Authored By : Mookerjee, Ashutosh Chaudhuri

Mookerjee, A.C.J.

1. The subject-matter of the litigation, which hasculminated in this appeal, consists of three letters published by the Appellantin the Statesman and the Englishman newspapers. The first letter appeared inthe Statesman on the 21st October 1917 and in the Englishman on the followingday. The second letter appeared in the Statesman on the 30th October 1917 andthe third letter in the Englishman on the same day. The Respondent alleged thatthese letters contained defamatory statements which have greatly injured hiscredit and reputation and have brought him into public odium and contempt. Heaccordingly prayed for a decree for Rs. 50,000 as damages. The Defendantresisted the claim on the ground that the letters were not defamatory and thatthe statements contained therein were true in substance and in fact. He furtherpleaded that they were fair comments made in good faith and without malice upona matter of public interest on a privileged occasion. On these pleadings, sevenissues were framed in the following terms:

"i. Has the Defendant published the alleged"statement of and concerning the Plaintiff

"Were the alleged libels published of and concerningthe Plaintiff

" ii. Are the words defamatory in their ordinary"and natural meaning

"iii. Are the words capable of carrying the"innuendo and do they in fact mean what is alleged in "the records

"iv. Are the words, in so far as they consist of"allegations of fact, true in their ordinary meaning "and in so faras they consist of matters of opinion, are" they fair comment on a matterof public interest

"v. Were the alleged libels or any of them"published on a privileged occasion

"vi. If so, were they published maliciously

"vii. Damages."

2. Mr. Justice Rankin has found on the issues as follows,namely, the first issue in the affirmative ; the second issue in theaffirmative, only in part, that is, with regard to a portion of the thirdletter; the third issue in the affirmative; the fourth issue in the affirmativein part only; the fifth issue in the negative ; the sixth issue in theaffirmative in part only. On the seventh issue, damages have been assessed in favourof the Plaintiff for a sum of Rs. 3,500. The Defendant has appealed againstthis decree on all the material points decided against him. The Plaintiff hasalso filed a memorandum of cross objections and has urged that all the letterswere defamatory, that all the innuendoes have been proved and that the damagesawarded are insufficient.

3. The circumstances which led to the publication of theletters by the Defendant lie in a narrow compass and may be briefly recited. Onthe 10th June 1917, the Government of Bihar and Orissa appointed a Committeeknown as the Champaran Agrarian Enquiry Committee. The duty of the Committeewas (a) to enquire into the relations between landlords and tenants in theChamparan district, including all disputes arising out of the manufacture andcultivation of indigo; (6) to examine the evidence on these subjects alreadyavailable, supplementing it by such further enquiry, local or otherwise, asthey might consider desirable; and (c) to report their conclusions toGovernment, stating the measures they might, recommend in order to remove anyabuse or grievances which they might find. The chief disputes between theplanters and their tenants had arisen, not so much in connection with theconditions under which indigo was grown as with the action of certainfactories, which had reduced their indigo manufacture and had taken agreementsfrom their tenants for the payment, in lieu of indigo cultivation, of a lumpsum in temporarily leased villages, or of an increase of rent in villages underpermanent lease. Under the system which appears to have been originally inforce, known as the Tinkatia system, each tenant was under an obligation tocultivate indigo, on three cottahs out of every bigha of twenty cottahs, thatis, on fifteen per cent, of his lands. The factories released the tenant fromthis obligation, on payment of a lump sum (called tawan) if the lands weresituated in a temporarily leased village and on payment of an enhanced rent(called sara beshi) if the lands lay in a village held under a permanent lease.An agitation was set on foot to challenge the propriety of these agreements,taken by the planters from the cultivators, for compensation or for enhancedrent in return for the abandonment of indigo cultivation.

