K.N. Palaniswamy Gounder vs P. Subramanian

N.V. Balasubramanian, J.—This appeal is preferred against the judgment and decree in O.S. No. 121 of 1986 on the file of Subordinate

Judge, Tiruppur dated 29.9.1988. The plaintiff is the appellant and the defendant in the suit is the respondent herein. The appellant herein filed the

suit for the recovery of damages of a sum of Rs. 50,000/-. The case of the appellant is that the he was the Secretary of Koduvai Survodaya

Sangam which was allied to Tamil Nadu Survodaya Sangam and there was a Trust Board to conduct the affairs of Koduvai Survodaya Sangam. It

is stated that the appellant was an employee of the Sangam and he became the Secretary of the Sangam and daring the relevant time, the appellant

was the Treasurer of the Tamil Nadu Survodaya Sangam. It is also stated that the respondent herein was also an employee of Koduvai Survodaya

Sangam and he was removed from service. It is stated that on 13.3.1986 when the Trust Board of Koduvai Survodaya Sangam was holding its

meeting in the Sangam premises, the respondent distributed a notice dated 13.1.1986 (Ex.A-1) levelling accusations against the appellant, the list

of which is given in the plaint. It is stated that the accusations are very serious in nature such as, misappropriation of funds by the appellant,

preparation of false vouchers by him and purchasing lands at underestimated price by the appellant. It is stated that the respondent issued the

notice to all members of the Trust Board when the meeting was going on. The appellant also issued a notice dated 20.3.1986 to the respondent

claiming damages of a sum of Rs. 1 lakh to which the respondent did not send any reply. The appellant has filed the suit on the ground that the

respondent has published defamatory allegations against him in the notice issued by him (Ex.A-1) and the appellant suffered mental agony as well

as sustained physical harm as the members of the Trust Board questioned him as to the contents of the notice and hence, the suit has been filed

claiming damages and though the appellant estimated the damages at Rs. 1 lakh, he restricted his claim to a sum of Rs. 50,000/-.

The respondent in his written statement contended that he was not liable to pay any damages as there was no basis for estimating the damages

at Rs. 50,000/- and he denied the distribution of the notice in the meeting of the Trust Board. The respondent has also stated that there was

personal enmity between the appellant and the respondent and the appellant has dismissed the respondent from service arbitrarily. It is also stated

that the respondent has suffered by the wrongful action of the appellant. The respondent has denied that the appellant suffered damage to his

reputation because of the acts of the respondent. The respondent has also denied that he published or distributed the notice.

On the basis of the above pleadings, learned Subordinate Judge framed necessary issues and after recording evidence, oral and documentary,

learned Subordinate Judge came to the conclusion that the respondent published accusations against the appellant and the respondent also issued

the notice (Ex.A-1) against the appellant and the accusations made in the notice were not true and there was reason to believe that the respondent

intended to harm the reputation of the appellant and therefore, the appellant was entitled to damages. Since the appellant was the Secretary of

Koduvai Sangam and later he became the Secretary of Tamil Nadu Survodaya Sangam, learned trial Judge held that the appellant would be

entitled to damages of a nominal sum of Rs. 1,000/-.

Learned trial Judge, however, framed an additional issue and while answering the additional issue, held that the appellant has not filed the suit as

Secretary of the Sangam and on behalf of the Sangam, but the averments made in the plaint do not disclose that the suit was filed by the Secretary

of the Sangam and on behalf of the Sangam, but the plaint proceeds on the basis that the suit was filed by the appellant in his individual capacity

and hence, the suit as framed was not maintainable. Learned trial Judge answered the additional issue against the appellant and dismissed the suit.

As against the judgment and decree of the trial Court, the present appeal has been filed by the appellant/plaintiff.

After hearing learned counsel for the parties, we find that the following two points arise for consideration:

(1) Whether the trial Court was correct in framing the additional issue for consideration?

(2) Whether the trial Court was correct in answering the additional issue against the appellant?

As already noticed by us, the trial Court found that the respondent herein has published accusations against the appellant in Ex.A-1 notice and

the accusations are not true and the accusations were made by the respondent with a view to damage the reputation of the appellant and there is

reason to believe that the accusations were made only to harm the reputation of the appellant and hence, the appellant would be entitled to

damages of a nominal sum of Rs. 1,000/-. The finding of the trial Court has not been challenged by the respondent either by preferring cross-

objections or no serious attempt has been made before us to challenge the said finding. We have also gone through the contents of Ex.A-1 and we

uphold the finding of the trial Judge that the respondent has made serious accusations against the appellant with a view to cause damage to the

reputation of the appellant and fair name of the appellant and the appellant has also sustained mental and physical injury and the appellant would be

entitled to damages. Accordingly, we affirm the finding of the trial Court on this aspect on the ground that the finding of the trial Court is reasonable

and sustainable on the facts of the case.

