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Nemichand v. Khemraj
Factual and Procedural Background
This is a defendant's second appeal arising from a suit for damages for publishing a defamatory leaflet. The suit sought Rs. 2,100/-. Five defendants were impleaded and a decree for Rs. 500/- was passed only against defendant No. 5, Nemichand, who was alleged to have printed the leaflet. Both the plaintiff and defendant No. 5 appealed to the District Judge, Jodhpur. The District Judge dismissed the plaintiff's appeal as having abated but upheld the decree for Rs. 500/- against defendant No. 5. Defendant No. 5 brought this second appeal to the High Court.
The plaintiff's factual case (as pleaded) was that on 11 June 1961 defendants Nos. 1–4 convened a meeting in Jodhpur where allegedly defamatory speeches were delivered; defendants Nos. 1 and 2 had the gist of those speeches printed at National Printers Press owned by defendant No. 5, and the printed leaflets were then distributed, resulting in the plaintiff's suspension from service and damage to his reputation.
Defendant No. 5 admitted that he printed the leaflet (Ex. 1) but contended that, although printed at the instance of defendant No. 3 (Bagji), he was not responsible for its publication. None of the respondents appeared in the second appeal despite service, and the appeal was heard ex parte.
Legal Issues Presented
- Whether the mere act of printing a defamatory leaflet and handing it to the person who commissioned it constitutes "publication" of defamatory matter for which the printer is civilly liable.
- Whether the printer's failure to give evidence (and in particular to appear in the witness box) permits an adverse presumption that he participated in the publication.
- Whether, on the record of the trial, publication (by distribution) of the printed leaflet by others was proved such as to render the printer jointly liable.
Arguments of the Parties
Plaintiff's Arguments
- The plaintiff alleged that defamatory speeches were made at a public meeting on 11 June 1961 and that defendants Nos. 1 and 2 caused these speeches to be printed at the press owned by defendant No. 5.
- The plaintiff alleged the printed leaflets were distributed at various places, resulting in suspension from employment and injury to reputation.
Defendant No. 5's Arguments
- Defendant No. 5 (Nemichand) admitted printing the leaflet (Ex. 1) but denied responsibility for its publication, contending that mere printing and handing over did not amount to publication by him.
- Implicitly, his position was that liability requires proof of publication (distribution) by him or by agents for whose acts he is responsible.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Eglantine Inn, Ltd. v. Smith (1948) N.I. 29 | Noting that a printer handing back printed handbills to the customer-author did not, by that act alone, publish the handbills; however, the printer was held jointly liable where subsequent distribution by the author's agents was proved. | The Court considered and relied on the reported observations from this case but distinguished it: in Eglantine the subsequent distribution by the author's agents was proved, whereas in the present record distribution of the leaflet by defendants Nos. 1 and 2 was not proved, so the precedent was held to be inapposite on that basis. |
Court's Reasoning and Analysis
The court began by restating the established legal principle that defamation requires publication: defamation is the communication of defamatory matter by one person to others (neither being the person defamed), and it is publication that causes the injury. The court quoted a definition from Halsbury's Laws of England stressing that publication is an essential ingredient of libel.
Applying that principle, the court agreed with the District Judge's legal conclusion that mere printing of defamatory matter is not actionable; publication must be proved to hold a printer liable. The court noted, however, that the District Judge had gone beyond this legal conclusion by drawing an adverse presumption against the appellant for failing to give evidence, relying on Eglantine Inn, Ltd. v. Smith and a passage in Harry Street's Law of Torts.
The High Court examined the authority relied upon and the textbook passages concerning rebuttable presumptions about publication (for example, presumptions arising from proper posting). The court observed that the crucial factual distinction in Eglantine was proof of subsequent distribution by the author's agents — a fact not present on the record before the court. In the present case the only proven act by defendant No. 5 was printing the leaflet at the instance of defendant No. 3 and handing it over to him; there was no proof of distribution by defendant No. 5 or by agents for whom he could be held responsible.
Given the absence of evidence of publication or distribution attributable to the printer, the court concluded that the act of printing and handing over did not amount to publication within the meaning of defamation law and therefore did not attract civil liability.
Holding and Implications
Core Holding: Appeal allowed; judgments and decrees of the courts below set aside; plaintiff's suit dismissed in toto.
Direct consequences: The decree for Rs. 500/- previously entered against defendant No. 5 (Nemichand) is set aside and the plaintiff's suit is dismissed. The Court ordered that there be no order as to costs.
Broader implications: The opinion upholds the principle that mere printing and delivery of printed matter to the person who commissioned it, without evidence of publication (distribution) attributable to the printer or to agents for whom he is responsible, does not constitute actionable publication in defamation law. The opinion does not address or announce a broader precedent beyond its application to the facts at hand.
Lodha, J.:— This is a defendant's second appeal arising out of a suit for damages for publishing a defamatory leaflet. Since none of the respondents has appeared inspite of service, I have heard the appeal ex parte.
