JUDGMENT
Venkataramana Rao, J.
1. This is an appeal from the decree of the learned District Judge of Chingleput dismissing an action for damages for defamation instituted by the first and second plaintiffs. The defamatory matter complained of was a communication made by the first and second defendants to one Mr. G. Krishnamachari, a Vakil at Chingleput and repeated by the said Vakil in a letter dated 9th May, 1927, addressed to the first plaintiff. The second plaintiff is the daughter of the first plaintiff and the wife of the second defendant. The first defendant is the father of the second defendant. The matter, complained of was concerning the second plaintiff in the letter addressed as aforesaid to the first plaintiff by the said Krithnamachari to the following effect:
On or about 7th January, 1927, jour daughter Balammal ran away with one Manicka Asari from her husband clandestinely and was staying with him at Kadambathur for two days.
2. The second plaintiff was married to the second defendant in or about 1925 and was living with her husband till about March, 1927. Some time towards the latter part of 1926 misunderstandings seemed to have arisen between the second plaintiff and the defendants in regard to the Kasimalai worn by the second plaintiff and alleged to have been taken away from her by her husband the second defendant and not returned in spite of demand. As a result of this misunderstanding, the second plaintiff had to leave her husband’s home and go to her parent’s house in or about March, 1927. On the 25th April, 1927, the first plaintiff addressed a letter to his son-in-law the second defendant complaining about the ill-treatment accorded to his daughter during her stay in his house in consequence of the misunderstandings and requesting him to take his wife and live with her. In answer to the said letter, the first and second defendants instructed their Vakil Mr. Krishnamachari to issue the letter dated 9th May, 1927. On receipt thereof the first plaintiff through his Vakil Mr. Nageswara Aiyar complained of the defamatory character of the communication contained in the letter of 9th May, 1927 and called upon them to unconditionally withdraw the same and apologise for the wrongful act. The defendants having failed and neglected to comply with the said request, the first plaintiff instituted a complaint of defamation under Section 500 of the Indian Penal Code. The Joint Magistrate of Chingleput found that the defamatory matter complained of, namely, the running away of the second plaintiff with Manicka Asari, was false and convicted them of the offence charged. The present suit was instituted for recovery of damages.
3. The material allegations are contained in paragraphs 4, 5 and 9 of the plaint and they are as follows:
4. Subsequently on 25th April, 1927, the first plaintiff gave a registered notice to second defendant requesting him to take back second plaintiff to his house and the defendants sent a reply dated 9th May, 1927, accusing second plaintiff of having run away with one Manicka Asari and having lived with him for two days at Kadambathur.
5. The allegation is absolutely false and was made quite maliciously and recklessly and was intended not only to ruin the character of the second plaintiff but also to ruin her for life and brand her as an unchaste woman.
9. The defendants are therefore liable in damages to the plaintiffs for having unnecessarily defamed second plaintiff…. The first plaintiff is also damnified by the false allegations against his daughter and is also entitled to damages.
4. Before the filing of the written statement, the first defendant seemed to have asked for particulars of the precise words complained of as being defamatory and the dates when and the persons to whom and the place where the defamatory matter was published by the defendants. In answer thereto, the plaintiffs gave particulars wherein the plaintiffs distinctly stated that they sued in respect of the statement contained in the notice of the defendants dated 9th May, 1927, which has been already quoted above. In regard to the publication complained of, it was stated to be at Chingleput and in regard to the persons complained of, it was alleged thus:
The publication was made to first defendant by the second defendant in the first instance, then by both, to the Vakil who gave the reply notice and again was repeated in the Court of the Joint Magistrate, Chingleput.
5. In regard to the damages claimed, the plaintiffs contented themselves with the claim for damages on behalf of the second plaintiff. After the receipt of particulars, the defendants filed a written statement. Their main pleas were twofold, (1) justification of the matter complained of and (2) privilege. This second plea is worded thus:
They claim absolute immunity or absolute privilege and if not in any event, on account of a defeasible immunity or qualified privilege attaching to the alleged defamation by reason of the occasion of the publication by first defendant to second defendant and by both to their vakil.
