M.Kanniappan v. Jaganathan

IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON: 26.06.2018 PRONOUNCED ON : 12.07.2018

CORAM

THE HON'BLE MR.JUSTICE P.RAJAMANICKAM S.A.No.2063 of 2001 M.Kanniappan ... Plaintiff/Appellant Vs Jaganathan ... Defendant/Respondent PRAYER:Second Appeal filed under Section 100 of C.P.C, against the judgment and decree dated 22.11.2000 passed in A.S.No.20 of 2000 by the learned Sub-Judge, Maduranthakam, confirming the Judgment and decree dated 28.06.2000 passed in O.S.No.131 of 1999 by the learned District Munsif, Maduranthakam, Kanchipuram District.

For Appellant : Mr.N.Nagusah For Respondent : No Appearance

JUDGMENT

This Second Appeal has been filed by the plaintiff against the judgment and decree passed by the Sub-Judge, Maduranthakam in A.S.No.20 of 2000 dated 22.11.2000 confirming the judgment and decree passed by the learned District Munsif, Maduranthakam in O.S.No.131 of 1999 dated 28.06.2000.

2. The appellant herein has filed a suit in O.S.No.131 of 1999 on the file of the District Munsif, Maduranthakam claiming damages of Rs.15,000/- with interest at 12% p.a., from the date of plaint till the date of realisation. The learned District Munsif, Maduranthakam, by the judgment and decree dated 28.06.2000, has dismissed the said suit. Aggrieved by the same, the appellant herein has filed an appeal in A.S.No.20 of 2000 on the file of the Sub-Judge, Maduranthakam. The learned Sub-Judge, Maduranthakam has dismissed the said appeal confirming the judgment and decree passed by the trial Court. Feeling aggrieved, the appellant herein has filed the present Second Appeal. For the sake of convenience, the parties are referred to as described before the trial Court.

3.The averments made in the plaint are, in brief, as follows:

The plaintiff is employed in Panchayat Union Middle School, Perukkaranai Village as Assistant Teacher. The defendant is also employed in the same school as NoonMeal Scheme Organiser and he was always enemical towards the plaintiff and he was indulging in unruly behaviour with the plaintiff and used to pick up quarrel with the plaintiff on a number of occasions and used filthy language and assaulted him. On 10.12.1997 at about 9.45 a.m., after prayer, the plaintiff was taking attendance in the class room and at that time, the defendant unauthorizedly entered into the class room and shouted at the plaintiff by saying ''Come out, I will beat you with Cheppals''. The defendant has uttered the above said words in front of all the students and also used many bad language against the plaintiff.

On hearing the shouting and unruly behaviour, the Headmaster and other Teachers rushed into the class room and saved the plaintiff. The plaintiff gave a complaint to the Headmaster and he later forwarded the same to the police for necessary action. Based on the said complaint, a case was registered in Crime No.81 of 1998 by the Chithamur police station under Section 294(b) of I.P.C. The police, after investigation, has filed a charge sheet and based on the said charge sheet, the Judicial Magistrate, Maduranthakam has taken the case on file in S.T.C.No.448 of 1998. In the said case, the defendant has appeared and admitted the offence and paid a fine of Rs.150/-. By that incident, the plaintiff was put to mental pain and agony, his reputations is lost among the teachers, students and the general public.

Hence, the defendant is guilty of the offence and also for defamation. The plaintiff has issued a notice through advocate on 05.03.1999 to the defendant claiming compensation of Rs.1,00,000/-. The defendant, after receipt of the said notice has issued a reply notice through his advocate dated 12.03.1999 with false averments. Hence, the plaintiff was constrained to file the above suit claiming damages. The plaintiff restricted the damages to Rs.15,000/- with interest at 12% p.a., from the date of plaint till the date of realisation. 4.

