Soumen Sen, J.— The defendants have filed this application for rejection of the plaint on the ground of limitation.
2. The petitioner-defendants in the petition have stated that the plaintiff had alleged in the plaint that the letter containing the defamatory statement was published on 3-2-2001. Accordingly, in terms of Article 75 of the Limitation Act, 1963, the period of limitation for compensation for libel is one year from the date when the libel was published. The plaintiff has filed the suit on 5-4-2002. The plaintiff in para 16 of the plaint has stated that the cause of action of the suit arose as on 3-2-2001 when Defendant 2 issued the letter by which the membership of the plaintiff from the Executive Committee was ceased without assigning any good or valid reason and is continuing day to day.
3. The action for libel is based on the letter dated 3-2-2003. The defendant states that on the own showing of the plaintiff there was no other letter or communication apart from the letter dated 3-2-2001 containing alleged defamatory statement. The cause of action for alleged libel is, accordingly, complete with the issuance of the said letter and the suit for compensation for such alleged libel is to be filed within a period of one year from the date of such publication.
4. Ms Amrita Pandey led by Mr Raja Basu Chowdhury submitted that in view of Article 75 of the Limitation Act the suit is expressly barred by the laws of limitation and the plaint is to be dismissed on that ground alone. The learned Counsel has relied upon the following decisions:
(1) B.C. Rana v. Seema Katoch1;
(2) Dr. Vijay Pahwa v. Bratati Mukherjee Mukherjee2;
(3) Prem Peyara v. Kamla Sinha3;
(4) N.N.S. Rana v. Union of India4.
5. It is submitted on the basis of the aforesaid decisions that it has been consistently held by different High Courts including our Court that when the statement is defamatory, the plaintiff would be required to file the suit within one year from the date of publication and is entitled to general damages if the plaintiff could establish the same at trial. The defamatory statement and/or words are actionable per se and in such a case, general damages will be presumed.
6. Per contra Mr Jayanta Banerjee, learned Counsel appearing on behalf of the plaintiff submits that on a bare reading of the plaint it would appear that it is a continuing wrong and as such the suit is not barred by limitation. Mr Banerjee has referred to Sections 22 and 23 of the Limitation Act, 1963 and the averments made in paras 10 to 13 of the plaint. It is submitted that the plaintiff has claimed special damage in para 13 and has stated in the plaint that the cause of action is continuing. It is submitted that the letter containing defamatory statement dated 3-2-2001 has been circulated amongst the members and this itself is sufficient to constitute a continuing wrong giving rise to continuing cause of action. It is submitted that the suit is for damages suffered due to termination of membership and the financial loss suffered by the plaintiff as a consequence of the said letter issued by Defendant 2. Mr Banerjee has relied upon a text book by G.P. Agarwal on the Law of Limitation and Prescription, 4th Edn., pp. 566 to 662 and pp. 673 to 680 and the definition of libel in P. Ramanatha Aiyar's Concise Law Dictionary (4th Edn.). The learned Counsel has relied upon the decisions in Gaya Prasad Singh v. Jagadish Chandra Deo Dhabaldeb and Abdul Hussain Shaikh Gulamali Jambawalla v. Bombay Metal Syndicate.
7. The plaintiff has instituted the suit for declaration, recovery of damages and permanent injunction. The cause of action in the suit appears to be a letter dated 3-2-2001 issued by Defendant 2 terminating the membership of the plaintiff from the Executive Committee without assigning any valid reason. The letter, according to the plaintiff, contains defamatory words.
8. The plaintiff claims to be one of the founder members of Defendant 1. The plaintiff alleged that the Executive Committee constituted during the year 2000-2001 acted illegally and detrimental to the interest of Defendant 1. The plaintiff approached the promoter/lessee of the building Kamalalaya Centre Shops to let out on hire the open car parking space on the ground floor excepting the reserved open car parking space to the plaintiff as sanctioned by the CMC for effectively managing the same on behalf of Defendant 1 against which the plaintiff would collect parking fee from the vehicles parked inside the building from those unit holders who have no parking space and from the visitors w.e.f. 1-10-2000. The plaintiff alleged that the said defendants created difficulties for the plaintiff from collecting parking fees. Defendant 1 issued a circular dated 5-2-2001, informing the members not to pay car parking fees to the plaintiff thereby causing financial loss to the plaintiff. The said Defendant 1 on 3-2-2001, affixed a notice at the outer wall of the shop room of the plaintiff to the effect that certain actions of the plaintiff was found to be prejudicial to the interest of the Association and, accordingly, the plaintiff would be debarred from representing the ground floor members in the Executive Committee as per para 21(2)(c) of the Memorandum & Articles of Association.