2. The suit was for Rs. 2,100/- and out of the five defendants impleaded in the suit a decree for Rs. 500/- was passed only against defendant No. 5 Nemichand who is alleged to have printed the leaflet in question. Both the plaintiff and the defendant No. 5 filed appeals in the court of the District Judge, Jodhpur who dismissed the plaintiff's appeal as having abated but upheld the decree for Rs. 500/- against defendant No. 5 who has come in second appeal to this Court.
3. The plaintiff's case is that on 11th June, 1961 the defendants Nos. 1 to 4, namely, Ramdas, Laxminarain, Bagji, who is now dead and is represented by his son Gutji, respondent No. 4, and Sohanraj convened a meeting at Kabootron ka chok, Jodhpur which was presided over by defendant No. 3 Bagji and speeches were delivered by defendants 1, 2 and 4 in which wild imputations were made against the plaintiff for molesting woman, extracting money by unlawful means and remaining absent from duty from the railway workshop. It was further alleged that the gist of these speeches was got printed by defendants 1 and 2, namely Ramdas and Laxminarain in the National Printers Press owned by defendant No. 5 Nemichand and the printed leaflets were subsequently distributed at various places with the result that the plaintiff was suspended from service and his reputation was greatly impaired.
4. The defendant No. 5 Nemichand in a separate written statement filed by him admitted the printing of leaflet Ex. 1 by him but contended that even though it was printed by him at the instance of defendant Bagji he was not in any way responsible for its publication.
5. The learned District Judge has come to the conclusion that there is absolutely no evidence on record to show that the appellant (defendant No. 5) Nemichand had published the leaflet in question. He also held that the appellant Nemichand would not be liable for payment of any damages unless it is established that he had published the defamatory matter.
6. It is well established that ‘defamation’ is publication of defamatory matter and publication of defamatory matter is the communication thereof by one person to others, neither of such persons being the person, of whom the matter is defamatory. Such communication is affected by any act, which conveys the defamatory meaning of the matter to the person to whom it is communicated. It is not the matter but its publication which causes the injury. It has been held time and again that unpublished defamatory matter is as little amenable to civil process as published undefamatory matter. The essence of the wrong is the diminution of the good opinion of others and not the outrage or insult to the dignity or feelings of the person vilified. Lord Halsbury says at page 6 of the Halsbury's Laws of England, 3rd Edition, Volume 24:
“A defamatory statement is a statement which, if published of and concerning a person, is calculated to lower him on the estimation of right-thinking men, or cause him to be shunned or avoided or to expose him to hatred, contempt or ridicule or to convey an imputation on him, disparaging or injurious to his office, profession, calling, trade or business. It fellows, therefore, that every thing printed or written, which reflects on the character of another and published without lawful justification or excuse, is a libel. Thus publication is an essential ingredient in the case of a libel.”
7. The learned District Judge has, therefore, rightly come to the conclusion that mere printing of a defamatory statement is not actionable. There must be publication of such objectionable literature and unless publication is proved, the plaintiff cannot sue the printer for damages. Inspite of having come to this correct conclusion on the question of law, the learned District Judge, however, held that since the appellant did not adduce any evidence, so much so that he even refrained from coming himself in the witness box it may be presumed that he had also a hand in its publication. In arriving at this finding the learned Judge placed reliance on Eglantine Inn, Ltd. v. Smith (1) and held that the present case was almost identical to the facts of the ruling referred to above and quoted at page 308 of the Law of Torts, Fourth Edition by Harry Street.
8. The text of the case has not been made available to me but I find the following observations at page 308 of the book
“A decision at first instance in Northern Ireland has held that a printer does not, by the very act of handing back in a parcel the printed handbills to the customer-author, publish the handbills. 10 Eglantine Inn Ltd. v. Smith, (1948) N.I 29, (the printer was nevertheless held jointly liable for the subsequent distribution of the handbills by the author's agents).”
9. Now, in the present case, it is important to note that the trial court has come to the conclusion that the distribution of leaflet in question by defendants Nos. 1 and 2 was not proved. Thus, the authority relied upon by the learned District Judge can easily be distinguished on the ground that in that authority the subsequent distribution of handbills by the author's agents was proved; whereas in the present case there is no such proof.
10. In this connection reference may also be usefully made to the following observations in the same book by Harry Street (at page 309):—
“Difficulties of proving publication are eased by certain rebuttable presumptions. Proof of proper addressing and posting of a letter gives rise to a presumption of publication to the addressee, and a post card and a telegram (but not an unsealed letter) are presumed to have been published to post office officials. On the other hand, where the defendant handed to X a folded unsealed letter which he, without reading or showing to others, handed to the plaintiff, there was held to be no publication.”
11. In the present case, all that we have on the record against defendant No. 5 is that he printed the impugned leaflet at the instance of defendant No. 3 Bagji and handed over the printed matter to him. This act of the defendant-appellant, by itself, does not come within the mischief of the term “defamation” as explained above.
12. The result is that I allow this appeal, set aside the judgments and decrees of the courts below and dismiss the plaintiff's suit in toto. There will be no order as to costs.
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