In the High Court of Judicature at Bombay at Panaji
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1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY AT PANAJI FIRST APPEAL NO. 192 OF 2004 1. Mr. Umar Abid Khan, ) Residing at H. No.18-B, ) Behind Civil Court, ) Massordem Village, Sattari Taluka, ) Valpoi, Goa. ) 2. Mrs. Noorjahan Bi Khan, ) major, wife of Shri Umar Abid Khan, ) 3. Master Shikandar Khan, ) Son of Shri Umar Abid Khan, ) 4. Miss Shaheen Khan, ) Minor, through her natural ) guardian and ) father Shri Umar Abid Khan, ) 5. Mr. Liyakat Ali Khan, ) alias Liyakat Shikandar Khan, ) Major. ) 6. Mrs. Shamshad Bi, ) Major, wife of Mr. Liyakat Ali Khan, ) 7. Miss Zeba Khan, ) Minor, through her natural, ) guardian and father Shri Liyakat ) Ali Khan, all r/o. Valpoi, ) Sattari – Goa. ).. Appellants/ Plaintiffs 2 Versus 1. Vincy Gonsalves alias, ) Vincent Gonsalves, Near Govt. ) Marathi High School, ) Massordem, Valpoi, ) Sattari Goa. ) 2. Mr. Chandrakant Ghorpade, ) group Editor of “Gomantak” ) Marathi Daily, having his Office at ) St. Inez, Panaji – Goa – 403 001. ) (since deceased) ) (Suit dismissed/ abates as per ) Decree dated 1/7/1999 passed on ) Exhibit -24. ) 3. Mr. Jayant Sambhaji, ) Executive Editor of “Gomantak” ) Marathi Daily, St. Inez, ) Panaji – Goa - 403 001. ) 4. M/s. Gomantak (Pvt.) Ltd., ) through its Managing Director, ) Printers and Publishers of their ) Marathi Daily “Gomantak”, ) having Office at St. Inez, ) Panaji – Goa – 403 001. ).. Respondents/ Defendants -- Shri V. Rodrigues for the Appellants. Shri S.G. Bhobe for Respondent No.1. Shri A. Kansar for Respondent Nos.3 and 4. -- 3 CORAM : SWATANTER KUMAR, C.J. & N.A. BRITTO, J JUDGMENT RESERVED ON : 16TH JULY, 2009 JUDGMENT PRONOUNCED ON : 3rd November, 2009. JUDGMENT : ( PER SWATANTER KUMAR, CHIEF JUSTICE ) Marathi daily “Gomantak” in its Issue dated 17th May, 1996 published following news item - “THREAT TO HURL BOMB ON THE HOUSE WITH THE AID OF DAWOOD IBRAHIM COMPLAINT OF GONSALVES OF VALPOI Liyakat Ali Khan resident of Valpoi and presently working in Dubai threatened that bomb will be hurled on the house of Vincy Gonsalves of Valpoi with the help of goon of Dubai Dawood Ibrahim. Shri Gonsalves recently lodged the complaint at Valpoi Police Station and also filed written complaint before Chief Minister, Shri Pratapsingh Rane and Central Bureau Investigation (Bombay). There is also news that C.B.I. Asked for investigation report from Valpoi Police. Shri Gonsalves said in his complaint that in the year 1977, he purchased 1500 sq. mts. Of land surveyed under No.64/1. In 1985 he built 4 house utilising half of the area of purchased land and in 1991, the remaining half of the area one Umar Abid Khan of Valpoi built his own house illegally. Several time Shri Gonsalves brought to the notice of Municipality of Valpoi and Mamlatdar, Shri Dalvi about the illegal construction being carried out by Khan by using financial, political and mascular powers. Once or twice Municipality stopped the work but with the support of some Municipality Councillor Khan completed the work of the house. Now Khan has requested Chief Officer Manohar vast of Valpoi Municipality to register the said house by issuing house number. But Shri Gonsalves has strongly objected for this. Liyakat Khan brother of Umar Khan working in Dubai has recently visited Goa, Shri Gonsalves said in his complaint while returning to Dubai he threatened Shri Gonsalves that he will hurl bomb on his house with the help of Dawood Ibrahim. He further said in his complaint that his family receiving threatening phone calls from Dubai. In the meanwhile, upon failure on the part of Valpoi Police Station to take proper steps in the matter, he lodged complaint before Inspector General of Police Shri Brar. Complaint has turned into a subject of discussion in the Valpoi locality and several topsy survey counteracting/comments are taking place amongst the police regarding the relation of Liyakat Khan with Dawood the enemy of the Country.” 2. Plaintiff No.1 felt that the news item caused immense defamation of himself, his brother Liyakat Ali and members of their 5 family ( who later on were joined as Co-Plaintiffs). The Plaintiffs felt that the publication in widely circulated news paper lowered down their moral and intellectual character besides lowering, their credit in their circle, relations among kith and kin and in society at large. The Plaintiffs, therefore, filed Special Civil Suit No.34 of 1996/A before the Civil Judge, Senior Division, Bicholim, Goa, for seeking following damages. 