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Madras High Court
P.M. Govindan Nair vs M. Achutha Menon on 19 January, 1915
Equivalent citations: (1916) ILR 39 Mad 433
Author: Tyabji
Bench: Ayling, Tyabji


JUDGMENT

Tyabji, J.

1. One Sridevi Anterjanam of Thazhakolam Illom was suspected of having committed adultery. In accordance with a custom which is referred to in some detail in Vallabha v. Madusudanan (1889) I.L.R. 12 Mad. 495 an enquiry was held in the matter presided by the Baja of Cochin within his own territory. The enquiry was ceremonious but hardly in accordance with natural justice inasmuch as it consisted in effect of a bare statement by the suspected woman giving the names of persons whom she charged with having committed adultery with her. On this statement without any opportunity being given to the persons named of defending themselves or rebutting the, accusation, they were declared to be excommunicated. The plaintiff was one of the persons purported to be so excommunicated.

2. Subsequently an officer of the Cochin State, styled Sarvadhi Kariakar (literally general agent) addressed a letter Exhibit B to the Diwan to the effect that the woman “was caused to be brought here after the vicharana (investigation)…and as a decision has been pronounced regarding her real state it has been decided to lodge the abovesaid sadhanam (suspected woman) in a plaoa near the Ghalakudy Oottupara (choultry). As it has been ordered to arrive at once at a conclusion regarding the following:–that as soon as the suspected woman (Sadhanam) is brought be Chalakudy she ought to be made to reside at a place in its neighbourhood, if available, if not she ought to be made to reside in a house constructed with mud walls and with beams, frame work, door and bolt made of bamboos, proper precaution ought to be taken so that she may not have any opportunity to hold intercourse with any. She ought to be provided with expenses at the rate of Edangalis of paddy and sundries per diem from the Oottupara at Chalakudy till the end of her time. And that…were implicated when the trial of the suspected woman (Sadhanam) was conducted, arrangements should be made to excommunicate the houses and the illoms to which they belong so that they may not frequent the temple, illom, etc., frequented by stainless persons and that they may not touch tanks and wells, etc. This matter is reported for information. Thus (written by) Gopala Desika Ghariar, the Sarvadbikariakar (Agent for all things), of your honour.” Exhibit B bears endorsements to the effect that copies were forwarded to various officers of the State of Cochin “for necessary action and report” or for “information and guidance.”

3. The plaintiff sued in defamation. As against the first defendant it was alleged that he had announced, in the course of the investigation to which I have referred, that the plaintiff had committed adultery with the said woman. The first defendant is no more before the Court, the suit having been dismissed against him, and the dismissal upheld by a decision of this Court in Govinda Nayar v. Jadavedan Nambudiri Second Appeal No. 210 of 1906. His legal position need not therefore be further referred to.

4. The cause of action alleged against the second defendant is that he delivered a copy of the order (Exhibit B) to an officer (styled the Pattamalai) who is in charge of the Triprayar devaswam or temple.

5. It is not denied that Exhibit B is defamatory–Coopoosami Chetty v. Duraisami Chetty (1910) I.L.R. 33 Mad. 67, and it has been found that the second defendant knowing its contents delivered a copy of it to the Pattamalai. The decision of the lower Courts that there was no publication by the second defendant of the libel is therefore clearly wrong–The King v. Burdett (1820) 4 B. & Ald. 95. Publication in regard I to libel and slander does not require communication to more I persons than one. There need not be anything like publication in the common acceptance of the term–Pullman v. Hill & Co. (1891) 1 Q.B. 524. The fact that the investigation above referred to was opposed to natural justice–Vallabha v. Madusudanan (1889) I.L.R. 12 Mad. 495 and Krishnasami v. Virasami (1887) I.L.R. 10 Mad. 133 at p. 143 is not at present relevant for we are concerned not with the question whether the plaintiff’s rights or status can in the Courts of British India be deemed to have become altered by the proceedings of the quasi-judicial tribunal, such as a caste-meeting, or under the authority of a person recognized by custom as the head or patron of a caste. We have to deal solely with the question whether the plaintiff is entitled to claim damages from the second defendant for publishing or communicating a defamatory statement concerning the plaintiff.

