Miss Kamalini Manmade Vs. Union of India (Uoi) - Court Judgment

Tulzapurkar, J.

1. This is a suit filed by the plaintiff against the Union of India and five others to recover Rs. 1 lac as and by way of damages for defamation. The plaintiff's case, as set out in the plaint, may briefly be stated; On or about October 20, 1956, a telephone directory was published at the instance of defendants Nos. 1 and 2, in which against the telephone number and name of the plaintiff the following entry appeared in bold letters 'Miss Prostitution Solicitor' on page 138 thereof. In respect of this entry, which was prima facie defamatory of the plaintiff, a suit, being Suit No. 30 of 1958 was instituted by the plaintiff against the Union of India (present defendant No. 1) and Shri P.M. Agarwala (present defendant No. 2). In that suit the plaintiff: claimed a sum of Rs. 50,000 as and by way of damages for defamation for the said entry in the public telephone directory. Defendants Nos. 1 and 2 (who were also defendants Nos. 1 and 2 in that suit) filed their written statements but they pleaded an apology for the entry having appeared in the telephone directory through inadvertence and raised contentions in mitigation of the quantum of damages claimed by the plaintiff. It appeal's that the suit was heard on September 20/21, 1961, by Mr. Justice K.K. Desai and on these dates evidence of the plaintiff in chief was recorded. The suit was thereafter adjourned and it again came up on Board before the same learned Judge and was heard for three days viz. on October 10, 11 and 12, 1961, and the case was adjourned to October 16, 1961, on which day arguments were advanced on both the sides before the learned Judge and the suit was adjourned to the following day. It may be stated that defendants, Nos. 5 and 6 were the attorney and counsel representing defendants Nos. 1 and 2 in that case. On October 17, 1961, when the suit reached hearing at about 1.55 p.m. defendant No. 6 instructed by defendant No. 5 applied for an adjournment of the hearing of the suit by making a statement to the Court that their clients (meaning defendants Nos. 1 and 2) had evidence in their possession about certain facts viz. that the plaintiff was a divorcee, that she had been divorced by her husband on the ground of unchastity and immorality and that the plaintiff had a daughter, who had been married to one Bhavsav, but the plaintiff wanted her daughter to live with some other person. These facts were stated to the learned Judge for the purpose of getting an adjournment of the hearing of the suit since such evidence of the type mentioned by defendant No. 6 to the learned Judge would have gone a long way to mitigate the quantum of the damages that had been claimed by the plaintiff in, that suit,

2. (Note: At this stage the plaintiff requests that she may be permitted to leave the Court. Permission granted.).

3. This application for adjournment was made in the presence of the plaintiff and her advocate and solicitor. The learned Judge told defendant No. 6 to renew his application after the recess duly supported by a proper affidavit. It appears that prior to October 17, 1961, some offer had been made on behalf of defendants Nos. 1 and 2 to the plaintiff for settlement of the suit, which the plaintiff had shown her unwillingness to accept. When the Court resumed the hearing of the suit at 2.45 p.m. defendant No. 6 stated to the Court that an affidavit containing the relevant facts had been made and had been kept ready in support of the application for adjournment, but in the meantime the plaintiff had accepted the offer made by defendants Nos. 1 and 2 for settlement of the suit and in view of such acceptance of the offer there was no necessity to press the application for adjournment. It may be stated that the plaintiff thereafter accepted the offer of Rs. 15,000, which had been made on behalf of defendants. Nos. 1 and 2 in settlement of her claim in the suit, but on reflection after a few months the plaintiff took .steps for the purpose of setting aside the said settlement that had been arrived at between the parties. It is not necessary for me to set out here in detail as to what happened in all the several steps, which the plaintiff took for the purpose of setting aside the said settlement, but suffice it to say that all her attempts proved futile. The plaintiff has filed the present suit against the Union of India and five other defendants claiming damages for the alleged defamation said to have been made by defendants Nos. 5 and 6 (the attorney and the counsel, who appeared for defendants Nos. 1 and 2 in that suit) for the aforesaid statement made by defendant No. 6 as counsel of defendants Nos. 1 and 2 in Court on October 17, 1961. Damages are claimed against defendant No-. 5 for having instructed defendant No. 6 to make those statements in Court about the plaintiff and against defendant No. 6 for having actually made those statements against the plaintiff. Defendants Nos. 1 and 2 have been joined to this suit, inasmuch as the alleged defamatory statements were made by defendant No. 6 for and on their behalf. So far as defendants Nos. 3 and 4 are concerned, the plaintiff has alleged that in the proceedings which the plaintiff had taken for setting aside the settlement that had been arrived at between the parties, defendants Nos. 3 and 4 in their affidavits filed by them in those proceedings had repeated and reiterated all that had happened in Court on October 17, 1961. It is in these circumstances that the plaintiff has filed this suit claiming damages in the sum of Rs. 1 lac from all the defendants on the allegations that defamatory statements we're made by defendant No, 6 as instructed by defendant No. 5 for and on behalf of defendants Nos. 1 and 2 maliciously and with intent to lower her in the estimation of the public. She has alleged that she is a young, unmarried, ambitious lady from a respectable Maharashtrian family and she is a writer, publisher and an editor of certain magazines and that she is a well-known figure as a great social worker and by reason of the aforesaid unprofessional conduct on the part of defendants Nos. 5 and 6 transgressing their limits of professional decency and decorum they had defamed her by making those statements about, her character in open Court.