6. The learned District Judge found that the defamatory matter was in substance true and that the evidence established that the second plaintiff ran away with Manicka Asari from her husband clandestinely but she did not live with him for two days and that portion of the matter must be found to be false. He further held that even assuming the plea of justification could not be made out, the defendants were absolutely privileged in making the statement by reason of the fact that the communication was made to Mr. G. Krishnamachari their legal adviser. He thought that in view of his finding as to the absolute privilege, the issue as to qualified privilege did not arise; however he was inclined to think that the plaintiffs have not proved that the defendants were actuated by malice in making and publishing such a statement. As a result of these findings, the learned District Judge dismissed the plaintiff’s suit.
7. This appeal is preferred by the second plaintiff and the findings of the learned District Judge both on questions of fact and law have been canvassed by her counsel Mr. Rajah Aiyar. On the admitted facts, one thing seems to be clear. If the plea of justification is found against, there was the admitted publication of the defamatory matter to the first plaintiff which would sustain a cause of action in favour of the second plaintiff for damages, and the defendants cannot escape liability therefor unless they are able to sustain and prove that they were not actuated by malice in making the said statement. But it is rather curious that this seems to have escaped the notice and attention of the counsel on behalf of the plaintiffs as well as the Court below and the case seems to have been fought out on the question whether there was absolute privilege by reason of the communication by the defendants to their legal adviser, assuming the plea of justification was found against. So before dealing with the question of privilege, if the second plaintiff is to succeed, she has to displace the finding in regard to justification. Mr. Rajah Aiyar therefore first took up that point and proceeded to canvass the finding of the learned District Judge in regard thereto. Thus the evidence and probabilities completely establish that the case set up by the defendants that the second plaintiff eloped with Manicka Asari and lived for two days with him is false. There can be no doubt – and it is not denied that the matter complained of is per se defamatory – that the said statement is untrue, malicious and has been made deliberately with a view to escape the possibility of any claim on the part of the second plaintiff. The plea of justification cannot therefore prevail and must be rejected.
8. The next question is, is the plea of privilege sustainable? Under the English law from the earliest times for the discharge of public duties and for due administration of law and for the welfare and convenience of society, and for the transaction of the affairs of society in the ordinary course of daily life it was thought necessary that there should be freedom of speech and freedom of communication; and for that purpose the law has always recognised certain occasions as privileged conferring immunity from liability to an action either absolutely or conditionally, and commonly known as absolute privilege and qualified privilege. Where the plea is sought on the ground of absolute privilege the Courts are precluded from discussing…the good faith of the party who utters or publishes the defamatory statement. If the plea relied on is one of qualified privilege, the immunity the law confers is destroyed by proof of malice. Among the recognised classes of cases to which the doctrine of absolute privilege is held to apply are statements made in the course of judicial proceedings. The reason of the rule is thus stated by Folkard on the Law of Slander and Libel at pages 88 and 89:
And the reason is founded on the principle, that, ‘the law will rather suffer a private mischief than a public inconvenience’; and that persons engaged in the administration of the law, and those who seek justice in respect of wrongs or injuries suffered or give evidence as to any such, or make defence thereto, may not be deterred from so doing by the fear of being harassed by actions or prosecutions for defamation in respect thereof. And accordingly the law, without regard to the question of intention, and on grounds of obvious policy, repels the claim to damages in respect of any publication, whether oral or written, made in the ordinary course of a judicial proceeding, Civil or Criminal. And this rule applies to Judges, Juries, Witnesses, Suitors and parties, in respect of anything stated by them in the course of any such proceeding.
