Taken from: Law on Damages in Defamation Cases

Jojy George Koduvath

PART I

Key Takeaways

The ingredients of Defamation are –

1. defamatory statement (harming reputation)
2. refer to the plaintiff
3. published before a third party.

Available defences are –

• (i) Justification by truth,  
• (ii) Fair and bonafide comment,   
• (iii) Privilege,
• (iv) Consent,
• (v) Apology.

Following Publications are exempted (S. 499 IPC)

• 1. Truth for public good
• 2. Public conduct of public servants – in good faith 
• 3. Matter touching any public question – in good faith 
• 4. True reports of proceedings of courts
• 5. Expressing opinion, on merits of case decided in Court – in good faith 
• 6. Expressing opinion on character of the author – in good faith
• 7. Censure passed in good faith by person having lawful authority 
• 8. Accusation preferred in good faith who have lawful authority 
• 9. Imputation in good faith for protection of his or other’s interests
• 10. Caution intended for good of person to whom conveyed or for public good.

No absolute privilege to defamatory statements in the pleadings

• There is difference of opinion.
• The modern trend is to see that it is ‘qualified privilege’. That is, liability is casted upon the defendant if the defamatory statement is quite unconnected with and irrelevant to the main statement.

The court awards following types of damages.

• .1. Exemplary/punitive damages 
• 2. Aggravated damages 
• 3. Compensatory damages 
• 4. Contemptuous damage   
• 5. Nominal damages

PART II

Pleadings – No Strict ‘Denial’ warranted in ‘Damages’

Order VI, rule 1 and 2 of Code of Civil Procedure 1908 lay down the basics of pleading. They read as under:

• Rule 1: Pleading: “Pleading” shall mean plaint or written statement.
• Rule 2: Pleading to state material facts and not evidence:
• (1) Every pleading shall contain, and contain only a statement in a concise form of the material facts on which the party pleading relies for his claim or defence as the case may be, but not the evidence by which they are to be proved.
• (2) Every pleading shall, when necessary, be divided into paragraphs, numbered consecutively, each allegation being, so far as is convenient, contained in a separate paragraph.
• (3) Dates, sums and numbers shall be expressed in a pleading in figures as well as in words.

Order 6 rule 4 of the Civil Procedure Code stipulates guidelines for precise pleadings. Order 6 Rule 4 CPC reads as under:

• “Rule 4. Particulars to be given where necessary: In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful default, or undue influence and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading.”

Order VIII Rule 3, 4 and 5 CPC reads as under:

• Rule 3: Denial to be specific: It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages.
• Rule 4: Evasive denial: Where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance. Thus, if it is alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received. And if an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances.
• Rule 5: Specific denial: (1) Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability :
• Provided that the Court may in it discretion require any fact so admitted to be proved otherwise than by such admission.
• (2) Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved.
• (3) In exercising its discretion under the proviso to sub-rule (1) or under sub-rule (2), the Court shall have due regard to the fact whether the defendant could have, or has, engaged a pleader.
• (4) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which the judgment was pronounced.

Under Order 6 rule 4, CPC, vague or general allegations are insufficient in pleading with respect to the matters laid down in this rule and it requires ‘full‘ particulars of such matters in pleadings.

Damages: Issue will be framed, without denial

As shown above, Order VIII Rule 3 gives an exemption to strict ‘denial’ with regard to the claim of ‘damages’. Why? J. B. Ross v. C. R. Screven, AIR 1917 Cal 269 explained as under:

• “(O. 8, R 3, CPC) puts the burden on the plaintiff, whether or not the defendant denies in such a case an issue is necessary.” (Quoted in – Indore Malwa United Mills Ltd.  Vs Ramkaran Ghisslal, AIR 1963 MP197. Also see: W.  Jaya-raghavan v. The Leo Films, 1948 61 LW 173; 1948 1 MLJ 209)

In Fateh Chand Vs. Balkishan, AIR 1963 SC 1405, it was observed that the ‘Legislature has sought to cut across the web of rules and presumptions under the English common law’ with regard to the compensation to be awarded in case of breach of contract. Section 74 speaks as to ‘reasonable’ compensation. It is pointed out that this proposition as to ‘reasonable’ compensation, and thereby the intervention of court to fix the reasonable amount, laid down in Section 74, is a deliberate deviation from the English Common Law which allows forfeiture of genuine pre-estimated damages, by the affected party.

Damages (in general) are of three kinds

• First, nominal
• Second, general damages
• Third, special damages.

General Damages can be Awarded if failed to prove Special Damages

Court may, in proper cases, award ‘general damages’ even if the plaintiff failed to prove Special Damages; because, general damages need not be pleaded specifically, inasmuch as law will presume, without direct proof, the natural or probable consequence of an illegal or improper act. (Minor Veeran Vs. T. V. Krishna-moorthy, AIR 1966 Ker 172. Quoted with approval a passage from Law of Pleadings by Mogha.)

It was held by the Supreme Court of India in Maula Bux Vs. Union of India AIR 1970 SC 1955, that ‘forfeiture of earnest money under a contract for sale of property, if the amount is reasonable, does not fall within Section 74’. That is, when the forfeiture clause in a contract refers to a nominal (thereby reasonable) sum alone, as earnest money, it does not provide for an ‘amount to be paid in case of such breach’, or amount to imposing a penalty.  In such cases of forfeiture of reasonable (nominal) earnest money, it is immaterial ‘whether or not actual damage or loss is proved’.

