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Varghese v/s Mathrubhumi Printing & Publishing Co. (P) Ltd., Kozhikode, Represented by Managing Editor & Others

    RSA. Nos. 995 & 1124 of 2007

    Decided On, 10 July 2019

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE P. SOMARAJAN

    For the Appellant: Renjith Thampan, Sr. Advocate, P.A. Anitha, Advocate. For the Respondents: T.G. Rajendran, Millu Dandapani, Advocates.



Judgment Text

1. The plaintiff came up with these two appeals aggrieved by the divergent findings rendered by the first appellate court in reversing a decree for money awarding an amount of Rs.25,000/- each on account of the injury sustained by the plaintiff in connection with a defamatory statement published in two dailies. The news was published pertaining to the disappearance of a suspect in a murder case one Paulose in the year 1986. In connection with the disappearance and subsequent arrest of Paulose after 13 years, a news item was published exhibited as A1 and A1(a) by the defendant (Malayala Manorama daily) in O.S.No.1287 of 1999 and A3 and A3(a) by the defendant (Mathrubhumi daily) in O.S.No.1289/1999. The trial court decreed the suit granting an amount of Rs.25,000/- each to the plaintiff in both the suits from the respective defendants. It was taken up in the first appellate court wherein the first appellate court on reappraisal of facts and evidence found that the publication would come under one of the exceptions to Section 499 IPC and hence dismissed the suits by allowing the appeals. Aggrieved by the said decree and judgment, these two appeals were preferred by the plaintiff.

2. The news items, Exts.A1(a) and A3(a) contains a report of what actually ha

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ppened, besides the alleged imputations against the plaintiff. The plaintiff's brother one Paulose disappeared in connection with a murder case in which he was the suspect. During the course of criminal investigation against the brother of plaintiff, one dead body was recovered and it was wrongly identified as that of the plaintiff's brother Paulose and consequently, the investigation was dropped. After 13 years, he was arrested in connection with the criminal case from his family house. It was reported in the newspapers with certain imputations against the plaintiff that he had identified the dead body as that of his brother in collusion with his brother so as to wriggle out of the criminal liability. According to the plaintiff, he never went to Madras for the purpose of identification of any dead body and never colluded with his brother so as to wriggle out of the criminal liability and that the imputations levelled against him are intended to injure his reputation among the society and near relatives. Hence the suits for compensation on account of loss of reputation.

3. The plaintiff had given oral evidence as PW1 and one independent witness was also examined as PW2 to show the injury sustained to his reputation and status due to the above said imputation that he had colluded with his brother and wrongly identified a dead body as that of his brother so as to wriggle out of the criminal liability.

