Saturday, 4 July 2020

When should the court not reject plaint filed for recovery of compensation for libel and mental agony on the ground of limitation?

If the present suit was an action simpliciter for compensation for libel, the same was required to be filed within one year when the libel was published and as noted by this Court in the case of Khawar Butt (supra), single publication rule is more applicable and pragmatic in which case, the present suit had to be filed when the slanderous telecast was shown by defendant No. 1 on 29th July, 2006. However, in the present suit, the plaintiff claims a decree of exemplary or punitive damages in favour of the plaintiff on account of the mental agony, torture, humiliation and hatred suffered by the plaintiff and his family and a decree for loss of reputation and goodwill. As per the plaintiff, the cause of action though started accruing in favour of the plaintiff and against the defendant on 29th July, 2006 when the first telecast was made, however, it continued when it received notices from various authorities including the Medical Council, Police etc as also when the writ petitions were filed and dismissed by this Court and the Allahabad High Court. From the pleadings/claims of the plaintiff in paragraph 54, 55, 56, 57, 58 and 59 of the plaint, it is not the mere publication of libel but thereafter also the continuous course of action which resulted in mental agony, harassment to the plaintiff on which count the plaintiff seeks exemplary and punitive damages. Since the period of limitation for such a claim in the suit would be governed by residuary clause i.e. Article 113 of the Limitation Act, which provides for a period of three years limitation from the time when the right to sue accrues and as per the plaintiff right to sue still subsists and as the present application under Order VII Rule 11 CPC has to be decided based on the averments in the plaint which have to be accepted by way of demurer, the suit cannot be held to be barred by limitation. It is however clarified that since in the present case, the issue of limitation would be a mixed question of fact and law, the same would be decided after the parties have led their respective evidence.

IN THE HIGH COURT OF DELHI

CS (OS) 21/2017

Decided On: 27.05.2020

 Ajai Agarwal Vs.  IBNI8 Media & Software Limited and Ors.

Hon'ble Judges/Coram:
Mukta Gupta, J.
Citation: MANU/DE/1113/2020



IA 2046/2018, I.A. 2048/2018, I.A. 2091/2018 & I.A. 2092/2018 (under Order VII Rule 11 CPC filed by D1 & D2, D3, D4 and D5 respectively)

1. By these applications the defendant No. 1 & 2, defendant No. 3, defendant No. 4 and defendant No. 5 as also on behalf of the remaining defendants except 12 and 13 seek rejection of the plaint on the plea that the suit is barred by limitation. It may be noted that the plaintiff has given up defendant No. 12 during the course of hearing and defendant No. 13 is the Ministry of Information and Broadcasting against which no relief has been sought.

2. Learned counsel for the defendants No. 1 to 11 states that even if no application is filed on behalf of defendant No. 6 to 11 for rejection of the plaint on the ground as noted above, the same being a legal plea is required to be looked into by this Court in the first instance. According to learned counsel for the defendants No. 1 to 11, as per the own showing of the plaintiff the alleged slanderous telecast by defendant No. 1 was on 29th July, 2006 till 31st July, 2006 and thus the cause of action having arisen on the said dates, the present suit filed by the plaintiff on 20th December, 2016 is hopelessly barred by limitation. The cause of action if any arises because of the telecast by the defendant No. 1 and not by the exoneration of the plaintiff or that no action was taken by the Ministry of Information and Broadcasting (in short MIB) against the defendants. Even considering the date of cause of action being the plaintiff's exoneration by the Hon'ble High Court at Allahabad, the suit is barred by limitation since the said order was passed on 20th April, 2007. The proceedings by the defendant No. 1 by filing a Writ Petition (Civil) No. 3480/2008 whereby the order of the MIB dated 3rd January, 2008 was set aside and the matter remanded back to the MIB for a fresh decision and also the subsequent decision of the MIB dated 14th March, 2017 whereby it closed the proceedings against the defendant No. 1 would not be a cause of action in favour of the plaintiff to file the present suit thereby extending the period of limitation in view of the prayers made. The writ petition filed by the defendant No. 1 was a totally different and separate remedy under the provisions of Cable TV Act, giving no cause of action to the plaintiff and did not debar the plaintiff for filing the suit claiming defamation and the consequential relief of damages.