6. In the decision of this question whether the plaintiff is entitled to damages for defamation the fact that the alleged defamation was committed outside British India will not necessarily take away the jurisdiction of the Courts of British India though it may affect the law to be administered.

7. With reference to the jurisdiction of the Courts, the sections of the Code of Civil Procedure that need be considered are Sections 9–20.

8. Section 9 gives jurisdiction to the Courts to try all suits of a civil nature excepting suits of which the cognizance is either expressly or impliedly barred; Section 10 prevents a contemporaneous trial in several Courts; Sections 11 to 14 bar suits on the ground of res judicata; these sections are not relevant.

9. Sections 15 to 20 contain provisions about the place of suing. These provisions are based on five considerations: (1) the grade of the Court, Section 15; (2) the situation of the property to which the suit refers, Sections 16 to 18; (3) the place where a wrong is done to the person or to movable property, Section 19; (4) the residence or place of business of the defendant, Section 20(a), (b); (5) the place where the cause of action has arisen, Section 20(c).

10. The grade of the Court is not in dispute, nor does the suit relate to any property, so that Sections 15 to 18 do not furnish any aid.

11. Section 19 deals with suits for compensation for wrong done to the person or to movable property, where it is evident that “the relief sought can be entirely obtained through the personal obedience of the defendant” (proviso to Section 16). The wrongs contemplated may therefore be referred to as “personal torts.” Section 19, however, assumes that the tort is committed within British India; in such a case if (a) the tort is committed within the local limits of the jurisdiction of one Court, and (b) the defendant resides or carries on business or personally works for gain within the local limits of another Court, there both Courts have jurisdiction. Section 19 is not directly applicable as the tort here was not committed within the local limits of any Court in British India. But it indicates that the fact that the defendant resides in British India is sufficient to give the Court, within whose local limits he resides, jurisdiction over suits in tort of the nature referred to though the tort may have been committed outside the local limits of the jurisdiction of the Court in which the suit is brought. This indication is strengthened by Section 20(a) which fixes the residence of the defendant as one of the determining factors for the choice of the Court in a suit on a personal tort; and this ground is independent of the place where the cause of action arises: Clause (c).

12. The omission in the Code to provide specifically for a case where the defendant resides in British India but is alleged to have committed a personal tort beyond the limits of British India, does not however take away the general jurisdiction of the Courts in British India under Section 9. To assume jurisdiction where a person residing within the local limits of the jurisdiction of the Court is alleged to have committed a tort beyond such limits, is in accordance with the principles of Private International Law recognized in England. The Halley (1868) L.R. 2 P.C. 193. The Code of Civil Procedure indicates that the same rule is to be followed by the Courts in British India.

13. The question of jurisdiction is distinct from the question, which law will be administered by the Court adjudicating upon a personal tort alleged to be committed outside the local limits of that Court’s jurisdiction. The Civil Courts Act III of 1873, Section 16, was not cited to us and is obviously not applicable, and there seems to be no other legislative direction to the British Courts in Madras as to the law that they have to administer, except such directions as are impliedly contained in the preliminary sections of most Acts, fixing the limits within which those Acts shall have effect or be enforceable. The law of torts has not been codified in India and we have therefore no determinate law delivered to the Courts by the Sovereign that sets the question of the choice of law at rest. The choice of law being thus open to the Courts, it is obviously in accordance with justice, equity and good conscience not to bold a person liable in tort for an act which would be justifiable in accordance with the law of the place where it is done; nor will the Courts hold a person liable unless the act is wrongful by the law of the country in which the Court is situated, and by which the parties would have been governed if the act had been done within the local limits of its own jurisdiction. The law is thus stated by Lord Justice MELLISH in The M. Moxam (1876) I.P.D. 107 at. P. 111: “Now the law respecting personal injuries and respecting wrongs to personal property appears to me to be perfectly settled that no action can be maintained in the Courts of this country on account of a wrongful act either to a person or to personal property, committed within the jurisdiction of a foreign country, unless the act is wrongful by the law of the country where it is committed and also wrongful by the law of this country. The Halley (1868) L.R. 2 P.C. 193 and Phillips v. Eyre (1870) L.R. 6 Q.B. 1 together with the other cases in conformity with them, seem to be conclusive upon the subject.” This judgment is referred to with admiration by Lord Lindely in Carr v. Francis Davies & Co. (1902) A.C. 176 at. p. 184. The arguments for the respondent therefore that there was no cause of action, that the occasion was privileged and that there was justification for the acts of the second defendant, may be conveniently considered under two main heads (1) whether the acts complained of would have bean justifiable if they had been committed in British India, (2) whether they were justifiable in Cochin under the law prevalent there.