4. The expression 'defamation' really sprouts from a wrong committed causing injury to the status and reputation of a person or a firm. Falsity is the basis of defamation coupled with imputation intended to injure the victim thereunder. Inorder to maintain a suit claiming compensation on account of publication of defamatory statement, it must be shown that it is on account of the imputation published that the victim/plaintiff had suffered loss of reputation or any reduction thereof. When the publication contains true version coupled with imputations, it must be shown that it is due to those imputation that the plaintiff had suffered loss of reputation, lowering of his status in the society or reduction thereof, apart from the injury he had suffered on account of the publication of true version. To constitute a civil injury, there must be a wrongful act giving rise to a legal damage or actual damage and it must be of such a nature as to give rise to a legal remedy in the form of an action for damages apart from the criminal liability that can be fastened under Section 499 IPC. The expression 'legal damage' and its significance illustrated by two maxims, namely, 'injuria sine damno' and 'damnum sine ( or absque) injuria'. When a right is interfered with or infringed and if it is a legal right, 'injuria sine damno' would give rise an action, but no action can be maintained where there is neither 'damnum' nor 'injuria'. A violation of a legal right alone would bring up a 'cause of action'. When the publication consists of true version as well as certain imputation, what is suffered by the plaintiff by the publication of true version though result in injury to his status and reputation, it cannot be brought under the purview of a legal injury, but only satisfies a non-legal injury/a non-actionable injury. The publication of true version of what actually happened by the media for the public good, does not itself give rise a cause of action for any legal injury. When the publication consists of matters which would result in both non-legal injury and legal injury, an action would lie only in respect of legal injury suffered. When the publication contains matters which would give rise legal injury and nonlegal injury on account of publication of true version of what actually happened along with certain imputations, an action will lie only with respect to the injury sustained by the imputations and not against any injury or harm resulted in the publication of true version of what actually happened. The plaintiff has to show and establish the legal injury sustained on account of the imputation separately from that of the injury he had suffered by virtue of the publication of the true state of affairs. The imputations contained in Ext.A1(a) and A3(a) were not separately brought to the notice of PW2 and no answer was elucidated to show the reduction of reputation or harm on account of those imputations so as to satisfy legal injury sustained apart from the non-legal injury sustained by the true publication of what actually happened. But the entire news items Exts.A1(a) and A3(a) brought to the notice of PW2 which contains a report of true state of affairs and also certain imputations against the plaintiff. The news item which covers a report of true state of affairs may hurt the reputation of plaintiff in the society, especially among his relatives, but it will not give rise a legal injury and no action will lie against it. What is spoken by PW2 confined only to loss of reputation suffered by the plaintiff by the above said publication without referring loss of reputation on account of true state of affairs published apart from the imputation. The true state of affairs published itself may constitute loss of reputation and reduction of status of the plaintiff among the society. No evidence was tendered either through PW2 or otherwise to show any reduction or harm to the reputation of the plaintiff on account of imputation incorporated in Exts.A1(a) and A3(a), apart from the injury sustained, loss of reputation due to the publication of true state of affairs. What is material is the loss sustained or injury caused by the plaintiff by virtue of publication of imputation and not the publication of true state of affairs. When there is a publication by a media by way of news which consists of both publication of true version of what actually happened and also some imputation against the plaintiff satisfying both non-legal injury and legal injury, an action would lie only against legal injury, for which the imputation should be placed and brought up specifically and separately to the witness so as to show the loss of reputation or any injury sustained on account of imputations apart from the other part. A general statement by a witness regarding loss of reputation on account of a news item which consists of true version of what actually happened besides the imputation, unless specifies the legal injury sustained on account of the imputation apart from the non-legal injury suffered would not be sufficient to maintain an action for the wrong done. The imputations were not separately brought to the notice of PW2 and nothing was elucidated in that behalf. In short, the oral evidence tendered by PW2 being a general statement regarding the entire body of news item inclusive of true state of affairs and imputation consisting of both legal injury and non-legal injury, unless there is evidence regarding the legal injury, cannot be acted upon. The version given by PW2 that he had the occasion to see the news item exhibited as A1(a) and A3(a) and that the plaintiff had suffered loss of reputation and lowering of status in the society by the publication of said news item, hence, will not satisfy the requirement inorder to bring up an action based on legal injury on account of defamation. The part of true version contained in A1(a) and A3(a) regarding the relationship of plaintiff with his brother, who is an accused in a murder case, his disappearance for a long period of 13 years, wrong identification of a dead body as that of his brother by somebody in connection with the criminal investigation against his brother and dropping of criminal investigation under the belief of death of brother of the plaintiff and subsequent development resulted in the arrest of the brother of plaintiff after 13 years from his family house, are though sufficient to cause loss of reputation to the plaintiff, not separately dealt with, apart from the imputation against the plaintiff alleging collusion between himself and his brother, at the time of examination of PW2 so as to show the legal injury, if any suffered on account of the imputation.

5. There may be some kind of abrasions which cannot be avoided in reporting an incident, but the abrasions is of such a nature that it cannot be avoided by the exercise of reasonable diligence and caution. There lies the question of bonafides and good faith as engrafted under the 9th exception attached to Section 499 of IPC. But when there is a deviation from the original incident which would stand as an imputation on a particular person and if it was intended to injure the reputation and status of that person, it cannot be brought under the purview of 'good faith' as engrafted under the 9th exception to Section 499 of IPC. There is lot of difference between the tortious liability that can be fastened apart from the criminal liability under Section 499 IPC and the expression 'public good' and 'good faith' as enumerated in the first and ninth exception attached to Section 499 IPC though relevant while fastening criminal liability, it may not have that much relevance in the matter of tortuous liability dealing with defamation.

6. Bad character and bad reputation of the claimant is also relevant and it may be a good defence in the matter of defamation. The news items published regarding what actually happened and the arrest of the brother of the plaintiff after 13 years from the residential place of plaintiff, a wrong identification of deadbody of some other person as that of brother of plaintiff and that the brother had concealed himself for a long period of 13 years and thereby managed to wriggle out of the criminal liability during that period may itself cast a bad reputation to the plaintiff. The plaintiff as PW1 had admitted that in the year 1984, the police officials from Madras came to his family house in search of his brother Paulose. At that time, Paulose was not there in the house and he was not aware of his whereabouts. So he made an undertaking to the police officials to inform the whereabouts of his brother as soon as it is received. He had also admitted that in the year 1988, his brother came to his family house and resided in the house. While so, in June, 1999, their mother passed away. It is further admitted that he was maintaining a cordial relationship with his brother till the death of their mother. But he did not care to inform the same to the police officials though he was aware of the criminal case against his brother in connection with a murder. The person concealing an accused with the intention of preventing his arrest would constitute an offence of harbouring offender punishable under Section 216 of IPC. A clear collusion of plaintiff with his brother in providing a safe heaven to conceal himself is well evident which would show the elements of truth attached to the imputation alleged against the plaintiff.

7. As discussed in earlier paragraphs, there is no evidence for any legal injury and the witnesses examined failed to show any legal injury apart from the non-legal injury suffered on account of Exts.A1(a) and A3(a) publications.

8. At this juncture, the learned counsel for the appellant pressed for a remand of the matter to the trial court so as to establish the legal injury sustained apart from the non-legal injury. But it is not permissible to have a remand of the matter to fill up the lacuna in the evidence adduced.

The appeal fails, dismissed. No costs
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