3. By the present suit, the plaintiff has not challenged the order dated 14th March, 2017 passed by the MIB whereby the proceedings against the defendant No. 1 have been closed. In any case the proceedings before the MIB are parallel proceedings and does not bar the filing of the suit or extend the period of limitation in this regard. Reliance is placed on the decision of this Court in RFA No. 757/2010 titled as N.N.S. Rana Vs. Union of India & Ors. decided on 16th September, 2011. Reliance is also placed on the decisions of this Court in Procter & Gamble Home products Limited Vs. Hindustan Unilever Limited MANU/DE/0389/2017 : (2017) 238 DLT 585 and GMR Infrastructure Ltd. Vs. Associated Broadcasting Company Pvt. Ltd. & Ors. MANU/DE/0386/2018. It is submitted that an action under tort for defamation/libel/slander is not a continuing tort, even though the effect of publication may continue as held by the High Court of Calcutta in Manik Lal Bhowmik Vs. Bharat Sanchar Nigam Limited MANU/WB/0098/2017. This Court has always followed the Single Publication Rule as laid down in Khawar Butt Vs. Asif Nazir Mir & Ors. MANU/DE/4935/2013 : 2013 (139) DRJ 157.

4. Countering the arguments of learned counsel for the defendants, learned counsel for the plaintiff submits that the prayers in the present suit are not for defamation/libel/slander but for damages, loss of reputation and good-will. Thus the residuary provision would apply and the period of limitation would be three years from the date when the cause of action arises. The cause of action arose to the plaintiff not only when the defendant No. 1 telecasted the slanderous material from 29th July, 2006 to 31st July, 2006 but also when this Court set aside the earlier order of the MIB and remanded back the matter whereafter the MIB exonerated the defendant No. 1 vide order dated 14th March, 2017. The defendants have concealed material facts such as in a writ petition filed by the defendants being Writ Petition (Civil) No. 3480/2008, wherein the defendant No. 1 agreed to tender an apology on its channel as noted vide order dated 28th May, 2008. As the defendant did not publish the apology, the plaintiff filed a writ petition being Writ Petition (Civil) No. 5007/2008 which was dismissed as premature by this Court vide order dated 16th July, 2018 and in a Special Leave Petition filed by the plaintiff after leave was granted, vide order dated 11th January, 2018 the appeal was allowed. The plaintiff also filed a Special Leave Petition (Crl.) before the Hon'ble supreme Court wherein the proceedings against the respondents which were quashed were restored vide order dated 11th January, 2018. Thus the cause of action being continuous and still subsisting, the present suit is not barred by limitation. Further the defendant having not tendered the apology, the plaintiff was constrained to file the present suit seeking damages.

5. The present suit has been filed by the plaintiff stating that the plaintiff is a renowned Specialist Orthopedic Surgeon and has been two time Padamshree award nominee. Plaintiff's reputation was damaged by electronic media with false and incorrect depictions of the name in the sting operations in the name of Investigating Journalism. The plaintiff is the only Orthopedic Surgeon having specialization in 'Total Joint Replacement' and has successfully performed number of surgeries. The defendant No. 1 formally known as Jagran TV Pvt. Ltd. operating as a subsidiary of defendant No. 2 on 29th July, 2006 aired a programme on its channel CNN IBN and IBN 7 under headlines 'SHAITAN DOCTOR' claiming that the plaintiff was offering his services against payment to amputate the limbs of persons to enable them to work as prospective beggars. It is claimed that defendant No. 3 to 10 being the managing director, directors, editors, etc. of defendant No. 1 and 2 and defendant No. 11 being the Chief Investigator were responsible for the telecast and thus defendant No. 1 to 11 were responsible for the occurrences and injuries to the plaintiff as alleged in the plaint.

6. The plaintiff claims that the telecast was repeatedly aired till 31st July, 2006 and off and on thereafter and published in the print media in the Hindustan Times on 31st July, 2006. Thus an impression was given to the general public that the plaintiff was a corrupt and unethical doctor and the telecast was libelous on its face. The sting operation was fabricated, intrusive and clearly cast aspersions on the honesty, integrity and professional competence of the plaintiff. The malicious propaganda of disseminating false information was orchestrated to defame the plaintiff.

