1. Admit. Heard finally by consent of the learned counsels appearing for the parties.
2. In Regular Civil Suit No.17 of 2013 for grant of damages of Rs.25,00,000/- for the per se defamatory publications and for grant of permanent injunction restraining the defendants-owner, printer and publisher of daily newspaper âSanj Daily Lokopacharâ from publishing news items of defamatory and malicious in nature against the plaintiff and his family members, the Trial Court has passed an order of temporary injunction on 15-3-2014. The defendants are restrained temporarily from publishing any defamatory article as well as other article relating to plaintiff and his family members, till the final decision of the suit. The original defendants are before this Court in this appeal under Order XLIII, Rule 1(r) read with Section 104 of the Civil Procedure Code. The parties shall hereinafter be called according to their original status as 'plaintiff' and 'defendants'.
3. Plaintiff Gokul Govindlal Sananda alleges that he and all his family members, including his four married sons, viz. (i) Dilipkumar Gokulchand Sananda, (ii) Rajendra Gokulchand Sananda, (iii) Ashokkumar Gokulchand Sananda, and (iv) Mukeshkumar Gokulchand Sananda are tax payers, agriculturists, businessmen and occupying various high ranking positions in private educational institutions, public religious and charitable Trusts, the municipal and local bodies, the co-operative banks and rendering social service, having very high respect, reputation and esteem in the Society. Son Dilipkumar Gokulchand Sananda is a sitting Member of Legislative Assembly, having enjoyed continuously three terms and leading a social and public life. Second son Rajendra Gokulchand Sananda is a businessman and was a Chairman of Janta Commercial Co-operative Bank Ltd., Khamgaon and also a Director of Agriculture Produce Market Committee, Khamgaon. He claims to be working with Shree Swami Samarth Religious Trusts, known to the public at large. Third son Ashokkumar Gokulchand Sananda was the President of Khamgaon Municipal Council and is occupying the position as a Leader of the opposition party, having contributed in social and educational fields. Fourth son Mukeshkumar Gokulchand Sananda is a businessman running an Oil Mill and dealing with oil and cotton products. The plaintiff claims that his entire joint Hindu family is contributing in various social, educational and religious fields and they are carrying out upliftment and development in the Society at large through their emerged and efficient efforts.
4. It is alleged in the plaint that defendant Kishor Babubhai Ruparel is the tenant in the house property purchased by Dilipkumar Gokulchand Sananda, the son of the plaintiff, and was defaulter in paying regular rent. There is a dispute between the landlord and tenant and the said defendant is being proceeded with for eviction and possession. As a counterblast, it is alleged that the said defendant is engaged in the activities of wild, reckless and irresponsible journalism by publishing per se defamatory articles, news items and photographs in the newspaper âSanj Daily Lokopacharâ contrary and in defiance of all ethics of journalism, without verifying the truthfulness, public interest and the correctness of the news. Various instances are quoted in the plaint to demonstrate that a series of per se defamatory articles/photographs and news items containing innuendo are being published against the plaintiff and his family members daily. The defendants are calling the plaintiff as illegal money lender, goonda and don in illegal business of desiliquor. One of the sons of the plaintiff is described as bewada(addicted to liquor). The deceased wife of the plaintiff is described as Mandodari, the wife of Ravan. Another son, who is a sitting Member of Legislative Assembly, is described as matimand(retarded), balishand matka king. The family members of the plaintiff have also been called as 'Seth', 'Baba', causing harm to their reputation and image in the public at large. It is also alleged that this is violating the right of privacy of family members of the plaintiff causing unlawful attack on the honour and reputation.
5. The defendants have filed written statement and reply to the application for grant of temporary injunction. The relationship of the plaintiff and the family members is not disputed, though a plea regarding joint family of the plaintiff has been denied. The defendants admit that the plaintiff and all his family members are the public figures. The contention that the plaintiff and his family members carry very high respect, reputation and esteem in the Society, is denied. The relationship of the defendant Kishor Bababhai Ruparel with Dilipkumar Gokulchand Sananda as landlord and tenant, is disputed. It is admitted that the defendant Kishor Ruparel is the owner, printer and publisher of daily newspaper âSanj Daily Lokopacharâ. It is denied that the articles, news items, photographs of the plaintiff and his family members published in the said newspaper are per se defamatory. The averment regarding the plaintiff and his family are described as illegal money lenders, goonda, don, bewada, seth, baba, Mandodari, etc., are denied. It is also denied that the articles, news items and photographs are published without verifying truthfulness.
