L A SUBRAMANIA IYER Vs. RHHITCHCOCK

JUDGEMENT

(1.) This appeal arises out of a suit by Mr. Hitchcock, the District Superintendent of Police, South Malabar against five defendants for damages for libel, contained in a report issued in April-May, 1921, by them entitled - "Police Crimea in Ottapalem." The Sub-ordinate Judge gave a decree for Rs. 6,000. Only the 4 defendant, the only defendant who filed a written statement (in the proper sense of the term) and defended the case, appeals. 8. Mr. T.R. Ramachandra Iyer, for the appellant argued, at the outset, certain preliminary matters relating to the course of the trial in the Court below. The issues were settled on 15 February, 1922 and the case came on for trial on the 3 April, 1922 to which day it was first posted. It is now argued (1) that the Subordinate Judge erred in refusing the adjournment prayed for by the 4 defendant on that day and in proceeding with the examination of plaintiff's witnesses; (2) that the Subordinate Judge ought to have recalled the plaintiff for cross- examination in June, the 4 defendant not having cross-examined him on the 3 April; (3) that the Subordinate Judge ought to have framed the new issue applied for by the 4 defendant (see page 18 of the pleadings), and (4) that the Subordinate Judge ought to have permitted the amendment of the 4 defendant's written statement (vide page 21 of the pleadings). 9. Points 1 and 2 are to a certain extent connected; Point 4 is similarly dependent on point 3. 10. I do not think it necessary to deal with these points in detail as my learned brother has done so at great length - I agree with the Subordinate Judge and with my learned brother in their conclusions. As to the first point, the question now is not whether the Subordinate Judge might not or might have granted an adjournment on the 3 April but whether his refusal calls for any interference on our part now. Seeing that the trial of the case was not closed on that day but was adjourned to June and that only the plaintiff's witnesses were then examined, I am not satisfied that the procedure of the Subordinate Judge has prejudiced the defence. Nor am I satisfied that there was any justification for the defendant in refusing to cross-examine the plaintiff on that day with the materials then available. It follows that the appellant's contention on the 2nd point also must be disallowed. 11. I do not feel called upon to discuss the large number of English decisions cited by Mr. Ramachandra Iyer on the other points. On a careful perusal of the written statement and having regard to the fact that application for a new issue and for amendment of the written statement were not made on the 3 April when the case was partially tried but only in June. I am satisfied that the additional defence was not originally intended to be raised by the original written statement. In saying so, I do not mean to say that the 4 defendant took part in the preparation of the report. Perhaps be did not. All that I mean is that, at the time, he was content to sail in the same boat along with the other defendants and not to raise any defence peculiar to himself though available. This is also the conclusion of the Subordinate Judge.

(2.) I now come to the merits of the case.

(3.) On the 26 April, 1921, there was a students conference at Ottapalam. It followed three other conferences - The Kerala Provincial Conference (23 and 24th), an Ulema Conference and a Khilafat Conference (20h). First we have to ascertain the events that happened on the 26 April. It appears that the District Magistrate ordered the plaintiff to have men for preserving peace. The plaintiff ordered the Special Police to be kept in reserve and not to be in evidence. The three days (23 to 25th) passed off quietly. The plaintiff says "All through the week the Sergeant and the men of the Reserve Police were complaining to me of insults by the party calling themselves volunteers. The shorthand Sub-Inspectors were complaining about the treatment accorded to them in the pandal and that they were refused soda-water by the persons outside. The members of the force behaved very well. I have cautioned them against offering insult," I accept this evidence of Mr. Hitchcock. I believe that, not only he received complaints from his men but that it is likely that petty insults and annoyances (not actually amounting to any violence) were offered by some of the volunteers, though I do not think that the Sub Inspectors have any right to complain if they did not get soda water. The report of the defendant itself Exhibit B supports Mr. Hitchcock's evidence at page 5 it says "Until then there was every reason to believe that the reserve Police headed by Mr. Hitchcock, the District Superintendent of Police, the Assistant Superintendent of Police and other Officers contributed a good deal to the success of the conference by their non interference."