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1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF MARCH, 2017 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.7464/2017 (GM-CPC) BETWEEN: SRI K. GOVINDARAJ, S/O. KEMPA R, AGED ABOUT 57 YEARS, RESIDING AT. NO. 206, 2ND MAIN ROAD, DOMLUR 2ND STAGE, BENGALURU-560071.
... PETITIONER
(BY SRI PROF. RAVIVARMA KUMAR, SR. COUNSEL FOR SRI R. HEMANTH RAJ, ADVOCATE)
AND:
SRI. B. S. YEDDYURAPPA, S/O. LATE. SHRI SIDDALINGAPPA, AGED ABOUT 74 YEARS, NO. 381, “DHAVALAGIRI”, 6TH CROSS, 80FT. ROAD, RMV II STAGE, DOLLARS COLONY, BENGALURU - 560094.
M/S BTV NEWS CHANNEL PRIVATE LIMITED, (INCORPORATED & REGISTERED UNDER COMPANY ACT), HAVING THEIR REGISTERED ADDRESS AT 32/1-2, CRESENT TOWER, HIGH GROUND, CRESTON ROAD, BENGALURU 560001, REP BY : THE EDITOR-IN CHEF
TV9 KARNATAKA PRIVATE LIMITED, (INCORPORATED & REGISTERED
2 UNDER COMPANY ACT), HAVING THEIR REGISTERED ADDRESS AT NO.13/1, RHENIUS STREET, RICHMOND TOWN, BENGALURU KARNATAKA-560025, REP BY: THE EDITOR-IN CHEF
PUBLIC TV NEWS CHANNEL PRIVATE LIMITED, HAVING THEIR REGISTERED ADDRESS AT 4TH FLOOR, BMTC COMPLEX, YESHWANTHPURA, BENGALURU, KARNATAKA-560022. REP BY: THE EDITOR-IN CHIEF
SUVARNA NEWS 24 X 7, HAVING THEIR ADDRESS AT: NO.36, CRESCENT ROAD, OPP. MALLIGE HOSPITAL, BENGALURU, KARNATAKA 560001. REP BY: THE EDITOR-IN CHIEF
KANNADA PRABHA NEWS PAPER, HAVING THEIR ADDRESS AT: NO.1, QUEENS ROAD, BENGALURU-560001. REP BY: THE EDITOR- IN CHIEF.
VIJAYA KARNATAKA NEWS PAPER, HAVING THEIR ADDRESS AT: NO.4, PAMPA MAHAKAVI ROAD, CHAMARAJPET, OPP: KANNADA SAHITYA PARISHAT, BENGALURU-560018. REP BY: THE EDITOR-IN CHIEF
VIJAYAVANI NEWS PAPER, HAVING THEIR ADDRESS AT: NO.24, 1ST AND 3RD FLOOR, SRI. SAIRAM TOWERS, 5TH MAIN, K. P. PUTTANNA CHETTY ROAD, CHAMRAJPET, BENGALURU-560018. REP BY: THE EDITOR-IN CHIEF
3 9. PRAJAVANI NEWSPAPER, HAVING THEIR ADDRESS AT: NO.75, M. G. ROAD, BENGALURU-560018. REP BY: THE EDITOR-IN CHIEF
UDAYAVANI NEWSPAPER, HAVING THEIR ADDRESS AT: NO. 202, II FLOOR, NORTH BLOCK, MANIPAL CENTRE, DICKENSON ROAD, BENGALURU-560 042. REP BY: THE EDITOR-IN CHIEF
SAMYUKTHA KARNATAKA, HAVING THEIR ADDRESS AT: NO. 2, FIELD MARSHALL K. M. KARIAPPA ROAD, BENGALURU-560 025. REP BY: THE EDITOR-IN CHIEF
HOSA DIGANTA, HAVING THEIR ADDRESS AT: NO. 106, 5TH MAIN, CHAMARAJPET , NEAR T. R. MILLS, BENGALURU-560 018. REP BY: THE EDITOR-IN CHIEF
INDIAN EXPRESS, HAVING THEIR ADDRESS AT: QUEENS ROAD, BENGALURU-560 001, REP BY: THE EDITOR- IN CHIEF
TIMES OF INDIA NEWSPAPER, HAVING THEIR ADDRESS AT: NO. 88, S & B TOWERS, M. G. ROAD, BANGALORE-560 001, REP BY: THE EDITOR-IN CHIEF
DECCAN CHRONICLE NEWSPAPER, HAVING THEIR ADDRESS AT: NO. 68, LAVELLE ROAD, BENGALURU-560 001, REP BY: THE EDITOR-IN CHIEF
4 16. DECCAN HERALD NEWSPAPER, THE PRINTERS (MYSORE) PRIVATE LTD., HAVING THEIR ADDRESS AT 75, M. G. ROAD, POST BOX NO. 5331, BANGALORE-560 001, REP BY: THE EDITOR-IN CHIEF ... RESPONDENTS
