The Delhi High Court held that a suit for malicious prosecution and defamation is barred by limitation against one defendant but not against another where a fresh cause of action arose from defamatory pleadings, and dismissed the limitation-based dismissal application against the latter for lack of clear admissions.
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Neutral Citation Number: 2023:DHC:2668
CS(OS) 3424/2015 HIGH COURT OF DELHI Date of Decision: 20th April, 2023
RWA KRISHNA APPARTMENT..... Defendant Through: Mr.Anupam Srivastava, ASC for GNCTD with Mr.Dhairya Gupta & Mr.Vasuh Misra, Advs. for D-15 & D-16. S.I. Rahul Lamba, DIU/South, Sh.Virender Singh, ACP/PG Cell/East Distt.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA NAVIN CHAWLA, J. (ORAL)
I.A. 12140/2022
JUDGMENT
1. This application has been filed by the defendant nos.15 and 16 under Order XII Rule 6 of the Code of Civil Procedure, 1908 (in short, ‘CPC’), claiming dismissal of the suit.
2. Relying upon Section 140 of the Delhi Police Act, 1978 (in short, ‘the Delhi Police Act’) it is claimed that as the suit has been filed beyond the period prescribed therein, the suit is liable to be dismissed. In support, reliance has been placed by the learned counsel for the defendant nos.15 and 16 on the judgment of the Supreme Court in Sumer Chand v. Union of India (UOI) and Ors, AIR 1993 SC 2579, to submit that as the registration of the FIR, which has been made the cause of action for filing of the present suit by the plaintiff, is a step taken in discharge of duty, the suit for malicious prosecution could have been instituted only within three months from the date of the act complained of. It is further submitted that as far as the defamation is concerned, the Suit could have been filed only within a period of three months from the date of the filing of the Charge-Sheet. In the present case, the FIR was registered on 06.08.2011; the first Supplementary Charge-Sheet was filed on 11.07.2013; and the plaintiff was acquitted vide order dated 15.10.2014 of the learned Metropolitan Magistrate. The suit having been filed on 13.10.2015 would, therefore, be barred in terms of Section 140 of the Delhi Police Act.
3. On the other hand, the learned counsel for the plaintiff, drawing reference to paragraphs 12 and 24 of the Plaint, submits that the cause of action to file the present Suit had further arisen when the defendant no.16 had referred to the trial and the FIR against the plaintiff in his reply filed in CS(OS) 379/2015, titled Shri Ved Prakash Yadav v. Shri Y.S. Dadwal & Ors. The said reply was filed on 17.08.2015. The present suit having been filed on 13.10.2015, would be within the period of limitation. He submits that in the present Suit, relief is also claimed against defamation of the plaintiff. He submits that filing of pleadings in a case can also give rise to a cause of action for a claim of defamation. In support of this plea, he places reliance on the judgment dated 15.02.2022 passed in CS (OS) 649/2021, titled Dr. Sanjiv Bansal v. Dr. Manish Bansal.
4. He fairly submits that as against the defendant no.15, the suit would be barred by limitation.
5. In rejoinder, the learned counsel for the defendant nos.15 and 16 submits that the mere reference to an FIR in the written statement filed in another suit cannot give rise to a cause of action for defamation. The defendant no.16 had filed the written statement in defence to a suit and, therefore, was entitled to make reference to the FIR, which is a matter of fact. He places reliance on the judgment of this Court in B.C. Rana v. Seema Katoch and Ors, CS(OS) 503/2009, to submit that there will be an absolute privilege in averments made in the course of judicial proceedings. The same, in any case, cannot be made the basis of a cause of action.
6. I have considered the submissions made by the learned counsels for the parties.
7. At the outset it is noticed that the defendant nos.15 and 16 have not filed their written statement to the suit. Their right to file the written statement stands closed by the order dated 29.08.2016 passed by the learned Joint Registrar (Judicial). Though the said order is in challenge in O.A. 57/2022, the fact remains that in absence of a written statement, it is only the averments made in the plaint that can be considered at this stage.