9. As Brett, J., observed in Munster v. Lamb (1883) 11 Q.B.D. 588, it does not matter whether the defendants spoke the words maliciously or without any justification and whether the words spoken were irrelevant. It is not necessary to refer to many cases and it is sufficient if I should refer to Henderson v. Broomhead (1859) 4 H. & N. 509 at 576 : 157 E.R. 964 at 967 where Erie, J., observed thus:
An action will not lie for defamatory words spoken in the course of litigation which are relevant to that litigation. The authorities are collected in the note to Lake v. King (1668) 1 Wms. Saund. 131-b, Note 1 : 85 E.R. 137 and the general rule is there stated: ‘No false or scandalous matter contained in articles of the peace exhibited to justices of the peace, or in any other proceeding in a regular course of justice, will make it libellous’. Several authorities are cited; they extend over many centuries down to the time when the learned annotator collected them. In Astley v. Younge (1759) 2 Burr. 807 at 810 : 97 E.R. 137, where such an action was brought in the Court of King’s Bench in Lord Mansfield’s time, that learned Judge endeavoured to stop the counsel by saying, ‘Shew that a matter given in evidence in a Court of justice may be prosecuted in a civil action as a libel. The Court, indeed, before which such evidence is given may censure it’. The party may be punished, and the abuse repressed by a prosecution for perjury, the result of which is to make the defendant infamous if he is convicted. It is said that the civil remedy should be allowed for the purpose of indemnifying the party injured. But the balance of inconvenience is strong against such an action”. Henderson v. Broomhead (1859) 4 H. & N. 569 at 576 : 157 E.R. 964 at 967.
10. The principle was applied to a case from India by their Lordships of the Privy Council in Baboo Gunnesh Dutt Singh v. Mugneeram Chowdhry (1872) 11 Beng. : L.R. 321 (P.C.). Speaking with reference to the privilege of a witness, their Lordships observed thus at page 328:
Their Lordships hold this maxim which certainly has been recognised by all the Courts of this country, to be one based upon principles of public policy. The ground of it is this, that it concerns the public and the administration of justice that witnesses giving their evidence on oath in a Court of justice should not have before their eyes the fear of being harassed by suits for damages; but that the only penalty which they should incur if they give evidence falsely should be an indictment for perjury.
11. There is sense and reason in the rule that was adopted by the English Courts. The Court has superintendence over what happens before it and can, as Erie, J., points out in Henderson v. Broomhead (1859) 4 H. & N. 569 at 576 : 157 E.R. 964 at 967 prevent reckless utterances defaming or slandering others by either censuring the party or the witness or by taking proceedings for perjury (vide Folkard on Libel and Slander, p. 97). But it will be seen that two conditions are necessary in order that a party may avail himself of this privilege (1) the proceeding must be judicial and (2) the utterance must have been made in the capacity of a suitor or a litigant in the course of and with reference to such proceeding. Odgers on Libel and Slander 1905 Ed., at p. 230, puts it thus:
But the proceeding must be in its nature judicial, that is, it must be either the adjudication and determination by a competent tribunal of the legal rights of the parties before it, or some necessary step preliminary thereto.
12. On an illustration to this rule Odgers relies on Bank of British North America v. Samuel Strong (1876) 1 A.C. 307 and states the effect of that decisions thus:
The service on a debtor of a notice under the Canadian Insolvent Act of 1869, demanding payment of a debt, though an important piece of evidence, should bankruptcy proceedings follow, is not in itself a judicial proceeding and the delivery of such a notice to a lawyer’s clerk for service is privileged, but not an absolutely privileged, publication.
13. It is on this principle that statements in pleadings, affidavits or applications made to Court have been held to be absolutely privileged and the principle is extended to cases where instructions are given to a legal adviser for the preparation of a proof before trial, Watson v. M’Ewan and Watson v. Jones (1905) A.C. 480, but the rule of public policy does not extend the protection any further, Spencer Bower in his book on “Actionable Defamation” at page 92 explains the scope of the privilege thus:
Such expression (published in the course and for the purpose of any judicial proceeding) does not apply to or include any publication of defamatory matter before the commencement or after the termination of the judicial proceeding, unless such publication is an act incidental to the proper initiation thereof, or the giving of legal effect thereto; nor does it apply to or include any publication of defamatory matter to any person other than those to whom, or in any place other than that in which, such publication is required or authorised by law to be made for the proper conduct of the judicial proceedings.