(BY SRI SANDEEP S. SHAHAPUR, ADVOCATE FOR R7 AND R14; SRI VISHWANATH R. HEGDE, ADVOCATE FOR R8; SRI M.V. SUNDARARAMAN FOR M/S CREST LAW PARTNERS, ADVOCATE FOR R9 AND R16; SRI N.D. SATISH CHANDRA, ADVOCATE FOR R11; R1 TO R6, R10, R12, R13 AND R15 ARE SERVED THROUGH HAND SUMMON’S) …
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH/SET ASIDE THE ORDER DATED 14.2.2017 PASSED IN I.A.NO.1/2017 IN O.S.NO.1080/2017 BY THE LEARNED LXVI ADDITIONAL CITY CIVIL JUDGE [CCH-67] PRODUCED VIDE ANNEXURE-A REFUSING TO GRANT EX-PARTE AD-INTERIM TEMPORARY INJUNCTION TO THE PETITIONER AND ETC.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS IS COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner, who is the plaintiff before the trial Court filed the present writ petition against the order dated 14.2.2017 made in O.S.No.1080/2017 on the file of the LXVI Additional City Civil Judge, Bengaluru
5 issuing suit summons and emergent notice on I.A. to the defendants returnable by 16.3.2017.
For the sake of convenience, the parties herein are referred to as per their rankings before the trial Court.
The plaintiff filed a suit for permanent injunction restraining the defendants, their men, agents or any one by themselves or on their behalf from issuing and publishing any statements defamatory in nature in connection with any matter touching upon the plaintiff either through print or through electronic form contending that he is a dignified and respectable person commanding great respect in the society; that at present he is a Member of Legislative Council, Vidhana Soudha, Bangalore; President of Karnataka Olympic Association; President of State Basketball Federation; and Parliamentary Secretary to Chief Minister, Government of Karnataka, Vidhana Soudha, Bangalore. He has
6 been involved in social work throughout his life and has been in public life for a long period of time. He is a very renowned personality known for his philanthropic activity as well as social service. There are number of people all across the State, who have been benefited by his activities and he has got great popular support throughout the State of Karnataka. He has contributed enormously for the development of sports activities in Karnataka.
It is the further contention of the plaintiff that defendant No.1, who is the former Chief Minister of Karnataka and presently the National Vice President and State President of Bharatiya Jannata Party (BJP), on 10.2.2017 when he was addressing the reporters at Belagavi has leveled false and baseless allegations stating that the Hon’ble Chief Minister of Karnataka had paid Rs.1000/- Crores (Rupees One Thousand Crores) to the High Command of Indian National Congress Party
7 to retain/acquire his post with the help of the plaintiff therein. The 1st defendant had falsely alleged that the Enforcement Directorate had summoned the plaintiff and had initited inquiry in this regard and that the CBI would begin in a probe thereby creating a doubt in the minds of the people. He had also stated that the Income Tax Authorities have seized dairies in the vicinity of the plaintiff when the Income Tax Authorities have raided plaintiff.
