Judgment:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN MONDAY, THE31T DAY OF MARCH201410TH CHAITHRA, 1936 AS.No. 515 of 1998 (C) ----------------------- AGAINST THE JUDGMENT
AND DECREE IN OS8321991 of ADDL.SUB COURT,KOTTAYAM DATED0706-1997 APPELLANT/DEFENDANT: -------------------- M.N.SASIKUMAR MADATHIL HOUSE PERIPPUKARA, OLESSA AYMANAM, KOTTAYAM BY SR. ADV. SRI.K.GOPALAKRISHNA KURUP RESPONDENT/PLAINTIFF: ---------------------------- P.N.GOPINATHAN NAIR PARAYIL GOPIVILASAM PERIPPUKARA, OLESSA AYMANAM, KOTTAYAM R, BY ADV. SRI.R.RAJASEKHARAN PILLAI THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON273.2014, THE COURT ON313.2014 DELIVERED THE FOLLOWING: ORDER
ON C.M.P.NO:
4191. OF1998IN A.S.NO:515 OF1998DISMISSED:
31. 3.2014 Sd/- K.SURENDRA MOHAN, JUDGE JJ /TRUE COPY/ P.S.TO JUDGE K. SURENDRA MOHAN,J ---------------------------------- A.S. NO. 515 OF1998& Cross Objections ----------------------------------- Dated this the 31st March, 2014. JUDGMENT
The defendant has filed this appeal challenging the judgment and decree dated 7.6.1997 of the Sub Court, Kottayam in O.S.832/91. The court below has, decreed the suit, awarding an amount of Rs.10,000/- as damages to the plaintiff with future interest thereon at the rate of 6% per annum. The defendant has filed this appeal challenging the judgment and decree. Being dissatisfied with the quantum of damages awarded, the plaintiff has preferred cross objections. The parties are referred to herein, in the manner in which they are arrayed in the suit. The facts of the case are summarized as under.
2. The plaintiff is working as the Superintendent of the Mechanical Workshop Division of Messrs. Hindustan Newsprint Limited. He holds a respectable and responsible position in A.S.515/1998 & Cross Objection 2 the company. The defendant, a neighbour of the plaintiff is not on good terms with him. There were disputes between them in connection with the putting up of a boundary fence to the plaintiff's property. The plaintiff had approached the Police also for necessary redressal. Out of animosity nursed by the defendant against the petitioner, it is alleged that he had made a false complaint to the Managing Director of Messrs. Hindustan Newsprint Limited. The defendant in his complaint alleged that the plaintiff had taken a bribe of Rs.15,000/- from him assuring that he would secure a job for the defendant as a typist in the company. However, he did not secure the job as promised. He also did not return the money that was received by him. He has further alleged that the plaintiff had received bribes from various other persons also.
3. According to the plaintiff, the allegations were all false and baseless and intended only to malign and destroy the fair name, dignity and prestige of the plaintiff. The allegations were actuated by the malice that the defendant had A.S.515/1998 & Cross Objection 3 against him.
4. Since the complaint of the defendant was written in Malayalam, it had to be translated by the other officials of the company for the benefit of the Managing Director. In view of the grave and serious allegations levelled against the plaintiff, the matter was referred to the vigilance department for enquiry and necessary action. The plaintiff was called upon to submit his explanation. Accordingly he submitted his explanation. But, it was ultimately revealed that the allegations were absolutely baseless and unfounded. According to the plaintiff, he had to undergo severe mental agony, stress and strain due to the allegations. He also had to suffer the disrespect of his fellow staff at the company. His good name was badly damaged and his prestige and reputation were lowered in the eyes of the staff members of his company and other members. He therefore claimed damages to the tune of Rs.25,000/- for the humiliation and loss of reputation. He also claimed an amount of Rs.25,000/- A.S.515/1998 & Cross Objection 4 as damages for his mental agony and suffering caused by the enquiry that was instituted and conducted against him. Thus a total amount of Rs.50,000/- with interest thereon at the rate of 12% per annum was claimed by the plaintiff.
