Final Order 1

Order Details: Notice of Motion
Pdf Text: :1: NM-1714-18 Suit.234-18
CNR NO. MHCC01 0056572018
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION NO.1714 OF 2018
IN
S.C. SUIT NO.234 OF 2018
Huzaifa Yakub Patel ].. Applicant
In the matter of
Mohd. Shoeb Khan ] .. Plaintiff.
Versus
1. Huzaifa Yakub Patel ]
2. Khawaja Nizamuddin Shaikh, ]
3. Mohammed Jamil Bukhari, ]
4. Imitiaj Shakeel Khan, ]
5. Johar Hussain Mukri, ]
6. Khan Farhan Mohammed Kasim]
7. Mr. Tasavur A. Shaikh, ]
8. Mr. Ritesh Pathak, ]
9. Mr. Sanjay Mishra, ]
10. YOU TUBE ].. Defendants.
CORAM: HER HONOUR JUDGE
BHARTI KALE
(C.R. No. 4).
DATE: 1st August, 2018.
Adv. A.M.Saraogi for Plaintiff.
Adv. Shyamli Hajela for defendant Nos.1 and 2.
ORDER
The defendant No. 1 has taken out this notice of motion for
rejection of plaint under Order7 Rule11 (a) and (d) of Code of Civil
Procedure.
-- 1 of 10 --
:2: NM-1714-18 Suit.234-18
2. It is stated that the plaint does not disclose any cause of
action in favour of the plaintiff to institute the present suit against the
defendants. The suit is filed for directing the defendants to pay an
amount of rupee one only to the plaintiff for loss of reputation by way
of publication of alleged defamatory article in the newspaper and also
by way of telecasting the defamatory programme in respect thereof on
the electronic media channel known as YOUTUBE and for permanent
injunction. It is stated that if the pleadings in the plaint are perused,
then there is no mention of defendant in the alleged defamatory article
annexed to the plaint. The alleged video is also not reproduced. The
defendant has submitted that it is settled law that an action for
defamation is only in the nature of personal wrong and it has to be
initiated only by the party against whom the alleged defamatory
contents is published. Therefore, the defendant has submitted that
there is no disclosure of cause of action in favour of the plaintiff to
institute the suit. It is further submitted that this court has no
jurisdiction as per Section20 of the Code of Civil Procedure. Hence,
the instant notice of motion has been taken out.
3. The plaintiff filed reply submitting that the defendant failed
to file written statement even though the summons is served.
Therefore, the suit needs to be kept for exparte hearing. The plaintiff
has submitted that the only pleadings in the plaint needs to be
considered and not the defence. He has referred to the pleadings and
stated that the plaint is filed against the defendant and necessary trial
is required. It is further stated that Section20 of Code of Civil
Procedure, is not attracted to the present proceedings. The present suit
is in respect of defamatory statement made in the newspaper and also
on the YOUTUBE and it is seen by the whole world. In the
-- 2 of 10 --
:3: NM-1714-18 Suit.234-18
circumstances, what is required is whether plaintiff had got knowledge
in respect of such defamation and experience. Therefore, on this
ground the plaintiff has prayed for dismissal of the notice of motion.
4. Heard Advocate for the plaintiff and defendant No.1.
5. The Advocate for the defendant at the outset has submitted
that he is not raising the issue of jurisdiction under section20 of the
Code of Civil Procedure. Consequently, following points arise for my
determination and I have recorded my findings thereon for the reasons
to follow:
POINTS FINDINGS
(1) Whether the plaint is liable to the
rejected under Order7 Rule11(a)
of C.P.C. ? : Yes
(2) What order ? : As per final order.
REASONS
Point No.1:
6. The Advocate for the defendant at the outset submitted
that plaint does not disclose any cause of action to file the present suit.