The plaintiff further has contended that the allegations made by 1st defendant on and after 10.2.2017 which were reported, published and telecasted in several print (Newspapers) and electronic media (TV Channels) are that the plaintiff has acted as an agent/postman for making payment of Rs.1000/- Crores (Rupees One Thousand Crores only) to the High Command of Indian National Congress by the Hon’ble Chief Minister of Karnataka in order to retain his
8 position; that a payment of Rs.65 Crores (Rupees Six Five Crores) to the High Command of Indian National Congress with respect to construction of Steel Flyover was made through the plaintiff; that his allegations are based out of the information obtained from the “Diary” seized by the Enforcement Directorate during the raids made by the Department at the residence and the Office of the Plaintiff; that the Enforcement Directorate has summoned the plaintiff with respect to the above allegations and that an inquiry into the illegal Transfer of the Money will be initiated by CBI, etc. It is also further contended that the allegations made by defendant No.1 on and after 10.2.2017 was reported, published and telecasted in several print (Newspapers) and electronic media (TV Channels) by defendant Nos. 2 to 16. It is further alleged in the plaint that though the plaintiff is a public servant, the report does not carry any news regarding the conduct of plaintiff in discharge of his public duty. The
9 reports do not have any bearing on public good nor do they touch upon any public question. Defendant No.1 is neither the agent of the Departments nor an investigating agency to make such statements on behalf of the concerned Departments. The 1st defendant has revealed only false allegations to create political imbalance, tampering the image of the plaintiff to the public and unnecessarily creating a charge of corruption over the plaintiff. The malafide allegations made by the 1st defendant against the plaintiff even without seeking any prior comments from the concerned authority about these issues shows his intent. For the purpose of publicity, the defendant colluding with Print and Electronic Media has made statements without any cogent evidence, which has caused damage to the plaintiff by issuing defamatory statement which is punishable under the laws of the lands. The reckless and irresponsible statements of the 1st defendant have caused grave and irreparable injury to the person and
10 reputation of the plaintiff and degraded his reputation and also the dignity of his high office has been damaged. The so called statement given by the 1st defendant which were published and aired by the print and electronic media have lowered the esteem of the plaintiff in the eyes of the public at large and before his colleagues, friends and relatives, etc., and therefore, he filed a suit for the relief sought for.
The trial Court considering the application held that there is no reasonable ground to pass ad-interim order of injunction restraining the defendants from issuing and publishing any statements defamatory in nature in connection with any matter touching upon the plaintiff either through print or in electronic form and hence, issued suit summons, emergent notice on I.A. to defendants returnable by 16.3.2017. Therefore, the present writ petition is filed.
Respondent Nos. 1 to 6, 10, 12, 13 and 15 are served and unrepresented.
I have heard the learned Counsel for the parties to the lis.
Prof. Ravivarma Kumar, learned Senior Counsel appearing for the petitioner vehemently contended that since the impugned order passed by the trial Court is erroneous and contrary to the material on record, the same is liable to be quashed. It was further contended that the trial Court failed to appreciate the fact that the 1st respondent/defendant No.1 has made a baseless allegations causing harm to the public and personal life of the plaintiff and if such allegations continued to be made by the respondents, the same cannot be compensated at a later stage in terms of money. It was also contended that the false allegations made by the 1st defendant and published by defendant Nos. 2 to 16 is calculated to injure the reputation of the
12 plaintiff by exposing him to hatred, contempt or ridicule which is impermissible and the law recognizes in every man a right to have the estimation in which he stands in the opinion of others unaffected by false statements to his discredit.
It is further contended that the Court below has not considered the intensity of the statements made by the 1st respondent/defendant No.1 and published by others defendants i.e., respondent Nos. 2 to 16 causing harm to the plaintiff and the public image of the plaintiff has been tampered by the defendants-respondents and would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally.
