P L D 1954 Sind 70 (PLP)

In asking the Court to decide an issue like the present one the defendants must be taken to admit that for the sake of argument the allegations of the plaintiff in his plaint are true modo et forma‑in manner and form. In considering the present question the written statement has also not to be taken into consideration. It is only the plaintiff's allegation which if accepted to be true must disclose that the plaintiff has a cause of action against the defendants. The question for my determination therefore is if the allegations in the plaint are correct modo et forma‑in manner and form, is the plaintiff entitled to damages as claimed for. It is clear from the allegations in the plaint, in the first place, that the defendant No. 6 admittedly acted under instructions from his client while making certain defamatory, statements and in the second place the defendants 1 to 5 made certain defamatory statements in reply to a notice by the plaintiff's sister preparatory to her filing of certain civil actions now pending in this Court and that they have made certain defamatory statements in a written statement in a pending suit. On the allegations mentioned above the law is very clear. Mr. Sharifuddin, the learned counsel has contended that no action in torts lies on the allegations made in the plaint. The leading case cited by. Mr. Sharifuddin is Munster v. Lamb, ((1883) 11 Q B D 588.). "If upon the grounds of public policy and free administration of the law the privilege be extended to judges and witnesses, although they speak maliciously and without reasonable or probable cause, is it not for the benefit of the administration of the law that counsel also should have an entirely free mind ? Of the three classes‑Judge, witness, and counsel‑it seems to me that a counsel has a special need to have his mind clear from all anxiety. A counsel's position is one of the utmost difficulty. He is not to speak of that which be knows; he is not called upon to consider whether the facts with which he is dealing are true or false. What he has to do, is to argue as best he can, without degrading ‑ himself, in order to maintain the proposition which will carry with it either the protection or the remedy which he desires for his client. If amidst the difficulties of his position he were to be called upon during the beat of his argument to consider whether what he says is true or false, whether what he says is relevant or irrelevant, he would have his mind so embarassed that he could not do the duty which he is called upon to perform. For, more than a judge, infinitely more than a witness, he wants protection on the ground of benefit to the public. The rule of law is that what is said in the course of the administration of the law, is privileged ; and the reasons of that rule cover a counsel even more than a judge or a witness." Another important case is that of King v. Skinner reported in (98 English Reports page 529). It was observed by Lord Mansfield :‑ "I am willing, as neither Serjeant Davy, nor Mr. Bullar, find any precedent in the history of England, for an indictment of this kind, to give them time till next term to find any. What Mr. Lucas has said is very just; neither party, witness, counsel, jury, or judge, can be put to answer, civilly or criminally, for words spoken in office. If the words spoken are opprobrious or irrelevant to the case, the Court will take notice of them as a contempt and examine on information. If any thing of mala mens is found on such enquiry it will be punished suitably. The words are extremely improper. If the party was not a borough justice, I should think there might be grounds to apply to the great Seal to remove him from his office. But to go on an indictment, would be subversive of all ideas of a constitution. If any precedent should be found, you should have time to make use of it; otherwise it would be proper to quash the indictment immediately." The next case to be referred to in this connection is the well- known case in (1876) 1 C P D

540. In that case a witness was sued in tort for defamation. Lord Coleridge, Lord Chief Justice of the common pleas, entertained no doubt as to the absolute privilege belonging to the parties both in the pleadings and during the conduct of the case and he observed that he conceived: "The law on this point to be now quite certain, although most men of any experience in the profession must have seen many instances in which judicial proceedings have been made by parties to them to serve the ends of private malignity. It is equally certain, however, nor has any question ever been raised that the privilege of parties is confined to what they do or say in the conduct of the case. In a suit for damages for Rs. 1 lakh for having used abusive language against the plaintiff their Lordships of the Patna High Court observed in I L R 1922 Patna 371 that statements of legal practitioners made in the course of their professional duty are absolutely privileged even though the statements are malicious, defamatory and irrelevant. Their Lordships of the Privy Council in 11 Bengal Law Reporter page 321, while dealing with the case of a witness who is alleged to have made certain defamatory statements during the course of a proceeding and a suit for damages was filed against the witness, observed :‑ "Their Lordships are of opinion, with the High Court, that if it had been, strictly speaking, such an action, it could not have been maintained; for they agree with that Court that witness cannot be sued in a Civil Court for damages, in respect of evidence given by them upon oath in a judicial proceed ing. Their Lordships hold this maxim which certainly has been recognized 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." This principle of law no doubt would apply to a counsel as well as to a party. To the same effect is a decision in 10 Mad. page