9. This letter triggers of the filing of the present suit. The plaintiff states that the plaintiff was shocked to go through the contents of the said notice. The said notice was posted at a conspicuous place deliberately with the motive to malign the plaintiff and to lower him in the estimation of right thinking members of the society in general and in particular to cause him to be regarded with feelings of ridicule, dislike and disesteem. The notice is invalid in law and, in fact, the said letter dated 3-2-2001 caused mental harassment and financial loss to the plaintiff. The plaintiff by a legal notice dated 6-2-2001 called upon Defendant 1 to withdraw the notice dated 3-2-2001 and pay a sum of Rs 5,00,000 on account of loss suffered by the plaintiff both financially and mentally within 15 days from the date of receipt of the letter. The defendants failed and neglected to remedy the breach. The plaintiff claims that by reason of such wrongful act on the part of the defendants in not withdrawing the said letter and compensating the plaintiff for the loss suffered, the plaintiff has filed the suit claiming various reliefs including general and special damages. The basis of the claim in the suit appears to be the letters dated 3-2-2001 and 15-2-2001. It is alleged that in spite of giving opportunity to the defendants to withdraw the letter and compensate the plaintiff for the loss and damage suffered by the plaintiff as a consequence of such letters, the defendants refused to do so giving rise to the plaintiff's claim for a special damage of Rs 5,00,000 and general damage of Rs 10,00,000. The relevant averments made in the Plaint in support of such claim as stated in para 12 are reproduced below:
“12. That the plaintiff's Advocate-on-Record thereafter received another reply from Sri Sobhan Kumar Pathak, Advocate by his letter dated 3-3-2001 again denying all the facts stated in the letter dated 15-2-2001 and denying to withdraw the notice dated 3-2-2001 and paying Rs 10,00,000 as damages. The fact remains that the plaintiff was assigned the car parking space by the promoter of Kamalalaya Centre i.e. Kamalalaya Centre (P) Ltd. for valuable consideration. The plaintiff was paying to the promoter the hiring charges and in its true use to collect parking fee from the vehicle owners i.e. the Unit holders and Visitors of Kamalalaya Centre and due to disturbance created by Defendants 1 and 2, the plaintiff faced serious financial loss to the tune of Rs 5,00,000. That the plaintiff further suffered damages as he is defamed by Defendant 1 as his membership from the Executive Committee was ceased and the prestige of the plaintiff was lowered in the eye of the inmates of the Kamalalaya Centre. The plaintiff has been exposed to public contempt and ridicule and his reputation has been adversely affected. Thus, for the said defamation, the plaintiff is entitled to damages which the plaintiff has reasonably assessed at Rs 10,00,000. Thus, the total claim of the plaintiff is Rs 15,00,000. The plaintiff further states that the notice dated 3-2-2001 is bad in law and suffers from legal infirmity and is liable to be set aside. The plaintiff further states that Defendant 1 be restrained to take further action in terms of the letter dated 3-2-2001 issued by Defendant 1.”
10. The contention of the defendant that the cause of action is complete with the issuance of the letter dated 3-2-2001 as regards the reliefs claimed by the plaintiff are not acceptable to me at this stage.
11. The expression “cause of action” refers to “every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court” (Cooke v. Gill).
12. A cause of action may be either single or continuing. When an Act is final and complete and becomes a cause of action for injury to the plaintiff, it is single, arises once and for all and the plaintiff is entitled to sue for compensation at one time. But if there is a repetition of a wrongful act or omission, it will comprise a continuing cause of action.
