JUDGMENT
Sadasiva Aiyar, J.
1. These two connected appeals arise out of the same suit brought by the plaintiff, a leading Vakil of the Tanjore bar, for the recovery of Rs. 2,000 for damages for the libel contained in a letter sent to the Madras Standard by the Defendant and published hi that paper on the 22nd August 1912 The letter is marked as Ex. A in the case. The District Munsif awarded Rs. 500 damages and full costs. Both sides appealed and the learned Subordinate Judge on appeal reduced the damages to Rs. 10 but awarded full costs to the plaintiff in the defendant’s appeal and dismissed the plaintiff’s appeal without costs. In the defendant’s Second Appeal No. 1349 of 1915 Mr. G.S. Ramachandra Aiyar argues that only the last 11 lines of Exhibit A were intended by him to refer to the plaintiff and that even as regards the matter contained in those 11 lines his letter amounts to a fair comment bona fide upon the plaintiff’s conduct as vakil putting forward arguments in a particular mode in a case conducted by him and that therefore he is not liable, in law, to the plaintiff for such comments.
2. I think the question whether the whole of the writing or any part of that writing would be construed by an ordinary reader to refer to plaintiff is a question of fact which in English courts would be left to a jury, and where the jury arrives at their verdict on this particular point through a misconstruction of the writing read as a whole or through other circumstances appearing in the case, that verdict is a verdict upon a question of fact. While therefore I am of opinion that the Subordinate Judge in arriving at his conclusion that the first portion of the letter Exhibit A would not be read by an ordinary newspaper reader as referring to the plaintiff, did so through a construction of the letter which according to legal canons of construction was wholly unjustified, I am unable to hold that his finding as to the implication that would be put by an ordinary newspaper reader on that portion of the letter A, (that is whether it referred to the plaintiff or not) is not a question of fact but one of law and is therefore open to be questioned in Second Appeal.
3. As regards the remaining portions (that is, the last 11 lines) they clearly accuse Mr. Naganatha Sastri of the six faults, numbered 1 to 6 in the next previous portion, and also of sophistry. The defendant in his own evidence admits that Mr. Naganatha Sastri was not guilty, in the conduct of the case, of five of the above seven faults. If, however, an ordinary reader would read the document as charging Mr. Naganatha Sastri with these five faults also, then, the defendant is clearly guilty of libel. The defendant’s appeal therefore must be dismissed with costs.
4. As regards the plaintiff’s second appeal it is valued at Rs. 1,990. I find from the Subordinate Judge’s judgment that the plaintiff left the question of the quantum of damages entirely in the hands of that court. That Court in respect of the defamatory matter contained in the last eleven lines assessed the damages at Rs. 10 and in respect of the whole letter (if the whole was a libel on plaintiff) at Rs. 100. I think, therefore, that the plaintiff’s appeal on the question of the inadequacy of damages should have been confined to the difference between the one hundred rupees and the ten rupees, that is, to ninety. I have already observed in considering the defendant’s appeal, that the question whether the first portion of the letter applied to plaintiff is a question of fact with which I cannot interfere in Second Appeal. The question of damages is also a question of fact. The plaintiff’s appeal is therefore also dismissed with costs.
5. In thus confirming the judgment of the Subordinate Judge I should not be understood as affirming all the observations as to the ethics of the profession contained in that judgment. The remark that “members of the profession have no duty to judge of the case for themselves before accepting an engagement” seems to me to be too broadly stated. I think the tendency in modem times is to expect from the legal profession a greater amount of care and conscience in accepting engagements and in putting forward arguments than was thought sufficient in the days of Lord Erskine or Lord Brougham when the duty of practitioners to clients was exalted to such an extent as to obscure the duty of the practitioner to see that his own delicacy of conscience and sense of right is not gradually blunted and that his position as a promoter of justice and a helper of the Court in its administration is not gradually made subordinate to his position as a mere paid advocate of the claims of others.
6. I shall notice also very shortly, two points referred to by Mr. T. Rangachariar in the course of his argument. He referred to the House of Lords’ case in E. Houlton and Co. v. Jones (1910) L.R.A.C. 20 to support his position that whether the plaintiff was intended or not to be attacked, the defendant would be liable if an ordinary reader would reasonably come to that conclusion. Supposing that the English Law as developed by English precedents is to that effect, I do not see why the Indian Law should follow suit unless the doctrine is in consonance with justice, equity and good conscience. I am strongly of opinion that the dissenting opinion of Lord Justice Fletcher Moulton on the question (an opinion which was expressed in the same case when it was before the Court of appeal) See Jones v. E. Houlton and Co. (1909) 2 K.B.P. 458 to 476, is much more in consonance with justice and equity than the law, as now settled in England on this point. The other point mentioned by Mr. T. Rangachariar is that penal and exemplary damages ought to be awarded in such cases as the present, I shall content myself with observing that the whole doctrine of penal and exemplary damages is due to the illegitimate encroachment of the considerations of punishment by fine in criminal jurisprudence into the realms of civil litigation and I wholly deprecate the introduction of such complications of the English system into India.
7. I wish to remark in conclusion that the plaintiff would have been better advised if he had treated the whole matter even in the beginning with indifference (I shall not say contempt). At any rate, he should not in my opinion have pursued the matter in the Appellate Court after he had obtained a judgment in the First Court, nor have filed a second appeal in this Court after both courts had decided in his favour that the defendant was not justified in his attacking the plaintiff, though they differed as to whether the whole of the letter or only a portion constituted such attack,
Spencer, J.
8. I entirely agree with what has fallen from my learned brother as to the undesirability of this matter having formed the subject of a civil action after the defendant had tendered an apology.
9. The Subordinate Judge found as a finding on a question of fact, that only the latter part of the newspaper publication referred to the plaintiff.
10. It has been argued that as the alleged libel itself is contained in a document it is open to us to interpret this document according as we think proper. In my opinion it is not the legal construction which is to be put on this document that we have to consider, but what an ordinary person would understand by the language used and this is a matter which would be in a case tried with a jury a question for the jury to decide. Therefore whether the first part of the article referred to the plaintiff or not is a question of fact which we cannot go into in Second Appeal. I am not prepared to say that, if this matter had come before us in first appeal, I should have taken the same view as the Subordinate Judge has taken.
11. Then as to the questions of justification, fair comment and bona fides, these also are questions of fact and the fact court found them against the defendant in paragraphs 21, 22 and 24 of its judgment and the learned Subordinate Judge agreed with the District Munsif. It has always been held that although it is a question for the Judge to say whether if certain facts were proved they would amount to justification, yet it is a question for the jury to bay whether an article complained of is a fair comment on a matter of public interest. It is only where the article is so clearly fair that there can be no question of libel on the admitted facts that a judge may stop the case. We must therefore accept the findings as to fair comment and bona fides.
12. The quantum of damages is also a question of fact and even were it otherwise, the circumstances of [this case do not seem to require any interference.
13. I therefore agree that both appeals should be dismissed with costs.