The Committee was appointed to deal with these problems andthe Plaintiff Respondent, Mr. D.J. Reid, who was at the time a member of theBihar and Orissa Legislative Council, was appointed a member thereof as arepresentative planter. The Committee also included a representative zemindarand Mr. Gandhi who had actively taken up the cause of the ryots with a view tosafeguard their interests. The other members were officials with Sir Frank Sly,Chief Commissioner of the Central Provinces, as President. Amongst the problemswhich the Committee were thus called upon to investigate, was the question ofthe levy of the tawan and the sara beshi. There can be no doubt on the evidencethat, prior to the 12th August 1917, the Committee had agreed upon therecommendation they would make with regard to tawan. This decision was notfinal in the sense that the matter could not be reconsidered by them, beforethey actually submitted the report; but it is plain that at that stage theCommittee had decided to recommend that the indigo concerns should be compelledto refund 25 per cent, of the sums they had realised as tawan. This was arelatively simple matter from the point of view of feasibility. The tawan, aswe have already explained, had been levied by the factories, only from tenantsin villages held by the factories under temporary leases from the Bettiah Rajwhich was under the management of the Court of Wards. Consequently, if theGovernment decided to accept the recommendation of the Committee with regard topartial refund of the tawan, they were in a position to put pressure upon thefactories concerned, so as practically to compel them to accept the decision;the Court of Wards, on behalf of the Bettiah Raj, would refuse to renew theleases of the villages in question, unless the factories concerned consented toacquiesce in the decision of the Government. The question of sara beshi, on theother hand, stood on a very different footing. The enhanced rent, as we haveexplained, had been taken from tenants of villages held by the indigo concernsunder permanent leases. A decision on the question of sara beshi, in favour ofthe cultivators, could consequently be carried into effect, only with theconcurrence of the planters who would be affected thereby, unless, indeed, theGovernment was prepared to legislate with retrospective operation or to assistthe tenants in numerous expensive and protracted litigations against thefactories. In such circumstances the Committee decided, possibly on the adviceof the Plaintiff, to attempt a settlement by a conference with the plantersconcerned Nearly 95 per cent, of the sara beshi collected had been taken bythree indigo concerns, namely, Motihari, Pipra and Takolia. Accordingly, on the11th August 1917, the Defendant, Mr. Irwin, Manager of Motihari, Mr. Norman,Manager of Pipra and Mr. Hill, Manager of Takolia, were summoned by telegram toBettiah to discuss the situation with the Committee. Sir Frank Sly, it is clearon the evidence, authorised Mr. Reid, the Plaintiff, to inform the planters, inconfidence, of the decision which the Committee had already taken in respect oftawan. On the 12th August 1917, the three planters who had been summoned toattend had a conference with Mr. Reid. The substantial question of fact incontroversy in this litigation relates to what actually took place at thisconference. Mr. Norman came in first and was followed soon after by Mr. Irwinand Mr. Hill. There is further no doubt that Mr. Rainey, Deputy Secretary tothe Government of India in the Finance Department, who was also a member of theCommittee, came in at a later stage and joined in the discussion. The case forthe Plaintiff is that, as instructed by the President, he told the Defendantthat the Committee had decided to recommend that 25 per cent of the tawanshould be refunded. The Defendant denies that the Plaintiff gave him thisinformation. Mr. Norman, Mr. Hill, Mr. Reid, Mr. Irwin and Mr. Rainey have allbeen examined upon this point. Mr. Justice Rankin has come to the conclusionthat the Plaintiff did inform the Defendant, on the morning of the 12th August,of the actual decision by the Committee to recommend a refund of 25 per cent,of the tawan by the planters to the ryots. The decision of the question indispute depends primarily upon appreciation of oral testimony which has to betaken along with the surrounding circumstances and the conduct of the partiesconcerned at the time of the conference and subsequently. This, in any event,is by no means an easy task for a Court of Appeal; in the present case thedifficulty is enhanced by the fact that it would be idle to expect thewitnesses to reproduce the exact words which were used at the interview by thevarious persons present; no one then anticipated trouble and no notes were keptof the conversations which actually took place. We have thus, besides conflictof testimony, an embarrassing element of uncertainty. We have, consequently,scrutinised the evidence with great care.