8. The plaintiff has made the following averments in paragraphs 12 and 24 of the Plaint, which are reproduced hereinbelow:-
“12. That because of the defendant's deliberate, intentional and malicious intention, the above said FIR was registered, malicious prosecution started, the plaintiff was
humiliated, tortured and beaten up illegally and without power and authority by the police officials at the instance of the private parties/defendants, defamatory libelous publications were made and plaintiff had to run from pillar to post to secure for his life and liberty. It is not out of place to mention here that the aforementioned act of defamation, libelous and malicious prosecution was not done under the colour of discharge of duties by the addressee no. 15 to 16, but it was done in their personal capacity in tandem and collusion with the other defendants, under a conspiracy involving the then Addl. Commissioner of Delhi Police Sh.Ravinder Yadav, Sh. Avtar Singh S.H.O P.S. SJ Enclave and the elder brother of plaintiff Sh. Dharamvir Singh Rao against whom plaintiff has already filed a suit for damages pending before the Hon'ble Delhi High Court. That because of afore-stated FIR & defamatory libelous Publication plaintiff has been facing various false and frivolous litigations and in all the litigations, the opposite parties have filed the aforesaid libelous publication/FIR/Supplementary Charge Sheet thereby defaming and causing huge damages to the reputation of the plaintiff openly in the court resulting into huge losses which though cannot be compensated in terms of money. It is not of place to mention here that the defendant no. 16, despite knowing the fact that the plaintiff has been discharged and the trial of the F.I.R bearing no. 207/2011 has been terminated, has deliberately referred and relied upon the said trial and F.I.R against the plaintiff in the suit bearing no. 379/2015 which is a fresh publication and defamation of the plaintiff at the hands of said defendant, thereby giving a fresh cause of action in favour of the plaintiff against the said defendant. xxxxx
24. That the cause of action arose initially when the malicious prosecution of the plaintiff started at the instance of the defendants after registering a false, frivolous and malicious FIR bearing No. 207/2011 dated 06.08.2011 and the plaintiff was arrested on 02.11.2012 The cause of action arose on all the dates as and when the plaintiff has filed several pleadings before the Hon'ble courts to secure his life and liberty. It further arose when the defendants, deliberately and intentionally, by misuse of their power humiliated, tortured and beaten the plaintiff during his arrest, and to cause further damage to the plaintiff, filed supplementary chargesheet dated 11.07.2013, whereby the Defendants specifically described the plaintiff as a co-accused alongwith Vishwanath Tiwari for cheating, forgery, trespassing the property, conspiracy and started malicious prosecution. That the cause of action further arose when on those false, frivolous, malicious and defamatory statements against the plaintiff were published at the behest of all the above named Defendants before the different Hon'ble Courts in the form of applications, written arguments, replies etc and thereby tarnished the image of the plaintiff in general public, thus causing a serious damage to the reputation of the plaintiff in the public at large. That the cause of action further arose when the aforesaid FIR registered at the Defendants' behest and the publications which were false, frivolous, malicious and defamatory when the Ld. M.M Ms. Purva Sareen has terminated the trial in favour of the plaintiff and discharged the plaintiff vide order dated 15.10.2014 noting thereby no offence seems to have been committed by both the accused persons. That the cause of action finally arose on 15-01- 2015 when the three months of appeal period expired to challenge the order of 15-10-2014 loading to attainment of finality of the order dated 15-10-2014. That the cause of action is still continuing as the Delhi Police website still shows the aforesaid FIR. The cause of action against the defendant no. 16 also arose when the said defendant filed his reply dated 17-08-2015 (in his personal capacity) in the suit bearing no. 379/2015, thereby relied upon the F.I.R bearing no. 207/2011, despite of the fact that the trial of the said F.I.R has been terminated in favour of the plaintiff and plaintiff has been discharged. The cause of action is accruing and a continuing one as it is also a case of multiple publication on world wide web.” (Emphasis Supplied)
9. The plaintiff in the present suit has, inter alia, prayed for following relief:- “a. Pass a decree for a sum of Rs. 2,10,000,00/- (Rupees Two Crores and Ten Lacs only) or more if the Court may so ascertain with costs of the suit and pendentelite and future interest @18 p.a. from the date of filing of the suit till its realization to be passed in favour of the plaintiff and against the Defendants jointly and severally as damages for malicious prosecution and defamation caused by the defendants and/or;”
10. A reading of the averments made in the plaint would show that the plaintiff has also based his claim on the alleged written statement filed by the defendant no.16 (in his personal capacity, in the CS(OS) 379/2015).