4. Defendants Nos. 5 and 6 have by their written statements 'raised several contentions by way of defence to the suit. In the first place, it has been contended by them that the alleged defamatory statements for which they are sought to be held liable were uttered in the ordinary course of a judicial proceeding and in the course of conduct of such proceeding and that, therefore, they were uttered on an occasion which the law regards as absolutely privileged and as such the suit is liable to be dismissed. In the alternative, it has been contended by them that in making the alleged defamatory statements referred to in the plaint, they acted reasonably and in bona fide discharge of their duties as attorney and counsel in good faith without any malice towards the plaintiff and on instructions from their clients, and that, therefore, the plaintiff's suit is liable to be dismissed. They have further contended that the plaintiff has not set out with precision or certainty the exact defamatory words alleged to have been spoken in Court on October 17, 1961, and that therefore, in the absence of such precise words spoken being stated with demureness the suit is liable to be dismissed. In their written, statements both these defendants have set out in great detail under what circumstances they made the application for adjournment to the Court on October 17, 1961, and how they had taken reasonable precautions and care before the alleged defamatory statements were uttered in Court and they have also set out in detail as to what exactly transpired in the Court on October 17, 1961 before the learned Judge. These defendants have also raised several other defences to the suit, which it is not necessary to set out in detail here. Rest of the defendants have also filed their written statements and have raised various contentions; in particular they have adopted all the legal contentions which have been raised by defendants Nos. 5 and 6 in their written statements pertaining to the occasion being absolutely privileged or at any rate one of qualified privilege.

5. Out of the several issues that arose from the rival pleadings of the parties, I directed that two issues should be tried as preliminary issues viz. (1) whether the alleged defamatory allegations were made on an occasion absolutely privileged and (2) if so, whether the plaint discloses any cause of action. On behalf of the defendants it was urged that the entire suit was capable of being disposed of on these two preliminary issues, for if the Court came to the conclusion that the occasion on which the alleged defamatory statements were uttered was one of absolute privilege, the plaintiff's action was liable to be dismissed. On the other hand, the plaintiff urged that without going into the evidence, it would not be possible for the Court even to decide the question of absolute privilege. The learned Counsel for defendants Nos. 5 and 6 pointed out that for the purpose of these two issues, the allegations made in the plaint may be assumed to be true and that on that basis as on demurrer the two issues should be tried as preliminary issues. It is obvious that if the two issues are to be tried as preliminary issues I shall have to proceed on the basis that all the allegations made by the plaintiff in her plaint are to be assumed to be true and it is on that basis that I propose to deal with the two preliminary issues.

6. At the outset, it may be stated that Mr. Diwan, appearing on behalf of defendant No. 5, has pointed out that the relevant allegations made by the plaintiff occurred in para. 6 of the plaint and contended that even if all these allegations were assumed to be true the plaintiff's suit was liable to be dismissed because on her own showing the plaintiff could be said to have admitted the position that the alleged defamatory statements were uttered on an occasion which was absolutely privileged. He contended that the rule of English common law pertaining to absolute privilege was applicable in India and had been adopted and applied by several Courts in India, at any rate to civil actions in damages for libel or slander. On the other hand, the plaintiff, who argued the matter in person, contended that in India a member of the bar did not enjoy absolute privilege and that at any rate in regard to criminal prosecutions for 'defamation the law was to be found in Section 499 of the Indian Penal Code and in view of such codification of law of defamation in India the English common law rule about the advocate having absolute privilege should be taken to have been abrogated and the same should not be applied to civil actions for libel or slander. In support of these rival contentions several authorities were relied upon.

