1997 Supreme(Raj) 1088
RAJASTHAN HIGH COURT AT JAIPUR BENCH
Arun Madan, J.
Vinod Kumar Agarwal - Appellant
Versus
Jagdish Prasad - Respondent
S.B. Civil Revision Petition No. 1067/93. .
Decided On : 3-04-1997
A trial court should stay the proceedings in a suit if it is satisfied that the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties.
Headnote:
DEFAMATION - STAY OF PROCEEDINGS - ORDER 7 RULE 11 READ WITH SECTION 10 AND SECTION 151 CPC - COMMON DEFENCE - DIRECTLY AND SUBSTANTIALLY IN ISSUE - PUBLICATION OF DEFAMATORY MATERIAL - INTENTION OF THE PARTY - SECTION 129 OF THE INDIAN EVIDENCE ACT - SECTION 35-A OF CPC - SPECIAL COMPENSATORY COSTS - PROFESSIONAL DISCIPLINE AND ETIQUETTE.
Fact of the Case:
Plaintiffs filed a suit against the defendant for damages for defamation, alleging that the defendant had published defamatory material against them in response to a notice sent by the plaintiffs' brother demanding repayment of a loan. The defendant filed an application under Order 7 Rule 11 read with Section 10 and Section 151 CPC, seeking to stay the proceedings on the ground that the matter in issue was also directly and substantially in issue in a criminal complaint filed by him against the plaintiffs for cheating and forgery. The trial court dismissed the application.
Finding of the Court:
The court allowed the revision petition and set aside the impugned order of the trial court. It held that the trial court should have stayed the proceedings in the defamation suit as the matter in issue was also directly and substantially in issue in the criminal complaint. The court further held that the mere exchange of notices or replies between the parties' counsel did not amount to publication of defamatory material and that the intention of the party and the manner of publication of the alleged defamatory material had to be examined before drawing any adverse inference against the author.
Issues: Whether the trial court should have stayed the proceedings in the defamation suit as the matter in issue was also directly and substantially in issue in the criminal complaint.
Ratio Decidendi: The court relied on the provisions of Order 7 Rule 11 read with Section 10 of the Code of Civil Procedure, which provide that no court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties. The court also relied on the decision of the Supreme Court in T. Arivandandam v. T.V. Satyapal, in which the court held that a trial court should stay the proceedings in a suit if it is satisfied that the litigation was inspired by vexatious motives and altogether groundless.
Final Decision: The court allowed the revision petition and set aside the impugned order of the trial court. It held that the trial court should have stayed the proceedings in the defamation suit as the matter in issue was also directly and substantially in issue in the criminal complaint.
JUDGMENT
1. - This revision petition has been preferred to this Court against the Order dated 14.9.1993 (Annexure-6) passed by the learned Chief Judicial Magistrate-cum-Civil Judge, Bharatpur, whereby the said court had dismissed petitioner's/defendant's application under Order 7 Rule 1.1 read with Sections to & 151 of the CPC.
2. The girevance of the petitioner as unfolded by this revision petition in short is that the non- petitioners/plaintiffs filed a Civil Suit in the court of Civil Judge, Bharatpur against petitioner-defendant for payment of damages to the tune of Rs. 45,000/- for the alleged defence of having published defamatory material against them, which culminated in filing of the said suit by the plaintiffs.
3. On 27.00.1992 one Mahesh Chandar, S/o Shiv Charan R/o Kirawali, District Agra, Uttar Pradesh, who is the real brother of non-petitioner Nos. 1 & 3 and son of Non- petitioner No. 2 had sent a registered notice through his counsel to the petitioner-defendant contending inter-alia that the non-petitioners had advanced a sum of Rs. 50,000/- to the petitioner-defendant on the execution of a promissory note, but since the said amount had not been returned within the stipulated period, the defendant was liable to pay that amount to the plaintiff along with interest w 2% per annum and costs failing which legal consequences will follow. This fact has been clarified by notice dated 27.06.1992 vide (Annexure-1) to this petition.
4. The petitioner sent a reply to the aforesaid notice through his counsel by a registered post on 6.07.1.992, wherein it was stated that the amount of Rs. 50,000/- was never advanced to the plaintiffs nor he had executed any promissory note in favour of defendant in this regard and rather the true facts were that the non- petitioner No. 1, Jagdish Prasad and the petitioner were the brother-in-laws and in view of the delicate relationship between the parties, the petitioner trusted the non- petitioners by handing over the ornaments of the approximate value of Rs. 70,000/- to the latter on the ground that they were required for the wife of N.P. No. 1 and for the use of daughter of N.P. No. 3 and soon after the solemnisation of the marriage ceremony, same will be returned to the petitioner within the stipulated period but since they were not returned to the petitioner, he was left with no option but to take the aforesaid plea in reply to the notice served on him by the defendants in reply to the notice served on him by the defendants vide the reply dated 6.7.1992 (Annexure-2). Thereafter having failed to elicit any response from the non-petitioners, the petitioner was left with no option but to file a criminal complaint in the Court of learned A.C.J.M. No. 2, Agra against the non-petitioners Under sections 406/420 IPC and in respect of which this Court has been informed that cognizance has already been taken by the aforesaid Court at Agra against the Non-petitioners vide the Order dated 12.10.1992 (Annexures 3 & 4) respectively. The aforesaid order of the learned A.C.J.M. No. 2 was challenged by the Non-petitioners before the Hon'ble Allahabad High Court, where the matter is sub-judice.
5. Thereafter on 7.12.1992 a suit claiming damages to the tune of Rs. 45,000/- on the pretext of alleged defamation having been committed by the petitioner was filed by the Non-petitioners before the learned Civil Judge, Bharatpur, wherein it was averred on the basis of the reply dated 6.7.1992, which was sent by the petitioner through his counsel to the plaintiff-non-petitioners in response to the notice served on him that there was absolutely no intention on the part of the petitioner to institute legal proceedings against the non-petitioners except to have raised a legitimate demand for return of the gold ornaments, which were handed over to the Non-petitioners on a trust and since the said ornaments were not returned, the -petitioner was left with no option but to file the aforesaid complaint before the learned A
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