1960 Supreme(Pat) 170

PATNA HIGH COURT
Raj Kishore Prasad, J.
Pandey Surendra Nath Sinha
Versus
Bageshwari Pd.
Appeal From Appellate Decree No. 852 of 1958 ; 853 of 1958 ;
Decided On : OCTOBER 12, 1960

Headnote:

DEFAMATION - PRIVILEGE - ABSOLUTE AND QUALIFIED - PLEA OF PRIVILEGE NOT OPEN TO THE DEFENDANT AS IT WAS NOT SPECIFICALLY RAISED IN THE WRITTEN STATEMENT OR IN THE ISSUES - STATEMENTS MADE TO A SUPERINTENDENT OF POLICE ARE NOT ABSOLUTELY PRIVILEGED BUT AT BEST QUALIFIEDLY PRIVILEGED - PLEA OF QUALIFIED PRIVILEGE CANNOT BE RAISED AT THE APPELLATE STAGE WHEN IT WAS NOT PLEADED IN THE WRITTEN STATEMENT OR RAISED IN THE ISSUES AT THE TRIAL.

Fact of the Case:

The defendant filed a petition before the Superintendent of Police, Saran, Chapra, against the plaintiffs and two others, alleging that the plaintiff 2 had been rusticated for five years and that the plaintiff 1, father of plaintiff 2, intervenes in almost all the disputes of the locality and terrorises the parties therein and derives undue advantage from him. The plaintiffs alleged that the above statements were defamatory, which caused them loss of reputation and prestige, and, as such, they (are?) entitled to Rs. 100 as nominal damages from the defendant. The suit was contested by the defendant. The defence was that on the 18th of October, 1952, the plaintiff 2 along with his brother and servant, came to the defendants residence and shouted and used abusive and threatening words against him, on the pretext that he had used abusive Language against plaintiff 1, and, therefore, the defendant, next day, on the 19th of October, 1952. filed a petition before the Superintendent of Police to make accessary enquiry into the matter and to take steps against the plaintiffs. The defendant alleged that the statements made in the petition to the Superintendent of Police were true and not actuated by any malice.

Finding of the Court:

The trial judge held that the statements complained of made in petition (Exhibit 1) regarding the character of plaintiff 1 was absolutely correct, but the statement made in it with regard to plaintiff 2 was false, and, it was made with an intent to injure his reputation and to lower him in the estimation of the pubilc. He further held that the statements made by the defendant against the character oi the plaintiffs could not be said to be absolutely privileged. He, therefore, found that plaintiff 2 was entitled to damages from the defendant, and accordingly, a nominal damage of Rs. 25 was awarded to him. On appeal, the learned Subordinate Judge, who heard the appeal, took the view that the statements made in the petition (Exhibit 1) were absolutely privileged, and therefore, the defendant was not liable to damages. He, further, observed that the statement complained of regarding plaintiff 2 was that "perhaps" he had been rusticated for five years, and, therefore, the use of the word "perhaps" shows that the defendant did not categorically state that plaintiff 2 was rusticated. The finding ot the first Court, however, that the statement made by the defendant regarding plaintiff 1 was correct was neither expressly reversed nor affirmed by the Court of appeal below.

Issues: 1. Whether the plea of privilege was open to the defendant, as this plea was nut specifically raised either in the written statement or in the issues? 2. Whether, even if the question of privilege could be raised, it was not a case of absolute privilege, as rightly held by the trial Court, but wrongly held by the Court of appeal below? 3. Whether, at best, it was a case of qualified privilege? 4. Whether, if it was a case of qualified privilege then as malice had been proved by the plaintiffs, the defendant was liable? 5. Whether, the plaintiffs, therefore, were entitled to such damage as the Court thinks proper in its discretion.

Ratio Decidendi: 1. The plea of privilege was not open to the defendant as it was not specifically raised in the written statement or in the issues. 2. The statements made to the Superintendent of Police were not absolutely privileged but at best qualifiedly privileged. 3. The plea of qualified privilege cannot be raised at the appellate stage when it was not pleaded in the written statement or raised in the issues at the trial.

Final Decision: The appeals succeed, and, the judgment and decree of the Court of appeal below is set aside, and, the appeals are remitted to it for deciding the above mentioned questions, and, for disposing of the appeal of the defendant and the cross-objection of the plaintiffs, before it, in accordance with law in the light of this Judgment.