7. Before I go to the several authorities, which have been referred to and relied upon on either side touching the question as to whether the English common law rule pertaining to absolute privilege is applicable in India and whether the same is applicable to civil actions for libel and slander, it would be desirable to set out the relevant allegations, which have been made by the plaintiff in her plaint, in order to find out whether on the basis of these allegations this occasion on which the alleged defamatory statements were uttered could be regarded as an absolutely privileged one or not. The relevant allegations occur in para. 6 of the plaint and they run as follows:

6. On 17th October 1961 when the suit was called out at 1.55 p.m. the defendants Nos. 5 and 0 on behalf of the defendants Nos. 1 and 2 in the above suit, declared that they had evidence against the plaintiff's 'bad character' alleging that she was a divorced wife of an alleged husband who divorced her on the ground of unchastity and immorality and secondly she was making her alleged daughter lead an immoral life which daughter was married to one Bhavsar, and that they wanted to lead the evidence of the alleged husband and son-in-law and therefore, pleaded an adjournment for that purpose, The plaintiff was completely shocked and dazed to hear such false, heinous, unthinkable, mean, callous allegations of the grossest kind of defamatory nature thrown on her all of a sudden as a stupefying surprise when the suit was ripef judgment and that too without the least notice to the plaintiff or to her counsel or to her solicitor.

These are the material and relevant allegations on which the entire cause of action of the plaintiff is founded. Incidentally, it may be stated that in para. 10 the plaintiff has gone on to state how and under what circumstances defendants Nos. 3 and 4 repeated and reiterated the same alleged defamatory statements made by defendant No. 6 in open Court by incorporating them in the affidavits, which those defendants filed in the proceedings which she had taken out for setting aside the settlement, but nothing new is alleged in para. 10 of the plaint.

8. From the relevant allegations, which I have quoted above, it will appear quite clear that on plaintiff's own admission the statements said to have been made by defendant No. 6 when he was instructed by defendant No. 5 were obviously made in Court on that day after the suit had been called out, and for the purpose of obtaining an adjournment to enable defendants Nos. 1 and 2 to lead evidence in mitigation of the quantum of damages claimed by the plaintiff. There could, therefore, be no doubt that the alleged statements were made or words spoken in the ordinary course of a judicial proceeding before a Court of law and in the conduct of a cause that was pending before the learned Judge. It is also clear that the words spoken by defendant No. 6 were in connection with or with reference to the cause that was pending before the Court and were not opprobrious or irrelevant to the cause. In fact, I may go a step further and point out that the plaintiff herself has in para. 8 of her plaint admitted at more than one place that the alleged defamatory words were uttered or statements made for the purpose of mitigating the damages that had been claimed by her in the suit. In para. 8 this is what she has averred:

The unprofessional conduct of the defendants Nos. 5 and 6 transgressing the limits, of their professional decency and decorum was heightened to a great extent when they declared and made such false and grossest of kind of defamatory allegations by their own mouth in a Court of Justice at such a stage when the suit was ripef or judgement and without a moment's notice to the counsel of the plaintiff, and in such a manner and that too for mitigation of damages after apology.

A little lower down in the same paragraph she has further averred as follows:

The defendants 5 and 6 with the deliberate intention and malicious motive to degrade the plaintiff made such false, grossest defamatory allegations against the plaintiff in such a manner and at such a stage and that too in mitigation, to achieve a purpose in which they had failed in their cross-examination of the plaintiff.

9. In view of the several averments made by the plaintiff in the plaint it will, therefore, appear quite clear that the alleged defamatory statements made by defendant No. 6 on October 17, 1961, were obviously in the ordinary course of a judicial proceeding and in the proper conduct thereof, before the learned Judge when the case had been called out and that the said statements were obviously relevant to the cause, and therefore', in my view, it is obvious that it was an occasion of absolute privilege.

10. I may observe that for the purpose of arriving at this conclusion, it was not necessary that any evidence should have been placed before the Court and I have come to this conclusion on the basis of the averments made in the plaint and I am proceeding on the basis that all the averments made in the plaint are to be assumed to be true.

11. The next question that I have to consider in this case is as to what is the legal position pertaining to this doctrine of absolute privilege. In this behalf Mr. Diwan has invited my attention to certain passages in Halsbury's Laws of England, Third edn. Vol. 24, paras. 89 onwards at pp. 4'9 to 52 and in Gatley on Libel and Slander. Before T go to para. 89 in Halsbury it would be useful to set out para. 86, which sets out the nature of absolute privilege. Paragraph 86 'runs as follows:

86. Protection according to the occasion. If the occasion of the publication of a defamatory and untrue statement concerning the plaintiff is privileged, the statement is absolutely or conditionally protected according as the occasion of the publication is an occasion of absolute privilege or an occasion of qualified privilege. If the occasion of the publication is one of absolute privilege, the statement also is absolutely privileged, and no action for defamation, either for libel or for slander, lies, whether the defendant was actuated by malice Or not.

