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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD APPEAL FROM ORDER NO. 376 of 2017 ========================================================== JAY AMITBHAI SHAH

....Appellant

Versus ROHINI SINGH & ORS.

....Respondents

==========================================================

Appearance: MR ND NANAVATI, SENIOR ADVOCATE with MR RAJAT NAIR, ADVOCATE and MR SIDDHARTH H DAVE, ADVOCATE for the Appellant (Original Plaintiff) MR MIHIR JOSHI, SENIOR ADVOCATE with MR S M VATSA, ADVOCATE and MR YH MOTIRAMANI, ADVOCATE for the Respondent No. 1 MS NITYA RAMAKRISHNAN, ADVOCATE for MR S M VATSA, ADVOCATE, MR YH MOTIRAMANI, ADVOCATE and MR EKRAMA H. QURESHI, ADVOCATE for the Respondents No. 2 to 7 ==========================================================

CORAM: HONOURABLE MR.JUSTICE PARESH UPADHYAY Date : 20/02/2018 CAV JUDGMENT

1.

This Appeal arises from the Order passed by the Trial

Court i.e. 4th Additional Senior Civil Judge, Ahmedabad (Rural) dated 23.12.2017, below Application Exh.5 in Special Civil Suit

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No. 442 of 2017. It is filed by the plaintiff. 2.

Heard learned advocates.

3.

It is noted that the learned advocates for both the sides

have taken this Court extensively through the material on record, submissions are made on the merits of the suit and on law. During the course of hearing, reference is made to the earlier round of litigation being Appeal from Order Nos.329 and 330 of 2017 and the submissions which were made in those appeals at the relevant time. 4.

Mr. N.D. Nanavati, learned senior advocate for the

appellant - original plaintiff has submitted that, the plaintiff has strong prima facie case, the balance of convenience and the aspect of irreparable loss are also in favour of the plaintiff. It is submitted that the Trial Court has also, to substantial extent, accepted the case of the plaintiff, however while moulding relief, the Trial Court fell in error by restricting the relief only to the extent of reference to Hon’ble the Prime Minister. It is submitted that the impugned order needs to be interfered with. It is submitted that, the Trial Court had already granted injunction vide order dated 12.10.2017 and during the course of further hearing of Exh.5 application, additional material has come on record, which would further tilt the balance in favour of the plaintiff. It is submitted that the impugned order dated 23.12.2017 be modified to the extent of restoring the position as was prevailing pursuant to the initial restrain order dated 12.10.2017. Reliance is placed on the following decisions, in support of the case of the appellant - plaintiff.

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1. (2000) 7 SCC 695 A Venkatasubbiah Naidu vs. S. Chellappan and Others.

2. (2014) 1 HCC (Del) 572 -0 Swatanter Kumar v.s The Indian Express Limited and Others.

3. (2015) 219 DLT 605 Naveen Jindal v.s M/s Zee Media Corporation Ltd. and Another. 5.

On the other hand, Mr. Mihir Joshi learned senior

advocate and Ms.Nitya Ramakrishan, learned advocate for the respondents have, emphasizing the freedom of press and the fundamental right flowing from Article 19 of the Constitution of India, submitted that, no injunction could have been granted at a prepublication stage, even if the contents of the impugned article may appear to be untrue. Without prejudice to this, it is additionally submitted that, if the defendants are in a position to give justification, even at a later stage, that should be treated to be sufficient defence warranting refusal to grant interim injunction. It is further submitted that, though the position of law is as contended above, in the present case, defendants have already given justification, which is based on the public record. It is further submitted that before publishing the article, even the response from the plaintiff was also asked for and his say was also published along with the article itself. It is submitted that under these circumstances, no injunction, as prayed for by the plaintiff could be granted and the Trial Court has rightly not granted it. Learned advocates for the respondents have taken this Court extensively through the paper-book and have addressed the Court at length on the merits of the suit to contend that, no interference be made by

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this Court. Reliance is placed on the following decisions to contend that this Appeal needs to be dismissed. 1. R.Rajgopal @ R.R. Gopal and others vs. State of Tamil Nadu and others reported in (1994) 6 SCC 632 2.