14. Unless therefore a communication is made to a solicitor in connection with a judicial proceeding or in connection with a necessary step preliminary thereto or with reference to an act incidental to the proper initiation thereof, Bottomley v. Brougham (1908) 1 K.B. 584 at 588 and 589, it would not be absolutely privileged and therefore prima facie the communication made by defendants 1 and 2 to Mr. Krishnamachari in connection with the reply notice dated the 9th of May would not be protected by the absolute immunity from liability to an action. But in 1928 the Court of Appeal in England seems to have extended the doctrine of absolute privilege even to communications between a solicitor and a client though not connected with any judicial proceeding or a necessary step preliminary thereto. In More v. Weaver (1893) 6 Rep. 27, Scrutton, L.J., enunciated this view of the law relying on the observations of Lord Herschell and Lord Bowen in Browne v. Dunn (1893) 6 Rep. 27 and on a passage from Fraser on Libel and Slander and differing from the view of Darling, J., in Morgan v. Wallis (1917) 33 T.L.R. 495. If the case of Browne v. Dunn (1893) 6 Rep. 27 is examined, it does not seem to support the view of Scrutton, L.J. The defamatory matter complained of was a statement taken by a solicitor from a client for the purpose of obtaining an authority to take proceedings against the plaintiff who brought an action for defamation against the solicitor.
15. What Lord Herschell said was:
When communications pass between a solicitor and those who, he reasonably believes, will desire to retain him, and to whom he makes a communication in relation to that, and who do retain him, the whole of these communications leading up to the retainer and relevant to it, and having that and nothing else in view, are privileged communications, that the whole occasion is throughout privileged.
16. But he in more than one place points out that there was no evidence of malice in that case, and throughout, his discussion was to establish that the defendant was not actuated by malice in uttering or publishing the defamatory matter. Bowen, L.J., while affirming the view taken by Lord Herschell in regard to the communication as falling within the category of professional privilege, observed that he very much doubted whether malice destroyed that kind of privilege, unless it was shown that what had passed was not germane to the occasion. He more than once stated that that point was not necessary to be decided and that he would desire to keep it open. The observations in this case were never understood by the leading text writers on the law on Libel and Slander except Fraser as establishing that communications between a solicitor and a client, once the relationship is established, are absolutely privileged. For example, Odgers at p. 246 (4th Edn., 1905) cites Browne v. Dunn (1893) 6 Rep. 27 under the head of qualified privilege. This question of absolute privilege came up for discussion before the House of Lords in the case in Minter v. Priest (1930) A.C. 558 where every law Lord expressed the opinion that the case in More v. Weaver (1928) 2 K.B. 520 required reconsideration. Lord Buckmaster there observed:
I only desire to add without decision that it does not follow that when once the privilege due to the relationship is waived, the privilege of the occasion is absolute.
17. Viscount Dunedin remarked thus:
It must be admitted that the older authorities point rather the other way, and that the privilege of solicitor and client has been generally dealt with in the books as qualified privilege.
18. Lord Atkin also remarked thus:
The decision considerably extends the protection which up to its dale had been confined to communications made by Judge, Counsel and witnesses in the course of judicial proceedings, and is based upon a view of public policy which appears to be somewhat widely stated and is certainly not the view accepted in Scotland. I prefer to leave the correctness of the decision entirely open for consideration hereafter in this House.
19. It will be seen that the view of Viscount Dunedin is that the older authorities are the other way. A confidential communication between solicitor and client has always been treated under the head of qualified privilege because the communication is supposed to have been made in the protection of self-interest or by reason of common interest existing between the party communicating and the party communicated to. The rule is that for the welfare and convenience of societies the occasion must be deemed to be prima facie privileged unless it is shown that the communication was made with an improper motive. Street in his book on the ‘Foundations of Legal Liability’, Vol. I, observes thus at page 311:
One of the most extensive heads of qualified privilege is found in connection with communications between individuals concerning matters that are of moment to one or both of the parties. Communications between parties occupying confidential relations, as between principal and agent, master and servant, physician and patient, attorney and client, clergyman and parishoner, parent and child, are privileged so far as the substance of such communications pertains to matters about which the relation of confidence exists. Here the parties have a common interest in the subject-matter of the communication.