The allegations that on several occasions, the defendant abused the plaintiff with filthy language, picked up quarrel and assaulted him, are all false. It is also false to state that on 10.12.1997 at 9.45 a.m., when the plaintiff was in the class room, the defendant unauthorizedly entered into the class room and shouted against the plaintiff by saying ''Come out, I will beat you with Cheppals''. Even though the defendant has not committed any offence, since the police compelled him to admit the offence, the defendant has admitted the offence and paid a fine of Rs.150/- before the Judicial Magistrate, Maduranthakam. It is false to state that the

plaintiff is entitled to ask for damages of Rs.1,00,000/-. It is true that the plaintiff has sent a lawyer's notice claiming damages of Rs.1,00,000/- and after receipt of the said notice, the defendant has sent a reply notice suitably. The defendant is not liable to pay any compensation. The claim of the plaintiff is against the law of limitation and therefore, he prayed to dismiss the above suit.

5. Based on the aforesaid pleadings, the learned District Munsif, Maduranthakam has framed necessary issues and tried the suit. During trial, on the side of the plaintiff, the plaintiff examined himself as P.W.1 and also examined two more witnesses as P.W.2 and P.W.3. He has marked Ex.A1 to Ex.A3 as exhibits. On the side of the defendant, the defendant examined himself as D.W.1 and he has not marked any exhibits on his side.

6. The learned District Munsif, after considering the materials placed before her, dismissed the suit. Aggrieved by the same, the plaintiff has filed an appeal in A.S.No.20 of 2000 on the file of the learned Sub-Judge, Maduranthakam. The learned Sub-Judge, Maduranthakam, has dismissed the said appeal confirming the judgment and decree passed by the trial Court. As against the same, the plaintiff has filed the present Second Appeal.

7. At the time of admitting this Second Appeal, this Court has formulated the following substantial questions of law:- "1) Whether the courts below right in dismissing the appellant's suit for general damages for defamation by misconstruing the above suit is for special damages?

2) Whether the lower appellate court is right in holding that the suit is hit by Art 76 of Limitation Act without noticing the said Article would apply only to the suits for special damages and not for general damages?

3) Whether the lower appellate court is right in reversing the trail court's finding as to limitation though the defendant did not file any appeal or cross objections against the trial court's finding as to limitation?

4) Whether the lower appellate court is right in reversing the trial court's finding that the defendant had spoken slanderous words though the defendant did not file any appeal?"

8. When this Second Appeal was taken up for hearing, the learned counsel for the respondent has reported no instructions. Hence, the respondent was called absent and set ex-parte.

After hearing Mr.N.Nagusah, learned counsel for the appellant and perusing the records, judgment is being passed in this Second Appeal.

9.Question Nos. 1 to 4:

The learned counsel for the appellant has submitted that the courts below failed to consider that the plaintiff has proved the alleged defamation by examining himself as P.W.1 and also two more witnesses on his side. He further submitted that the trial Court has found that the suit is not bared by limitation and against the said finding, the defendant has not filed any appeal, but the First Appellate Court has recorded a finding that the suit is barred by limitation. He further submitted that the first Appellate Court failed to consider that the alleged defamation comes under the category of general damages. He further contended that the first Appellate Court wrongly came to the conclusion that in this case, the alleged defamation would fall in the category of special damages and hence, Article 76 of Limitation Act would apply.

He further submitted that the trial Court has rightly held that the act of the defendant would fall under the category of ''assault'' and since there is no specific Article prescribing the limitation for claiming damages for ''assault'' the residuary Article 137 only will apply, but, the first Appellate Court, by misconstruing the fact, came to the conclusion that the alleged act of the defendant would fall under the definition of slander and as such the proper Article would be applicable was Article 76 of the Limitation Act and therefore he prayed to allow the Second Appeal and setaside the judgments and decrees passed by the Courts below and decree the suit as prayed for.