14. With reference to first head Chatterton v. Secretary of State for India in Council (1895) 2 Q.B. 189, Jevoure v. Delmege (1891) A.C. 73 and Narasimha v. Balwant (1903) I.L.R. 27 Bom. 585 have been cited. These decisions and the principles enunciated in them are not very helpful in the decision of the present question. The second defendant can justify his act only on the basis of his official position, and as I have already indicated if he had in his private capacity done in British India the acts he is found to have done in Cochin, he would have been liable for defamation.

15. Was the second defendant, then justified in accordance with the law of Cochin in publishing the libel as he did in Cochin by handing a copy of Exhibit B to the Pattamalai? It was suggested that on this question two issues should be framed for findings by the lower Court:

(1) Was there any order by the Raja of Cochin that the Sarvadhikariakar should publish the libel:

(2) Is the act of publication actionable in Cochin?

16. These issues no doubt raise definitely the points on which the ultimate decision of the case depends, and they have perhaps not been considered, with as great a clearness as the appellant desires. But the Subordinate Judge finds that the initial enquiry was authorized by His Highness the Raja of Cochin, that Exhibit B is the copy of the Raja’s order communicated to the temple, that in the usual course the Diwan sent it to the Superintendent of the temple, that the second defendant received it in his official capacity, and gave it (as he was bound to give) to the Pattamalai, the manager of the temple. It is expressly found that the second defendant did nothing more. We are bound by these findings. But a perusal of Exhibit B itself indicates its official nature and supports the view that the second defendant was doing what his office required him to do in transmitting it from his superior officer to the Pattamalai.

17. In these circumstances it would be useless to call for any fresh finding on the first of the two questions just mentioned. The Subordinate Judge has already answered it in the affirmative.

18. Then it is argued that the act of the second defendant might be actionable in Cochin and that whether it is so or not should be determined by a specific issue, on which parties may be permitted to adduce evidence, and that the law of Cochin should be determined in British India as a question of foreign law, and therefore of fact. The appellant’s contention is Supported by the omission of the Subordinate Judge, to determine as a question of fact, what the law of Cochin is. But the respondent relies on Carr v. Francis Davies & Co. (1902) A.C. 176, for the proposition that if the act is authorized by the Raja of Cochin, as the Subordinate Judge holds, then, inasmuch as he is the sovereign authority in Cochin and his will must prevail, this is sufficient to show that the act was justified in Cochin.