Learned Senior Counsel further contended that the trial Court while issuing notice has not refused temporary injunction nor has rejected the same or has granted any temporary injunction, but before passing
13 any ad-interim order, the trial Court has pre-determined the case and made erroneous observations that the Rule of Law is nothing but attack on Democratic System of Indian Constitution and attack on 4th pillar of democracy. The Courts being custodian of Constitution and Rule of Law has to see that the Press should function very smoothly without violating freedom given to it. Whenever Democratic system making allegations and counter allegations between multiple parties in India against one another, is not violation of anybody’s right of reputation. It is in order to show transparency in the Democratic System under the Rule of Law. Making allegation and counter allegation against political parties is in no way damaging the reputation of a person and it is one of the healthy competition in the political arena. Such an observation made by the trial Court is uncalled for and it is in utter violation of Article 19(1)(a) of the Constitution of India.
The learned Senior Counsel further submits that the trial Court while considering the I.A. has to decide the application for temporary injunction with reference to the plaint averments. Even in the absence of any counter by the defendants, the trial Court has proceeded to make adverse remarks against the plaintiff which is contrary to the material on record and the same is liable to be quashed. Further, he strenuously contended that the trial Court considering that there is an immediate threat, issued emergent notice returnable by 16.3.2017 which is more than a month, and if the emergent notice is issued, the trial Court ought to have given a short date for deciding the application expeditiously. Therefore, the same is in utter violation of Order XXXIX Rule 3A of the Code of Civil Procedure. In support of his contentions, learned Senior Counsel has relied upon the following dictums of this Court:
(i) N.A. Haris –vs- Rajiv Hegde in W.P.No.13992/2012 (D.D. 7th March, 2014);
(ii) Smt. Sonakka Gopalagowda Shanthaveri and others –vs- U.R. Anantha Murthy and Others reported in AIR 1988 Kar. 255; and also
(iii) D.K. Shivakumar –vs- Associated Broadcasting Company Pvt. Ltd. in W.P.No.12715/2014 (D.D. 30th July, 2014).
Therefore, he sought to set aside the impugned order passed by the trial Court.
Per contra, Sri Vishwanath R. Hegde, learned Counsel for respondent No.8 contended that in the entire plaint averments, no allegations are made against defendant Nos.2 to 16 and therefore, he sought to justify the impugned order.
Sri Arun, learned Counsel for respondent Nos. 9 and 16 while adopting the arguments of Sri Vishwanath R. Hegde contended that neither the Government nor the plaintiff or the officials, who
16 apprehend that they may be defamed, have the right to impose a prior restraint upon the publication of the alleged defamatory statement. The remedy of public officials/public figures, if any, will arise only after the publication. It is his further contention that respondent Nos. 9 and 16 have merely published the statement made by the opposition leaders. In support of his contentions, he relied upon the judgments of the Hon’ble Supreme Court in the case of R. Rajagopal –vs- State of Tamilnadu reported in (1994) 6 SCC 632; and Union of India –vs- Association for Democratic Reforms and Another reported in (2002) 5 SCC 294.
Sri Sandeep S. Shahapur, learned Counsel appearing for respondent Nos. 7 and 14 contended that the main prayer and the interim prayer are one and the same and therefore, interim prayer cannot be granted. The publication made by respondent Nos. 7 and 14 is only on the basis of the press joint statement given by
17 Sri Anantha Kumar, Hon’ble Minister for Chemicals and Fertilizers and Sri B.S. Yediyurappa, State BJP President on 13.1.2017 and sought to justify the impugned order.
Sri. N.D. Satish Chandra, learned Counsel appearing for respondent No.11 while adopting the arguments of other Counsel for the defendants submitted that the averments in plaint and at para-6 of affidavit filed in support of I.A. make out a case for grant of temporary injunction restraining the defendant or his agents or anybody claiming through him from issuing defamatory statements, but has not made any allegations either in the affidavit or in the plaint against other defendants. Therefore, no injunction can be granted against other defendants.