10. The plaintiff has stated in his plaint that the defendant frequently quarreled with him and abused him with filthy language and also assaulted him. He further stated that on 10.12.1997 at about 09.45 a.m., after prayer, when he was in the class room and taking attendance, the defendant unauthorizedly entered into the class room and shouted on him by saying '' Come out, I will beat you with Cheppals''. He also stated that the defendant has uttered the above said words in front of the pupils and used many bad language against him. He further stated that with regard to the said incident, he gave a complaint before the Headmaster of the school in which both of them are working and the said Headmaster, later forwarded the said complaint to the police. He further

stated that the police has registered the case against the defendant in Crime No.81 of 1998 under Section 294(b) of I.P.C., and the defendant has admitted the said offence and paid a fine of Rs.150/- before the Judicial Magistrate, Maduranthakam in S.T.C.No.448 of 1998.

11. The defendant in his written statement has denied the allegations that on 10.12.1997, he entered into the class room and shouted at the plaintiff by saying ''Come out, I will beat you with Cheppals''. Further he has stated that he has admitted the offence and paid a fine, since the police compelled him to admit the offence.

12. The plaintiff has not produced a copy of the complaint and marked as exhibit. He has produced only a certified copy of the S.T.C. Register and marked as Ex.A1, wherein it is stated that on 10.12.1997 at Perukkarani, the accused due to previous enmity with the plaintiff uttered the following words, ''Dog, come out, I will beat you with Cheppals'' and thereby, he committed the offence punishable under Section 294(b) of I.P.C. It is also stated that the defendant has admitted the said offence and paid a fine of Rs.150/-. From the aforesaid statement, it cannot be said that the defendant has committed the offence punishable under Section 294(b) of I.P.C. For invoking Section 294(b) of I.P.C., the accused, should have uttered obscene words, in or near any public place. It cannot be said that the aforesaid words would amount to obscene words. However, the defendant has admitted the offence and paid fine.

13. As per Section 31 of the Indian Evidence Act, 1872, admission is not a conclusive proof of the matters admitted. So, evidence to rubut it , or to show that it was wrongly made, could be given. In this case, as already stated that the alleged act of the defendant would not attract Section 294(b) I.P.C., Therefore, the plaintiff cannot rely upon the admission made by the defendant before the criminal Court. The plaintiff has to prove his case independently. As already pointed out that the plaintiff has not produced a copy of the complaint given to the School Headmaster. If he had produced a copy of the said complaint, that it would help the Court to know what was happened on the alleged date of occurrence. The trial Court has rejected the oral evidence of Pws 1 to 3 as there are material contradictions in their evidence. Though the trial Court has observed that the allegations made in the plaint against the defendant may fall under the category of "Assault", after considering the evidence held that the plaintiff failed to prove those allegations and accordingly dismissed the suit.

14. The first Appellate Court took a view that the act of the defendant would fall under the category of slander and for claiming compensation for slander Article

76 of the Limitation Act would apply and hence the suit is barred by limitation and accordingly confirmed the judgment and decree of the trial Court.

15. According to the learned counsel for the appellant / plaintiff, the act of the defendant would fall under the category of "Assault" and since, for claiming damages for assault there is no specific Article prescribing the limitation, the residuary Article i.e. Article 113 of the Limitation Act will apply and as per the said Article, suit can be filed within three years from the date of cause of action. His further contention is that the occurrence took place on 10.12.1997 and that the suit was filed on 23.03.1999 i.e. within three years from the date of cause of action and therefore the suit is not barred by limitation.

16. In Ratanlal & Dhirajlal's ''The Law of Torts'', it is stated that an assault is an attempt or a threat to do a corporal hurt to another, coupled with an apparent present ability and intention to do the act. It is also stated that any gesture calculated to excite in the party threatened a reasonable apprehension that the party threatening intends immediately to offer violence. It is also stated that it is not every threat, when there is no actual personal violence, that constitutes an assault, there must, in all cases, be the means of carrying the threat into effect.

17. In the case on hand, the plaintiff while examining himself as PW1 has stated that on 10.12.1997 at about 9.45 a.m., after prayer, when he was in the classroom, the defendant entered into the classroom and said, ''Come out 'dog', I will beat you with cheppal". He further stated that the students went out of the classroom. He further stated that due to the said incident, he lost his reputations. He also stated that the students and teachers are not giving respect to him. But he has not deposed that the act of the defendant has created an apprehension in his mind that the defendant may execute the threat. Of course, P.W.2 (Headmaster) has stated in his chief examination that the defendant shouted with a cheppal on his hand, but in his cross examination he has stated that he did not see the occurrence. P.W.3 is a student.