Paragraph 89 sets out the categories when the occasions are regarded as of absolute privilege and one of such category mentioned is anything' said or uttered in the course of administration of justice. Paragraph 89, which deals with absolute privilege pertaining to the category of administration of justice, runs as follows:

89. Absolute privilege,-.No action lies, whether against judges, counsel, jury, witnesses, or parties, for words spoken in the ordinary course of any proceedings before any court or tribunal recognized by law. It is manifest that the administration of justice would be paralysed if those who were engaged in it were liable to actions of libel or slander upon the imputation that they had acted maliciously and not bona fide. Thus all witnesses or parties speaking with reference to the matter before the court have privilege for their evidence, whether oral or in writing, relevant or irrelevant, malicious or not. The privilege extends not only to words spoken but also to documents properly used and regularly prepared for use in the proceedings. Advocates are within the scope of this privilege, as also are juries and judges.

Reliance was also placed upon the passage occurring at para. 277 in Gatley on Libel and Slander (5th edn. p. 164), which runs as follows:

277. General rule. No action will lie for defamatory statements, whether oral or written, made in the course of judicial proceedings before a court of justice or a tribunal exercising functions equivalent to those of an established court of justice. The authorities establish beyond all question this : that neither party, witness, counsel, jury, nor judge, can be put to answer civilly or criminally for words spoken in office; that no action for libel or slander lies whether against judges, counsel, witnesses, or parties for words spoken in the course of any proceeding before any court recognized by law and this although the words were written or spoken maliciously, without any justification or excuse, and from personal ill will or anger against the party defamed. It is immaterial whether such proceedings take place in open court or in private, whether they are of a final or preliminary character, whether they are ex parte or inter partes, and whether the court has jurisdiction to deal with the matter before it or not. The authorities are clear, Uniform, and conclusive that no action of libel or slander lies, whether against judges, counsel, witnesses, or parties, for words written or spoken in the ordinary course of any proceeding before any court or tribunal recognized by law.

12. Mr. Diwan also invited my attention to certain observations of Chief Baron Pigott in Kennedy v. Hilliard (1859) 10 Ir. Cr. L.R. 195, S.C. 1 L.T. 78 which make it clear that the aforesaid rule of English common law is founded on sound public policy. The relevant observations run as follows:

I take this to be a rule of law, not founded on the absence of malice in the party sued, but founded on public policy, which require that a judge, in dealing with the matter before him, a party in preferring or resisting a legal proceeding, and a witness in giving evidence, oral or written, in a court of justice, shall do be his mind uninfluenced by the fear of an action for defamation or u prosecution for libel.

The aforesaid observations of Chief Baron Pigott were cited with approval by Master of Roll Brett in Munster v. Lamb (1882-83) 11 Q.B.D. 588 who added the words 'Into the rule thus stated the- word 'counsel' must be introduced'. Since this is a case concerning a counsel and an attorney, it would be pertinent to refer to the case of Munster v. Lamb, which dealt with the absolute privilege of a counsel. The first head-note appearing at p. 588 is most material and may be quoted:

No action will lie against an advocate for defamatory words spoken with reference to, and in the course of, an inquiry before a judicial tribunal, although they are uttered by the advocate maliciously and not with the object of supporting the case of his client, and are uttered without any justification or even excuse and from personal ill-will or anger towards the person defamed arising out of a previously existing cause, and are irrelevant to every issue of fact which is contested before the tribunal.

Lord Justice Fry has observed as follows in his judgment at p. 607 of the report:.The rule of law exists, not because the conduct of those persons ought not of itself to be actionable, but because if their conduct was actionable, actions would be brought against judge and witnesses in cases in which they had not spoken with malice, in which they had not spoken with falsehood. It is not a desire to prevent actions from being brought in cases where they ought to be maintained that has led to the adoption of the present rule of law; but it is the fear that if the rule were other wise, numerous actions would be brought against persons who were merely discharging their duty. It must always be borne in mind that it is not intended to protect malicious and untruthful persons, but that it is intended to protect person acting bona fide, who under a different rule would be liable, not perhaps to verdicts and judgements against them, but to the vexation of defending actions.

