W.B.

Shanthi vs Arunachalam (Died) on 14 November, 2014

Madras High Court

W.B.Shanthi vs Arunachalam (Died) on 14 November, 2014

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 14.11.2014
CORAM
THE HONOURABLE MR.JUSTICE P.DEVADASS

SECOND APPEAL (MD) No.402 of 2011

and M.P.(MD) No.1 of 2011

W.B.Shanthi ... Appellant

-vs-

Arunachalam (Died)
Shanmugam ... Respondent
PRAYER: Second Appeal is filed under Section 100 of the Code of Civil
Procedure, against the Judgment and Decree, dated 08.04.2011, passed in
A.S.No.8 of 2009, on the file of the learned Additional Subordinate Judge,
Tenkasi, confirming the Judgment and Decree, dated 19.03.2004, passed in
O.S.No.193 of 2004, on the file of the learned Principal District Munsif,
Tenkasi.

!For Appellant : Mr.B.Jeyakumar

^For Defendants : Mr.V.Meenakshisundaram

for Mr.D.Nallathambi

:JUDGMENT

This Second Appeal involves an important question concerning legal profession.

2. Plaintiff Arunachalam has been a senior member of Tenkasi Bar. He has commanded good
practice, both on the civil side and on the criminal side. His volume of work is an indication that he
built up a lucrative practice. Clients flocked to him. Since he is a lawyer of eminence, he has had
disciples. He became a mentor of many budding lawyers. Arunachalam's Office produced many
good lawyers.

3. Advocate Arunachalam has been engaged by one Kathirvel Murugan. On the instruction of his
said client, Advocate Arunachalam (P.W.1) issued Ex.A.1 lawyer notice dated 20.04.2001 to
defendant Natarajan, (D.W.1). Defendant himself sent Ex.A.3 reply dated 27.04.2001, to Advocate
Arunachalam. On reading Ex.A.2, Advocate Arunachalam got wounded, upset because it contained

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 W.B.Shanthi vs Arunachalam (Died) on 14 November, 2014

personal imputations against him, criticizing him as a lawyer. It was personal insinuation against
him. Under these circumstances, Advocate Arunachalam issued him Ex.A.3 notice dated 12.05.2001,
demanding Rs.1,00,000/- as damages for having sent Ex.A.2. It was received by him under Ex.A.4,
Acknowledgment.

4. Now, the defendant replied him through a lawyer under Ex.A.5 that as defendant himself a
relative of him and both belongs to the same community, he took little bid liberty and replied him so
under Ex.A.2 and he did not intend to defame him, humiliate him nor question his professional
integrity. Under the circumstances, Advocate Arunachalam instituted the suit, claiming
Rs.1,00,000/- as damages.

5. The defendant resisted the suit by filing written statement almost reiterating his contentions in
his reply notice Ex.A.3.

6. The trial Court framed the necessary issues and tried the suit. During the trial, plaintiff
Arunachalam examined himself as P.W.1 and marked Exs.A.1 to A.6, while defendant Natarajan
examined himself as D.W.1 and he did not mark any document.

7. Considering the submissions of both sides and the oral and documentary evidence, the trial Court
concluded that through his Ex.A.3, letter defendant had defamed plaintiff/Advocate Arunachalam
and thus decreed the suit to the extent of Rs.40,000/- with 6% future interest and with cost.

8. By now defendant's life span was cut short. Plaintiff Advocate Arunachalam was also called by his
Maker. They have become immortal but mortal like their wives have to carry the fighting spirit of
their departed souls.

9. Defendant's wife challenged the trial Court's decree in the Sub Court, Tenkasi in A.S.No.8 of
2009, while Arunachalam's wife responded to it by being a respondent in the first appeal. Now, the
wives fought in glory of their beloved. Ultimately, defendant's wife lost the appeal.