4. We see no escape from the conclusion that the Plaintiffdid intimate to the Defendant the recommendation which the Committee haddecided to make with regard to the refund of 25 per cent, of the tawan. We havethe cardinal fact that the Plaintiff was authorised by the President to makethis communication. Such permission was given for the obvious reason, that ifinformation on this point was withheld, the planters who had been summoned toenter into negotiations could not be expected to decide what concession theyshould or should not make with regard to sara beshi. Both the questions wereknown to be under consideration; a decision upon either or both in favour ofthe cultivators would seriously affect the financial position of the plantersconcerned. To withhold from the planters all information as to tawan wouldreally operate to defeat the object of the conference, while to give themincorrect information would plainly be nothing short of an act of bad faith. Insuch circumstances, it is improbable in the extreme that any discussion couldhave taken place on the question of sara beshi without reference to thequestion of tawan and the evidence leaves no room for doubt that the subject oftawan did come up for consideration at the conference. We have, then, theevidence of Mr. Norman and Mr. Hill. Mr. Norman is definite and clear that hehimself was told of the proposed refund of tawan by Mr. Reid at the verycommencement of the discussion. This statement might not be conclusive, as Mr.Norman came in first and Mr. Irwin and Mr. Hill followed him a little later.Mr. Norman, however, asserts that when Mr. Irwin came in, Mr. Reid repeated theinformation about the tawan. In this, he is corroborated by Mr. Hill. We see nosufficient reason to reject this part of the testimony of Mr. Norman and Mr.Hill. Their statement on oath is not really contradicted by their subsequentconduct. Great stress has been laid on a letter written by Mr. Norman to theGovernment of Bihar and Orissa on the 27th October 1917. In our opinion, thereis nothing in the contents of that letter which contradicts or rendersimprobable the statement of Mr. Norman made in Court. The letter is perhapscautiously phrased, but it is quite consistent with the case now made by Mr.Norman, namely, that Mr. Reid told Mr. Irwin, in his presence and in thepresence of Mr. Hill, the decision of the Committee to make a recommendationfor refund of the tawan. This inference follows also from the letter of Mr.Norman to the Defendant on the 6th November. As regards the evidence of Mr.Hill, his conduct at the meeting of the Bihar Planters Association on the 16thOctober, has formed the subject of severe comment. At that meeting, Mr. Irwinread out the first of the three letters in question. The statements containedin that letter are inconsistent with the hypothesis that on the 12th August Mr.Irwin had been apprised of the decision of the Committee to recommend a partialrefund of the tawan. Mr. Hill, who was present at the meeting, did notchallenge the accuracy of the statements contained in the letter. This, nodoubt, is a matter for legitimate comment; but we are not prepared to reject asimpossible the explanation that Mr. Hill may not have taken in the true bearingof every statement in a long argumentative letter. At any rate, his omission atthe meeting to take exception to the accuracy of all the statements in theletter does not neutralise the effect of his sworn testimony. On the whole, weare of opinion that the evidence of Mr. Norman and Mr. Hill is reliable andsupports the allegation of the Plaintiff that he did carry out the instructionsof Sir Frank Sly and did communicate to the planters concerned that theCommittee had decided, whether finally or only provisionally is not materialfor our present purpose, to recommend a partial refund of the tawan. This conclusionis supported to a large extent by the evidence of Mr. Rainey. Mr. Rainey hadnot been authorised to make a communication to the planters, but he had a longdiscussion with Mr. Irwin on the subject of the tawan. Mr. Rainey gives thesubstance of this conversation to the best of his recollection and it doescertainly create the impression that Mr. Irwin had previously been apprised ofthe intentions of the Committee on the question of tawan Mr. Rainey himself didnot give any definite information to Mr. Irwin ; he merely stated that whateveraction might be recommended by the Committee, it would not be of a vindictivenature and suggested to Mr. Irwin that he should obtain information from thePresident. It is remarkable that though Mr. Irwin had ample opportunity to putthe question to Sir Frank Sly, he never did so. We are not prepared to acceptthe explanation that Mr. Irwin did not make an enquiry of the President,because he was assured that tawan would be left untouched. Such assurance hadnot been given either by Mr. Reid or by Mr. Rainey and it is improbable in thehighest degree that either of them could have stated what had not the remotestfoundation in fact. We are thus left with the hypothesis that Mr. Irwin hadreceived from Mr. Reid whatever information was available at that stage. Theview we are inclined to take on this part of the case is supported to someextent by the answers which were given by Mr. Irwin himself to questions put bythe Court after his cross-examination had been concluded. His evidence showsthat there was no omission to refer to the question of tawan in his presence.If it is held, as we think it must be held, that the question of tawan did as amatter of fact form the subject of discussion, there are really only two alternatives; either Mr. Reid communicated to Mr. Irwin the decision of the Committee ordesignedly left him in a state of doubt and uncertainty. If the formeralternative is accepted, the Plaintiff carried out the instructions of thePresident; if the latter alternative is accepted, it is a matter for surprisethat the Defendant did not make an enquiry of the President and obtain exactinformation upon a matter of such vital importance to him. We may add that inour opinion, there is no room for a third alternative, viz., that Mr. Reid hadassured Mr. Irwin that the tan an would not be touched ; there is noconceivable reason why Mr. Reid should tell. Mr. Irwin the reverse of thetruth, specially as he had communicated the decision of the Committee to both Mr.Norman and Mr. Hill. Our conclusion, then, is that Mr. Reid did intimate to Mr.Irwin on the 12th August 1917, the decision of the Committee as to partialrefund of the tawan and it was with knowledge that the tawan would be affectedthat the planters agreed to a refund of the sara beshi. This view is supportedby subsequent events. We need refer only to the letter of the 19th August 1917,from Mr. Norman to Mr. Hill and Mr. Irwin. This letter must have made itabundantly plain to the Defendant that the basis of the negotiations was thatthe planters should not make their agreement as to sara beshi on the assumptionthat tawan would not be touched. We have further the letter from the Defendantto the Plaintiff on the 15th September and the reply thereto from the Plaintiffto the Defendant on the 18th September; these are hardly consistent with thehypothesis that Mr. Irwin had been led to understand that tawan would not betouched. Thereafter, on the 29th September, Mr. Norman, Mr. Hill and Mr. Irwinmet at Ranchi and after conference with the Plaintiff and the President, theygave their assent to an agreement, substantially on the lines of theprovisional arrangement made on the 12th August at Bettiah, subject to themodification that in the cases of Mr. Irwin and Mr. Hill the amount of sarabeshi to be refunded was to be 26 per cent, instead of 9.5 per cent. There can,we think, be no real doubt that before this final agreement as to sara beshiwas reached, the three planters had been informed that the refund of sara beshiwas to be recommended in addition to the refund of the tawan; the one was bymutual agreement, the other was by decision of the Committee acquiesced in bythe planters concerned.

