- Bookmark
- Share
- CaseIQ
Babuji Rawji Shah Applicant v. S. Hussain Zaidi And Others
Factual and Procedural Background
The Appellant-Plaintiff initiated S.C. Suit (L) No. 6401 of 2020 seeking a permanent injunction against the Respondents/Defendants Nos. 1 and 2 to restrain them from printing, publishing, advertising, selling, alienating, assigning, or creating any third-party rights related to the novel "The Mafia Queens of Mumbai," or writing any story about the life of the Plaintiff's mother. Ancillary reliefs were also claimed in the suit.
Following service of summons, Defendant Nos. 3, 4, and 5 filed Notice of Motions under Order VII, Rule 11 of the Code of Civil Procedure, seeking rejection of the plaint. These motions were allowed by order dated 17 February 2021, resulting in rejection of the plaint under Order VII, Rule 11(d). The Appellant filed this First Appeal challenging that order.
Legal Issues Presented
- Whether the suit filed by the Appellant-Plaintiff claiming defamation related to the novel and movie is maintainable given the principle that defamation actions die with the person defamed.
- Whether the Appellant, claiming to be the adopted son of the deceased Gangubai Kathiawadi, has a legal right to sue for defamation and seek injunctions.
- Whether the issue of limitation and continuous cause of action applies to the claims made by the Appellant.
- Whether a temporary injunction restraining publication of the movie "Gangubai Kathiawadi" should be granted during the pendency of the appeal.
Arguments of the Parties
Appellant's Arguments
- The novel authored by Defendant Nos. 1 and 2 was published in 2011, but the Appellant had no knowledge of it until later.
- The Appellant claims to be the adopted son of the late Gangubai Harjivandas @ Kathiawadi, supported by entries in the deceased's ration card.
- The adoption predates the Hindu Adoptions and Maintenance Act, 1956.
- The defamatory content against the deceased mother caused a continuous cause of action under Section 22 of the Limitation Act.
- The production of the movie by Respondent Nos. 3, 4, and 5 also constitutes a continuing cause of action, making the suit within limitation and maintainable.
- The issue of limitation is a mixed question of law and fact and should not be decided at the stage of rejecting the plaint under Order VII, Rule 11 CPC.
- The Appellant sought temporary injunction restraining publication of the movie "Gangubai Kathiawadi."
Respondents' Arguments
- The suit filed by the legal heir of the person alleged to be defamed is not maintainable.
- The plaint was rightly rejected under Order VII, Rule 11 CPC.
- No injunction was in operation during the suit or during the pendency of the appeal, hence no irreparable loss is likely to be suffered by the Appellant.
- The Appellant has no legal rights or legal injury to justify the injunction.
- Therefore, the prayer for injunction should be rejected.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Melepurath Sankunni Ezhuthassan v. Thekittil Geopalankutty Nair, (1986) 1 SCC 118 | Principle that an action for defamation dies with the person defamed. | The court relied on this precedent to hold that defamatory claims against the deceased adoptive mother cannot be maintained by the Appellant. |
| Luckumsey Rowji v. Hurbun Nursey, 1881 SCC OnLine Bom 39; ILR (1881) 5 Bom 580; ID (1880-1882) 5 Bom 382 | Defamation action can only be brought by the person claiming to be defamed. | The court applied this principle to conclude that the Appellant, claiming only to be the son of the deceased, has no prima facie legal right to sue for defamation. |
Court's Reasoning and Analysis
The court considered the fundamental tort principle that defamation actions do not survive the death of the person defamed. The defamatory content against the deceased, Gangubai Kathiawadi, cannot be the basis for a suit by the Appellant unless he establishes a legal right to sue.
The Appellant failed to prima facie demonstrate that he is the adopted son of the deceased. Moreover, he did not seek a declaratory relief establishing his adoptive status, which is necessary to show legal injury.
The court relied on authoritative precedents from the Supreme Court and the Bombay High Court that a defamation action can only be maintained by the person defamed. The mere claim of relationship without legal recognition does not confer standing.
Consequently, the court found the plaint rightly rejected under Order VII, Rule 11(d) CPC and declined to grant the temporary injunction restraining publication of the movie.
Holding and Implications
The court held that the temporary injunction prayed for by the Appellant is not grantable and the application stands rejected and disposed of.