He has deposed that the defendant shouted on the plaintiff and uttered the words that "Come out, 'dog', 'prostitute's son', 'impotent'.'' Further he deposed that the defendant has stated that he will cut him and also said that he will beat him with cheppal by keeping cheppal in his hand. But these words were not stated by the P.W.1 in his evidence. Hence, the trial Court has rejected the evidence of P.W.3. Since P.W.1 himself has not stated in his evidence that the defendant has shown a cheppal, the evidence of P.W.

relied upon. Hence, this Court is of the view that the plaintiff has failed to prove that the defendant has committed an assault. Therefore, Article 113 of the Limitation Act will not apply to the facts of this case.

18. It is also to be pointed out that though the plaintiff has stated in his plaint that the defendant had used many bad language against him, he has not stated that fact in his evidence. However, he has stated in his evidence that due to the act of the defendant he has lost his reputation. He also stated that the students and the teachers are not giving respect to him. In the plaint also he has stated that the defendant is guilty of the offence and also for defamation. Therefore, it appears that according to the plaintiff that the defendant has committed defamation i.e. slander.

19. The learned counsel for the appellant has submitted that the trial Court has found that Article 113 of the Limitation Act will apply and in the said Article, the Limitation prescribed is three years and since the suit has been filed within three years from the date of occurrence, it was held that the suit is not barred by limitation and as against such finding, the defendant has not filed any appeal or cross objections and in the said circumstances, it would not be proper on the part of the first Appellate Court to reverse the aforesaid findings of the trial Court and held that the suit is barred by limitation. Under Rule 22 (1) of Order XLI of C.P.C.

any respondent, though he may not have appealed from any part of the decree, may not only support the decree but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour. Moreover, as per sub-Section (1) of Section 3 of the limitation Act, 1963, every suit instituted, appeal preferred and application made after the prescribed period shall be dismissed, even if the limitation has not been set up as defence. Therefore, eventhough the defendant has not filed any appeal against the finding of the trial Court that the suit is not barred by limitation, as per Rule 22 (1) of Order XLI of C.P.C. he is entitled to argue that the finding of the trial Court is erroneous.

(1) of Section 3 of the Limitation Act to see whether the suit is filed within the limitation. Therefore the contention of the learned counsel for the appellant / plaintiff that the first Appellate Court has no power to reverse the findings of the trial court in the absence of filing any appeal cannot be accepted.

20. Article 76 of the Limitation Act contains two parts. The first part says that the limitation starts when the words are spoken and the second part says that if the words are not actionable in themselves, the limitation

starts when the special damage complained of results. So if the first part itself gives cause of action, the limitation will start when the words are spoken. If the first part does not give cause of action, then only we have to see when the special damage complained of results. In this case, as per the contention of the learned counsel for the appellant that the act of the defendant comes under the category of general damage. In such case, the act of the defendant would come under the first part of the Article 76 of the Limitation Act. Therefore in either case, the suit should have been filed within one year from the date of cause of action. In this case, as per the plaint, the defendant has committed slander on 10.12.1997. The suit has been filed on 23.03.1999. So, the suit is barred by limitation.

Therefore, this Court is of the view that the first Appellate Court has rightly come to the conclusion that the proper Article applicable for the present case is Article 76 of the Limitation Act. Since the suit has not been filed within one year as prescribed in the said article, the suit is barred by limitation. Accordingly, these questions are answered against the appellant.

21. In the result, the Second Appeal is dismissed. No costs.

Sd/- Assistant Registrar(CS) //True Copy// Sub Assistant Registrar vsa To

1. The Sub-Judge, Maduranthakam 2.The District Munsif, Maduranthakam copy to The Section officer, VR section, High court madras.

Judgment made in S.A.No.2063 of 2001 ASK(26/09/2018)