Pleadings on Defamation – requirements

• Defamatory words must be set out in the plaint. (M.J. Zakharia Sait v. T.M. Mohammed, (1990) 3 SCC 396; R. Rajagopal v. J. Jayalalitha: AIR 2006 Mad 312 (DB))
• When the defamatory sense is not apparent , the defamatory meaning must also be set out.
• Where particular context is to be set out, for showing defamation, it shod be stated.

In M.J. Zakharia Sait v. T.M. Mohammed, (1990) 3 SCC 396, the Supreme Court held as under:

• 30. In W. Hay and Ors. v. Aswini Kumar Samanta, AIR 1958 Cal 269 a Division Bench of the Calcutta High Court held that it is well-settled that in a “libel action” the ordinary defamatory words must be set out in the plaint. Where the words are per se or prima facie defamatory only the words need be set out. Wherever the defamatory sense is not apparent on the face of the words, the defamatory meaning or as it is technically known in law, the innuendo must also be set out and stated in clear and specific terms. Where again the offending words would be defamatory onlyin the particular context in which they were used, uttered or published, it is necessary also to set out except where as in England, the law is or has been made expressly otherwise, the offending context (colloquium) in the plaint, and to state or ever further that this context or the circumstances constituting the same, were known to the persons to whom the words were published, or, at least, that they understood the words in the defamatory sense. In the absence of these necessary averments, the plaint would be liable to be rejected on the ground that it does not disclose any cause of action.
• 31. What exactly should be pleaded in an action for defamation has been stated also in Halsbury’s Laws of England [Vol. 28 – 4th ed.].
• In paragraphs 174, 175, 176, 177 and 178 of the said Volume, we have discussion with regard to natural and ordinary meaning of the words complained of, and about the innuendo and the facts and matters supporting innuendo which should be pleaded and proved. It is stated there that in drafting a statement of claim in libel or slander, it is necessary to distinguish between cases in which the words complained of are alleged to be defamatory in their natural and ordinary meaning, whether the literal or the inferential meaning, and those in which the defamatory meaning is a secondary meaning derived from extrinsic or special facts or matters, so that a legal or true innuendo must be pleaded. If it is claimed that the words are defamatory in their natural and ordinary meaning and the words bear only one literal meaning, which is clear and explicit, it is not necessary to plead the meaning in the statement of claim. However, if the words are reasonably capable of bearing more than one literal meaning or if the defamatory meaning relied on is inferential (a “false or popular” innuendo), it is desirable and may even be necessary to plead the defamatory meaning or meanings. Where the plaintiff wishes to claim that the words complained of were understood to be defamatory in a secondary or extended meaning by those persons having knowledge of some special facts or matters, such a meaning constitutes a separate cause of action and the same should be pleaded expressly in a separate paragraph in the statement of claim (emphasis supplied). Particulars must be given of the facts and matters on which the plaintiff relies in support of any secondary or extended defamatory meaning which it is decided to plead. These special facts or matters may be extrinsic to the words used or there may be some special meaning of the words themselves. The plaintiff should plead that particular words bore the innuendo meaning.
• Paragraph 172 of the Halsbury’s Laws of England, Vol-28. Paragraph 172 is extracted as under :-
• “172. Pleading and proof of words – In an action for defamation, the actual words complained of, and not merely their substance, must be set out verbatim in the statement of claim. A libel action cannot be brought in respect of a document the contents of which the plaintiff is unaware; but in a slander action interrogatories may, in an exceptional case, be permitted, prior to the statement of claim, to ascertain the precise words spoken. It is no longer necessary to prove at trial the precise words pleaded; it will suffice to prove words substantially the same and the jury should be invited to consider whether the words are defamatory in the version it has accepted. Where the plaintiff complains of a book or long article, he must specify the passages which he alleges to be defamatory rather than merely plead the whole book or article.” (Quoted in: Essel Infraprojects Ltd vs Devendra Prakash Mishra, 2015-1 AIR BomR 482, 2015-1 BCR 340)

In W.Hay and others vs. Aswini Kumar Samanta AIR 1958 Cal 269 it was held as under:

• “11. It is well settled that, in a libel action, the defamatory words must be set out in the plaint. Where the words are per se or prima facie defamatory only the words need be set out. Where, however, the defamatory sense is not apparent on the face of the words, the defamatory meaning, or as it is technically known in law, the “innuendo” must also be set out and set out in clear and specific terms. These are universally accepted propositions. Where again the offending words would be defamatory only in the particular context, in which they were used, uttered or published, it seems to us that it is necessary also to set out, except where, as in England, the law is or has been made expressly otherwise, the offending context (Colloquium) in the plaint and to state or aver further that this context or the circumstances, constituting the same, were known to the persons, to whom the words were published, or, at least, that they understood the words in the defamatory sense. In the absence of these necessary averments, the plaint would be liable to be rejected on the ground that it does not disclose any cause of action.” (Quoted in: Essel Infraprojects Ltd vs Devendra Prakash Mishra, 2015-1 AIR BomR 482, 2015-1 BCR 340)