7. The plaintiff was directed to appear before the U.P. Medical Council which examined the truthfulness of the incident and found that the allegations against the plaintiff were unsustainable and thereby exonerated the plaintiff vide its report dated 1st February, 2007. The Ethics Committee of the Medical Council of India also vide its report dated 6th June, 2007 upheld the decision of the U.P. Medical Council that the allegations against the plaintiff could not be substantiated. The Enquiry committee constituted by the Indian Medical Association at Noida also found that the allegations against the plaintiff were incorrect.

8. Defendant No. 1 herein challenged the orders dated 3rd January, 2008, 11th January, 2008, 7th February, 2008 and 2nd May, 2008 of the MIB by filing Writ Petition (Civil) No. 3480/2008 wherein the plaintiff herein was not impleaded initially which writ petition was disposed of on 4th January, 2016. It is stated that this Court in its judgment dated 4th January, 2016 observed that in the instant case it cannot be disputed that the programme of the plaintiff therein i.e. the defendant No. 1 herein was highly derogatory to the reputation of defendant No. 2 therein i.e. the plaintiff herein.

9. Despite this Court holding that the defendant No. 1 herein has to establish that it had done due diligence and verified and ascertained the authenticity of CD before playing the same, no such documents were placed nor was an apology tendered by the defendants.

10. In the cause of action paragraph, the plaintiff pleads as under:

"68. That the cause of action for filing the present suit arose in favour of the plaintiff and against the defendants on 29th July, 2006 and on all the dates when he was exonerated by the various authorities. It also arose on 3.1.2008. It further arose on all the days when police complaints were made. The cause of action also arose on 20.04.2007 and lastly on 4.1.2016 when the writ petitions were dismissed by the Hon'ble Allahabad High Court and the High Court of Delhi respectively. The cause of action in favour of the plaintiff and against the defendants continues to subsist."

11. It is thus required to be seen whether the cause of action arose to the plaintiff on 29th July, 2006 to 31st July, 2006 or on 3rd January, 2008, or on 20th April, 2007 and 4th January, 2016 when the writ petitions were dismissed by the Hon'ble Allahabad High Court and High Court of Delhi respectively.

12. The prayers in the present suit by the plaintiff are as under:

"a) Pass a decree for a sum of ` 2.5 crores in favour of the plaintiff and against the defendant Nos. 1 to 12 jointly and/or severally as exemplary or punitive damages to the plaintiff on account of the mental agony, torture, humiliation and hatred suffered by the plaintiff and his family;

b) Pass a decree for a sum of ` 3 crores for loss of reputation and goodwill of the plaintiff in favour of the plaintiff and against the defendant Nos. 1 to 12 jointly and/or severally;

c) Award the cost of the present suit to the plaintiff;

d) Pass such further and other orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case."

13. If the cause of action arose only on 29th July, 2006 to 31st July, 2006 the present suit seeking damages would be barred by limitation. However, if the cause of action as pleaded in the suit also arose on the disposal of the writ petition by this Court on 4th January, 2016, the present suit would be within the period of limitation.

14. In the decision of this Court reported as MANU/DE/0389/2017 : (2017) 238 DLT 585 Procter & Gamble Home Products Private Ltd. Vs. Hindustan Unilever Ltd. dealing with the scope of proceedings with Advertising Standards Council of India (in short, ASCI) and a civil suit, it was held as under:-

"15. The Cable Television Networks (Regulation) Act, 1995 (CTN Act) enacted to regulate the operation of cable television networks and for matters connected therewith, in Section 6 titled "Advertisement Code" prohibits transmitting or retransmitting through a cable service of any advertisement unless such advertisement is in conformity with the prescribed Advertisement Code. Section 11 of the CTN Act provides for seizure of the equipment of any cable operator found violating inter alia Section 6 of the Act and Section 19 of the CTN Act empowers the Government to prohibit the cable operator from transmitting or re-transmitting any advertisement not in conformity with the prescribed Advertisement Code. Section 22 of the CTN Act empowers the Central Government to by notification in the Official Gazette make rules inter alia for the Advertisement Code. The Cable Television Networks Rules, 1994 (CTN Rules) framed in exercise of said power, under Rule 7 titled "Advertising Code", while providing that advertisements carried in cable service shall be so designed as to conform to the laws of the country and should not offend morality, decency and religious susceptibilities of the subscribers, vide sub-rule (9) thereof provides that no advertisement which violates The Code for self regulation in Advertising, as adopted by the ASCI from time to time for public exhibition in India, shall be carried in the cable service.