6. It is the specific stand taken in the written statement that whatever articles, news items and photographs in respect of the plaintiff and his family members are published in the said newspaper, the same are made with responsibility after proper verification in respect of their truthfulness. It is the stand taken that the news items in respect of the bank are also in utmost public interest and are published with greatest responsibility. It is the stand taken that the public at large is put on guard in having transactions with the said Janata Commercial Co-operative Bank Ltd., Khamgaon, controlled by the family members of the plaintiff. It is also the stand taken that the plaintiff and his family members have longstanding criminal antecedents and they are chargesheeted for that. The defendant claims that he professes journalism impartially, without fear or favour and he proposes to justify all such publications by producing material on record. It is the stand taken that the defendants honestly believe that the contents of articles, news items and photographs are true and correct and proposes to establish the same. It is the stand taken that the publications are based upon the public record, including the chargesheets and the judgment of this Court and of the Apex Court, in which very scathing observations are made against the members of the family of the plaintiff and it remains no longer a right of privacy. All the comments in the newspaper amount to fair criticism and bona fide. It is the stand taken that the defendant exercises his fundamental right under Article 19(1)(a) of the Constitution of India in publishing the articles, news items and photographs of the plaintiff and his family members making out a case under First and Third Exceptions below Section 499 of the Indian Penal Code.
7. The Trial Court has gone through the averments made in the plaint and the written statement. It notes that the defendants have published various new articles referring to various criminal cases against the plaintiff and his family members. The judgments in number of money lending cases against Dilipkumar Gokulchand Sananda are produced. It is observed that the defendants have neither produced any document to support their new items about Matka King, Cyber Crime, Matimand, Balishand other per se defamatory words nor produced any affidavits of witnesses to support those contentions. It records the finding that the provision of law is that the defamatory articles are presumed to be false unless contrary is proved. The decision of the Apex Court in the case of R. Rajagopal alias R.R. Gopal and another v. State of Tamil Nadu and others, reported AIR 1995 SC 264, on the question of right to privacy under Article 21 of the Constitution of India is referred to and the finding is recorded that the plaintiff has right to safeguard the right of privacy of his own and family members. It has been held that the items published have no concern with the public interest and show that the entire family members of the plaintiff have been defamed. The finding is also recorded that if the news items are perused minutely, it cannot be said that those defamatory words are necessary for public good or public interest. The articles are based upon the rumours and the freedom of press is not absolute, unlimited or unfettered. The Court has held that as per Section 38 of the Specific Relief Act, an injunction can be granted to prevent the breach of an obligation.
8. In paras 112 and 116, the Trial Court has held as under:
â112. In addition to that, learned advocate for defendants argued that injunction cannot be granted as equally efficacious remedy of damages is available to plaintiff. But it is well settled position that there is nothing important than reputation to a person. Reputation cannot be compensated in terms of money. A person requires years together to earn reputation, but it goes away within a moment. Right of freedom, speech and expression is subject to various restrictions like respect of the right and reputation of other. The defendants could have published these news articles in the better language without using defamatory words if it was for public interest.â
â116. The facts of present case are very peculiar in nature. There is relation of landlord and tenant between plaintiff's son and defendant no.2. Their relations are strained. The nature of news articles published by defendants sufficiently show the intention of defendants to defame plaintiff and his family. Hence, under such circumstances, it would not be proper to modify the earlier order. Considering the entire facts, I find that balance of convenience tilts more in favour of plaintiff than defendants.â
The operative portion of the order of temporary injunction passed by the Trial Court on 15-3-2014 is reproduced below:
â1) Application Exh 5 is allowed.
2) The defendants, their agents, servants, publisher, distributors, workers, assignees, representatives, heirs, or anybody on behalf of the defendants are hereby temporarily restrained from publishing any defamatory article as well as other article relating to plaintiff and his family members, till final decision of this suit.
3) Costs in the cause.â
9. Shri Sangram Sirpurkar, the learned counsel for the plaintiff, has relied upon Article 21 of the Constitution of India to claim a right of privacy read with Sub-Article (2) of Article 19 of the Constitution of India and the provision of Section 499 of the Indian Penal Code. Shri S.M. Gordey, the learned Senior Advocate, assisted by Shri B.G. Kulkarni, Advocate for the defendants, has relied upon the fundamental right of freedom of speech and expression enshrined under Article 19(1)(a) of the Constitution of India read with First and Third Exceptions below Section 499 of the Indian Penal Code.