13. In Hole v. Chard Union Lord Justice Lindley held:
“What is a continuing cause of action? Speaking accurately, there is no such thing; but what is called a continuing cause of action is a cause of action which arises from the repetition of acts or omissions of the same kind as that for which the action was brought.”
14. What is emphasised is that there has to be repetition of acts or omissions in respect of repeated wrongs.
15. The wrong of defamation consists in the publication of a false and defamatory statement respecting another person without lawful justification or excuse (Salmond, 15th Edn., p. 179). A “libel” is only a particular form of “defamation”. It is a defamatory statement in writing or otherwise recorded (e.g. by printing, typing, etc.) in such a way as to be more or less permanence so that after one act of publication, it still retains its capacity of expressing the defamatory meaning by subsequent acts of publication. Slander is spoken defamation. A statement is not actionable as a libel unless it is made and published. Publication would include a subsequent republication of the libellous matter and a suit will lie for every such publication. The starting point of limitation under Article 75 of the Limitation Act is the date on which the particular alleged libel is published. Every publication of a libel will give a cause of action.
16. In order to ascertain when a defamatory statement would be regarded as a continuing breach or a continuing wrong thereby giving a fresh period of limitation, the test appears to be to see whether the wrongful act produces a state of affairs, and every moment's continuance of which is a new wrong and is of such a nature as to render the doer of it responsible for the continuance. Section 22 of the Limitation Act provides that in case of a continuing tort, a fresh period of limitation begins to run at every moment of the time during which the tort continues. If the defamatory statement causes an injury which is complete, there is no continuing tort even through the damage resulting from the act may continue. The continuance of the effect of a wrong is itself not a continuing wrong. Balakrishna Savalram Pujari Waghmare v. Shree Dhyaneshwar Maharaj Sansthan. A definition of tort has been inserted in the present Limitation Act in Section 2(m) which means a civil wrong which is not exclusively the breach of contract or the breach of trust. The word tort has been included by replacing the word “wrong” occurring in Section 23 of the Repel Act of 1908. The word “tort” in Section 22 of the present Limitation Act to be understood in the light of the aforesaid definition. The words “continuing tort” have been substituted in the present Section for the word “continuing wrong the independent of Contract” occurring in Section 23 of the Repel Act and a definition of tort “has been inserted” in Section 2(m) as stated above.
17. However, at this stage on a reading of the plaint it does not appear to me that the cause of action is only confined to recovery of damages for libel.
18. In view of the aforesaid discussion, it is not necessary for me at this stage to deal with the cases cited by the parties. If the letter dated 3-2-2001 would at all constitute a libel is a matter that has to be decided at the trial.
19. In deciding the application for rejection of plaint, the Court has to see on a reading of the plaint as to whether any or all of the conditions under Order 7 Rule 11 of the Code of Civil Procedure are attracted.
20. It would be worthwhile to refer to a decision of the Supreme Court in Popat and Kotecha Property v. State Bank of India Staff Assn.. In paras 19 and 25 of the said report it was observed:
“19. There cannot be any compartmentalisation, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time it should be borne in mind that no pedantic approach should be adopted to defeat justice on hair-splitting technicalities.
…
25. When the averments in the plaint are considered in the background of the principles set out in Sopan Sukhdeo Sable v. Asstt. Charity Commr.11 the inevitable conclusion is that the Division Bench was not right in holding that Order 7 Rule 11 CPC was applicable to the facts of the case. Diverse claims were made and the Division Bench was wrong in proceeding with the assumption that only the non-execution of lease deed was the basic issue. Even if it is accepted that the other claims were relatable to it they have independent existence. Whether the collection of amounts by the respondent was for a period beyond 51 years need evidence to be adduced. It is not a case where the suit from statement in the plaint can be said to be barred by law. The statement in the plaint without addition or subtraction must show that it is barred by any law to attract application of Order 7 Rule 11. This is not so in the present case.”
