SURAJMAL B MEHTA Vs. BGHORNIMAN

JUDGEMENT

(1.) This is an appeal under Clause 15 of the Letters Patent from a decree of a Bench of this Court consisting of the Chief Justice and Heaton J. These learned Judges having differed in opinion, it was held that the judgment of the Chief Justice must prevail, i.e., that the suit must be dismissed. The plaintiff consequently brings the present appeal.

(2.) The plaintiff is a solicitor of this Court, and the suit was filed to obtain damages for libel alleged to be containod in two articles which appeared in The Bombay Chronicle and were admittedly written by the Editor of that journal, the first defendant. To him I shall refer in future as the defendant, as the substantial defence is made on his behalf.

(3.) The circumstances in which the articles complained of came to be written are as follows: Among the plaintiff s clients were two well-to-do men, one Dada and one Tatya Saheb Holkar. In 1912, Dada, in the name of his mother, Ashidbai, entered into an agreement with Holkar for the purchase of a valuable) house, the property of Holkar. But Holkar was unable to carry out this agreement as he had already agreed to sell the house to one Khambatta, who obtained against him a decreo for specific performance. Dada then instituted a suit against Holkar claiming damages for breach of the contract of sale, and this suit was ultimately settled in January 1914 by the payment of Its. 3,000 by Holkar to Dada. At this time there was in the service of the plaintiff a clerk named Shambhuprasad, who died in Juno 1914, leaving a brother named Bhagwandas. In July 1915, Bhagwandas, through his solicitor, the plaintiff, filed a suit on a promissory notes for Its 3,000, executed by Dada in favour of Shambhuprasad. The suit was instituted as a short cause, but, a written statement being filed by Dada in August, the plaintiff was discharged as solicitor on the record on 9th September, 1915. Stated shortly, Dada s defence to this suit was that the promissory note had been passed without consideration, that Shambhuprasad was the mere nominee or prete nom of the plaintiff, and that the note was passed on an understanding with the plaintiff that he was to be paid Rs. 3,000 if, as he promised, he succeeded in obtaining for Dada a sum exceeding Rs. 20,000 as damages in Dada s suit against Holkar. Dada went on to plead that, as he had received only Rs. 9,000 in his suit against Holkar, he had refused to honour the promissory note, and hence the suit brought against him by the plaintiff in the name of Bhagwandas. Bhagwandas s suit came on for hearing before the late Davar J., on Saturday the 26th February, 1916. Issues were raised, among them being the issue whether, as Dada contended, the plaintiff was a necessary party. On the Saturday two witnesses were called by Bhagwandas as to the promis sory note, but admittedly those witnesses evidence was not such as any Court could accept. Then the plaintiff wont into the witness box, being an indispensable witness for Bhagwandas, and denied generally the truth of the allegations made against him in Dada s written statement. At this hearing a beginning was made of the cross-examination of the plaintiff, but this cross-examination was far from being finished when the Court rose for the day, and the case stood over till the following Monday, the 28th February. On the case being called on, on the Monday, Bhagwandas, through his counsel, immediately submitted to a decree dismissing the suit with costs, the learned Judge observing that in taking this course Bhagwandas had acted very wisely. The present plaintiff made no intervention either by way of protest or by way of application to the learned Judge for an enquiry into the charges made in the written statement; he acquiesced in the dismissal of the suit with costs, and there matters rested for the time. A week later, that is, on 7th March, appeared the first of the two articles now complained of, but again the plaintiff made no sign. On the 15th March, the newspaper published the second of the two articles, and on the 18th March the plaintiff filed the present suit.