10. For the sake of convenience, the provision of Article 19(1)(a) and (2) of the Constitution of India being relevant, is reproduced below:
â19. Protection of certain rights regarding freedom of speech, etc.
(1) All citizens shall have the right â
(a) to freedom of speech and expression;
(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with Foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.â
Section 499 of the Indian Penal Code is also relevant and hence it is reproduced below :
â499. Defamation. - Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.
Explanation 1. â It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives.
Explanation 2. â It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.
Explanation 3. â An imputation in the form of an alternative or expressed ironically, may amount to defamation.
Explanation 4. â No imputation is said to harm a person's reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.
First Exception â Imputation of truth which public good requires to be made or published. â It is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact.
Second Exception â Public conduct of public servants. â It is not defamation to express in good faith any opinion whatever respecting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no further.
Third Exception â Conduct of any person touching any public question. â It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct, and no further.â
The fundamental right under Article 19(1)(a) of the Constitution of India provides freedom of speech and expression, including that of Press publication. It is controlled by Article 19(2) of the Constitution of India, which contains a safeguard of reasonable restrictions on exercise of such right. In terms of Section 499 of the Indian Penal Code, whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases covered by the Exceptions below it, to defame that person.
11. Thus, the fundamental right under Article 19(1)(a) of the Constitution of India is not an absolute or unfettered publication of any imputation causing or intending to cause harm to the honour and the reputation of any person by making reckless and wild allegations of a defamatory nature. Such an act is not permissible, under the garb of exercise of right of freedom of speech and expression enshrined under Article 19(1)(a) of the Constitution of India. If an act of defamation, as contemplated under Section 499 of the Indian Penal Code, is committed, Section 500 of the Penal Code provides the punishment for a term of two years or with fine or both under Section 500 of the Penal Code. The Exceptions below Section 499 of the Penal Code, however, provides protection from punishment if a case is made out under the said Exceptions. This can also be a protection from any tortious liability of libel. Thus the burden of proof to establish a case of defamation or libel is on the complainant or the plaintiff, who has come before the Court with such a case and the burden of proof to establish that the case falls under any of the Exceptions below Section 499 of the Indian penal Code is upon the person, who commits an alleged act of defamation.
12. The law on the question of grant of temporary injunction restraining the defendant from publishing an article, news item or picture of a defamatory character, is by and large settled. The judgment of the learned Single Judge of this Court, referred to by Shri Gordey, in the case of Abdul Wahab Galadari v. Indian Express Newspapers (Bombay) Ltd., and others, reported in AIR 1994 Bombay 69, has considered the principles of law in England and India. Paras 20, 21, and 22 of the said judgment being relevant, are reproduced below:
â20. A plea of justification especially put forth by the newspaper is the subject of judicial pronouncements. For example in a case of Fraser v. Evans and others, (1969) 1 All ER 8 Lord Denning observed:
âThe Court will not restrain the publication of an article, even though it is defamatory, when the defendant says that he intends to justify it or to make fair comment on a mater of public interest. That has been established for many years ever since Bonnard v. Perryman (1) The reason sometimes given is that the defences of justification and fair comment are for the jury, which is the constitutional tribunal, and not for a judge; but a better reason is the importance in the public interest that the truth should be out.ââ
â21. The next is the case of Harakas and others v. Baltic Mercantile and Shipping Exchange Ltd. and another, reported in (1982) 2 All ER 701, again Lord Denning observed (at page 703):
âThis case raises a matter of principle which must be observed. This Court never grants an injunction in respect of libel when it is said by the defendant that the words are true and that he is going to justify them. So also, when an occasion is protected by qualified privilege, this Court never grants an injunction to restrain a slander or libel, to prevent a person from exercising that privilege, unless it is shown that what the defendant proposes to say is known by him to be untrue so that it is clearly malicious. So long as he proposes to say what he honestly believes to be true, no injunction should be granted against him. That was made clear in Quartz Hill Consolidated Gold Mining Co. v. Beall, (1882) 20 Ch D 501.â
â22. The same view has also been adopted by the Division Bench of this Court comprising of Mookerjee, C.J. And Smt. Sujata Manohar, J. in an Appeal No.464 of 1989 from Notice of Motion No.48 of 1989 in Suit No.3907 of 1988 in the case of Dr. Yashwant Trivedi v. Indian Express Newspapers (Bombay) Pvt. Ltd. and Ors., decided on 29th June, 1989 and the ratio in the case of Harakas and Others v. Baltic mercantile and Shipping Exchange Ltd., and another (supra) and in particular the portion quoted above has been approved. The Division Bench also observed that:
âThe crux of the matter is that when in a libel action at the interlocutory stage the defendant raises plea of justification and, as in this case, mentions evidence by which he might substantiate his case, the Court is unlikely to grant an interlocutory injunction in favour of the plaintiff to restrain further publication of the alleged libel.â
In the said Judgment the passage appearing in the treatise on Libel and Slander by Gatley, Eighth Edition, has been provided with approval which is also quoted hereinbelow:
â1574. Justification; Where the defendant swears that he will be able to justify the words â unless the Court is satisfied that he will not be able to do so. The validity of a justification, if pleaded, is eminently a matter to be determined by a verdict of a jury. When once a defendant says that he is going to justify the words complained of, there is an end of the case so far as an interim injunction is concerned, although in a proper case it may be that the Court will intervene on the ground of a breach of confidence.â
13. In the decision of the Division Bench of Madras High Court, referred to by Shri Gordey, in the case of R. Rajagopal @ R.R. Gopal @ Nakkheeran Gopal v. J. Jailalitha, decided on 6-4-2006, the Court has taken review of English as well as Indian cases. It considers the celebrated case of R.R. Gajagopal @ R.R. Gopal v. State of Tamil Nadu, reported in (1994) 6 SCC 632, referred to by Shri Sirpurkar, dealing with the right of privacy of citizens of the country under Article 21 of the Constitution of India and the parameters of the right of the press under Article 19(1)(a) therein to criticize and comment on the acts and conduct of public officials. It has been held that though the right to privacy can be characterized as fundamental right, it is not an absolute right. It has been held that in a democratic set up, a close and microscopic examination of private life of public men is a natural consequence of holding of public offices. It has been held in para 30 that what is good for a private citizen who does not come within the public gaze may not be true of a person holding public office. What a person holding public office does within the four walls of his house does not totally remain a private matter. It has been held that the scrutiny of public figures by media should not also reach a stage where it amounts to harassment to the public figures and their family members and they must be permitted to live and lead their life in peace. But the public gaze cannot be avoided which is necessary corollary of their holding public offices.
14. In para 28 of the judgment of Madras High Court in the case of R. Rajagopal @ R.R. Gopal @ Nakkheeran Gopal and another, cited supra, the decision of the Apex Court in the case of SakalPapers (P) Ltd. v. Union of India, reported in AIR 1962 SC 305, is considered on the right to publish and the freedom of press enshrined in Article 19(1)(a) of the Constitution of India. It has been held that the freedom of speech and expression of opinion is of paramount importance under a democratic constitution which envisages changes in the composition of legislatures and governments and must be preserved. It has been held that the interim order granted by the learned single Judge is a blanket injunction and it amounts to a gag order or censorship of press and such censorship cannot be countenanced in the scheme of our constitutional framework. It further holds that even assuming that the articles published by the appellants amount to character assassination of the respondents, there is no justification for granting a blanket injunction restraining the appellants from publishing any articles in future.
15. The principle of English law is that in case of an action for defamation, once the defendant raised the plea of justification at the interim stage, the plaintiff will not be entitled to interlocutory injunction. However, in India, mere plea of justification would not be sufficient for denial of interim relief. The defendant, apart from taking a plea for justification, will have to show that the statements were made bona fide and in public interest or public good and the defendant had taken reasonable care to ascertain the truth and that the statements were based on sufficient material, which would be tested for its veracity. The Court is entitled to scrutinize the material, which can be looked into even at the interlocutory stage. In case of conflicting interests under Articles 19(1)(a) of freedom of speech and expression and Article 21 regarding right of privacy, the Court has to strike the balance by segregating such interests. The Court has to consider the effect of one over the other. This cannot be done at an interlocutory stage, specifically when the allegations or aspersions are so interlinked that the in-house conduct of the plaintiff and/or his family members, which is connected with their public life outside the house, needs a closure scrutiny in public interest and an attempt is being made to honestly justify or establish the truth in the allegations or aspersions made through the articles, news items or pictures. The grant of temporary injunction would amount to prejudging the issue.
The remedy of the public figure would arise only when publication is made and there is no law under which the publication of defamatory material can be prevented [See :Govindv. State of Madhya Pradesh : (1975) 2 SCC 148]. The blanket order of injunction in such a situation prohibiting the press or media from publishing any kind of defamatory or libellous material would virtually amount to a gag order or censorship of the press.