Prof. Ravivarma Kumar, learned Senior Counsel while replying to the arguments of the learned Counsel for the defendants invited attention of the
18 Court to paras-6, 7 and 10 of the plaint specifically stated the allegations made against defendant Nos. 1 to 16. Therefore, the statement made by the learned Counsel for the defendants that no allegations are made in the plaint or in the affidavit accompanying I.A.I, cannot be accepted.
In view of the aforesaid rival contentions urged by the learned Counsel for the parties, the only point that arises for consideration is:
Whether the trial Court is justified in passing the impugned order issuing summons and emergent notice on I.A.I returnable by 16.3.2017 making some adverse remarks/finding against the plaintiff in the facts and circumstances of the present case?
I have given my anxious consideration to the arguments advanced by the learned Counsel for the
19 parties and perused the entire material on record carefully.
It is the specific case of the petitioner-plaintiff before the trial Court that defendant No.1 has levelled false and baseless allegations against the Chief Minister of Karnataka that he has paid a sum of Rs.1000/- Crores (Rupees One Thousand Crores only) to the High Command of Indian National Congress to retain his post with the help of the plaintiff and that the same was published and telecasted on and after 10.2.2017 in several print (Newspapers) and electronic media; that the plaintiff as acted as an agent/postman for making payment of Rs.1000/- Crores (Rupees One Thousand Crores only) to the High Command; that the reports would not have any bearing on public good nor do they touch upon any public question; that defendant No.1 has revealed only false allegation only to create political imbalance tampering his image to the public and
20 unnecessarily creating a charge of corruption over him. The plaintiff has further contended that the reckless and irresponsible statements of the 1st defendant and published by defendant Nos. 2 to 16 have caused great irreparable injury to him by degrading his reputation and also has damaged the dignity of his high office. Therefore, he filed the suit for permanent injunction for the relief sought for.
The trial Court while passing the impugned order dated 14.2.2017 has issued suit summons and emergent notice on I.A. to the defendants returnable by 16.3.2017 which is beyond one month and has observed some adverse remarks/findings before deciding the I.A. on merits. The same is not warranted. The trial Court has also failed to notice that the provisions of Order XXXIX Rules 1 and 2 of the Code of Civil Procedure provides for grant of an order of temporary injunction, if
21 the conditions stipulated therein are satisfied. In temporary injunction, there are two types:
i) Granted without finally disposing of the application for temporary injunction to operate immediately till the disposal of the said application;
ii) Granted while finally disposing of the main application, generally till the disposal of the suit. The former is generally called as ad-interim injunction and latter is generally called as temporary injunction. Relief by way of interlocutory injunction is granted to mitigate the risk of injustice to the plaintiff during the period before the uncertainty could be resolved.
The provisions of Order XXXIX Rule 3 provides that the Court shall, in all cases, before granting an injunction direct notice of the application to be given to the opposite party which is a mandatory.
22 However, the said provision has an exception i.e., where it appears that the object of temporary injunction would be defeated by the delay, then the Court is vested with the power to grant an exparte ad-interim injunction. Therefore, if there is no immediate threat, a notice should be issued. The requirement of giving reasons for the opinion of the Court that the object of granting the injunction would be defeated by delay, as laid down in the proviso, is mandatory.
In the present case, the trial Court after perusing the pleadings, though found that it is a case of urgency and issued emergent notice which is well within its jurisdiction, but has given a date beyond one month which is unreasonable. It is an obligation on the part of the Court to see that the said notice is duly served at the earliest to the defendants so that the grievance of the plaintiff could be addressed after hearing both the parties. If the said responsibility is not kept in mind, by
23 ordering notice, the case is adjourned beyond a month and in the meanwhile, any injury is caused to the plaintiff, who is already before the Court, then the very statutory remedy given to him would be rendered useless. In such cases where emergent notice is ordered, on appearance of the defendant, he should be compelled to file objections at the earliest and the application should be taken up for consideration. Though by the impugned order, the trial Court felt that it was of urgency and issued emergent notice but has given the returnable date beyond one month whereby the very purpose for which the interim application was filed by the plaintiff, would be defeated.
It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds, but because it is capable of removing injustice and is expected to do so.