11. In Dr.Sanjiv Bansal (supra), after considering the law on the issue whether averments in the pleadings entail complete privilege, a Coordinate Bench of this Court has observed as under:-
“20. The learned counsel for the plaintiff has argued the question of whether averments in the pleadings entail complete privilege. In the opinion of this Court, determining that issue would need a consideration of the defence that the defendant may likely take in his written statement, including of privilege. However, that stage is yet to come. As noted herein above, reliance has also been placed on a number of judgments to contend that unfair onslaught on personal character amounts to cruelty and the victim is entitled to seek
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damages. While it would be a question of merit which would have to be seen in the light of the pleadings and evidence that would come on record, once summons are issued, as to whether the sentences as pointed out in the plaint and stated to have been incorporated in the plaint filed by the defendant, are defamatory and whether the supply of the copies of the plaint to a third party who is not a family member in a case filed by the defendant to determine inter se rights of the family members in respect of the estate of their late father, would amount to publication and circulation. It would also be a matter of proof that the plaintiff had indeed suffered mental agony and therefore, would be entitled to seek damages from the defendant.
21. Suffice it to note on the basis of the judgments relied upon by the learned counsel for the plaintiff that a suit may be filed alleging defamation and seeking damages for harm to reputation, if such pleadings have been filed that may reflect on the character of the plaintiff. A cause of action would arise on the basis of which the plaintiff can approach the court. It would definitely be a different matter, whether ultimately the plaintiff succeeds in the suit or not.”
12. As noticed hereinabove, the present application has been filed under Order XII Rule 6 of the CPC without filing the written statements to the plaint, thereby implying that according to the defendants/applicants, on the mere averment made in the plaint, the suit can be decreed against the plaintiff by holding it to be barred by limitation.
13. On the aspect of a decree being passed based on the averments made in the plaint, it is settled law that for a decree to be passed under Order XII Rule 6 of the CPC, the admissions are required to be clear, categorical and unambiguous. In Himani Alloys Ltd. v. Tata Steel Ltd., (2011) 15 SCC 273, the Supreme Court emphasised the caution to be exercised in invoking the powers under Order XII Rule 6 of the CPC, as under:-
“11. It is true that a judgment can be given on an “admission” contained in the minutes of a meeting. But the admission should be categorical. It should be a conscious and deliberate act of the party making it, showing an intention to be bound by it. Order 12 Rule 6 being an enabling provision, it is neither mandatory nor peremptory but discretionary. The court, on examination of the facts and circumstances, has to exercise its judicial discretion, keeping in mind that a judgment on admission is a judgment without trial which permanently denies any remedy to the defendant, by way of an appeal on merits. Therefore unless the admission is clear, unambiguous and unconditional, the discretion of the Court should not be exercised to deny the valuable right of a defendant to contest the claim. In short the discretion should be used only when there is a clear “admission” which can be acted upon. (See also Uttam Singh Duggal & Co. Ltd. v. United Bank of India[(2000) 7 SCC 120] , Karam Kapahi v. Lal Chand Public Charitable Trust [(2010) 4 SCC 753 : (2010) 2 SCC (Civ) 262] and Jeevan Diesels and Electricals Ltd. v. Jasbir Singh Chadha [(2010) 6 SCC 601 : (2010) 2 SCC (Civ) 745] .) There is no such admission in this case.” (Emphasis Supplied)
14. The above principle was reiterated by the Supreme Court in Hari Steel and General Industries Limited and Another v. Daljit Singh and Others, (2019) 20 SCC 425 and Karan Kapoor v. Madhuri Kumar, (2022) 10 SCC 496.
15. In the present case, as noticed hereinabove, the plaintiff has claimed damages on account of his alleged defamation also based on the averments made in the written statement filed by the defendant no.16 in CS(OS) 379/2015. The defendant no.16 is yet to file his written statement in the present suit. It cannot, therefore, be said that based on the averments made in the plaint itself, a decree deserves to be passed against the plaintiff qua the claim of defamation against the defendant no.16.
16. Accordingly, the present application, as far as the defendant no.16 is concerned, is dismissed.
17. As noticed hereinabove, the learned counsel for the plaintiff has fairly conceded that the claim against the defendant no.15 would be barred by limitation. He submits that this concession is confined only to defendant no.15 and not to other defendants.
18. Accordingly, the suit against the defendant no.15 is dismissed as being barred by limitation.
19. The plaintiff shall file the amended Memo of Parties within a period of two weeks. CS(OS) 3424/2015 & I.A. 19334/2022, 19565/2022 & O.A. 57/2022
20. List for hearing on 17th July, 2023.
NAVIN CHAWLA, J APRIL 20, 2023
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