The suit is filed by Mohd. Shoeb Khan. The defendant has referred to
the following averments in the plaint in the notice of motion:
Para-4 (h) The Plaintiff states that in a plan to cause
harassment to the Plaintiff who is associated with the said
association and other members of the said Association, the
Defendant No1-7 in collusion with the Defendant No.5 & 6 and
Defendant No.7 have published a defamatory article in the
newspaper published by Defendant No.8 of which the Defendant
-- 3 of 10 --
:4: NM-1714-18 Suit.234-18
No. 8 is editor.
4 (i) Identically the Defendant No.1 to 7 had also placed
necessary defamatory material on the channel known as
YOUTUBE .
4 (J) The Plaintiff states that so far as the said article is
concerned, the plaintiff has obtained a copy in respect thereof and
accordingly hereto annexed and marked as Exhibit-A is the copy
of the article published by the Defendant No. 1 and Defendant No.
2 at the instance of Defendant No.1 to 7.
Para-9. The plaintiff states that under any circumstances,
the defendants have to (no) rights to flash any such defamatory
articles or public any such articles or news which directly affects
the reputation of the plaintiff hereinabove.”
7. The Advocate for the defendant has taken me through the
article published in the newspaper. On perusal of the said article there
is not a whisper about the plaintiff. Therefore, whatever allegations are
made therein are against one Athar Siddiqui. Therefore, from the said
averments it can not be said that there is defamation of the plaintiff.
The Advocate for the defendant has submitted that already said Athar
Siddiqui has filed suit before the Dindoshi Court.
8. The plaintiff has then mentioned that by virtue of the said
article and news which published on YOUTUBE all kinds of
unwarranted allegations are being made against the plaintiff. It is
pertinent to note that the plaintiff has not made any averments in the
plaint as to what is stated in the said news published on YOUTUBE.
Therefore, there is substance in the contention raised by the defendant
No.1 that since no details and particulars are furnished in the suit for
-- 4 of 10 --
:5: NM-1714-18 Suit.234-18
defamation, the plaintiff did not disclose any cause of action giving him
right to file the suit. The Advocate for the plaintiff has submitted that
he has already pleaded that there was also defamation made through
YOUTUBE and he will be producing the same at the time of trial and
merely because the transcript of the allegations in the YOUTUBE are not
mentioned, it cannot be said that no cause of action is disclosed. The
Advocate for the plaintiff has also submitted that this is a premature
stage and no written statement is filed by the defendants. However, the
latter contention cannot be considered as the defendant had prayed for
rejection of plaint contending that there is no cause of action disclosed
by the plaintiff. Hence, I find that question of filing written statement
arose.
9. As per OrderVI, Rule4 of CPC, the necessary particulars
on which party relies are to be stated in the pleadings. It is to be seen
that after 2002 Amendment to the Code of Civil Procedure, 1908 there
was drastic amendment in the procedure for filing documents and
pleadings are also required to be made on affidavit. As per Order7
Rule14 of the CPC, where a plaintiff sues upon a document or relies
upon document in his possession or power in support of his claim, he
shall enter such documents in a list, and shall produce it in Court when
the plaint is presented by him and shall, at the same time deliver the
document and a copy thereof, to be filed with the plaint. Now, the
plaintiff is alleging that the said YOUTUBE contains defamatory
material then definitely he must be in possession of the same.
Therefore, the plaintiff was atleast required to mention the contents of
the same. However, he did not produce the CD or video before the
Court. In fact, in the list of documents annexed to the plaint he has
nowhere mentioned about the said YOUTUBE Video or its transcript.
-- 5 of 10 --
:6: NM-1714-18 Suit.234-18
He has also not stated that he is going to produce the same. On the
basis of the contents of the same, plaintiff is contending that the
defendants have committed defamation. Now, the defendants at the
time of filing written statement or to verify that whether there is any
cause of action against them, are required to go through the said
transcript. Moreover, this being suit for defamation, the defendants can
justify defamatory statement in their written statement or reply.