Khushwant

Singh

vs.

Menka

Gandhi

reported AIR 2002 DEL 58 3.

Tata

Sons

International

Limited

and

vs.

another.,

Greenpeace reported

in

(2011) 178 DLT 705 4. Mother Dairy Foods and Proceesing Ltd vs. Zee Telefilms Ltd., reported in 2005 (80) DRJ 74. 5. Naveen Jindal vs. Zee Media Corporation Ltd., reported in (2014) 5 HCC (Del) 6. S. Charanjit Singh vs. Arun Purie and another reported in ILR (1982) 2 DEL 953. 7. Indian Express Newspaper (Bombay) Pvt. Ltd.

and

others

vs.

Union

of

India

and

others reported (1985) 1 SCC 641. 8. National Stocks Exchange of India Ltd. vs. Moneywise Media Pvt. Ltd. reported 2015 SCC On-line Bom. 4790 : (2016) 1 Bom. CR 112.

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9. Sanj Daily Lokopehar Khamgaon and others vs. Gogulchand Govindlal Sancanda reported 2015 (2) MH. L.J. 390. 10.

Dominique

Swarajpuri

Lapiere

reported

2009

and SCC

others

vs.

On-line

MP

464. 11. Ram Jethmalani Vs. Subramaniam Swamy reported AIR 2006 DEL 300. 12. R. Rajgopal @ R.R. Gopal and another vs.

J.

Jayalalitha

and

another

reported

2006 (2) L.W. 377 13. Dr. Shashi Tharoor vs. Arnab Goswami reported 2017 SCC On-line DEL 12049. 14. Essel Infraprojects Ltd. vs. Devendra Prakash Mishra and others reported 2014 SCC On-line Bom. 1780. 6.

Having heard learned advocates for the respective

parties and having considered the material on record, this Court finds as under. 6.1

The point at issue before this Court in this Appeal from

Order is,

as to whether, the Trial Court has committed any

error while recording the impugned order on Application Exh.5, and if yes, whether it needs to be corrected in this Appeal.

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6.2

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In the suit, the issues are yet to be framed by the Trial

Court. As noted above, both the sides have addressed the Court at length on the merits of the suit and have relied on number of authorities. Since the point at issue for the present is only, as to whether, the Trial Court has committed any error while recording the impugned order on Application Exh.5, detailed discussion with regard to the different issues raised by the contesting parties are not examined at this stage. Dealing with those arguments and the

authorities cited by both the

sides, would, in substance, result in deciding the issues, which are yet to be framed by the Trial Court. 6.3

It is noted that, initially, the Trial Court had passed

restrain order against the defendants – present respondents on 12.10.2017. It was an ex-parte order. It was challenged before this Court by the defendants in Appeal from Order Nos.329 and 330 of 2017. This Court had not entertained the said Appeals at the relevant time, principally on the ground that, the say of the original defendants was yet to be considered by the Trial Court. The defendants have, thereafter appeared before the Trial Court and have put their case before it. The Trial Court has, on the basis of the material before it, framed the issues in the injunction application, with regard to prima facie case, balance of convenience and irreparable loss and has answered all the three issues in favour of the plaintiff. The Trial Court has however termed them to be ‘partly affirmative’. 6.4

This Court has considered the reasons recorded by the

Trial Court. Having considered the same, the picture which has emerged before this Court is as under.