20. Odgers in his book (4th Edn., 1905) at page 230 expresses the opinion that:
A case laid before a counsel for his opinion is not absolutely privileged; at all events, if no writ be yet issued,
and cites an unreported case Minter v. Brockman. If the reason of the rule is examined, this view seems to be sound. The doctrine of absolute privilege is, as pointed out by Channel, J., in Bottomley v. Brougham (1908) 1 K.B. 584 based on the fact that in the public interest it is not desirable to enquire whether the words or acts of certain persons are malicious or not; he would prefer to call it a right of the public, the theory being “public advantage almost amounting to public necessity”. That is why, as already pointed out, a party communicating any matter to a solicitor in connection with any judicial proceeding or in connection with any necessary step preliminary thereto is absolutely immune from an action. Moreover the Court in the exercise of its supervision over the judicial proceeding has got the means, as already pointed out, to censure or punish the party. But no such safeguard is available in the case of communications where the matter does not come to Court. The privilege relating to a communication between a solicitor and client is a very ancient head of privilege in order to encourage free intercourse between them and this is the foundation of the principle that communications between a lawyer and client should not be disclosed without the permission of the client. Therefore the law does give an adequate safeguard in protecting such communications from disclosure. There is no reason why, having this protection, they should also be immune from liability to an action, when the said protection is not availed of and the communications are made, not with a view to being kept confidential, but intended to be published to a party. Every client in seeking legal advice is expected to put before his legal adviser the true and correct facts on which legal advice is sought. If the facts are known to be false to the knowledge of the client, he is not really seeking or expecting any proper legal advice at all but is attempting to make an improper use of the confidential relationship for purposes of his own. And there is neither reason for nor public necessity nor public benefit in according absolute immunity from liability to action to such communications. That is why the law has always classed such communications, until the decision of the Court of Appeal, under the head of qualified privilege so that if the communication was not made from an indirect motive or actuated by a malice, the law gave such communications, the protection. The Courts have also dealt with the matter under the head of qualified privilege. In Morgan v. Wallis (1917) 33 T.L.R. 495, a defamatory matter uttered by a solicitor in delivering a bill of costs to his client was held not to be absolutely privileged. Justice Darling in that case observed thus:
Mr. Lewis Thomas contended that the occasion was absolutely privileged, which means that it is like the reports of what passes in these courts or what is in a legal document issued by authority. I cannot see any reason to suppose that a solicitor is endowed with the right to publish whatever he likes about every body provided that it is in a bill of costs…if a solicitor puts into hi s bill of costs matters not necessary for the information of the client in order that he may know for what he is paying, or that he may get the bill properly taxed, if there is evidence that he put them in out of malice, then the privilege would be destroyed. I know that I am perhaps giving a decision on the point of law to which Lord Bowen referred. I must give it. That is my view about it.
21. I may say that this view is in consonance with that of Bramwell, J., in a very early decision Bruton v. Dowries (1858-1867) 1 F. & F. 668 : 175 E.R. 899 and this case has been cited with approval by Folkard in his book on “Law of Slander and Libel” at page 98 (also Odgers, 4th Edition, 231; 6th Edition, 202). It may be observed that in the article on Libel and Slander by Vaugham Williams, L.J., in Volume XVIII, Halsbury’s Laws of England (1st Edition), paragraph 1254, absolute privilege in connection with judicial proceedings is limited to proceedings at the trial and to the proceedings which are essentially steps in judicial proceedings; but Lord Hewart, C.J., in the Hailsham Edition, paragraph 465, seems to extend this by including under this head not only statements in pleadings but also communications passing between a solicitor and client relying on More v. Weaver (1928) 2 K.B. 520. The editor of Salmond on Torts in the latest edition observes that it is uncertain whether the privilege is absolute or qualified. This is the state of the English Law at present. If the view which prevailed before the decision of the Court of appeal in More v. Weaver (1928) 2 K.B. 520 is taken, there can be no doubt that the communication made by the defendants to Mr. Krishnamachari on the 9th May, 1927, would come only under the head of qualified privilege.