28. The authorities in India are quite clear about the law applicable to parties in a proceeding who may have made defamatory statements The Courts in India are definitely of the view that no action in torts for damages lies against a party who may have made a defamatory statement during the course of a proceeding. A Division Bench of the Calcutta High Court has clearly held in A I R 1939, 477 that no action for lible or slander lies, whether against judges, counsel, witnesses or parties, for words written or spoken in the course of any proceeding before any Court recognised by law though the words were written or spoken maliciously without any justification or excuse, and from personal ill‑will and anger against the person defamed. In this connection the following observation of the learned judge of the Calcutta High Court is noteworthy. "It will be useful to refer to the case in (1905) A C 480 where the matter has been taken a little further. That was a case relating to statements by the defendant to client and solicitor in an intended action. It was held that the privilege which protects the evidence in the witness‑box also protects statements made to the client and the solicitor in preparing the proof for trial. Lord Halsbury referred to the immunity from responsibility in an action when evidence has been given in a Court of justice as being too well established to be shaken. With regard to the argument that no such protection should exist in respect of statements made to the solicitor, Lord Halsbury characterized the suggestion as ingenious. He pointed out that it should follow from the immunity given to the witness in the box that there should be immunity given to his statements made to persons who were engaged in the conduct of proceedings in Court when what was intended to be stated in Court was stated to them ; for otherwise the object for which privilege exists is gone, because then no witness could be called ; no one would know whether what he was going to say was relevant to ,the question in a debate between the parties." The principles of law deducible from the above is that communication between client and counsel and between the parties themselves with a view to initiate proceeding in a Court of law and which has so resulted is absolutely privileged. This absolute privilege is allowed on the ground of public policy as otherwise there would be no free correspondence between the parties preparatory to filing of a suit. A single judge of the Madras High Court in a case reported in A I R 1942 page 343 held that the plaint did not disclose any cause of action against the Secretary and the Head Master inasmuch as the alleged defamatory statement made by them was made in the course of a proceeding. Mr. Sharifuddin, the learned Counsel also cited 1933 Nag. 47, 1933 Pat. 35, 1940 All. 341 and 1946 All. 213 in support of his contention. The last case which I have mentioned is noteworthy in one respect that the learned judges differed from an earlier case (A I R 1929, 214) which was relied upon by Mr. Fonseca. Their Lordships observed in that case that in India as in England on grounds of public policy a counsel was absolutely protected from a suit for defamation for words spoken or written in course of the administration of law. Besides these reported cases Mr. Sharifuddin, the learned counsel also relied on well‑known authors on law of torts. According to Clerk and Lindsell on Torts p. 727 "Privilege is of two kinds: (i) absolute, which is a complete bar to an action ; (ii) qualified, which is only Prima facie a ground of defence. It is not merely with respect to the hearing in open Court that there is absolute privilege, but also with regard to every step taken in the conduct of a legal proceeding, for instance. an affidavit filed in support of an interlocutory application. can in no case give a cause of action. In the present case it is contended by Mr. Sharifuddin that the allegations made against the defendants 1 to 5 relate to judicial proceedings. It was also not denied by Mr. Fonseca, the learned counsel for the plaintiff, that these allegations in the plaint did not relate to judicial proceedings. D. N. Guha in his book on "Law of Defamation and Malicious Prosecution " has also mentioned that there are two kinds of privilege (1) absolute privilege and (2) qualified privilege. When the occasion is absolutely privileged, anything said or published on such an occasion is absolutely privileged, that is, is wholly immune from liability, irrespective of any question of malice or improper motive, and although is in fact actuated by malice or improper motive. This is absolute privilege suit for defamation in respect of a statement which is absolutely privileged thus will not lie even though it be actuated by malice or improper motive. Absolute privilege attaches to judicial proceedings, legislative proceedings and state proceedings. As already stated, it is the occasion which is privileged and once the occasion is shown to exist, everything done on that occasion is protected in all circumstances and irrespective of good faith or malice. Where the statements are absolutely privileged no action will lie, how ever false, defamatory and malicious they may be. Any statement made in the course of and with reference to judicial proceedings by any judge, jurymen, party, witness or advocate is privileged. A communication by a party to his solicitor or legal adviser made 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, is absolutely privileged. Ratanlal in his book on Law of Torts has also dealt with the present question at page