The submission of learned counsel for the appellant is that the trial Court was not correct in framing an additional issue and answering the said

issue against the appellant without giving an opportunity to him to show that the suit was maintainable. Learned counsel referred to the decision of

the Privy Council in AIR 1930 57 (Privy Council) ) and submitted that since the respondent has not raised a plea of maintainability of the suit in the

written statement filed by him, no evidence could be looked into on a plea which was never put forward. Learned counsel also relied upon the

decision of this Court in C.A. Khaja Mohidden Sahib and Others Vs. The Madras State Wakf Board and Others, wherein a learned Judge of this

Court held that framing of additional issue as to waiver of notice is not competent when the defendant has not filed amendment of written statement

raising the additional plea. He also referred to the Division Bench judgment of Rajasthan High Court in Umrao Singh Dhabariya Vs. Yashwant

Singh Nahar and Others, and the decision of Orissa High Court in Dulana Dei alias Dolena Dei Vs. Balaram Sahu and Others, . He submitted that

on the basis of the above decisions, since the respondent has not raised any plea in the written statement that the suit is not maintainable, the trial

Court was not correct in framing the additional issue.

We are unable to accept the submission of learned counsel for the appellant as regards the framing of additional issue. The question of reframing

of issue was the subject matter of consideration by a Division Bench of this Court in J.K. Abdul Jabbar Rowther Vs. V.J. Mani Raj and Others, )

wherein this Court held that the Court is always competent and also entitled to recast an issue before judgment and it is not necessary for the Court

to issue notice to the parties when proper issue was not framed. This Court referred to Order 14, Rule 5 C.P.C. which deals with the powers of

the Court to frame additional issues at any point of time before passing the decree for the purpose of determining the matter in controversy

between the parties. We are of the view that the decision of this Court, in Abdul Jabbar Rowther case, cited supra, would squarely apply to the

facts of the case.

Moreover, when the appellant was examined as P.W.1 he was questioned with reference to the maintainability of the suit and in his cross-

examination he has stated that he filed the suit as Secretary of the Sangam and on behalf of the Sangam. After the cross-examination was over, a

resolution in Ex.A-14 was passed by the Sangam and that was also produced. It is not a case where the appellant was taken by surprise by the

additional issue as the appellant was examined with reference to the maintainability of the suit filed by him in his individual capacity and hence, the

decisions relied upon by the learned counsel for the appellant are not applicable. On the other hand, we are of the view, the decision of this Court

in Abdul Jabbar Rowther case would apply and the trial Court was perfectly justified in framing the additional issue as the issues already framed

did not cover the entire dispute between the parties and the parties also let in evidence on the maintainability of the suit and hence, no prejudice

was caused to the appellant by the framing of additional issue. On the facts of the case, we hold that the additional issue was properly framed by

the learned trial Judge and it covered the entire controversy between the parties. Hence, we do not find any reason to interfere with the judgment

of learned trial Judge in respect of framing of additional issue.

The next question that arises is whether the suit as framed is proper or not. We find that learned trial Judge was not correct in answering, the

additional issue against the appellant. A reading of the plaint as a whole clearly shows that the suit has been instituted by the appellant in his

individual capacity. The averments made in various paragraphs of the plaint clearly disclose that the appellant has suffered mental agony and it has

caused serious set back to his health. It is also stated that the allegations were made against him in his personal capacity. The averments made in

the plaint, particularly in paragraphs 9 and 10 clearly disclose that the suit has been instituted in his individual capacity and damages has also been

claimed only on the basis that the appellant would be entitled to claim damages in his personal and individual capacity. In our view, learned trial

Judge was not correct in focusing his attention to the statement made by the appellant in his cross-examination as P.W.1 where he has stated that

he sued as Secretary of the Koduvai Survodaya Sangam. We are of the view, that statement made in the cross-examination cannot be given much

importance or undue preference over the averments made in he plaint which clearly show that the suit has been instituted in individual capacity. The

evidence of P.W.1 also clearly discloses that averments have been made in the plaint only in his individual capacity. In his chief-examination, the

appellant has stated that he has suffered mental agony due to the false accusations made against him in his individual capacity and only on that

basis, he has claimed damages. Curiously, the trial Court also found that the appellant has suffered mental agony and torture and the accusations in

Ex.A-1 were made with an intention to harm the reputation and fair name of the appellant. We are of the view, a solitary statement made in the

cross-examination of the appellant cannot be given much importance than the averments made in the plaint as well as the evidence as a whole

which disclose that the suit has been instituted in his individual capacity.

As far as Ex.A-14 which has been relied upon by the learned trial Judge is concerned, it merely enables the appellant to get the reimbursement

of the expenses, but, it does not show that the suit has been instituted by or on behalf of the the Sangam. Apart from that, the notice issued prior to

the institution of the suit also clearly shows that the suit was intended to be filed against the respondent only in the appellant''s individual capacity

and not in the capacity of Secretary of the Sangam. Learned trial Judge, in our view, has completely overlooked the necessary over merits made in

the plaint and the conduct of the parties prior to the institution of the suit and during the trial of the suit, but on the basis of the statement made in

cross-examination of the appellant and also the documentary evidence Ex.A-14 wrongly came to the conclusion that the suit instituted was not

properly framed. We hold that the suit has been instituted in the individual capacity of the appellant claiming damages for the loss of reputation of

the appellant and the appellant is entitled to maintain the suit and the learned trial Judge was not correct in dismissing the suit only on the ground

that the suit instituted was not properly framed. Accordingly, we set aside the finding of learned trial Judge on the additional issue framed and hold

that the suit was properly framed. The result is, the appellant/plaintiff is entitled to a decree for a sum of Rs. 1,000/- as damages from the

respondent herein. The appeal stands allowed. Considering the nature of the suit, there will be no order as to costs.