re-production of the defamatory statements would not be fatal and on this ground the plaint cannot be rejected. 21. In R.Rajagopal @ R.R.Goal @ Nakkheeran Gopal and another vs. J.Jayalilitha and another reported in (2006) 2 L.W. 377, the Division Bench of this Court had referred to the plaint and to the fact that none of the articles are reproduced in the plaint and it is also not stated how the articles are defamatory and the Division Bench held that if the necessary averments are not there, the plaint may be rejected on the ground that it does not disclose any cause of action. We are informed that application for rejection of plaint is still pending. But in that case, while vacating the injunction, the First Bench had circumscribed the extent to which the publisher was at liberty to make publication. It gave directions that the publisher should verify from the person and only thereafter publish etc based on the main prayers sought for. 22. In the present case we find that several issues that were found allegedly to be objectionable which are referred to in the plaint are enclosed as plaint documents. At the time of trial, it is for the respondent to prove his case and whether he has made out a cause of action and whether the suit is barred by res-judicata. It is not possible to hold at this stage that this suit is barred by res-judicata on the issue of law alone since it would be mixed question of law and facts. 23. For all these reasons we are unable to interfere with the order of the learned Single Judge. Hence, the Original Side Appeals are dismissed. 24. The learned counsel for the appellant prays for expeditious hearing of the suit. The written statement has not been filed and naturally so since the appeal against the dismissal of the rejection of plaint was pending before us. As soon as the written statement is filed, the Registry shall send the records to the City Civil Court and the respondent assure co-operation in the conduct of the trial, which shall be completed within a period of six months from the date on which the issues are framed. No costs. Consequently, connected miscellaneous petitions are closed.
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