19. The question in Carr’s case was whether the seizure of certain ammunition by an officer of the British Navy acting under the orders of the British Government was lawful. The seizure had taken place in the territorial waters of Muscat. It was justified on the ground that it was authorized by a proclamation issued by the Sultan, the sovereign ruler of Muscat, and pronounced to be lawful by a Court of Enquiry in Muscat whose decision was confirmed by the Sultan. Lord Halsbury said in that case: “My Lords, the argument on behalf of the respondents comes to this–that the Sultan of Muscat is not entitled within his own territory to say what shall and what shall not be the subject of traffic. Here the Sultan has pronounced what his law is; and I may say at once that, looking at these two documents upon the true construction of which as it appears to me, the whole question turns the Sultan himself has pronounced, by an authoritative declaration that what was done was lawful.” Lord Macnaghten said that the real question was whether the documents (consisting of a proclamation by the Sultan authorizing the seizure and the certificate of a Muscat Court countersigned by the Sultan, stating that the actual seizure was authorized and legal) showed that the act complained of was an act done by the Sultan’s authority as his act, which he adopted as his own, and declared to be legal. He therefore answered the question in the affirmative. Lord Lindley also considered the documents as proving that the act was legal according to the law of Muscat.

20. It is true that in the present case we have nothing equivalent to the subsequent declaration by the Sultan of Muscat that the seizure was lawful. But when Exhibit B is looked at and the nature of the suit considered it seems clear that the absence of such a subsequent declaration is immaterial. For here as I have already said, no question arises whether the proceedings in Cochin ought to prevail or to have effect in British India. All that has to be determined is whether the second defendant was justified in transmitting a copy of the document to his official subordinate; his act would be justifiable if it appears that the Raja of Cochin authorized the transmission. Exhibit B itself leaves no doubt on this point. It is in effect the decree of the Court of Enquiry presided over by the Raja. To hold that the second defendant was liable in damages for defamation for performing his official duty of handing over Exhibit B to his subordinate would be to dictate to the Raja of Cochin the method of procedure in his own territory. This the British Courts cannot do. All that they can do is to refuse to recognize the inquiry as a judicial proceeding affecting the rights of a person whose rights or status have been purported to be adjudicated upon. As the right of the Raja of Cochin to hold the enquiry in the way he chooses has to be conceded, a fair report of the proceedings would be justified. Allbutt v. General Council of Medical Education and Registration (1882) 23 Q.B.D. 400. Much more therefore would an order based on such an enquiry be privileged.

21. Much reliance was placed by the appellant on the following statement in Rogers v. Rajendro Dutt (1860) 8 M.I.A. 103 at pp. 130 and 131: “On this state of facts it does not appear to their Lordships material to consider whether the demand made on the part of the plaintiffs was exorbitant or not, nor whether the opinion expressed by the defendant, and on which he subsequently acted, was founded in good policy, or otherwise. Neither does it seem to them to conclude the question in the action that the act complained of is to be considered as the act of the Government, and that in the part which the defendant took in it he acted only as the officer of the Government, intending to discharge his duty a3 a public servant with perfect good faith, and with an entire absence of any malice particular or general, against the plaintiffs. For if the act which he did was in itself wrongful, as against the plaintiffs, and produced damage to them, they must have the same remedy by action against the doer, whether the act was his own spontaneous and unauthorized or whether it was done by the order of the superior power. The civil irresponsibility of the supreme power for tortious acts could not be maintained with any show of justice, if its agents were not personally responsible for them; in such cases the Government is morally bound to indemnify its agent, and it is hard on such agent when this obligation is not satisfied; but the right to compensation in the party injured is paramount to this consideration. Neither in the case of damage occasioned by a wrongful act, that is, an act which the law esteems an injury, is malice a necessary ingredient to the maintenance of the action: an imprisonment of the person, a battery, a trespass on land are instances, and-only instances in which the act may be quite innocent, even laudable as to the intention of the doer, and yet, if any damage, even in legal contemplation, be the consequence, an action will lie.”

22. These words however are expressly referred to the “state of facts” before their Lordships; the facts consisted of an allegation that the defendant had wrongfully and unjustly and with the intention of injuring the plaintiffs prohibited the officers of the Bengal pilot service from allowing the plaintiff’s steam tug to be employed. The Privy Council held that the act of the defendant was not wrongful; that he merely instructed his own subordinates as to those whom they should employ under them, and that this was quite lawful.