5. In the view we take, we need not discuss in detail the conductof the parties between the 29th September when the final agreement as to sarabeshi was reached and the 7th October when the first of the three disputedletters was written. But we cannot overlook the letter written by the Defendantto Messrs. Begg, Dunlop and Co., the Calcutta Agents for the Motihari concern.This letter discloses an attempt to nullify the concession to which Mr. Irwinhad consented. We agree with Mr. Justice Rankin that this letter can beinterpreted only as an attempt by a man (who had made his bargain but veryrapidly repented), to seek a way to go back upon it. This foreshadows whatfollowed, namely, the three letters to the Press in which the Defendant, notmerely condemned the action of the Committee, but attacked the Plaintiff as aperson who had by dishonest and underhand means and by the most flagrant falsepretences secured the consent of the planters to a refund of the sara beshiafter creating the impression in their minds that there would be no refund ofthe tawan. There can, we think, be no room for doubt that this is a baselesscharge against the Plaintiff. At the same time, we are not prepared to holdthat the Defendant designedly brought forward this false accusation against thePlaintiff. No satisfactory or sufficient reason has been assigned why he shouldhave wilfully made such a grave charge against a gentleman with whom, he hadbeen on friendly terms; and it is not improbable that notwithstanding what wasintimated to the Defendant by the Plaintiff, the Defendant hoped or believedthat the taw an might ultimately not be touched. There is evidence on therecord as to the temperament of the Defendant and there is some force in thecontention that if he had understood at any time between the 12th August and29th September that the tawan would have to be partially refunded, he would nothave refrained from forthwith entering the most emphatic protest, as we find hedid afterwards. But this much, is plain that if there was any misapprehensionon the part of the Defendant as to the real state of things, it cannot in anysense be attributed to the act or omission of the Plaintiff. On the evidence wemust hold that the Plaintiff carried out the instructions of the President in aperfectly straightforward manner and made a frank disclosure to the planters ofthe intentions of the Committee: and further, that there is no foundation for acharge of unfair dealing against him. We have next to consider whether, on thefacts found, the claim for damages can be sustained.

