R.S.A. No. 1947 of 2006 1
IN THE PUNJAB AND HARYANA HIGH COURT AT
R.S.A. No. 1947 of 2006 (O&M)
Date of Decision : 30.5.2009
Smt. Kulwant Kaur & others.
CORAM : HON’BLE MR. JUSTICE VINOD K. SHARMA
Present : Mr. D.S. Pheruman, Advocate
for the appellant.
Mr. Arun Abrol, Advocate
for respondents No. 1 to 3.
VINOD K. SHARMA, J. (ORAL)
This regular second appeal is directed against the judgment and decree dated 16.11.2004, passed by the learned lower appellate Court vide which suit filed by the plaintiff / appellant seeking damages on the ground of defamation stands dismissed.
The plaintiff / appellant brought a suit for recovery of a sum of Rs. 50,000/- as damages on the plea that a news item published in the newspapers had defamed him and his family members. The learned trial Court decreed the suit by holding that the news item published in “Aaj Di Awaj” was defamatory in nature. However, the damages of Rs. 20,000/- only were granted against claim of Rs. R.S.A. 50,000/-.
The defendant / respondents preferred an appeal against the judgment and decree passed by the learned trial Court. The appeal was accepted by the learned lower appellate Court by recording following findings :-
“12. It is admitted that Harminder Singh son of the plaintiff was married with Kulwant Kaur appellant. The plaintiff Naranjan Singh has taken a plea that the marriage was simple and no dowry articles were given but on the other hand the appellants have taken a plea that huge dowry articles were given but the plaintiff and his family members were not satisfied with the dowry articles and raised a demand of car, cash, amount etc. The relations between her and her husband became strained and Harminder Singh filed a petition under Section 13 of the Hindu Marriage Act for dissolution of marriage by a decree of divorce. On the other hand the appellant filed a complaint and also lodged FIR under section 406/498-A/34 I.P.C. Against the plaintiff and others. In the meantime a news was published in the news paper “Aj Di Awaj” Jalandhar regarding the demand of dowry by Naranjan Singh and his family members. It is the case of the plaintiff Naranjan Singh that this news item was transmitted by the appellants to defendant no.4 for its publication in the daily news paper “Aj Di Awaj” But this fact is denied by the appellants. The appellants also filed an application to the S.S.P. Gurdaspur levelling the allegations of maltreatment and beating by Harminder Singh to the appellant Kulwant Kaur. That case is still pending in the court. Thus the case of the plaintiff Naranjan Singh is based on the news item. A copy of the news paper is Ex.P.1. As already mentioned above the appellants have denied to have got this news published in the news paper. The publisher has not been examined in the court to know as to how he has got this news published. Thus the maker of the statement to the news paper has not appeared into the witness box. It has been observed in the ruling Amal Kumar Chatterjee Vs. State of U.P. & Ors. (Supra) that the presumption of genuineness attached under section 81 of the Evidence Act to a newspaper report cannot be treated as proof of the facts reported therein. Their Lordships have also observed that it is well settled that a statement of fact contained in a newspaper is merely hearsay and therefore inadmissible in evidence in the absence of the maker of the statement appearing in court and deposing to have perceived the fact reported. In the case in hand as already mentioned above the maker of the statement has not appeared into the witness box and no evidence has been brought on record to show as to who had got this news published in the newspaper. So this piece of evidence is only hear-say and cannot be read into evidence. Moreover, it is the case of the appellants that Naranjan Singh and his son were not satisfied with the dowry articles and they were demanding more dowry and were humiliating and harassing the appellant Kulwant Kaur for bringing more dowry and thus she lodged FIR against them. That case is still pending in the court. In this way no court has given its verdict that the demand of dowry by the plaintiff and his family members is a concocted story by the appellants and in fact they were not demanding dowry.
Naranjan Singh plaintiff also filed a complaint under section 500 IPC against Kulwant Kaur and others which was dismissed by the court of Shri Jasbir Singh, Judl. Magistrate Ist Class, Gurdaspur and a copy of the order is Ex. D.1. Thus the court of Shri Jasbir Singh, Judl. Magistrate Ist Class, Gurdaspur, came to the conclusion that no offence under section 500 I.P.C. is made out.
The learned counsel for the appellant contends that the appeal raises the following substantial questions of law :-
Whether the learned lower appellate Court was justified in reversing the well reasoned judgment merely for want of examination of publisher of news item ?
In support of the substantial question of law the learned counsel for the appellant contends that once the news item was duly exhibited, and relied upon by the learned trial Court, it was not open to the learned lower appellate Court to have reversed the findings merely for want of examination of publisher. The contention, therefore, is that the finding of learned lower appellate Court is perverse, which deserves to be set aside.
On consideration, I find no force in the contention raised by the learned counsel for the appellant. A reading of the findings recorded by the learned lower appellate Court, reproduced above, would show that the plaintiff has not been non-suited for non-examination of publisher as contended, but for the reason that in absence of examination of publisher the source of news item was not proved. The learned lower appellate Court held, that once the defendant / respondents denied to have authored the news item, in absence of involvement of defendant / appellant with the news item, they could not be fastened with the liability of damages.
The findings of the learned lower appellate Court finds support from the judgment of the Hon’ble Allahabad High Court in the case of Amal Kumar Chatterjee Vs. State of U.P. And Ors. 2000(1) Civil Court Cases 544, wherein the Hon’ble Allahabad High Court has been pleased to lay down as under :-
“2. Shri Mishra has submitted that the police has prepared a list of Mafia leaders in which the name of the petitioner has been included and the said action is wholly unjustified in law. The only document filed along with the petition is a photo copy of a newspaper report. In Laxmi Raj Shetty Vs. State of Tamil Nadu, 1988(3) SCC 319 it has been held as under :-
“We cannot take judicial notice of the facts stated in a news item being in the nature of hearsay secondary evidence, unless proved by evidence aliunde. A report in a newspaper is only hearsay evidence. A newspaper is not one of the documents referred to in Section 78(2) of the Evidence Act, 1872 by which an allegation of fact can be proved. The presumption of genuineness attached under Section 81 of the Evidence Act to a newspaper report cannot be treated as proof of the facts reported therein. It is now well settled that a statement of fact contained in a newspaper is merely hearsay and, therefore, inadmissible in evidence in the absence of the maker of the statement appearing in Court and deposing to have perceived the fact reported.”
This has been reiterated in Quamarul Islam Vs. S.K. Kanta 1994(1)JT(SC) 452. It is, therefore, not possible to place reliance on newspaper report in absence of any other reliable documentary material.”
The finding recorded by the learned lower appellate Court, therefore, is based on settled law, and therefore cannot be said to be perverse, as contended by the learned counsel for the appellant. The substantial question of law is accordingly answered against the appellant.
The appeal is ordered to be dismissed, being devoid of any merit.
30.5.2009 ( VINOD K. SHARMA ) ‘sp’ JUDGE