21. Whether Order 7 Rule 11(d) CPC can be invoked when a plea of bar of limitation pleaded also came up for consideration in a subsequent judgment of the Supreme Court in Ramesh B. Desai v. Bipin Vadilal Mehta. The relevant observations can be found in paras 15, 16 and 19, which reads as follows:
“15. The principle underlying Clause (d) of Order 7 Rule 11 is no different. We will refer here to a recent decision of this Court rendered in Popat and Kotecha Property v. State Bank of India Staff Assn.13 where it was held as under in para 10 of the report:
“10. Clause (d) of Order 7 Rule 7 speaks of suit, as appears from the statement in the plaint to be barred by any law. Disputed questions cannot be decided at the time of considering an application filed under Order 7 Rule 11 CPC. Clause (d) of Rule 11 of Order 7 applies in those cases only where the statement made by the plaintiff in the plaint, without any doubt or dispute shows that the suit is barred by any law in force.”
16. It was emphasised in para 25 of the report that the statement in the plaint without addition or subtraction must show that it is barred by any law to attract application of Order 7 Rule 11 CPC. The principle is, therefore, well settled that in order to examine whether the plaint is barred by any law, as contemplated by Clause (d) of Order 7 Rule 11 CPC, the averments made in the plaint alone have to be seen and they have to be assumed to be correct. It is not permissible to look into the pleas raised in the written statement or to any piece of evidence….
22. A plea of limitation cannot be decided as an abstract principle of law divorced from facts as in every case the starting point of limitation has to be ascertained which is entire a question of fact. A plea of limitation is a mixed question of law and fact. The question whether the words barred by law occurring in Order 7 Rule 11(d) CPC would also include the ground that it is barred by law of limitation has been recently considered by a Two-Judge Bench of this Court to which one of us was a member (Ashok Bhan, J.) in Balasaria Construction (P) Ltd. v. Hanuman Seva Trust….”
23. It would be useful to refer to the decision of the Hon'ble Supreme Court in Kamala v. K.T. Eshwara Sa in which in paras 21, 22 and 25 the Hon'ble Supreme Court dealt with this aspect of the matter and held that Order 7 Rule 11(d) CPC has limited application. For its applicability it must be shown that the suit is barred under any law. Such a conclusion must be drawn from the averments made in the plaint. What would be relevant for invoking Order 7 Rule 11(d) CPC are the averments made in the plaint. For that purpose, there cannot be any addition or subtraction. For the purpose of invoking the said provision, no amount of evidence can be looked into. The issues on merit of the matter which may arise between the parties would not be within the realm of the court at that stage. All issues shall not be the subject-matter of an order under the said provision.
24. The statements made in the Plaint are to be taken as correct. The Court in considering such objections in the nature of demurrer is required to read the plaint as a whole and if on a meaningful reading it appears to the Court that the suit is ex facie bared by limitation can dismiss the suit at the threshold.
25. In the instant case, the plaintiff has prayed for several reliefs. The cause of action in the suit are the letters dated 3-2-2001 and 15-2-2001. The plaintiff has claimed diverse reliefs on the basis of the said letters. The plaintiff alleged that the said letters contain certain derogatory and defamatory words which have affected the reputation of the plaintiff. The plaintiff also questions the manner in which the Executive Committee terminated his membership and has obstructed him from enjoying various facilities. The plaintiff has alleged financial loss and mental harassment. The plaintiff, accordingly, has claimed general and special damages.
26. The argument on behalf of the defendant proceeds on the basis that the suit is one for compensation for libel. In my reading it is not so inasmuch as the plaintiff has claimed a declaration that the said notice is invalid and has claimed injunction and other reliefs. A suit for declaration of this nature is governed by Article 58 of the Limitation Act, 1963. The suit has been filed claiming declaration within the period of limitation. Even if the plaintiff may not get damages for defamation, if it is proved that the damages are claimed as compensation for libel, the other claims of the plaintiff still survives. In my view, this is not a matter which can be decided in an application under Order 7 Rule 11 of the Code of Civil Procedure.
27. In view of the aforesaid, this application stands dismissed.
28. The suit shall be placed under the heading “For Hearing” in the monthly list of April 2014.
29. Urgent xerox certified copy of this judgment, if applied for, be given to the parties on usual undertaking.