T B SRINIVASA RAO Vs. GULABCHAND KUNDANMAL

JUDGEMENT

(1.) This appeal by the plaintiff raises two questions, the first is as to whether the statements contained in the affidavit filed by the defendant in support of his application made in the suit between them to get an order of attachment before judgment are defamatory in character; and the second is, even if they are defamatory in character, whether they, having been made in the course of and with reference to judicial proceeding, are absolutely privileged and, therefore, the plaintiff gets no cause of action to institute the suit for damages in respect of them.

(2.) They arise in the following circumstances. The plaintiff is a tenant of the defendant. The latter instituted O.S. No. 218 of 1956 in the Court of the Munsiff, Bhadravati, against the present plaintiff to recover Rs. 588/- and odd as arrears of rent due to him. It appear that before this suit of 1956, there was also an earlier suit filed by the defendant against him to recover rents due from him, and the execution of the decree obtained in that suit was pending. It was during the pendency of O.S. No. 218 of 1956 that the defendant made an application to secure an order of attachment before judgment under R. 5 of O. 38 of the Code of Civil Procedure and, in support of that application, he filed the affidavit. The suit was decreed against the defendant (present plaintiff) who thereafter filed O.S. No. 17 of 1957 in the Court of the Civil Judge, Shimoga, to recover Rs. 4,000 as damages, alleging that the statements contained in that affidavit are defamatory in character.

(3.) The defendant denied that the statements in the affidavit are defamatory in character and contended that to secure the decretal amount that might ultimately be passed in the suit, he made the application for attachment before judgment, supported by the affidavit, alleging the facts bona fide and in good faith, that he swore to the facts in the said affidavit only to secure an order of attachment before judgment and that he had no intention of injuring the reputation of the plaintiff. He, therefore, denied that the allegations were either defamatory in character or that he had any intention to harm the reputation of the plaintiff. Consequently he stated that the plaintiff was not entitled to any relief in the suit.