Reference may also be made to the case of Pedley and May v. Morris (1891) 65 L.T. 520 where a solicitor was sued in libel for having filed objections containing reflections upon the conduct and character of the plaintiff's solicitor, whose bill of cost was being taxed and it was held that the occasion being absolutely privileged no action in libel lay against the solicitor. It will thus appear from what I have said above that in England the common law rale has always been recognized that if anything is said or uttered by either a Judge, party, witness or counsel or attorney in the ordinary course of a judicial proceeding, no action in libel or slander lies for such words spoken or uttered, inasmuch as the occasion is regarded as an absolutely privileged one and it is also clear that the above rule is based on sound public policy to enable a Judge, party, witness, counsel or attorney to discharge his duty with a free mind uninfluenced by any feat of being sued for defamation or prosecuted for such libel.

13. The next question is as to whether this rule of common law obtaining in England has been recognized and applied by Indian Courts in our country. At the outset it may be stated that at one time there was divergence of opinion among the several High Courts as to whether this rule of common law regarding absolute privilege enjoyed by an advocate or counsel should be recognized and applied in this country and some older decisions of Calcutta and Allahabad. High Courts had taken the view, that it should not be applied in India. Besides, some doubt has also been expressed in some of the older decisions as to whether in view of the provisions of Section 499, Indian Penal Code, if the common law rule could be said to have been abrogated at least in regard to criminal prosecutions, the same should or should not be applied to civil actions instituted for libel or slander. But I may observe that so far as the applicability of this common law rule (that absolute privilege, is enjoyed by the advocates and counsel in regard to whatever is spoken or written during the course of a judicial proceeding) to civil actions in libel or slander is concerned, there is now preponderance of authority in favour of applying this common, law rule in :this country. I shall first refer lo sonic of the decisions of the other High Courts and then I will come to the decisions of this Court on the point.

14. In the Full Bench decision in the case of Chunni Lal v. Narsingh Das I.L.R (1917) All. 341 after overruling one of its previous decisions in Abdul Hakim v. Tej Chandar Mulcarji I.L.R.(1881) All. 815, the Allahabad High Court has accepted the view that in the absence of statute law in India regarding civil liability for libel, there was no reason why the English law applicable thereto should not be followed. After pointing out the difference obtaining in civil and criminal, law and procedure under the topic of defamation, the Court proceeded to observe as follows (p. 351) :.We therefore restrict ourselves to the civil wrong and the right to redress in a civil action. Next, it is clear (and is also admitted before us) that the English rule of law on the point for decision is well established and beyond discussion, and that under that rule the appellant before us would be absolutely protected. It is unnecessary, therefore, to discuss the English decisions on a principle which has been accepted for generations and has never been questioned in England. It has been recognized by Indian Judges. It had to be conceded before us that the High Courts of Bombay and Madras have applied it without hesitation, and that the latter has even gone to the extent of applying it to criminal cases, on the correctness of which we abstain from expressing any opinion.

There is no Statute in India dealing with civil liability for defamation. We have, therefore, to apply the rule of equity, justice and good conscience. This has been interpreted by the Privy Council in Waghela Rajsanji v. Shekh Masluddin , S.C.I.L.R. 11, Bom. 551, to mean the rules of English Law if found applicable to Indian society and circumstances. On behalf of the plaintiff respondent it is urged that in the present instance the rule of English law is inapplicable to the circumstances of this country, and that, whatever may have been the rule applied prior to 1860, the Legislature in introducing the Penal Code in that year did not apply the rule of English Law to criminal cases and may be said,, by implication, to have amended the civil law...

Reference has also been made to several decisions in criminal cases; but we decline to discuss them, for the reasons already given. In regard to the first part of the argument the learned advocate for the respondent has failed to show us what there is in the circumstances and society of this country that would make it improper or inadvisable to apply the English rule. It is suggested that the mass of the population is uneducated and more impulsive and sensitive and therefore more likely to take the law into its own hands if it cannot get redress for defamation, and that therefore it would not be sound public policy to enforce the English rule. We do not think that these are weighty reasons. The English Law does not seek to protect dishonest parties, witnesses or advocates; but deems it a lesser evil that they should escape than that the great majority of honest parties, witnesses and advocates should be exposed to vexatious actions. Unless it can be said that the great majority of these classes in India is dishonest, there can be no good reason against applying the same rule in this country. Needless to say this has not been urged before us, and in this instance we consider that what is sound public policy in England is equally sound policy in India and that the rule of English Law is in accordance with the principles of justice, equity and good conscience.