10. It is pertinent to note that after the trial Court decree and before passing the appellate court's
decree defendant passed away. In such circumstances, the 1st appellate Court ought not to have
passed personal decree as against the wife of the deceased defendant, it should be from and out of
the estate of her deceased husband.

11. In the circumstances, now, in this Second Appeal, defendant's wife is before us.

12. At the time of admission, the then learned Brother formulated the following substantial
questions of law:

1. Whether the lower Appellate Court is legally or factually correct in confirming the Decree and
Judgment of the Trial Court which decreed the suit when the appellant/defendant had disproved
plaintiff's case by clinching evidence?

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 W.B.Shanthi vs Arunachalam (Died) on 14 November, 2014

2. Whether the decree of the lower appellate Court in confirming the decree of the trial Court
awarding compensation for defamation when there is no defamation legally and without adequate
materials for the alleged defamation??

13. The learned counsel for the appellant would contend that in Ex.A.3, the defendant had made
only a general comments and he did not mean to defame the plaintiff. Further, with regard to the
very same matter, plaintiff also prosecuted the defendant in C.C.No.468 of 2001 before the learned
Judicial Magistrate, Tenkasi, for the offence of defamation, wherein the defendant had expressed his
regret and accepting it, the learned Magistrate released him under the Probation of Offenders Act.
Again continuing of the same litigation is almost flogging a dead horse. Further, the defendant is no
more. On his behalf his wife is fighting. Even when the execution petition was filed, she has
deposited 50% of the suit amount. Now, already the family of the defendant is suffering. They may
not be burdened further. Thus, it also calls for dilution of the rigor of the decrees of the Courts
below.

14. On the other hand, the learned counsel for the respondent would submit that the defendant had
defamed the plaintiff. The learned counsel also submitted that it is not a matter of money. It is a
matter of pride, honor and prestige of a lawyer. The lawyer's wife is fighting not for money but to
vindicate the honor of her late advocate husband. In monetary terms it cannot be valued. What was
prayed itself is only by way of nominal damages, what was awarded is also less.

15. The learned counsel for the respondent further added that of course, the lawyer is dead, but,
while alive or after his death, it is the pious duty of his wife to see that even his soul should not be
tormented and he must rest in peace.

16. I have anxiously considered the rival submissions. Perused the materials on record and went
through the impugned judgments of the Courts below.

17. This claim arises under the law of torts. It is a claim for damages for the tort of defamation.

18. Arunachalam, a senior member of the Tenkasi Bar was insulted, defamed by the defendant. That
is why this case.

19. Advocate Arunachalam has been engaged by one Kathirvel Murugan to issue a lawyer notice to
the defendant in connection with a property matter. Based on his instructions Advocate
Arunachalam issued Ex.A.1 notice to the defendant. But, it was replied to by the defendant under
Ex.A.3 containing certain imputations concerning Arunachalam as an Advocate. It is libel. He
sought for compensation for sending him such a libelous matter.

20. The quintessence of the tort of defamation is based on the distillation of case ? laws on the
subject, collected, and presented in their book on 'Law of Torts' by Ratan Lal & Dhiraj Lal (2006
Edition) may be extracted hereunder. It reads as under:

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 W.B.Shanthi vs Arunachalam (Died) on 14 November, 2014

"A libel is a publication of a false and defamatory statement tending to injure the reputation of
another person without lawful jurisdiction or excuse. The statement must be expressed in some
permanent form e.g. writing, printing, pictures, statue, waxmore effigy etc. A libel is of itself an
infringement of a right and no actual damage need be proved in order to sustain an action. In order
to found an action for libel it must be proved that the statement complained of is (i) false; (ii) in
writing, (iii) defamatory; and (iv) published. The falsity of the charge is presumed in the plaintiff's
favour. The burden of proof that the words are false does not lie upon the plaintiff. Defamation of a
person is taken to be false until it is proved to be true.