1. Loss of reputation, image, status, stature and credit worthiness in the local, neighbouring States and in the Gulf countries, inclusive of Dubai. Rs.1,00 crores 2. Mental agony, tension, torture, humiliation and sufferings to the Plaintiff, his brother and other family members; Rs. 25,00 lakhs 3. Loss of career prospects of the Plaintiff, his brother Mr. Liyakat Ali Khan, their children, namely i) Master Sikander Khan, son ii) Miss Shaeen Khan, daughter iii) Miss Zeba Khan, daughter of Mr. Liyakat Ali Khan. Rs. 25,00 lakhs ------------------------- 6 Rs.1,50 crores ------------------------- (Rupees One Crore and Fifty Lakhs Only ) 3. Defendant No.1 Vincy Gonsalves, disputed the suit claim by filing written statement at Exh.4. Defendant No.1 who denied knowledge about the news item, however, has contended that the language of the news item contains some true statement and cannot be characterized as absolutely false. According to defendant No.1 the facts stated in the news item were known to public much earlier to 31st March, 1996 and the news item dated 17th May, 1996 has given real picture of vindictive nature of Plaintiff. It is the specific defence of Defendant No.1 that the comments in the news item are based on real, true and existing facts and amount to fair comment made with attention and care. 4. Defendant No.3 was the Executive Editor of Daily Gomantak and Defendant No.4 is the publishing company. A suit against Defendant No.2, Chandrakant Ghorpade, the Group Editor of “Gomantak”, was dismissed being abated as per Order dated 1st July, 1999. 7 5. Defendant Nos.3 and 4 challenged the suit claim by written statement Exhibit-8. According to them, the news report has been published as per report made by their Valpoi Reporter which was based upon complaints made by Defendant No.1 to Valpoi Police Station and they had no intention of defaming Plaintiff. As per the Defendants, in the issue dated 22nd August, 1996 of Gomantak they have published the clarification given by Plaintiff in which he had stated that the allegations made by Defendant No.1 were false and there was a court case in Bicholim about disputed land. 6. The Defendants denied the claim of damages made by the Plaintiffs. 7. The learned trial Judge framed issues and after recording and appreciating the evidence led by both sides, dismissed the suit by a Judgment and Order dated 30th April, 2004 recording following issues and findings. ISSUES FINDINGS 1. Whether the Plaintiff proves that defendant 8 No.1 intentionally with ulterior motives and ill-designs has lodged a false report with Defendant Nos.2, 3 and 4 in order to defame him, his brother and his other family members by getting the same published in collusion with Defendant Nos.2, 3 and 4 ? No. 2. Whether the Plaintiff proves that the publication of news item published on 17.5.1996 has caused immense defamation and/or damage to him, his brother Mr. Liyakat Ali Khan and his other family members as they have been subjected to shame in their circle, relations, among kith and kins and in the society at large so also in the neighbouring area and gulf countries inclusive of Dubai where the said publication has had its circulation ? No. 3. Whether the Plaintiff proves that he, his brother Liyakat Ali Khan and his other family members are entitled for the damages to the tune of Rs.1.50 crores due to the defamation caused by publication dated 17.5.1996 in the daily Gomantak Marathi issue as per the break down shown in para 9 of the plaint ? No. 4. Whether the Defendants prove that the suit deserves to be dismissed since the prayers therein have been made for claiming damages to Shri Liyakat Ali Khan and their children who are not the plaintiffs in this suit ? ( deleted on 30.4.04.) 8. Being aggrieved by the said Judgment and Order dated 9 30th April, 2004, the Plaintiffs have filed the present First Appeal mainly on the ground that the evidence on record has not been properly appreciated and law in the matter has not been properly applied. 9. On the pleadings of the parties and the issues decided by the trial Court, the question which needs to be examined by the Court would be :- (a) Whether the news item in question is defamatory and whether it has lowered the reputation and image of the Appellant in the eye of right thinking members of the society ? (b) If this answer is in the affirmative, the next question the Court will have to consider is whether it was obligatory on the part of the Defendants/Respondents to verify the contents of the news item before publishing it ? 10 (c) What damages, if any, the Appellant is entitled to receive ? 10. Every person has a legal right to preserve his reputation inviolate. In law it has been accepted as personal property and it is jus in rem a right good against all the world. A man’s reputation is property and degree of suffering occasioned by the loss of reputation as compared to that occasioned by loss of property is greater. The Court therefore must draw a balance between freedom of speech and protecting the reputation of an individual.