After referring' to the decision of the Calcutta High Court in Augada Ram shaha v. Nemai Chand Shaha I.L.R (1896) Cal. 867, and after observing that they were unable to agree with that decision, their Lordships further went on to observe as follows (p. 352) :.It appears to be based upon the assumption that there was no law of defamation in India before the Pental Codo. This is not the case, for there are reported decisions on the subject in this province as far back as 1852. Moreover, the learned Judges applied the test of the Criminal Law to the Civil Law, whereas we hold that the two are independent of each other.

Lastly, the plea that a criminal enactment can be interpreted as amending the civil law by implication stands unsupported. It may be anomalous that a party should be criminally punishable and yet be not civilly liable in a case like the present, but it is not the only anomaly in this branch of the law.

We therefore hold that defamatory words used on such an occasion as is alleged by the plaintiff in this suit are not actionable, on the ground of absolute privilege, and that the present suit fails.

This Full Bench decision of the Allahabad High Court, it may be stated, was not pointed out to the learned Judges of the same Court, who decided a subsequent case reported in Rahim Bakhsh v. Bacheha Lall : AIR1929All214 and it was held that the rule of English common law should not be applied to civil actions in libel in India. In Sumat Prasad Jain v. Sheodatt Sharma [1945] All. 702, the entire ease law has been discussed and following the Full Bench decision reported in Chunni Lal v. Narsingh Das, it has been held that on grounds of public, policy, an advocate, acting professionally in a cause, is absolutely protected from a suit for defamation for words spoken or written in his professional capacity in the course of the administration of the law in respect of that cause, even though the words are uttered without justification and maliciously and are irrelevant to any issue then before the Court. On the point as to -what is the effect of the Indian Penal Code on the immunity claimed under the English common law, it has been observed as follows in that case (p. 720) :.Whatever may be the proper view of the effect of the Indian Penal Code on the immunity of these classes from criminal proceedings for defamation and even if the exceptions by Section 499 of the Code arc exhaustive-which are matters not falling to be considered in the case now before us-I should for myself be loath to think that the provisions of a criminal statute have altered or affected the civil common law as to the privilege of certain classes in litigation-a privilege which existed, in India as in England, long before the Final Code was enacted. If an anomaly has been created in consequence of Section 400 of the Indian Penal Code, then I should rather accept it than admit either that established civil rights designed in the public interest can be curtailed by mere analogies to be drawn from the criminal Code, or that the public can be deprived of the immunity accorded to their advocates in courts of law at least from civil liability.

15. Turning to the decisions of the Calcutta High Court, I may refer to a Full Bench decision of that Court reported in Satish Chandra Chakravarti v. Ram Doyal De. I.L.R.(1920) Cal. 388. In this Full Bench case, which was concerned with a criminal prosecution for defamation under Section 490, Indian Penal Code, distinction between the position obtaining with regard to criminal prosecutions and the position obtaining with regard, to civil actions has been clarified. The relevant head-notes which appear at pages 388 and 389 may be set out:

A defamatory statement, on oath or otherwise, by a party to a judicial proceeding falls within Section 499 of the Penal Code, and is not absolutely privileged. Under Clause 30 of the Letters Patent, 1863, the provisions of such Code must be followed, and the Court cannot engraft thereon exceptions derived from the Common Law of England or based on public policy.

The civil liability for defamation in India does not stand on the same basis as the criminal. A suit for damages for a defamatory statement, made on oath or otherwise, by a party to a judicial proceeding, in the absence of statutory rules on the subject, is governed by the principles of justice, equity and good conscience, which, according to a large preponderance of judicial opinion, are identical with the corresponding relevant rules of English Common Law.

As I have said above, that was a case of criminal prosecution for defamation and after dealing with the entire case, law on the subject the aforesaid two conclusions, one in regard to the criminal liability and the other in regard to civil liability have been summarised in the aforesaid manner at pages 425 and 426 of the report. This Full Bench decision has been followed in a subsequent decision of the same Court -reported in Sundar Das Loghani v. Fardun Rustom Irani. [1939] 1 Cal. 474.

16. The Madras High Court has also taken a similar view. In Hindustan Gilt Jewel Works v. Gangayya [1943] Mad. 685, it was held:

In civil action for defamation, there is absolute privilege for a statement made in a pleading provided that the statement has reference to the inquiry. In deciding a question of this nature a Court should not take a too restricted view of what is pertinent but must give the words 'having reference to the enquiry' a very wide and Comprehensive application.

After referring to the Privy Council decision in Baboo Ganesh Dutt Singh v. Mugneeram Ghowdhry (1872) 11 Beng L.R. 321, p.c. their Lordships observed as follows (p. 688) :

We consider that the English rule should apply in civil proceedings. In fact a contrary opinion does not appear to be open in view of the decision of the Privy Council in Baboo Gurineah Dull Singh' v. Mugneeram Chowdhry, but it is to be borne in mind that there exists ft qualification. While there is absolute privilege where the statement is pertinent to the inquiry, this does not hold good when the statement is entirely irrelevant to it.