6. There has been considerable discussion at the Bar as tothe meaning and purport of the three letters in question, the language whereofhas been subjected to minute criticism. On behalf of the Defendant Appellant,it has been contended that if the first two letters are not defamatory, thethird also falls within the same category. On behalf of the PlaintiffRespondent, it has been argued, on the other hand, that if the third letter isdefamatory, the first and second should be included in the same class. We haveread the letters and have come to the conclusion that they should beconsidered, not separately, but as an inter-connected series. From this pointof view, there can be no doubt that the letters do impute to the Plaintiffdishonest and dishonorable conduct and are intended to convey the impressionthat he did not scruple to employ deliberate trickery and deception or to haverecourse to false pretences to gain his own objects. There can be no doubt thatthe imputation was made against the Plaintiff, though it is possible so toconstrue the letters as to entitle us to hold that the imputation was levelledagainst the Committee as a whole. That, however, makes no real difference inthe liability of the Defendant, for if the statement is defamatory of all the members,each is entitled to sue. Reference may, in this connection, be made to thedecision in Booth v. Briscoe (1877) 2 Q.B.D. 496, where eight persons, who weretrustees of certain charities, brought an action for a libel commenting on themanagement of the charities by the trustees; it was ruled that the persons inquestion were rightly joined as Plaintiffs: Carter v. Rigby (1896) 2 Q.B. 113.Each of such persons can obviously sue for the libel on himself ; thoughdifferent considerations would arise if one of such persons brought a suit onbehalf of himself and the others. From this point of view, it is needless toconsider whether the defamatory statements were directed against the Plaintiffspecially or were levelled against all the members of the Committee equally. Wemay add that it has not been and cannot be disputed that the imputation wasdefamatory in the sense that it was calculated to expose the person"concerned to hatred, ridicule or contempt, or to "cause him to beshunned or avoided, or had a tendency to injure him in his office, professionor trade ".

7. Before we proceed to deal with the question of faircomment, we may here refer parenthetically to a matter of procedure which wasraised in the Court below. An attempt was made at the trial to compelproduction of the minutes of the Committee. This was unsuccessful, as theGovernment of Bihar and Orissa decided that the minutes were "unpublished"official records relating to affairs of State" within the meaning ofSection 123 of the Indian Evidence Act. It has been contended before us thatthe papers mentioned did not fall within this description; but it is fairlyclear from the language of the section that the Court cannot be invited todiscuss the nature of the document. The public officer concerned and not theJudge, is to decide whether the evidence referred to shall be given orwithheld. If any other view were taken, the mischief intended to be avertedwould take place, as the Judge could not determine the question withoutascertaining the contents of the document and such enquiry, if it did takeplace, must, for obvious reasons, take place in public: Beatson v. Skene (1860)5 H. and N. 838, 853, Hennesy v. Wright (1888) 21 Q.B.D. 509, Jehangir v.Secretary of State (1903) 6 Bom. L.R. 131, 160. The result practically is, thatif the objection is raised by the proper authority, the Court cannot compeldisclosure either by primary or by secondary evidence. This holds good eventhough there is reason to suspect that the witness concerned may have hadaccess to the official records withheld and may have refreshed his memorytherefrom before he came to give evidence.

