JUDGMENT
Alfred Henry Lionel Leach, C.J.
1. This appeal raises the question whether in India statements made in pleadings are absolutely privileged or whether the privilege is qualified.
2. The suit which has given rise to this appeal was filed by the respondents in the Court of the District Munsiff of Masulipatam for damages for defamation. The alleged defamatory words were contained in a plaint filed by the appellants in the same Court in a passing-off action instituted against the respondents. The parties arc rival traders and carry on business within a few miles of one another. The goods in which they trade consist of gilt and electroplated jewellery. In their plaint the appellants averred that the respondents had pursued a course of conduct with the object of ruining the appellants’ business. The appellants were the successors in business of a firm known as T., Subba Rao and Brothers, who used to obtain their supplies from the respondents. In 1927, the appellants established a workshop of their own and began to manufacture these goods themselves. This resulted in the cessation of business relations between the parties and according to the appellants caused the respondents to do all that lay within their power to injure the appellant’s business. They alleged that the respondents had interfered with the correspondence which they had with their customers through the post. In paragraph 7 of the plaint filed by the appellants in the suit against the respondents there is this statement,
Thereupon envy and malice sprung up into their minds, especially defendants who began to wage a rate-war and ever since trying to ruin the business of plaintiffs. To that purpose defendants have resorted to nefarious practices and other questionable means among which interception of postal correspondence is one.
The respondents’ action is based on the latter part of this statement. The District Munsiff held that absolute privilege attaches to pleadings and consequently dismissed the suit. On appeal the Subordinate Judge considered that there was only a qualified privilege and as he found that the appellants were actuated by malice in making this statement he awarded the respondents Rs. 750 as damages. The present appeal is from that decree. The case has been referred to a Bench because of the importance of the question involved.
3. A Full Bench of five judges of this Court in Tiruvengada Mudali v. Tripurasundari Ammal (1926) 51 M.L.J. 112 : I.L.R. 49 Mad. 728 (F.B.) held that defamatory ‘statements made in complaints to Magistrates are not absolutely privileged and therefore unless they are made in good faith the complainant is guilty of defamation. This decision was based on the wording of the eighth exception to Section 499 of the Indian Penal Code. It was held that as there was provision in an Indian statute which was applicable, the rules of English Common Law could not be applied. The question referred related solely to criminal proceedings and the Court stated that it had nothing to say as to how far the complainant might be protected from civil proceedings. Therefore this decision has no bearing on the question now under discussion. In Ramanamma v. Appalanarasayya (1931) 62 M.L.J 230 : I.L.R. 55 Mad. 346 this Court did, however, say that in the matter of defamation, there was a good deal of difference between a suit for damages and a criminal prosecution. The prosecution was governed by the provisions of the Indian Penal Code, the suit by the English Law of slander and libel. A defence which was open to the accused in a prosecution was not open to him as the defendant in a suit.
4. As long ago as 1872, the Privy Council in Baboo Gunnesh Dutt Singh v. Mugneeram Chowdhury (1872) 11 Beng.L.R. 321 (P.C.) held that a witness could not be sued for damages in respect of evidence given by him in a judicial proceeding, as there was absolute privilege. There can be no difference in principle between a statement made by a person in the witness-box and a statement made by a party to a suit in his plaint or written statement. The Calcutta High Court in Madhab Chandra Ghosh v. Nirode Chandra Ghose I.L.R. (1939) 1 Cal. 574 and the Bombay High Court in Nathji Muleshwar v. Lalbhai Ravidat (1889) I.L.R. 14 Bom. 97 have held that there is absolute privilege. In the Calcutta case the alleged defamatory statement was contained in a report sent to the police regarding the commission of a crime. In the Bombay case the alleged defamatory statement was contained in a petition presented in civil proceedings.
5. 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 Gunnesh Dutt Singh v. Mugneeram Chowdhury (1872) 11 Beng.L.R. 321 (P.C.), but it is to be borne in mind that there exists a 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.