22. Coming to the Indian decisions, a distinction is drawn between an action for defamation in a Civil Court and a criminal prosecution for defamation. In regard to the latter it has been held that the absolute privilege accorded in England to a party or a witness or an advocate in connection with judicial proceedings cannot apply; it is only qualified privilege and it must come within one of the exceptions of Section 499 of the Indian Penal Code – vide Tiruvengada Mudali v. Tripurasundari Ammal (1926) 51 M.L.J. 112 : I.L.R. 49 Mad. 728 (F.B.), Satish Chandra Chakravarti v. Ram Doyal De (1920) I.L.R. 48 Cal. 388 (S.B.) and Bai Shanta v. Umrao Amir (1925) I.L.R. 50 Bom. 162 (F.B.). The reason given is that the law having been codified by statute, the latter must prevail. But for civil wrongs there has been no such codification and the rule of law that is applicable is justice, equity and good conscience. It is no doubt anomalous that in connection with the same matter one principle of law should apply for the purpose of a criminal case and another for the purpose of a civil action. But the anomaly is there, and until the Legislature intervenes, it must be recognised. However, the rule which is now to be applied for the case on hand is the rule of justice, equity and good conscience, which has been generally understood to be the principles of common law in England so far as they are applicable to Indian Society having regard to the circumstances of the case. But where the principles of common law in England are in a state of uncertainty, there is nothing to preclude us applying that view of the law which is essentially just and equitable cf. Parvathi v. Mannar (1884) I.L.R. 8 Mad. 175 and which is in consonance with the principle on which the doctrine of privilege is based. In our opinion the older view of treating communications like the one in question under the head of qualified privilege ought to be the rule of justice, equity and good conscience. Even in England authority is not wanting for the view that the doctrine of absolute privilege should not be extended vide Lopes, L.J., in Royal Aquarium and Summer and Winter Garden Society, Ltd. v. Parkinson (1892) 1 Q.B. 431 at 451. And where the Indian Legislature has chosen to depart for the purpose of criminal law from the doctrine of absolute privilege as applied by the common law of England, it seems to us that the extension made in More v. Weaver (1928) 2 K.B. 520 should not be adopted here. Therefore the defendants cannot escape liability for their wrongful act unless it is proved that in so doing they were not actuated by malice. We have already found that the words spoken concerning the 2nd plaintiff were false and made from an improper motive. As observed by Lord Esher in Royal Aquarium, etc. v. Parkinson (1892) 1 Q.B. 431 at 443:
If a person on such an occasion states what he knows to be untrue, no one ever doubted that he would be abusing the occasion.
23. Lord Justice Lopes in the same case said:
If it be proved that out of anger or for some other wrong motive, the defendant has stated as true that which he does not know to be true, and he has stated it not stopping or taking the trouble to ascertain whether it is true or not – stated it recklessly by reason of his anger or other indirect motive – the jury may infer that he used the occasion not for the reason which justifies it, but for the gratification of his anger or other indirect motive.
24. Applying this principle to this case, we have no hesitation in finding that the defendants were actuated by malice in uttering and publishing the matter complained of.
25. In this view, it is unnecessary to deal with the application for amendment of the plaint made by Mr. Rajah Aiyar requesting leave to amend by claiming damages for the publication of the defamatory matter to the first plaintiff.
26. The only question that remains for consideration is the question of damages. We think in the circumstances of this case an award of Rs. 500 would meet the ends of justice. We therefore reverse the decision of the learned District Judge and pass a decree in favour of the appellant (the second plaintiff) for the sum of Rs. 500 with interest at six per cent, from the date of plaint. The appellant will have her costs both here and in the Court below.