16. However the aforesaid statutory flavour given to The Code would also in my view not bar the jurisdiction of the Civil Court to entertain CS (OS) No. 463/2016 as filed by HUL, even after HUL approached ASCI and ASCI did not find any merit in the complaint of HUL. I say so because the remedy available before ASCI is distinct from that available before the Civil Court. ASCI, if finds any merit in the complaint with respect to any advertisement, can only make a recommendation for rectification thereof and if the recommendation remains un-complied, forward the same to the Authorised Officer under the CTN Act and which Officer is empowered to then prohibit the broadcast of the subject advertisement. The said route though may be also available will not bar a person aggrieved from the advertisement, from approaching the Civil Court and similarly the dismissal of complaint by ASCI, though may be a relevant fact in the proceeding before the Civil Court with respect to the same advertisement, but would not bar the Court from independently looking at the grievance."

15. In Khawar Butt (supra) this Court dealing with the period of limitation for filing a suit against defamatory material on the internet/facebook page held that the single publication rule was more pragmatic and appropriate. It was held:

"14. I first proceed on to determine the legal issue: Whether, the leaving of the allegedly defamatory material on the internet/facebook page gives rise to a fresh cause of action every moment the said offending material is so left on the webpage-which can be viewed by others at any time, or whether the cause of action arises only when the offending material is first posted on the webpage/internet.

38. I am of the view that the Single Publication Rule is more appropriate and pragmatic to apply, rather the Multiple Publication Rule. I find the reasoning adopted by the American Courts in this regard to be more appealing than the one adopted by the English Courts, prior to the amendment of the law by the introduction of the Defamation Act, 2013. It is the policy of the law of limitation to bar the remedy beyond the prescribed period. That legislative policy would stand defeated if the mere continued residing of the defamatory material or article on the website were to give a continuous cause of action to the plaintiff to sue for defamation/libel. Of course, if there is re-publication resorted to by the defendant-with a view to reach the different or larger section of the public in respect of the defamatory article or material, it would give rise to a fresh cause of action.

39. The alleged libelous posting on Facebook, as averred in the plaint, was posted on around 26.10.2008, 27.10.2008 and even the booklet containing the allegedly defamatory material concerning the plaintiff is said to have been circulated around 25.12.2008. In view of the same, the limitation period for the suit expired on 25.12.2009.

40. Since the suit to claim damages for libel has not been filed within the period of limitation of one year from the date when the cause of action arose, i.e. when the libel was published, the said claim is barred by limitation."


16. If the present suit was an action simpliciter for compensation for libel, the same was required to be filed within one year when the libel was published and as noted by this Court in the case of Khawar Butt (supra), single publication rule is more applicable and pragmatic in which case, the present suit had to be filed when the slanderous telecast was shown by defendant No. 1 on 29th July, 2006. However, in the present suit, the plaintiff claims a decree of exemplary or punitive damages in favour of the plaintiff on account of the mental agony, torture, humiliation and hatred suffered by the plaintiff and his family and a decree for loss of reputation and goodwill. As per the plaintiff, the cause of action though started accruing in favour of the plaintiff and against the defendant on 29th July, 2006 when the first telecast was made, however, it continued when it received notices from various authorities including the Medical Council, Police etc as also when the writ petitions were filed and dismissed by this Court and the Allahabad High Court. From the pleadings/claims of the plaintiff in paragraph 54, 55, 56, 57, 58 and 59 of the plaint, it is not the mere publication of libel but thereafter also the continuous course of action which resulted in mental agony, harassment to the plaintiff on which count the plaintiff seeks exemplary and punitive damages. Since the period of limitation for such a claim in the suit would be governed by residuary clause i.e. Article 113 of the Limitation Act, which provides for a period of three years limitation from the time when the right to sue accrues and as per the plaintiff right to sue still subsists and as the present application under Order VII Rule 11 CPC has to be decided based on the averments in the plaint which have to be accepted by way of demurer, the suit cannot be held to be barred by limitation. It is however clarified that since in the present case, the issue of limitation would be a mixed question of fact and law, the same would be decided after the parties have led their respective evidence.

17. Applications are accordingly dismissed.


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