163. He has commented that counsels words are absolutely privileged although he may have uttered without any justification or even excuse and that no action lies against an advocate for defamatory words spoken with refer ence to, and in the course of, an inquiry before a judicial tribunal. It is not necessary to quote the comments of Iyar at page 274 in his book on Law of Torts on the question of immunity enjoyed by parties and advocates in judicial proceedings. Armand Shastri an Law of Torts at page 582 comments ; " No action for libel or slander lies against Judges, counsel witnesses, or parties for words written or spoken in the course of any proceeding before any Court recognised by law and this though the words written or spoken were written or spoken maliciously, without any justification or excuse, and from personal ill‑will and anger against the person defamed. This rule is based on public policy and applies not only to all Courts of justice but wherever there is an authorised enquiry which, though not before a Court of Justice, is before a tribunal which has similar attributes." It is clear from the case law cited by Mr. Sharifuddin and various commentaries on Law of Torts that statements and allegations made during the course of the proceeding or for the initiation of the same is absolutely privileged and that no action in torts lies for the same. Mr. Fonseca, the learned counsel for the plaintiff contended in reply to the arguments of Mr. Sharifuddin that the principle of privilege regarding statements and allegations made during the judicial proceeding is based on Common Law of England and is not applicable to India. The short reply to this contention of the learned counsel for the plaintiff is that in all those cases which arose out of action in Torts against advocates for having made defamatory statements against certain parties in the course of 'judicial proceeding the various Nigh Courts in India, as men tioned above, applied the principle of common law. Mr. Fonseca also contended that defamatory words as such were actionable in Torts and therefore he‑ had a cause of action. It is true that defamatory words as such may be actionable but the privilege granted by common law to defamatory words in judicial proceedings cannot be ignored. As I have already dealt with above the case law as well as various well known authors on the law of Torts are unanimous in their opinion that where the privilege is absolute, it is not actionable in Torts. The princi ple of law deducible from the reported cases and the various commentaries on Torts is that statement made during the course of a judicial proceeding or with a view to the initiation of the same is absolutely privileged and no action in Torts would lie against the same. It is also contended by the learned counsel for the plaintiff that it is only when the written statement is filed by the defendants that the question of privilege could arise. I do not see any force in this contention. The Court while dealing with an application under Order 7 rule 11 C. P. C. has to accept the allegations in the plaint as true and it is . only after accepting these allegations in the plaint to be true that the Court has to apply the law to those facts and see if the plaintiff would be entitled to any decree for damages as claimed for. The observation of Lord Watson in this connection is important. He observed while delivering the judgment of the Board in Chand Kuar v. Paratap Singh I L R 16 Cal. 518) as follows ;‑ " Now the cause of action has no relation whatever to the defence which may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff. It refers entirely to the grounds set forth in the plaint as the cause of action, or, in other words, to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour." It is clear from the above that the Court has, while considering the question of cause of action, to apply its mind to the facts given in the plaint and not to any other matter. Mr. Fonseca, the learned counsel for the plaintiff relied on various authorities under the Legal Practitioners Act and the Par Council Act where disciplinary action was taken against an advocate. Mr. Fonseca contended on the basis of those cases that had an advocate absolute privilege no disciplinary action could have been taken against him. This argument has no force. The question of damages in Torts is based on common law while the disciplinary action against an .advocate arises under the provisions of the Legal ~ Practitioners Act. The principle applicable to the statutory law cannot be made applicable to the common law principles. I repeatedly asked Mr. Fonseca, the learned counsel for the plaintiff, to cite any reported case in which an advocate or a party may have been held liable for damages for any defamatory statements made during the course of any judicial proceeding. He was unable to cite any authority to that effect. The learned counsel for the plaintiff also relied upon the provisions of the Penal Code where a counsel has been held to be guilty for having made defamatory statements against a party. As I have already mentioned above the case law for defamation in criminal proceedings will not be applicable to actions for damages in Torts. Mr. Fonseca, the learned counsel for the plaintiff also contended that the burden of proving the privilege is on the defendants. The question of' proof by the defendant does not arise in an application under Order 7 rule 11, C. P. C. The application under Order 7 rule 111, C. P. C. bas to be disposed of on the assumption that the facts and allegations made in the plaint are true. This contention of the learned counsel therefore has no force. I have given my very best consideration to the facts and circumstances of the present case and I am constrained to hold that the allegations and facts stated in the plaint do not give rise to any cause of action against the defendants. The admitted facts in the plaint give rise to absolute privilege in favour of defendants 1 to 6. and the Court can not but apply the law applicable to the facts contained in the plaint. I therefore for the reasons given above reject the plaint under Order 7 rule

11. C. P. C. Under the circumstances of the present case I make no order as to costs. A. H. Plaint rejected.