B SUMAT PRASAD Vs. RAM SARUP SASTRY

JUDGEMENT

(1.) This second appeal marks, I hope, the close of a sequence of unedifying litigation which reflects no credit on any of the parties engaged in it. The suit itself, No. 436 of 1939, was filed in the Court of the Munsif of Nagina for damages for malicious prosecution, the alleged prosecution being an application made in 1939 by the present appellant-defendant and his co-defendant to the suit moving the High Court to institute contempt proceedings against the two present plaintiff- respondents. It will be necessary in the first place to relate the circumstances in which this unfortunate application in the High Court came to be made. The matter began with a suit - not the present suit-started in January 1939 by the present plaintiff, Ram Sarup, against the present defendant 2, Baldeo Sahai, con, concerning a small matter of trespass. Ram Sarup is a Professor of Sanskrit in the Aligarh University and he lives at Aligarh but happens to possess the house in respect of which the 1939 suit was brought at a place called Sahore, which is in the jurisdiction of the Munsif of Nagina. That is how Eani Sarup came to bring a suit in that Courts Ram Sarup, moreover, has a son, Sheo Duttt Sharma, who is plaintiff 2 in the present proceedings. This gentleman is an agent of the Hindusthan Co-operative Insurance Society Limited of Calcutta and carries on his activities at Nagina. As a matter of convenience, therefore, Professor Ram Sarup made use of his son as his pairokar or agent for the purpose of handling his litigation in Nagina. In those circumstances a plaint was duly filed by Earn Sarup. In March 1939 the written statement in this suit was put in on be half of the defendant Baldeo Sahai. Now Baldeo Sahai had engaged a gentleman named B. Sumat Prasad Jain, who is defendant 1 to the suit with which we are now concerned and the appellant before us at this moment, as his advocate for the purpose of defending Earn Sarup's suit. On 27 March 1989, we find the written statement from which the whole of the trouble started. In para. 2 of the "special pleas" there is the following statement:

(2.) That the plaintiff has no cause of action for the present suit. All the allegations as to the arising of the cause of action are wrong and the suit of the plaintiff is liable to be dismissed. The present suit has been filed at the instigation of Bhagwan Das, brother of the plaintiff, and an opponent of the defendants, in collusion with Sheo Dutt, an award son of the plaintiff in order to harm the defendants. I should explain that it is common ground in this case that the word "awara" is an Urdu word bearing a highly offensive mean, ing indicative of a vagabond. On the same day, immediately on receipt of this written statement, an application on behalf of the plaintiff, Earn Sarup, was made to the Munsif in some such terms as these - that the defendant Baldeo Sahai should be ordered to withdraw the offensive word "awara" and to apologise to the plaintiff's son for ever having used it. This application was dealt with, I venture to think somewhat inexpertly by the learned Munsif who seems to have accepted a compromise since we find that on 5 April 1939, after some discussion, he permitted an amendment to be made by substituting the word "awaragard" for the word "awara." It seems that the word "awaragard" means an aimless wanderer and is slightly, but only slightly, less offensive than the word "awara." If I may say so, it would have been better if the application of 27 March 1939 had been dealt with strictly in accordance with 0rder 6, Rule 16, Civil P.C., and if the offensive passage - if indeed -, not the whole of the paragraph had been ordered to be struck out as unnecessary and scandalous. At the very best it was an idle and irrelevant piece of pleading and one which should have found no place in any written statement professionally drawn. I do not blame the Munsif; but a more experienced Judge would probably have taken that course, and a good deal of the subsequent trouble might possibly have been saved. On 14 April the next event happened. The plaintiff's son Sheo Dutta, sent a letter to the defendant's advocate, B. Sumat Prasad Jain, in which he demanded damages for defamation, alleging that the passage in the written statement to which I have referred above was defamatory of him. This letter is one of the things which gave rise to the events which followed and it is desirable to set it out here. It purports to be a notice given to Mr. Sumat Prasad Jain, M.A., LL. B., Advocate of Nagina, by Sheo Dutt Sharma, Insurance Agent, Nagina, and it is in theae terms: Whereas you have filed a written statement on 27 March 1931 in Suit No. 43/1939 Pandit Earn Swarup Shastri V/s. Baldeo Sahai pending in the Court of Additional Munsif, Nagina, and in para. 2 of that written statement you, without any justification called me an "awarah". The imputation is not only false but is made in bad faith inasmuch as it was uncalled for for the purpose of that case, and yet, to add insult to injury, you insisted on its inclusion in the written statement. The word is slanderous and defamatory and it lowers me in public estimation and injures the confidence the public repose in me. My business of an Insurance Agent of a leading National concern, the Hindustan Co- operative Insurance Society Ltd., Calcutta, requires a high standard of honesty and character of which I have given ample proof by putting a good record of business during all these years. The defamatory words which you have intentionally used for me affect my business adversely and set my reputation and labours at nought; since you have made the unfounded and wrong averment I have undergone loss in business. Therefore, I hereby inform you to pay me Rs. 1000 (Rupees one thousand only) as damages for defamation within a week, otherwise I will take action against you in law. Shiva Datt Sharma, 14th, April 1939. 2. It is now necessary to see what B. Sumat Prasad Jain did when he received that letter. On 20 April he wrote a letter to a certain Mr. Surendra Nath Varma, an advocate of the High Court at Allahabad. This letter is exhibited in the present proceedings and it runs thus: My dear Mr. Verma, This is to give you some little trouble. I am herewith enclosing (1) Plaint, (2) Written statement, (3) Application, (4) Statement of the lawyer, (5) Order of the Court and (6) Notice in regard to the case pending in the Court of the Additional Munsif of the Nagina jurisdiction. Kindly read the papers carefully. What I wish to know is whether this constitutes a contempt of Court. If so, where should the application in regard to this should be made and against whom? If you want to know anything further about the affair, kindly write to me at an early date. I shall write to you if anything else happens further in this connection. Thanking you very much indeed for all this trouble in anticipation. Sincerely yours.

(3.) It is said that Mr. Varma was a personal friend of Mr. Sumat Prasad Jain. That may very well be so, but, in my view, as I shall presently explain, it makes no difference to this case. It has to be observed that Mr. Sumat Prasad Jain enclosed with his letter to Mr. Verma all the material documents and offered to send any further information that the Allahabad advocate might need. Mr. Verma is an advocate of this Court and has, I believe, some twenty years standing at the Bar. He is, therefore, by no means a novice. Two days later, Mr. Sumat Prasad Jain addressed a further letter to another friend of his, who is also an advocate at Allahabad, Mr. Brij Lal Gupta. In the letter to Mr. Gupta he said: My dear Mr. Gupta, I am herewith enclosing copies of the following papers, viz. Plaint, Written statement, Plaintiff's application, My statement, Court's order, Notice from plaintiff's son. The case was filed by Pt. Ram Swarup against a person for whom I appear in this Court. My client is upset. Please go through the documents and also the law on contempt of Court and then advise whether it is a good case for action under the Contempt of Courts Act. Kindly consult others also. I have written to Mr. S.N. Verma separately. If you think that an application can be successfully made, please draft an application and the other papers that may be necessary. As to our First Appeal from Nainital, please advise whether a Receiver can be appointed on the property of Ali Husain, since he has been paying us nothing so far. Thank you very much.Sincerely yours.