JUDGMENT :

N.V.Anjaria, J.

Looking to the narrow compass of the issue arising from the contents of the impugned judgment in the order, the appeal could be taken up finally, at this stage.

2. Preferred by the original defendants, this First Appeal under Section 96 of the Code of Civil Procedure, 1908, is directed against judgment and decree dated 31.3.2021 passed by learned 5th Additional Senior Civil Judge, Vadodara in Special Civil Suit No.106 of 2018, thereby the court below awarded Rs.5 crores to the respondent- original plaintiff as damages for defamation by the defendants.

2.1 In the said suit in which plaintiff prayed for recovery of Rs.5 crores and made further prayer for declaration and permanent injunction, the defendant No.1 was sister of the plaintiff, whereas defendant No.2 was brother-in-law. The case of the plaintiff was that untill the death of their father, the relationship was affectionate between the parties, however, afterwards the defendants in order to snatch away the property, made several allegations and committed acts of defamation against the plaintiff.

3. It was the case that plaintiff was reputed person possessing several properties and had been running since years the Kohinoor Transport Company now known as Jayhind Roadways. It was alleged that the plaintiff hired persons and started distributing material and pamphlets stating that the plaintiff had killed his father in order to grab the ancestral properties. It was stated that such defamatory pamphlets were distributed at the mosques of Vadodara, Modasa and Mumbai. It was averred that pamphlets with photographs were distributed amongst the community persons coming to the mosques so as to disseminate defamatory allegations against the plaintiff about killing of father, taking of ancestral property and injuring his own sister.

3.1 It was stated that the notice was issued on 1.8.2017 to the defendants. It was further averred that defendants also filed complaint that the plaintiff was using kerosene in transport trucks, that wrong allegations were made about locker in the Bank and wrong complaints were also filed in the Civil Supplies Department which all were false and defamatory. It was the case that thereby the defendants defamed the plaintiff in the community in three cities and in the business class in the market places. It was on such count that the cause of action was pleaded and the damages were asked for, for the alleged tort of defamation.

3.2 The trial court framed issued on the basis of pleadings of the plaintiff at Exhibit 8. The first issue was whether the plaintiff proved that the defendants had defamed the plaintiff by distributing pamphlets and publishing writings. The second issue was that whether the legal notice was issued and the third was whether the plaintiff was entitled to recover Rs.5 crores. All the issues were answered in affirmative.

3.3 The trial court granted compensation to the tune of Rs.5 crores on the basis of the evidence put forth by plaintiff which included the affidavit of examination-in-chief of the son of the plaintiff (Exhibit 23). The chief-examiner of plaintiff himself (Exhibit 10), witnesses Riyaz Uddin (Exhbit 27). The plaintiff was shown to be in transport business. The alleged defamatory material in the nature of circulars and pamphlets was produced (Exhibit 51 and 53). The court recorded on the basis of one sided evidence of the plaintiff that those pamphlets and circulars were distributed. There was no cross examination of the defendants in respect of any of the evidence. The court assessed the compensation of Rs.5, crores on the basis of valuation report (Exhibit 39 to Exhibit 41) relating to the ancestral property of the plaintiff himself. The conclusion was drawn that the defendants had defamed by levelling allegations and disseminating the same in the community and in the public about snatching of the ancestral property and killing of father.

3.4 The trial court did record that the summons issued in the suit