This decision has been followed in a later judgment of the Madras High Court reported in Hanumantharow v. Seetharamayya. A.I.R [1942] Mad. 343. It may be stated that in ail earlier decision reported in Sullivan v. Norton I.L.R. (1886) Mad. 28, the Madras High Court had taken the view that an advocate in India could not be proceeded against civilly or criminally for words uttered in his office as advocate. In other words, by that decision the Madras High Court applied the rule of English common law even to criminal prosecution for defamation, but in a later judgment, reported in Tiruvngada Mudali v. Tripurasundari Animal I.L.R. (1926) Mad, 728. the Court resiled from this position and fell in line with the decisions of the Calcutta High Court and Allahabad High Court and took the view that in regard to criminal prosecutions for defamation the law applicable would be one contained in Section 499, Indian Penal Code, and to criminal prosecution for defamation, it would not be proper to apply the rules of English common law of absolute privilege. But from the judgment of the Madras High Court reported in Hindustan Gilt Jewel Works v. Gangayya, which I have referred to above and which has been followed in a later decision reported in Hanumantharow v. Seetharamayyu, it would be clear that so far as civil actions for libel or slander are concerned, the rule of English common law pertaining to absolute privilege has been held to be applicable.

17. The Patna High Court in Ramkirat Kamkar v. Biseswar Nath I.L.R. (1932) Pat. 693, has taken a similar view. The head-note of that decision runs as follows :

In India the law relating to a Civil action of defamation, as distinguished from crimina. proceedings which are governed by Section 499 of the Penal Code, is not a matter of statute It is inherited from the English Common law and is applicable in India by virtue of the principle that the Indian Courts in default of special legislation are to apply the rules of equity an d good conscience which include the English Common law of defamation.

Therefore, a civil action of defamation in India, in respect of statements made to a Magistrate for the purpose of getting him to act within the scope of his authority, must be governed by the rule of English Common law which makes such statements absolutely privileged.

18. I may now refer to some decisions of this Court. In Bhaishanker v. L.M. Wadia (1899) 2 Bom. L.R. 3 F.B. though the case was under the High Court's disciplinary powers, the Full Bench has made observations on the aspect of the law applicable to civil suits for defamation. The principle of the English decision of Munster v. Lamb was accepted as laying down the correct law on the point. I may usefully refer to a Division Bench ruling of this Court reported in Nathji Muleshvar v. Lalhhai Ravidat I.L.R (1889) Bom. 97, which was a case dealing with a civil action for damages for libel and slander where it was held that no action for slander lies for any statement in the pleadings or during the conduct of a suit against a party or witness in it. Chief Justice Sargent, after referring to several English cases including Seaman v. Nether cliff (1876) L.R. I.C.P.D. 540. Minister v. Lamb and Hawkins v. Lord Rokeby (1875) L.R. 7 H.L. 744, observed as follows (p. 99) :

This view of the law would equally apply to similar actions against judges, witnesses and counsel for defamatory statements in, the course of a judicial proceeding, which by English law are held not to lie, even if the statements be mala fide and spoken with express malice. However in Baboo Ganesh Dutt Singh v. Mugneeram Chowdhry, the Privy Council held in 1872 that the same rule applied to witnesses in this country....

We doubt whether there is anything in the circumstances of this country which makes it legs desirable from the point of view 'of public policy as concerning the public and administration of justice' as it is expressed by the Privy Council in the case above cited, that such statements, though false and malicious, should in no case be made the subject of civil action quite independently of the question as to their being criminally punishable.

In other words, this Court has clearly taken the view in the case mentioned by me above, that the English common law rule pertaining to absolute privilege in regard to defamatory statements made in the course of judicial proceedings, even though such statements are false or malicious, would be applicable in India to civil actions in libel or slander and apart from the question as to whether making of such statements would make these statements criminally liable. The same view has been accepted and expressed in a later Division Bench ruling reported in Govind Ramchandra v. Gangadhar Mahadeo (1943) 46 Bom. L.R. 417. In that case allegations were made in a petition as well as in the affidavit in support of it, addressed to the High Court for taking steps under the Bar Council Act, 1926, against a legal practitioner under the disciplinary jurisdiction and the legal practitioner filed a suit to recover damages for libel contained in the petition as well as in the affidavit. It was held that the petition as well as the affidavit made in support thereof were essential steps in a judicial proceeding and, therefore, were absolutely privileged. This Court while deciding the case did not go into the merits of the allegations contained in the petition and affidavit and apart from the question as to whether the said allegations were true or not, the Court held that since those allegations had been made on an occasion which was absolutely privileged, the legal practitioner's suit was liable to be dismissed. Incidentally, it may be stated that both these Bombay decisions dealt with cases in which parties were concerned in making defamatory allegations in judicial proceedings.