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6.5

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So far the first parameter, with regard to prima facie case

is concerned, the Trial Court has found that, the plaintiff does have prima facie case. It is noted that, even without hearing the defendants, the Trial Court had found that, the plaintiff does have case against the defendants and had therefore passed the restrain order on 12.10.2017 on Application Exh.5. Even after hearing the defendants, the Trial Court has noted that, the defendants need to be restrained. On the face of this satisfaction of the Trial Court, the first issue, as to whether the plaintiff has prima facie case or not, need not detain this Court any further. It is held that, the plaintiff does have prima facie case. 6.6

It next needs to be considered, what satisfaction the Trial

Court has recorded with regard to the remaining

two

parameters, as to the balance of convenience lies where, and who would suffer irreparable loss, if the injunction as prayed for is granted / not granted. From record it transpires that, the Trial Court has, in terms, arrived at the conclusion in favour of the plaintiff on these issues. This Court has considered the reasons and the satisfaction recorded by the Trial Court in the impugned order, more particularly in Para : 22 and 23 of the order. The Trial Court has noted that, ‘the defendants have failed to show any justification about the nexus of the Hon’ble Prime Minister with the increase in the business of the plaintiff’s Company’. The Trial Court has also recorded its satisfaction to the effect

that, ‘...the

defendants have failed to show any direct or indirect nexus of association with Hon’ble the Prime Minister as

regards

plaintiff.

the The

increase defendants

in

the

have

business

failed

to

of

the

show

any

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justification election

of

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to

the

Narendra

effect Modi

as

that

following

the

Prime

Minister,

the

plaintiff has flourished.’ On the basis of this satisfaction, the Trial Court has further noted that,

‘the

defendants

therefore need to be restrained.’ 6.7

The above findings of the Trial Court hold the field.

6.8

This Court finds that, on the basis of the above

satisfaction, the Trial Court was required to pass appropriate restrain order by allowing Exh.5 application of the plaintiff. The Trial Court did grant relief to the plaintiff, however, the Trial Court fell in error by restricting the relief in favour of the plaintiff to the limited extent of ‘referring to the name of Hon’ble the Prime Minister’. It is this error which needs to be corrected in this Appeal. It is noted that, none of the findings of the Trial Court is interfered with by this Court, however the error which has cropped up while moulding relief by the Trial Court, needs to be corrected by this Court to make the final order of the Trial Court consistent with the findings and satisfaction recorded by it. 7.

The Trial Court had initially granted ex-parte restrain

order against the defendants on 12.10.2017. After taking into consideration the say of the defendants, as already noted above, the Trial Court has arrived at the conclusion that, ‘the defendants have failed to show any justification about the

nexus

of

the

Hon’ble

Prime

Minister

with

the

increase in the business of the plaintiff’s Company’. This was the basis of the impugned article. The Trial Court has also recorded its satisfaction to the effect

that, ‘...the

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defendants have failed to show any direct or indirect nexus of association with Hon’ble the Prime Minister as

regards

plaintiff.

the The

justification election

of

increase

in

defendants to

the

Narendra

the

have

effect Modi

as

business

failed

to

of

the

show

any

that

following

the

Prime

Minister,

the

plaintiff has flourished.’ On the basis of this satisfaction, the Trial Court has further noted that, therefore

need

to

be

‘the

restrained.’

defendants On

conjoint

consideration of these aspects, this Court finds that, the initial restrain order dated 12.10.2017 was not required to be diluted by the Trial Court. The said order therefore needs to be restored. 8.

For the reasons recorded above, the following order is

passed. 8.1

This Appeal from Order is allowed.

8.2

The impugned order passed by the Trial Court i.e. 4 th

Additional

Senior

Civil

Judge,

Ahmedabad

(Rural)

dated

23.12.2017, below Application Exh.5 in Special Civil Suit No. 442 of 2017 is modified to the extent that, from the operative part of the said order, the following words / line shall be deleted.

‘...narrating the lines or words, in the manner of “since Narendra Modi became Prime Minister

/

following

the

election

of

Narendra Modi as Prime Minister”...’

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8.3

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The effect of the deletion of the above words / line from

the operative part of the impugned order dated 23.12.2017 would be that, the initial restrain order dated 12.10.2017 passed by the Trial Court on Application Exh.5, which has continued to operate uptil now, shall continue to hold the field, during the pendency of the suit.

(PARESH UPADHYAY, J.) mhdave/1

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