8. On behalf of the Defendant it has been, argued, that thedisputed letters constituted fair comment on a matter of public interest andcould not consequently be deemed defamatory. This does not raise a question ofprivilege, because nothing is a libel which is a fair comment on a subjectfairly open to public discussion. As was pointed out by Bowen L.J. in Merivalev. Carson (1887) 20 Q.B.D. 275, this is a rule of common right of publiccriticism equally enjoyed by every subject of the realm, not a question ofallowance to persons in any particular situation. A Defendant setting upprivilege asserts that he is protected by standing in a special relation to thefacts of the case; but when his defence is fair comment, he asserts that he hasdone only what everyone has a right to do [see the observations of Blackburn J.in Campbell v. Spotiswoode (1863) 3 B. and S. 769 and of Collins M.R. inMcQuire v. Western Morning News Co. (1903) 2 K.B. 100, III; see also R. v. Gray(1900) 2 Q.B. 36, 40, Peter Walker v. Hodgson (1909) 1 K.B. 239, 253, Dakhyl v.Labouchere (1908) 2 K.B. 325, Thomas v. Bradbury (1906) 2 K.B. 627, Arnold v.R. (1914) 30 T.L.R. 462 : (1914) A.C. 644, Neville v. Dominion, of Canada NewsCo. (1915) 3 K.B. 556, 566]. We must not overlook however, that when theDefendant invokes the aid of the doctrine that no action lies, if he can provethat the words complained of are a fair comment on a matter of public interest,the defence is applicable only to expressions of opinion distinct fromassertions of fact. This principle is lucidly stated in the following passagefrom the judgment of Palles C.B. in Lefroy v. Burnside (1879) L.R. 4 Ir. 556,565.

9. "That a fair and bond fide comment on a matterof" public interest is an excuse of what would otherwise "be adefamatory publication is admitted. The very "statement, however, of thisrule assumes the matters "of fact commented upon to be somehow or other"ascertained. It does not mean that a man may "invent facts andcomment on the facts so invented, "in what would be a fair and bond fidemanner on the "supposition that the facts were true. Setting apart"all questions which would be raised at a trial by "such a defencemust necessarily be,--first, the existence of a certain state of facts;secondly, whether "the publication sought to be excused is a fair and"bond fide comment upon such existing facts. If the "facts as acomment upon which the publication is "sought to be excused do not exist,the foundation "of the plea fails."

10. To the same effect are the observations of Kennedy"J., in Joynt v. Cycle Trade Publishing Co. (1904) 2 K.B. 292, 294:"the "comment must not misstate facts, because a comment "cannotbe fair which is built upon facts which are "not truly stated. "Seealso the observations of Vaughan Williams L.J., in Joynt v. Cycle TradePublishing Co. (1904) 2 K.B. 292, 294, of Cozens Hardy, M. R. in Hunt v. StarNewspaper Co. (1908) 2 K.B. 309, 317 and of Maclean C.J. in Barrow v.Hemchandra I.L.R. (1908) Calc. 495, 506. The substance of the matter is that,though, as pointed out in Merivale v. Carson (1887) 20 Q.B.D. 275, 280, thelimits of the fair comment rule are very wide, before the defence can at allbecome available, the Court must be satisfied that the words complained of arecomments and not statements of fact. We are not unmindful that Mr. JusticePhilli-more has pointed out in Mangena v. Wright (1909) 2 K.B. 958, 976, thatthere may, perhaps, be one class of comment which may be entitled to protectionas fair comment, even though it is in one sense founded on untrue statements:

Then comes the question of comment. Is it fair"comment The Plaintiff says it cannot be fair comment" because it isfounded on untrue statements. "No doubt, when there is one publisheddocument in" which the writer partly alleges and partly comments "andof which the sum total is defamatory, the "document cannot be justifiedunless the facts are "true and the comment fair; because if the facts do"not warrant defamatory comment, the comment is "not fair and if thefacts as alleged warrant defamatory" comment, they are defamatory and mustbe "proved to be true. But when one person alleges and "anothercomments, this reason does not apply. I "think this view, if true in othercases, is specially" true when the allegation, as distinct from thecomment is made in a privileged document. If, by some "unfortunate error,a vote in Parliament recites, or a "Judge in giving the reasons of hisjudgment states, "that which is derogatory to some person and the"charge is mistaken and ill founded and a newspaper" reports suchvote or judgment and proceeds "in another part of its issue to commentupon the "character of the person affected in terms which "would befair if the charge were well-founded, the "newspaper which so reports andcomments should "be entitled to the protection of fair comment.