16. In the present case, as per the averments made in the plaint itself, the plaintiff and his family members constitute a joint Hindu family consisting of at least some of the members occupying public offices. The defendants accept the position that the plaintiff and his family members occupy the public offices or figures and are the public officials. The plaintiff claims that all the members of his family are leading a social and public life. Though there is a dispute raised in respect of certain articles, news items and photographs regarding their nature being defamatory or libellous, some of the allegations or aspersions, no doubt, are defamatory and libellous in character. The defendants have produced on record the material indicating that various criminal cases are pending against the plaintiff and his family members, including those under the Bombay Money Lenders Act. The Trial Court has recorded the finding that the judgments in number of money lending cases against Dilipkumar Gokulchand Sananda are produced. One of such judgments being the decision of the Apex Court in SLP (Cri.) No.2614 of 2009 (State of Maharashtra and Ors. v. SarangdharsinghShivdassingh Chavan and Anr), in which it is claimed that very scathing observations are made by this Court against the plaintiff and his family members. The portion from the concurring judgment delivered by His Lordship G.S. Singhvi in para 9, which is reproduced below:
â9. The facts of this case, as noticed in the judgment prepared by brother Justice Ganguly, show that with a view to frustrate the complaint made by respondent No.1 who alleged that respondent No.2-Gokulchand Sananda, his family members and some other money lenders were harassing him and other farmers and also to stall the action likely to be initiated by the concerned police authorities under the Bombay Money Lenders Act, 1946. Shri Dilip Kumar Sananda, a member of the Legislative Assembly approached the Chief Minister for a special treatment. In the first place, the Principal Secretary of the Chief Minister made enquiries from the police station about the cases registered against Sananda. Thereafter, the Chief Minister, without verifying the truthfulness or otherwise of the assertion of Shri Dilip Kumar Sananda that false complaints were being lodged against his family members, issued instructions that complaint against the concerned M.L.A. and his family members should be first placed before the District Anti-Money Lending Committee, which should obtain legal opinion of the District Government Pleader and then only take decision on the same and take appropriate legal action. The camouflage of sophistry used by Shri Vilas Rao Deshmukh in the instructions given by him and the affidavit filed before this Court is clearly misleading. The message to the authorities was loud and clear i.e. they were not to take the complaints against Sananda family seriously and not to proceed against them. The District Magistrate, the District Superintendent of Police and officers subordinate to them were bound to comply with the same in their letter and spirit. They could disregard those instructions at their own peril and none of them was expected to do so. The District Anti-Money Lending Committee was constituted by the Government of Maharashtra vide resolution No.MLA. 1204/CR/280/C/7/S dated 19th October, 2009 for protecting the farmers against unscrupulous money lenders and not for protecting the wrong doers, but in total disregard of the scheme of the Act, the Minister gave instructions which had the effect of frustrating the object of the legislation enacted for protection of the farmers. The instructions given by the Chief Minister to District Collector, Buldhana were ex facie ultra vires the provisions of the Act which do not envisage any role of the Chief Minister in cases involving violation of the provisions of the Act and amounted to an unwanted interference with the functioning of the authorities entrusted with the task of enforcing the Act enacted for regulating, controlling transactions of money lending and protecting unsuspecting borrowers against oppression and harassment at the hands of unscrupulous money lenders.â
17. In the written statement, a reference is made to the public notice issued by the Reserve Bank of India in several newspapers in respect of the restrictions put on the Janata Commercial Bank Ltd., Khamgaon, with which the close connection and control of the plaintiff and his family members is sought to be established. The attempt on the part of the defendants to establish the defamatory allegations prima facie seems to be in good faith and for public good and interest by producing the material on record. The Trial Court has committed an error in holding that the provision of law is that the defamatory articles are presumed to be false unless contrary is proved. It has also committed an error in prejudging the issue by holding that the items published have no concern with the public interest or for public good. The allegations or aspersions made in the articles prima facie seem to be interlinked.
The grant of blanket order of injunction cannot, therefore, be countenanced and it will have to be set aside. Shri Sirpurkar, the learned counsel appearing for the plaintiff, has relied upon several decisions referred to by the Trial Court in the impugned order. However, I do not find it necessary to refer to those judgments at this stage.
18. In the result, the appeal is allowed. The order dated 15-3-2014 passed below Exhibit 5 by the Trial Court in Regular Civil Suit No.17 of 2013, is hereby quashed and set aside. The application at Exhibit 5 is dismissed. No order as to costs.