JUDGMENT

1. This is an appeal by the defendant from the judgment and decree of the Subordinate Judge of Banda in a suit for damages founded upon slander.

2. Plaintiff Bachcha Lal is a partner in the firm of Mulchand Ram Prasad, which carries on extensive business at Banda, and as commission agents and in the purchase of sale and grain.

3. In 1924, one Chhedi Brahmen had agreed to purchase from the plaintiff's firm through Bachcha Lal 200 bags of gram of a particular kind and quality and had paid Bachcha Lal Rs. 200 by way of earnest money. This transaction led to a criminal complaint, which was filed by Chhedi against Bachcha Lal u/s 420, I.P.C. The trial of the case was in progress and while the cross-examination of Chhedi was proceeding, Babu Kesho Chandra Singh, a vakil for Bachcha Lal, asked Chhedi, the complainant whether the plaintiff's firm was the biggest arhatia firm for grain in the city or not. Chhedi answered that question in the affirmative. Rahim Bakhsh, who was a mukhtar for Chhedi in the criminal case and who was sitting close to Babu Kesho Chandra Singh immediately upon hearing that answer by the complainant is said to have interjected the observation that "they were the most dishonest men also in the city". The original words were 'bande 'men sab se bare be iman hain.' It is said that Kesho Chandra Singh immediately protested and asked the Magistrate to make a record of this statement having been made by the defendant but the Magistrate said that he had not heard the remark in question and did not record the same in his proceedings. Plaintiff alleges that the complaint of Chhedi was thrown out on 21st January 1925 as false. It is not disputed before us that the complaint was dismissed. Lala Bachcha Lal instituted the suit which has given rise to the present appeal against Munshi Rahim Bakhsh Mukhtar on 9th April 1925 for recovery of Rs. 5,100 on account of damages sustained by him by the slanderous words uttered by Rahim Bakhsh in the Court of the Magistrate. The defendant denies having uttered the words which are imputed to him. In the alternative he claims privilege.

4. The Court below held on the evidence that the words imputed to the defendant were actually used by him and that the said words were of a defamatory character for which no privilege could be claimed by the defendant as a legal practitioner in the discharge of his duty to his client and, therefore, the action for slander was maintainable against the defendant. The Court below gave the plaintiff a decree for Rs. 200 as damages with proportionate costs and the defendant was directed to bear his own costs in the Court below. In appeal before us, it has not been seriously contended that the words described to the defendant were not uttered by him. In view of the evidence which was produced in the Court below consisting of the statement of Babu Kesho Chandra Singh, a gentleman of respectability and position, and the corroborative evidence of Gaya Prasad and Babu Prabhu Dayal, it was not possible for the Court below to arrive at a different conclusion. We hold that the defendant did utter those words in the Court of the Magistrate on 6th January 1925, and that the said words were heard by Kesho Chandra Singh and certain other persons in the Court-room.

5. It has been contended that the words were not uttered with any malicious intent, that they were not actionable per se and that the defendant in his capacity of Mukhtar in the case of Chhedi against the plaintiff was absolutely privileged and no suit was maintainable for damages against him by reason of his uttering those words.

6. The law in British India relating to civil liability in actions founded upon tort has not been settled by legislature. The English Common law of tort is not applicable to India in its entirety and rules of English common law as enunciated or recognized by English Court ought not to be applied to this country with inflexibility without regard to the dissimilarity in the two coun