The direct effect of this decision is that the Appellant’s suit for permanent injunction and related reliefs is barred due to lack of legal standing and limitation. No new precedent was established; the court reaffirmed existing principles regarding defamation and legal standing.
Nitin W. Sambre, J.:— Heard.
2. The Appellant-Plaintiff initiated S.C. Suit (L) No. 6401 of 2020 against the Respondent/Defendant praying decree of permanent injunction restraining Respondents/Defendant No. 1 and 2 from printing, publishing, advertising, selling, alienating, assigning and/or creating any third party rights and/or holding any press meets, promoting the Novel namely “The Mafia Queens of Mumbai” and/or writing any other story on the life of mother of the Plaintiff. Similar other ancillary relief are also claimed in the said Suit.
3. After the Respondents/Defendants were served with the Suit summons, Defendant No. 5 and Defendant Nos. 3 and 4 took out Notice of Motion under Order VII, Rule 11 Code of Civil Procedure seeking rejection of plaint. Both these Notice of Motions are allowed vide order dated 17 February, 2021. As a consequences, the Plaint preferred by the Appellant-Plaintiff came to be rejected under Order VII, Rule 11(d) of the Code of Civil Procedure. As such, this First Appeal.
4. Learned Counsel appearing for the Appellant-Original Plaintiff would urge that the Novel authored by the Defendant Nos. 1 and 2 was published in the year 2011, however, the Appellant has no knowledge about the same. According to him, the Appellant is the adopted son of late Gangubai Harjivandas @ Kathiawadi. Relying on the entries in the Ration Card of said deceased, it is claimed that the Appellant is shown as her son. According to him, the Appellant has gone in adoption to late Gangubai Kathiawadi during her lifetime and such adoption of the Appellant is prior to Hindu Adoptions and Maintenance Act, 1956. His contention are publication of defamatory contents against deceased Gangubai Kathiawadi, his adoptive mother has prompted him to file suit for continuous cause of action within the meaning of Section 22 of the Limitation Act. It is also claimed that the act of Respondent Nos. 3, 4 and 5 of producing the movie is a continuous cause of action and that being so, the Suit claim at the behest of the Appellant is within limitation and very much maintainable. Apart from above, he would urge that the issue of limitation is a mixed question of law and fact and cannot be gone into at the stage of deciding the application of return of plaint, particularly based on the defence raised by the Defendant Nos. 3 to 5 in the Notice of Motion.
5. In the aforesaid background, the Appellant has pressed his prayer for grant of temporary injunction thereby restraining the Respondents/Defendants from publishing the movie Gangubai Kathiawadi.
6. While opposing the aforesaid claim, learned counsel appearing for the Respondents would urge that as the suit at the behest of legal heir of person alleged to be defamed is not maintainable, the plaint was rightly rejected. It is also claimed that as the injunction was not in operation during the Suit, even during pendency of this Appeal, the injunction should not be granted as the Petitioner is not likely to suffer irreparable loss. It is also claimed that no legal injury suffered by the Appellant particularly in the light of absence of legal rights. As such, the submissions are prayer for injunction is liable to be rejected.
7. Considered rival submissions.
8. The law on the principle of Torts that an action dies with the person, in a defamation proceedings is required to be appreciated. The contents of defamatory nature against so called adoptive mother of the Appellant dies with her death. Apart from above, it is for the Appellant to demonstrate that he is adoptive son of deceased-Gangubai Kathiawadi, which he has prima facie failed to. The Appellant-Plaintiff has not claimed the relief of declaration that he is adoptive son of deceased Gangubai Kathiawadi and as such he has suffered a legal injury.
9. The aforesaid principle of law based on the judgment of the Apex Court in the matter of Melepurath Sankunni Ezhuthassan v. Thekittil Geopalankutty Nair ., reported in (1986) 1 SCC 118 and Luckumsey Rowji v. Hurbun Nursey, reported in 1881 SCC OnLine Bom 39 : ILR (1881) 5 Bom 580 : ID (1880-1882) 5 Bom 382 rightly so considered by the learned City Civil Court while passing the order of rejection of plaint. In a case of claim for defamation, action can be brought by a person in Court of law provided he claimed to be defamed. Merely because the Appellant is claiming to be son of such person cannot be prima facie inferred to have the legal right to show indulgence.
10. In that view of the matter, temporary injunction as prayed cannot be granted and as such prayers stand rejected. The application stands disposed of.
Alert