Ajit Kar vs Rajesh Rai

Valmiki J Mehta, J.—The challenge by means of this Regular First Appeal u/s 96 of the Code of Civil Procedure, 1908 is to the impugned judgment and decree dated 30th September, 2010 whereby the suit of the Appellant/plaintiff for defamation against an Advocate/Defendant/Respondent was dismissed, and which suit was filed on the ground that the Advocate/Defendant/Respondent sent a legal notice dated 30th July, 2008, Ex.PW1/6, alleged to be without authorization of the client one Mrs. Sangita Mudgal.

The Trial Court has arrived at a finding of fact based on the evidence led by the Respondent/Defendant and also Sh. Harender Mudgal, husband of Smt. Sangita Mudgal as DW-2, that there was due authorization on behalf of Smt. Sangita Mudgal to send the legal notice. Paras 42 to 44 and 48 to 51 of the impugned judgment and decree read as under:

"42. The Defendant filed a brief evidence by way of affidavit. Defendant exhibited vakalatnama given by Smt. Sangita Mudgal in his favour authorizing Defendant to issue notice to plaintiff as Ex.DW1/1. Defendant stated that he had explained contents of notice to Smt. Sangita Mudgal before dispatching the same to the plaintiff. Te Defendant denied that he had sent legal notice dated 30.07.2008 without instructions of Smt. Sangita Mudgal.

In cross-examination, Defendant clarified that Defendant has signed vakalatnama at point A and Smt. Sangita Mudgalsigned at point B. Defendant sated that Smt. Sangita Mudgal filed a Criminal case and Civil Suit for recovery of damages on the basis of legal notice dated 30.07.2008. Defendant stated that he gave a copy of notice dated 30.07.2008 to Smt. Sangita Mudgal. It was also stated that legal notice dated 30.07.2008 and vakalatnama were explained to Mrs. And Mr. Harender Mudgal.

DW-2 is Shri Harender Kudgal, husband of Smt. Sangita Mudgal. His evidence by way of affidavit is also very brief. He stated that vakalatnama signed by his wife was Ex.DW1/1 as per which she authorized the Defendant to serve legal notice upon the plaintiff. Legal notice Ex.PW1/6 was issued by Defendant under instructions of his wife in his professional capacity. Contents of notice were explained by Defendant to him as well as his wife Smt. Sangita Mudgal. His wife never denied instructing Defendant to send notice Ex.PW1/6.

... 48. Issue wise findings are as under:

Issue No. 2: - Burden to prove this issue was on the Defendant. Defendant has relied upon vakalatnama Ex.DW1/1 given by Smt. Sangita Mudgal to him before serving legal notice upon the plaintiff. Defendant has stated that said vakalatnama bears signatures of Smt. Sangita Mudgal at point B and by Defendant at point A. Defendant stated that he takes a vakalatnama from every client before sending notice on his/her behalf. No suggestion was given by the plaintiff that Ex.DW1/1 is not a vakalatnama signed by Smt. Sangita Mudgal. Only suggestion given for vakalatnama was that it was not as per law. Why it was not as per law is not explained by the plaintiff.The plaintiff stated that there was no need to give suggestion regarding vakalatnama because Smt. Sangita Mudgal has admitted in Suit No. 03/08 that she had not instructed the Defendant to serve legal notice dated 30.07.2008 upon the plaintiff.

DW2 Shri Harender Mudgal has also stated that his wife had given a vakalatnama to the Defendant before sending notice to the plaintiff. There is o suggestion to this witness that no vakalatnama was given by Smt. Sangita Mudgal to the Defendant for serving the plaintiff legal notice dated 30.07.2008 which is Ex.PW1/6.

Smt. Sangita Mudgal could not be cross examined b y the plaintiff as she did not enter witness box. Legal notice dated 30.07.2008 is not signed by Mrs. Sangita Mudgal. There is no legal requirement that notice sent by a counsel on behalf of h is client be signed by the client as well.

Considering the fact that the evidence of DW1 and DW2 has remained unchallenged with regard to vakalatnama given by Smt. Sangita Kudgal it is held that the Defendant took a vakalatnama Ex.DW1/1 from Smt. Sangita Mudgal before serving legal notice dated 30.07.2008, upon the plaintiff." (Emphasis added)

I do not find any illegality or perversity in the finding and conclusion of the Trial Court that there was due authorization by the client, Smt. Sangita Mudgal to the Respondent/Defendant to send the legal notice.

The Trial Court has also given a finding of fact that the Appellant/plaintiff failed to prove publication and which was necessary to succeed in a suit for defamation. The relevant paras of the impugned judgment and decree are paras 64 to 69 of the impugned judgment and decree which read as under:

"64. To the objection of the Defendant that there is no publication, the plaintiff stated in the replication that "facts of how and when notice of 30.07.2008 was received how served or treated whatever required for this plaint has been given and the rest if required would come in appropriate stage."

The plaintiff relied upon the following from his replication to show publication "Enquiry made plaint serve to multiple Defendant in Suit No. 03/08 pending in this Court admittedly case filed for false criminal defamation by some Defendant concerned therein the suit, family members obviously going through friends coming round all derivable and the flow of news, multiplying years, whispered and whispering all nothing other than the publication and the like factors focuses more of the same misconceived by the answering Defendant."

The above allegation of publication in replication is no publication because pleadings of publication are missing in the plaint and the publication imputed in para 65 above is vague and ambiguous.

Only in the evidence by way of affidavit, the plaintiff stated that the notice in question was read by his daughter and told to plaintiff when other family members were present along with some neighbours.

There is no such pleading of the plaintiff in the plaint that the notice was read by the daughter of the plaintiff in the presence of family members and neighbors. Something which is not pleaded cannot be proved. There is no evidence of minor daughter, family member or neighbours about alleged publication of the notice dated 30.07.2008.

Therefore, there is no defamation.

(Emphasis added)

I agree.

In view of the above, I do not find any merit in the appeal, which is therefore dismissed, leaving the parties to bear their own costs.

Caveat No. 135/2011

Since no one appears for the caveat or and the main appeal is disposed of, caveat is also disposed of having become in fructuous.

CM No. 3207/2011

Since the main appeal is disposed of, the application is also disposed of having become infructuous.