... Any words will be deemed defamatory which (a) expose the plaintiff to hatred, contempt, ridicule,
or oblique; or (b) tend to injure him in his profession trade; or (c) cause him to be shunned or
avoided by his neighbors. ... In an action for defamation the plaintiff must show that the defamatory
statement refers to him.

... Again, if the defendant knows that the letters sent to the plaintiff are usually opened by his clerk
or he ought to have anticipated that they would be opened by his spouse and the defendant sends a
libellous letter which is in fact opened by the clerk or the spouse, the defendant is liable. But if a
servant in breach of his duty and out of curiosity taken a letter or of an unclosed envelop and reads
it, there is no publication."

21. So far as the tort of defamation is concerned, (1) there must be a defamatory statement (2) it
must be in writing (3) it should be in the nature of lowering down the name and fame of the person
among the right thinking members of the society, and (4) it should be published, in other words, it
should be made known to others.

22. In short the tort of defamation is a deaming tirade in written form launched against a person.
The tort of defamation is actionable per se. So proof of actual monetary loss is immaterial.

23. In the instant case, on instructions from his client, under Ex.A.1, Advocate Arunachalam set
forth certain allegations with regard to a property matter. The defendant Natarajan directly replied
the Advocate under Ex.A.2.

24. Defendant Nataran and Advocate Arunachalam belongs to same place. They belongs to the same
community. They are relatives. Defendant is well qualified. Even in Ex.A.2, after his name, he had
high sounding of qualification such as M.A., B.Litt., B.A.L., Diploma in Journalism. He retired as an
Assistant Director from the Directorate of Tamil Development.

25. In Ex.A.2, at several places defendant had alluded the Advocate in singular tone. The most
damaging part is in page No.6, para No.5. It runs as under: (reproduced verbatim) ? (5) cA;fs;
fl;rpf;fhuh; bfhLj;j bgha;j;jftypd; Bghpy;, kdr;rhl;rpf;F tpBuhjkhf, ng;gobahU Bkhrof;F cle;ijahf
nj;jifa Mjhukw;w mwptpg;igf; bfhLj;jpUg;gJ tHf;Fiuqh; bjhHpy; jh;kj;jpw;Bf BghpGf;fhFk;. nJ
Bghd;w Bkhrof; Fw;wj;jpw;F ifahshf nUg;gth; tHf;fwpqh; bjhHpYf;Bf bgUj;j mtkhdkhFk;. ?

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 W.B.Shanthi vs Arunachalam (Died) on 14 November, 2014

26. Defendant is a versatile scholar in Tamil. He used his proficiency in Tamil to defame a
professional. He calls the Advocate Arunachalam a cheat, he charges him that he has disgraced,
lowered down the image of, the legal profession. He also stamped him a stooge, an agent of fraud.
The words employed in Ex.A.2 are condemnable, inginate, arouse the sense of an Advocate, who are
all by their nature highly sensitive. Ex.A.2 contains imputations tending to lower down the
professional integrity of Advocate Arunachalam among the right thinking members of the society. In
the facts and circumstances, it is nothing less of defamation.

27. The defence of unintentional defamation is unavailable to a defendant. At Common Law a

person may become liable for defamation without any intention or fault (See Houlton & Co., vs.
Jones (1910) AC 20) Cassidy vs. Daily Mirror News Paper Ltd., (1929) K.B. 331) and Newsstend vs.
London Express (1940) 1 K.B. 377).

28. Ex.A.2 is typed. Typed by another person. Therefore, the typist knew the libelous matter against
Advocate Arunachalam. Arunachalam is having an Advocate Clerk and Juniors. It was established
that they came to know about the contents of Ex.A.2. Thus, there is publication of Ex.A.2 containing
defamatory statement against Advocate Arunachalam.

29. It is true that Advocate Arunachalam has prosecuted the defendant in the Magistrate's Court for
the offence of defamation. That is under Criminal Law. The suit is under the Civil Law of Torts for
the tort of defamation. Both are different in their scope and tenor. Therefore, because of a successful
prosecution against the defendant importance of this suit cannot be belittled nor thrown away.

