Makhanlal Lolaram v. Panchamlal Sheoprasad

1. The suit is for ??? The plaintiff is the editor of a ??? magazine called the “Parwar ???” The first defendant is the ??? of a rival weekly publication ??? the “Jain Gazette”. The second defendant is its publisher and printer, the third defendant is its ??? The fourth defendant is the ??? of an article in one of its issues (P-1), which the plaintiff ??? is defamatory of him.

2. ??? defence is a plea of accord and action. The parties all belong to same sect of Jains. On 9th July there was a meeting of some of the ??? Parwars of Jubbulpore who ??? to negotiate an amicable ??? of the action which the plaintiff was evidently then ??? The finding of both the Courts is the plaintiff was prepared to ??? apology in the terms of a draft ??? upon at that meeting, provided as duly published in the Jain ??? The plaintiff pleaded that he had ??? certain conditions precedent, one which was that the name of the ??? should be disclosed, and another which was that the apology should ??? in the issue of the Jain Gazette ??? following the meeting. ??? the lower Courts have rejected plea. The lower appellate Court:

“??? learned trial Judge has rightly ???… that the plaintiff had waived his ??? precedent and accepted the article if and duly published, as full accord and ???”

3. That is a finding of fact which must be accepted here.

4. The apology eventually appeared in an issue of the Jain Gazette about three weeks after the meeting. The lower appellate Court has held that this operated as an accord and satisfaction so far as the first three defendants are concerned, but not as against the fourth. Accordingly the claim was dismissed against them, but decreed against the fourth to the extent of Rs. 1,000.

5. The reasons for drawing this distinction between the fourth defendant and the others are given in para. (L) of the judgment. They are founded on the following passage:

“…. his (i.e the fourth defendant's) conduct led the panchas and the plaintiff to believe in a way, though tentatively, that, he was not the writer. That was fraud upon the plaintiff and the panchas, for we find that defendant 4 was the writer.”

6. The learned Judge then proceeds to hold that the persons who negotiated this settlement could only act on behalf of known persons, and so, since the writer was then unknown they could not represent him in the settlement which was effected on 9th July, 1928.

7. No case of fraud was set up in the pleadings, nor was an amendment asked for at any stage. The lower appellate Court therefore had no jurisdiction to entertain the plea. It is argued, on the strength of 1915 Nag 74 1915 Nag 74 , 83 IC 497 , 12 NLR 57, that a Court is not tied down to the pleadings of the parties but is free to decide on the evidence actually before it. It is not necessary for me to discuss the general proposition raised there. It is sufficient to state that was not a case of fraud where there is a statutory obligation to plead it with all its particulars, and then to prove it as laid: 15 Cal 533 (1888) 15 Cal 533 , 15 IA 119 , 5 Sar 168 (PC) and 11 Bom 620 (1887) 11 Bom 620 , 14 IA 111 , 5 Sar 25 (PC).

8. So far as the other ground of decision is concerned it is immaterial whether the plaintiff knew of the fourth defendant's existence or not. An accord and satisfaction in favour of one joint ??? operates in favour of them all: 9 QB 819 Page: 228 (1846) 9 QB 819, 11 A & E 453 (1840) 11 A & E 453 , 3 P & D 289 and 6 Bing (N.C) 52 (1841) 6 Bing (NC) 52 , 8 Scott 156 , 9 LJCP 113. Odgers on Libel and Slander, Edn. 6, p. 521, Ratanlal on Torts, Edn. 10, p. 71. The basis of these decisions is that where the injury is one and indivisible it can give rise to but one cause of action. Consequently if satisfaction is accepted as full and complete as against one person it operates with respect to the entire ??? of action. It is argued that the plea is based on contract, and so only the actual parties to it can take advantage of it. It is unnecessary to investigate the origin of this defence, for even if it is founded on contract, it is obvious that once the cause of action is completely extinguished it hardly matters who afforded the plaintiff satisfaction.

9. It is next urged that the cause of action in such a case is not joint and indivisible but joint and several: Ratanlal's Torts, p. 159, is cited for this proposition. It is true the editor, printer and publisher of a defamatory article in a newspaper are each individually liable and that they need not all be joined in the suit unless the plea of non-joinder is raised; but, with the utmost respect I am unable to agree that there can be several suits on one cause of action. Criminal proceedings stand on a different footing. The civil liability for defamation is joint and indivisible, whereas the criminal liability is joint and several. The criminal law knows no such thing as vicarious atonement, and each man has to suffer for his own crimes irrespective of whether others have been brought to justice or not.

10. So far as the action of the fourth defendant is concerned it gives rise to two separate causes of action. First of all there was the publication to the editor and the printer. That afforded a complete cause of action in itself. But that is not the publication complained of in this suit. The claim is based on the publication in the Jain Gazette, and not on the private publication to these others. So far as that is concerned, of course the liability is separate and distinct, and the present plea of accord and satisfaction might not avail ??? but since the defendant is not ??? sued for that wrong the matter ??? be considered further. So far as other publication is concerned, cause of action is the publication ??? paper, which was one complete ??? divisible act in itself. It is true ??? people have contributed to it ??? act is one and indivisible, and it is act which constitutes the ??? action. Consequently an ??? of that cause of action ??? means a full and complete ??? That being so nobody ??? be sued upon a cause of action which no longer alive however much might once have been liable. The ??? must therefore be dismissed, and remaining points need not be ??? There is an appeal by defendants with respect to costs. The lower pellate Court has ordered them to their own costs on the ground ??? addition to pleading, accord and ??? faction they pleaded justification as. In a defamation suit it is ??? consider the conduct of the defer right up to the time of the verdict there is no doubt that an ??? plea of justification is a good ground depriving a party of his costs. It fore dismiss their appeal with costs.

11. The fourth defendant's appeal ??? the plaintiff is allowed. The ??? the lower Court will be reversed ??? as it relates to him and that of first Court restored. The plaintiff bear his own costs and pay those of fourth defendant in this and the ??? appellate Court.

12. Order according.