6. In Seaman v. Netherclift (1876) 2 C.P.D. 53, Cockburn, C.J., Bramwell, J.A. and Amphlett, J.A., held that a witness in a Court of Justice is absolutely privileged with regard to anything he may say as a witness when it has reference to the inquiry, but Cockburn, C.J., observed:
It was there–Dawkins v. Lord Rockby (1875) L.R. 7 H.L. 744–expressly decided that the evidence of a witness with reference to the enquiry is privileged, notwithstanding it may be malicious; and to ask us to decide to the contrary is to ask what is beyond our power. But I agree that if in this case, beyond being spoken maliciously, the words had not been spoken in the character of a witness or not while he was giving evidence in the case, the result might have been different. For I am very far from desiring to be considered as laying down as law that what a witness states altogether out of the character and sphere of a witness, or what he may say dehors the matter in hand, is necessarily protected. I quite agree that what he says before he enters or after he has left the witness-box is not privileged which was the question in the case before Lord Ellenborough (Trotman v. Dunn (1815) 4 Camp. 211 : 171 E.R. 67). Or if a man when in the witness-box were to take advantage of his position to utter something having no reference to the cause or matter of inquiry in order to assail the character of another, as if he were asked : were you at York on a certain day? and he were to answer : Yes, and A.B. picked my pocket there; it certainly might well be said in such a case that the statement was altogether dehors the character of witness, and not within the privilege.
Bramwell, J.A., said:
I can scarcely think a witness would be protected for anything he might say in the witness-box wantonly and without reference to the inquiry. I do not say he would not be protected. It might be held that it was better that everything a witness said as a witness should be protected, than that witnesses should be under the impression that what they said in the witness-box might subject them to an action. I certainly should pause before I affirmed so extreme a preposition, but without affirming that, I think the words ‘ having reference to the inquiry’ ought to have a very wide and comprehensive application, and ought not to be limited to statements for which, if not true, a witness might be indicted for perjury, or the exclusion of which by the Judge would give ground for a new trial; but ought to extend to that which a witness might naturally and reasonably say when giving evidence with reference to the inquiry as to which he had been called as a witness.
7. There is an indication of the acceptance of this qualification in the decisions of this Court in Sullivan v. Norton (1886) I.L.R. 10 Mad. 28 (F.B.), Balammal v. Palandi Naidu (1938) 2 M.L.J. 340 and Doraiswami Thevan v. Lakskmanan Chettiar (1932) 38 L.W. 240 and we consider that this qualification must be accepted. If a plaintiff in his plaint or a witness in the witness-box makes some scandalously defamatory statement which has no reference whatever to the matter, it is difficult to see on what legitimate ground the aggrieved person should be denied a remedy. Considerations of public policy with regard to the administration of justice–we refer to the necessity for freedom of expression for a party, witness or counsel–surely cannot be carried to this extent. It is one thing to give absolute privilege to statements which have some reference to the inquiry and another thing to do so in the case of statements which are entirely irrelevant. We hold that in a civil action for defamation there is absolute privilege for a statement made in a pleading provided that the statement has reference to the inquiry.
8. It is now necessary to decide whether the statement complained of in the appellants’ plaint has reference to their case. Rightly or wrongly they complained that the respondents had endeavoured to ruin their business, that they had done everything in their power to this end, including the adoption of a fraudulent get-up. Their course of conduct had relevancy to the inquiry; and therefore the charge of interception of the appellants’ business correspondence was not irrelevant. As a matter of fact, the evidence shows that they did complain to the postal authorities about interference with their correspondence, and that the postal authorities wrote to the appellants saying that necessary action had been taken to ensure and safeguard transmission of their articles passing through the Masulipatam Post Office. In deciding a question of this nature the Court should not take a too restricted view of what is pertinent. In the language of Bramwell, J., the words ” having reference to the inquiry” ought to be given a very wide and comprehensive application. We hold that the statement complained of by the respondents was not entirely irrelevant and therefore is privileged.
9. The result is that the appeal will be allowed with costs here and in the first appellate Court.