19. I shall now refer to a decision of this Court reported in Tulsidas v. Billimoria. : AIR1932Bom490 . That was a case dealing with a criminal prosecution for defamation and it was held that in India a member of the bar has no privilege. The relevant portion of the head-note runs as follows:.An advocate who makes defamatory statements in the conduct of a case has no wider protection than a layman, that is to say, he has to bring his case within the terms of exception 9 to Section 499, and under Section 105 of the Indian Evidence Act the burden of proof is normally upon him. In practice, however, an advocate is entitled to special protection, and if an advocate is called in question in respect of defamatory statements made by him in the course of his duties as an advocate, the Court ought to presume that he acted in good faith and upon instructions and ought to require the other party to prove express malice.

It is, no doubt, true that in this case it has been held that a member of the bar in India has no absolute privilege, but this statement of law must be confined to the facts of that case. It was a case where a criminal prosecution has been launched for defamation and since the law pertaining to criminal prosecution for defamation has been codified in the form of Sections 499 and 500 of the Indian Penal Code, it is but proper that the advocate who is sought to be prosecuted criminally for such defamatory words -spoken or uttered during the conduct of a trial should be required to bring his case within exception 9 to Section 499. The question as to whether an advocate would have an absolute privilege or not in relation to a civil action for damages in libel or slander has not at all been touched, much less discussed in this case and rightly so. In my view the distinction that has been made between criminal prosecution and civil actions for defamation on the point as to the applicability of English Common law rule of absolute privilege in the several decisions of other High Courts and of this Court is perfectly understandable. It is no doubt true that if the English Common law ride is based on sound public policy to enable a Judge, party, witness, counsel or attorney to discharge his duty with a free mind uninfluenced by any fear of any action being taken against him and if the same sound public policy holds good, in India, it is a little anomalous that in regard to words spoken or uttered by him in the conduct of a ease before a judicial tribunal an advocate should be absolutely immune from any civil action in damages and that he should not be so absolutely immune if a criminal prosecution were launched against him; but it must be stated as has been pointed out by the Allahabad High Court in one of its decisions, to which I have already referred, that prior to 1860 i.e. before the Indian Penal Code came into operation the English Common law rule conferring absolute privilege or complete immunity against any kind of action upon Judges, counsel, advocates, attorneys, witnesses. or parties was applicable in India. One way of looking at the matter would be that by reason of the enactment of the Penal Code and its provisions contained in Sections 499 and 500 an exception to the English Common law rule should be said to have been engrafted in relation to criminal prosecutions for defamation, but subject to such exception that may be said to have been engrafted the English Common law rule should continue to apply in fields other than those covered by the exception. I may incidentally mention that the decision reported in Govind Ramchandra v. Gangadhar Mahadeo pertaining to civil action for damages in libel was a decision later in point of time than the decision reported in Tulsidas v. Billimoria and in that decision it has been positively held that so far as civil liability for defamation is concerned the English Common law rule pertaining to absolute privilege or immunity enjoyed by advocates has been held applicable in India.

20. In my view, as has been rightly pointed out in one of the Madras, decisions to which I have already referred, it is not open to take a contrary view having regard to the binding pronouncement of the Judicial Committee of the Privy Council in the case of Bahoo Ganesh Dutt Singh v. Mugneeram Chowdhry, where the rule of English Common law of absolute privilege was held applicable to a civil action against a witness, who while giving evidence was alleged to have made false and defamatory statements.

21. Having regard to the aforesaid discussion of the several authorities, it is clear to me that the English Common law rule pertaining to absolute privilege enjoyed by Judges, advocates, attorneys, witnesses and parties in regard to words spoken or uttered during the course of a judicial proceeding is applicable in India, at any rate, in relation to civil suits filed for damages for libel or slander. The preponderance of authority obtaining in the matter, as I have indicated above, favours this view and I, therefore, feel no hesitation in coming to the conclusion that having regard to the fact that the alleged defamatory statements were made by defendant No. 6 on an occasion which was absolutely privileged, the plaintiff's suit to recover damages for the said slander would be not maintainable.

22. In the result, the two preliminary issues are answered in favour of the defendants and consequently the suit is dismissed with costs.