23. They point out that no malice was alleged (135).

24. In the present case also the question would be whether the second defendant’s act was wrongful in itself; it is only if the act itself is wrongful, that it will not avail the second defendant to allege that he acted on the directions of a superior whose person is not subject to the jurisdiction of the Court; in such a case the responsibility of the second defendant may be enforced in the Courts, and then there may (as pointed out by the Privy Council) arise in his favour a moral claim of indemnity from his superior.

25. In the consideration of this point the plaintiff cannot put his case higher than on the assumption that by handing over a copy similar to Exhibit B the second defendant himself made the representations contained in Exhibit B, i.e., stated that an enquiry into the plaintiff’s conduct had been held and that in consequence of the enquiry it had been ordered that certain steps should be taken on the assumption that the plaintiff had committed adultery. The second defendant’s liability in transmitting a copy of the original of Exhibit B cannot be greater than if he had himself communicated its contents to the Pattamalai though the repetition of a slanderous rumour is actionable as well as its original invention. Watkin v. Hall (1868) L.R. 3 Q.B. 396 and Tidman v. Ainshi (1854) L.R. 10 Ex. 93. Hence a case which is more nearly applicable than Rogers v. Rajender Dutt (1860) 8 M.I.A. 103 is Hart v. Gumpach (1872) L.R. 4 P.C. 439. There the plaintiff alleged that the appellant who was Inspector-General of Customs invested with the general superintendence of a College at Peking had made certain false representations, relating to the plaintiff who was a professor of the College. Their Lordships say at pages 458, 459, 460 and 461:

The representations made by the Inspector-General were privileged communications in the ordinary sense in which those words are understood; that is to say, communications so far justified by the occasion on which they are made, that the inferenoe of malice which prima facie arises from defamatory statements is rebutted and the burden of proving express malice thrown on the plaintiff.

The appellant was entrusted by the Government with the General Superintendence of the College and its professors, and it was his duty to make reports to the Tsung-li-yamen upon matters relating to its managment and welfare. The resignation of a professor, his absence from Peking, and any avowed disinclination or refusal to perform the duties for which he was engaged, were matters which it would be within his province to report. Reports so made, although defamatory, are prima facie justifiable and the duty of making them rebuts the malice which the law implies, and renders proof of actual malice, that is, of some wrong and improper motive, necessary to the maintenance of an action.

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The Judge ought, therefore, to have explained to the jury the relation and position of the parties, and (assuming for the present the existence of a limited privilege only) he should have told them that the action would not lie if the statements were made honestly and in a belief of their truth, and that the burden was on the plaintiff to prove they were not so made.
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The question is, whether the statements are so groundless-that they afford evidence that the appellant knew and believed they were untrue, and acted from malicious motives in making them. Their Lordships think that the appellant might have honestly believed he was reporting what was substantially true and that there is no evidence from which it can be reasonably inferred that he was acting otherwise than in the bona fide discharge of what he conceived to be his duty. But it is enough to say that it is consistent with the evidence that such were his belief and motives in the absence of any proof that he really entertained hostile or unfriendly feeling towards the respondent. The respondent, therefore, failed to sustain the burden, thrown upon him by the law of proving actual malice.

26. The answer to this last question (whether the second defendant acted with malice) is in the present case quite clear from the facts proved. The defendant did nothing beyond handing the copy of the original of Exhibit B, which he had received, to another officer and he did so as a part of his official duties. The decision last cited no doubt contains the law that would be applicable in British India and not the Cochin law. It is not however necessary to consider whether on the materials before us we can assume that the Cochin law is the same as the law applicable in British India. For as I have already pointed out where the cause of action alleged is a personal tort committed outside the local limits of the jurisdiction of the Courts-of British India unless the act is wrongful according to the law both of British India and of the place where the act is committed, the suit will not lie. The lower Courts were therefore-in my opinion right in dismissing the suit against the second defendant and the appeal should be dismissed with costs.

Ayling, J.

27. So I agree.


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