If ultimately, the Court declines to grant an order of temporary injunction, the party who approaches the Court, has a remedy by way of an appeal. But after approaching the Court, he is neither granted an interim order nor his application is heard and decided on merits and in the meanwhile, if his or her rights are affected, injury is caused, then it would be a case of injury being caused to him by the inaction on the part of the Court and not by the opposite side of the party.
When the matter involves serious questions pertaining to violation of fundamental right guaranteed under Article 21 of the Constitution of India and fundamental duty cast on the citizen under Article 51-A of the Constitution of India, it is the bounden duty of the Court to decide the application for temporary injunction within a reasonable time. Even Rule 3A of Order XXXIX of the Code of Civil Procedure
25 contemplates that where an exparte order of temporary injunction is granted, the said application should be decided within 30 days from the date of which the notice was issued or at least 30 days from the date on which the defendant enters appearance.
In the present case, the suit was filed on 13.2.2017 and the impugned order was passed on 14.2.2017 by issuing suit summons and emergent notice on I.A. to the defendants returnable by 16.3.2017 which is nearly more than a month. When the Legislature thought fit to amend Order VIII Rule 1 of the Code of Civil Procedure, it has made obligatory for the defendant to file written statement within 30 days from the date of receipt of summons. When that being a case, after declining to grant an exparte order of temporary injunction, posting the case beyond one month after ordering emergent notice to the defendants on I.A., would not be a proper exercise of power by the trial
26 Court. The very object of issuing emergent notice is to hear the defendants at the earliest and then pass orders on merits. The said object is defeated in the present case in pursuance of the impugned order passed by the trial Court. Therefore, the impugned order passed by the trial Court suffers from failure to exercise jurisdiction vested in the Court by law and the Court should remember that one should do nothing but to bring down the faith that the people of this Country have in our judicial system treating the Courts as temples of justice.
Though the learned Senior Counsel for the petitioner and the learned Counsel representing the respondents raised various contentions and relied upon various judgments of the Hon’ble Supreme Court and this Court on merits, this Court desists to exercise supervisory jurisdiction under Article 227 of the Constitution of India and to proceed with the merits of
27 the case, in view of the fact, that the trial Court has issued only suit summons and emergent notice on I.A. to the defendants returnable by 16.3.2017 and has not applied its mind in discharging its obligation as contemplated under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure. Accordingly, the point raised in the present writ petition is answered partly in the negative holding that the trial Court is not justified in making adverse remarks/findings against the plaintiff while issuing summons and emergent notice on I.A. Therefore, this Court is of the considered opinion, that it is suffice to direct the trial Court to take up the application-I.A. for temporary injunction for hearing immediately and dispose of same on its merits within 7 days from the date of receipt of a copy of this order.
The parties are directed to appear before the trial Court on 16.3.2017 with their version, if any.
28 30. Since defendant Nos. 1 to 6, 10, 12, 13 and 15 are served and unrepresented in the present writ petition, the petitioner is permitted to communicate this order to the said served and unrepresented respondents-defendants and to produce the acknowledgement for having communicated to them before the trial Court, to enable them to file objections/versions, if any, to I.A.1 as well as to the main suit forthwith.
If any such acknowledgement is filed, the trial Court shall proceed to consider the said I.A. without waiting for their version. The trial Court is also directed to dispose of the application within seven days from 16.3.2017 since it has issued emergent notice on 14.2.2017 and one month is over by 15.3.2017 and during which time, the defendants might have been served and even if they are not served, all the
29 defendants shall file their version, if any, before the trial Court on or before 16.3.2017.
In view of the aforesaid reasons, writ petition is allowed in part. The impugned order dated 14.2.2017 passed by the trial Court making unnecessary adverse remarks in the present case, even before deciding I.A. is quashed and the trial Court is directed to proceed with I.A.1 and pass orders within the reasonable period as stated supra strictly in accordance with law without being influenced by any of the observations/remarks made by it while considering I.A.1 and this Court in the present writ petition.
Sd/-
Judge
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