Therefore, in the circumstances, it was mandatory for the plaintiff to
bring on record averments in respect of YOUTUBE. However, the
plaintiff has failed to state about the same. In case of Essel
Infraprojects Limited Versus Devendra Prakash Mishra [2014 SCC
OnLine Bom 1780], the Hon'ble Supreme Court reproduced para11 of
the decision in case of W. Hay Versus Ashwini Kumar Samanta [AIR
1958 Cal.269], which is as under:
“11. It is well settled that, in a libel action, the defamatory
words must be set out” in the plaint. Where the words are per se or
prima facie defamatory only the words need be set out. Where,
however, the defamatory sense is not apparent on the face of the
words, the defamatory meaning, or as it is technically known in
law, the “innuendo” must also be set out and set out in clear
specific terms. These are universally accepted propositions.
Where again the offending words would be defamatory only in the
particular context, in which they were used, uttered or published, it
seems to us that it is necessary also to set out, except where, as in
England, the law is or has been made expressly otherwise, the
offending context (Colloquium) in the plaint and to state or are
further that this context or the circumstances, constituting the same,
were known to the persons, to whom the words were published, or,
at least, that they understood the words in the defamatory sense.
-- 6 of 10 --
:7: NM-1714-18 Suit.234-18
In the absence of these necessary averments, the plaint would be
liable to be rejected on the ground that it does not disclose any
cause of action.”
Therefore, if the said judgment is perused then the plaintiff has utterly
failed to state any particulars, which are material. The plaintiff has
failed to file the transcript with CD of the YOUTUBE to show that there
are defamatory allegations made therein against the plaintiff. Nodoubt,
in case of Essel Infraprojects Limited (supra), the court was
considering the injunction application. However, in the said case the
court has considered in detail what are the nature of the pleadings
required in defamation case to grant relief. The Advocate for the
plaintiff has made a futile attempt to justify that there are provisions
for incamera trial and the plaintiff should not be made to state such
defamatory particulars. However, the said argument is devoid of merit
for the reason that plaintiff has already stated that many people have
seen the said video and therefore there is a defamation.
10. At the time of rejection of plaint the court has to see only
averments in the plaint and not the defence of the defendant. The court
has also to see that there is strong primafacie case made out to reject
the plaint, so that plaintiff is not denied of an opportunity of being
heart at the threshold. However, in the present case, I find that there is
absolutely no iota of doubt that plaintiff has failed to disclose any cause
of action to file the present suit. He has not shown that he was
defamed by the defendant by virtue of the article in the newspaper or
video on the YOUTUBE. In these circumstances, the decision in case of
RBEF (Ritnand Balved Education Foundation) Versus Alok Kumar
[2006 (90) DRJ 714] and Harsh Mendiratta Versus Maharaj Singh
-- 7 of 10 --
:8: NM-1714-18 Suit.234-18
& Others [2002 (61) DRJ 123] that an action for defamation is
maintainable only by the person who is defamed and not by his friends
or relatives, squarely helps the case of the defendant that no cause of
action is there to file the present suit. Already the person against whom
defamatory articles annexed to the plaint is published, has filed the suit
in Dindoshi Court. In these circumstances, I have no hesitation to hold
that the plaint is liable to be rejected. Therefore, I answer Point No.1 in
affirmative and proceed to pass the following order.
ORDER
i) The Notice of Motion No.1714 of 2018 is allowed.
ii) Plaint is rejected under Order7 Rule11(a) of The Code of Civil
Procedure.
iii) Accordingly, notice of motion and suit are disposed of.
(BHARTI KALE )
Judge
City Civil Court, Gr. Bombay.
Date : 01/08/2018
Dictated on: 01/08/2018
Transcribed on: 02/08/2018
Signed on: 03/08/2018
-- 8 of 10 --
:9: NM-1714-18 Suit.234-18
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER
07/08/2018 at 11.00 a.m
UPLOADED DATE AND TIME (DASTAGIR B. MULLA)
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.
H.H.J. BHARTI KALE (Court
Room No.4)
Date of Pronouncement of
Judgment/Order
01/08/2018
Judgment/Order signed by P.O.on 03/08/2018
Judgment/Order uploaded on 07/08/2018
-- 9 of 10 --
:10: NM-1714-18 Suit.234-18
-- 10 of 10 --