5. The suit was resisted by the defendant contending that the suit itself was not maintainable. The defendant denied that there was any enmity between himself and the plaintiff. According to him there was no boundary dispute between them. The case of the defendant is that, the plaintiff had accepted an amount of Rs.15,000/- from the defendant promising to secure a job for him. The amount was paid in the presence of one Vijayakumar, Ganesh and Chandrasekharan. Since the plaintiff had not honoured his commitment, a complaint was made by the defendant to the Managing Director of the company. The complaint was made in good faith, stating the actual facts, for the public good. It is the case of the defendant that, the plaintiff himself had told him that he had secured jobs for others, in his company. The A.S.515/1998 & Cross Objection 5 complaint sent by the defendant was not intended to be published and since the complaint contained only statements that were true, the plaintiff is not entitled to recover any amount as damages. There was no intention to defame the plaintiff. The allegation that the plaintiff had suffered damages was denied. The defendant had issued a reply stating the true facts, to the notice dated 4.6.1991, issued by the plaintiff. For the above reasons, the defendant prayed for dismissal of the suit.
6. The suit was tried on the above pleadings. The evidence in the case consists of Exts.A1 to A13 documents on the side of the plaintiff and the oral depositions of P.Ws 1 to 3. The defendant marked Exts.B1 to B2 on his side and examined D.Ws 1 to 3 witnesses. Exts.X1 and X2 were marked as court exhibits.
7. The court below considered the contentions of the parties, the evidence on record and held that, the allegations contained in the complaint of the defendant were without any A.S.515/1998 & Cross Objection 6 basis and that they were actuated by the ill will nurtured by the defendant against the plaintiff. The court below held that there was no evidence to prove that the defendant had paid any money to the plaintiff as alleged. Since the allegations in the complaint of the defendant were false, it has been found by the trial court that the petitioner was entitled to claim damages for the injury caused to him. Accordingly, the suit has been decreed for an amount of Rs.10,000/- with future interest thereon at the rate of 6% per annum.
8. According to Adv.K.Gopakrishna Kurup, the learned senior counsel who appears for the appellant/defendant the trial court has gone wrong in insisting that, the time, place and manner in which the amount was paid to the plaintiff by the defendant ought to have been pleaded in the written statement. Those are matters of detail which can be proved only at the time of evidence. Inasmuch as proper evidence has been let in on the above aspects by examining witnesses, the court ought to have accepted the said evidence. Ext.A2 which A.S.515/1998 & Cross Objection 7 is the complaint sent by the defendant ought to have been held to have been made in good faith. Such complaint made to a person holding lawful authority over the plaintiff cannot be described as defamatory even if it contains accusations of a serious nature. It is also contended that the court below seriously erred in accepting the documents marked as Ext.X2 series. The court ought not to have been placed implicit reliance on the said documents. The court omitted to note that the allegations were not proved at the enquiry only because the defendant had not turned up to give evidence. Therefore, on the said basis the allegations cannot be dismissed as false and baseless. It is also contended that the finding of the trial court regarding the existence of malice on the part of the defendant against the plaintiff, is unsustainable. For the above reasons it is contended that the judgment and decree of the trial court are liable to be set aside.
9. According to Adv. R. Rajasekharan Pillai who appears A.S.515/1998 & Cross Objection 8 for the respondent, this is a case in which the trial court has found that no evidence has been adduced by the defendant to prove the allegations made by him against the plaintiff. Since the court has found that the allegations made are false and baseless, the trial court ought to have decreed the suit in toto and awarded the entire amount that was claimed as damages by the plaintiff. It is therefore contended that interference with the judgment and decree is necessary for the purpose of enhancing the compensation.
10. Heard. I have anxiously considered the contentions made on behalf of the rival parties. As rightly found by the trial court, it is not in dispute that the complaint Ext.A2 had been sent by the defendant. As per Ext.A1, the explanation of the petitioner was called for. His explanation is Ext.A3. As per Ext.A4 dated 1.3.1991 further proceedings in the matter have been dropped. But an enquiry into the allegations made in Ext.A2 complaint had been ordered for the purpose of ascertaining whether there was any truth in the allegations. A.S.515/1998 & Cross Objection 9 However, the defendant did not turn up despite being required to do so more than once. The said conduct of the defendant only shows that he was not at all serious in substantiating his allegations. No acceptable reasons are forthcoming for the said conduct of the defendant. The situation left the authorities of the Hindustan Newsprint Limited with no option but to close the entire proceedings holding that the allegations were false and baseless. The defendant has accepted the said proceedings, having not challenged the same in any other proceedings or sought for reopening the said proceedings at any time. Therefore, his contention that the allegations in Ext.A2 are genuine cannot be accepted for the above reason alone.