30. Now, we come to quantification of damages for the damage caused to the name and fame of
Advocate Arunachalamam.

31. The claim is Rs.1,00,000/-. The trial Court as well as the first appellate Court have awarded
Rs.40,000/-.

32. Advocate Arunachalam was then 60 years old. He practiced in both civil and criminal side. He
commanded fair amount of work. He had reached the pinnacle of his profession. He was having his
office of own, Juniors and Clerk.

33. The loss of reputation of a lawyer cannot be measured in terms of money. He is a member of a
noble profession. He is constitutionally recognized (See Article 22(1) Constitution of India). An
advocate is also a warrior of social justice. He fights for other's cause. He is a saviour to those in
distress. His vision is a mission to drive away the darkness. He is a spokesman for others. He is a
spokesman for voiceless. He is a neutral man. He is independent not interdependent. Without fear
or favour he fights for justice. Except exposing the cause of his client, nothing personal to him.
Clients may come, clients may go. He may receive briefs, he may not receive briefs, but he will never
allow his honour to go away. He is not for bread alone. For the sake of his honour, to uphold his
dignity and professional integrity he will die. To be born a lawyer/warrior is a great gift on the earth.
But his reputation, which cannot be built immediately on enrollment, which could come after years
of struggling, toiling. This is the position of lawyers in society. One of its member, Advocate

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 W.B.Shanthi vs Arunachalam (Died) on 14 November, 2014

Arunachalam has been defamed by defendant. Loss of name, fame, mental agony of such a person
cannot be measured in terms of money.

34. Advocate Arunachalam fought not for money but for his honour. When he is not able to fight for
himself, how he will fight for others. Therefore, this case is not a matter of money, it is a matter of an
Advocate's honour, prestige and principles of law.

35. Plaintiff became a victor and the arrogant defendant a vanquished. Law is vindicated. Now,
Advocate Arunachalam is resting in peace only after winning his case.

36. Now, the disturbing feature is the guilty man (defendant) had peacefully gone to the other world.
Defendant is no more. He was called by his Maker. But he left this world after putting his wife
(appellant) in distress. For his sins, now she is suffering. She is an unfortunate lady, who was placed
in such a position to continue the litigation in Courts because of the exaggerated activity of her late
husband. She is not the sinner. The sinner has gone, now, she is being sinned more than the sinner.

37. The appellant also deposited 50% of the amount, namely, Rs.20,000/- together with respective
portion of interest and costs. It was withdrawn by the wife of late Advocate Arunachalam.

38. Now this time certainly the appellant would rebuke her late husband for having put her to such
an unnecessary torture. The man who troubled Advocate Arunachalam while alive rests happily in
his graveyard. But, his wife is suffering. She shall not be tormented further. No more suffering to her
on account of her husband's wrong doing. There are instances where to vindicate their honor
persons of eminence have sought Rs.1/- as damages. Here money is not important. Honor is more
important.

39. In view of the foregoings, the substantial questions of law are answered as against the appellant.

40. In the result, the judgment and decree of the trial Court and the 1st appellate Court are modified
to the effect that the suit is decreed for Rs.20,000/- together with 6% future interest and costs.
Parties shall bear their respective cost in this Second Appeal. Accordingly, this Second Appeal is
disposed of. Consequently, connected M.P.(MD) No.1 of 2011 is also closed.

14.11.2014
Internet : Yes
Index : Yes
sj
To

1.The Principal District Judge,

Tirunelveli.

2.The Additional Subordinate Judge,

Tenkasi.

3.The Principal District Munsif,

Tenkasi.

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 W.B.Shanthi vs Arunachalam (Died) on 14 November, 2014

P.DEVADASS, J

sj

SECOND APPEAL (MD) No.402 of 2011

and M.P.(MD) No.1 of 2011

14.11.2014

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