11. The trial court has gone into the question as to whether the allegations in Ext.A2 are genuine or not, in detail. Though the affidavit has stated that he had paid an amount of Rs.15,000/- to the plaintiff, the details regarding the said payment are not disclosed in the pleadings. In Ext.A2 his case A.S.515/1998 & Cross Objection 10 is that the amount was paid on different occasions. Whereas, his case in the evidence is that he had paid the entire amount on 10.6.1990. The sources from which he had raised the said amount are also not properly disclosed in the pleadings. The oral evidence let in are discrepant in many material particulars. The case that he had borrowed Rs.10,000/- from one Vijayakumar and raised Rs.5,000/- by pledging gold ornaments is only put forward in the evidence. In the evidence, what has come out is that the entire amount was paid on 10.6.1990. However, on 10.6.1990 the plaintiff was not in station. The trial court has highlighted the discrepancies in the oral evidence let in by the defendant. The trial court had the added advantage of seeing the witnesses, watching their demeanour and the manner in which they had responded to the cross examination. The trial court has not found their testimonies to be worthy of credence. The said discrepancies still loom large, seriously affecting the veracity of the testimonies. A.S.515/1998 & Cross Objection 11 12. Added to the above is the fact that, the petitioner was not in station on the date on which the payment is alleged to have been made i.e on 10.6.1990. He had gone to Madras in connection with his employment on 9.6.1990 and had returned only on 12.6.1990. Ext.X2 that was summoned by the court from the custody of P.W.3 the Deputy Manager (Personal and Administration) of Hindustan Newsprint Limited contains the bills relating to the travel of the plaintiff to Madras on 9.6.1990. He has returned home only on 14.6.1990. The travelling charge has been specifically mentioned in Ext.X2(b). Ext.X2(c) relates to the charges that he paid to the hotel for his stay. The defendant does not have a case that the amount paid to the plaintiff was on any other date. Since he was very specific regarding the date 10.6.1990, the case pleaded by the defendant has been rightly rejected by the court below. The evidence of P.W.3 coupled with Ext.X2 clearly prove that the plaintiff was not available at his house on the crucial date, 10.6.1990. Therefore, apart A.S.515/1998 & Cross Objection 12 from the fact that there is no evidence for the payment that is alleged to have been made by the defendant to the plaintiff, the manner in which the payment was made as well as the date on which the same was made are all unsupported by any evidence.
13. The resultant situation is that, though the appellant/defendant has a case that he had made the complaint in all earnestness stating the actual facts truthfully, the evidence points to the contra. The defendant had no source for the amount that is stated to have been paid, both himself and his brother having been under severe financial constraints as evident from the civil cases that were pending against them for recovery of amounts filed by the State Bank of Travancore, Kanjikuzhy branch. One is a case for the realisation of an amount of Rs.2,472/-. The suit was filed for the reason that, a cheque issued by D.W.3 had been dishonoured for want of funds. Therefore, from the available evidence on record, it is clear that, the defendant did not have A.S.515/1998 & Cross Objection 13 the financial capacity to pay the amount alleged to have been paid. The trial court has also found that there were reasons and circumstances to justify a conclusion that the plaintiff and the defendant were not on cordial terms with each other. The defendant had, according to the trial court made Ext.A2 complaint actuated by malice. The importance of personal malice or animosity need not be over emphasized for the reason that, even if it is assumed that the defendant had no personal malice he was not justified in preferring Ext.A2 complaint against the plaintiff making untrue allegations. The evidence on record clearly shows that the allegations made in Ext.A2 are false and baseless. Therefore, it could only have been made out of personal animosity. At any rate, it could not have been made in good faith. Therefore, the trial court is absolutely right in holding that the plaintiff was entitled to recover damages from the defendant.
14. Though the plaintiff has preferred cross objections disputing the quantum of damages awarded, I find that, he A.S.515/1998 & Cross Objection 14 has not let in any evidence in support of his claim for the amount of Rs.50,000/- that he has made. Therefore, I do not find any grounds to interfere with the quantum of damages awarded. For the foregoing reasons, the above appeal as well as the cross objections are dismissed. Sd/- K. SURENDRA MOHAN Judge jj /True copy/ A.S.515/1998 & Cross Objection 15 K.SURENDRA MOHAN, J.
--------------------- A.S.NO:515 OF1998& CROSS OBJECTIONS ----------------------- JUDGMENT
31T MARCH, 2014.