11. But the special case contemplated by Phillimore J. doesnot arise here and the defence of fair comment can be of no avail to theAppellant, unless he can prove that his comments were based upon actual facts.This, as we have already held on the evidence, he has failed to establish. Hiscase thus falls exactly, within the rule enunciated by Lord Herschell indelivering the opinion of the Judicial Committee in Daris v. Shepstone (1886)11 A.C. 187, 190:

There is no doubt that the public acts of a "public manmay lawfully be made the subject of fair "comment or criticism, not onlyby the Press, but "by all members of the public. But the distinction"cannot be too clearly borne in mind between comment or criticism andallegations of fact, such as "that disgraceful acts have been committed,or discreditable language used. It is one thing to comment "upon orcriticise, even with severity, the acknowledged or proved acts of a public manand quite "another to assert that he has been guilty of particular acts ofmisconduct. In the present case, the " Appellants, in the passages whichwere complained "of as libellous, charged the Respondent, as now"appears without foundation, with having been guilty "of specificacts of misconduct and then proceeded on "the assumption that the chargeswere true, to comment upon his proceedings in language in the "highestdegree offensive and injurious; not only so, "but they themselves vouchedfor the statements by "asserting that though some doubt had been thrown"upon the truth of the story, the closest investigation would prove it tobe correct. There is no "warrant for the doctrine that defamatory matterthus "published is regarded by the law as the subject of "anyprivilege.

12. We are accordingly of opinion that Mr. Justice Rankinhas rightly overruled the plea of fair comment.

13. We have next to consider the question of privilege. TheDefendant has not claimed absolute privilege and has not contended that noaction lies, however untrue and malicious the statements may have been. Thedefence has been limited to a claim of a qualified privilege. No indication wasfurnished in the written statement as to the precise grounds for suchprivilege; but in the course of the arguments addressed to us, an endeavour hasbeen made to support the plea on the assumption that the matter was of publicinterest and thus attracted the operation of the rule that every statement madein discharge of a legal, moral or social duty is privileged; this, as BlackburnJ. put it in Davis v. Snead (1870) L.R. 5 Q.B. 608, 611, is equivalent to theprinciple that where the person is so situated that it becomes right in theinterests of society that he should tell to a third person certain facts, then,if he, bona fide and without malice, does tell them, it is a privilegedcommunication. The limits of this rule have never been accurately prescribed ;on the other hand, as pointed out by Buckley L. J. in Adam v. Ward (1915) 31T.L.R. 299, 304, the rule has been sometimes stated too broadly; for instance,in the dictum of Lord Tenterden in Cox v. Feeny (1863) 4 F. and F. 13, 18, that"a man has a right to publish, for the purpose of giving the publicinformation, that which is proper for "the public to know." Theenunciation of the rule by Buckley L.J. himself is, perhaps, characterised byas much precision as is attainable in a matter of this description:

If the matter published is matter of public interest and theparty who publishes it owes a duty "to communicate it to the public, thepublication is "privileged, and in this sense, duty means, not a duty"as a matter of law but a duty recognised by English "people ofordinary intelligence and moral principle, "but at the same time not aduty enforceable by legal "proceedings, whether civil or criminal.

14. This statement was substantially adopted by the House ofLords in Adam v. Ward (1917) A.C. 309, 322, 344, where Lord Dunedin and LordShaw intimated their concurrence with the reasons given by Lord Wrenbury (thenBuckley L.J.) as they were entirely satisfactory. Lord Loreburn and LordDunedin also relied upon the criterion tersely stated by Baron Parke in Toogoodv. Spyring (1834) 1 C.M. and R. 181, 193: communications "fairly made by aperson "in the discharge of some public or private duty, "whetherlegal or moral, or in the conduct of his own "affairs, in matters wherehis interest is concerned, "and "if fairly warranted by anyreasonable occasion "or exigency and honestly made, such communicationsare protected for the common convenience and "welfare of society; and thelaw has not restricted "the right to make them within any narrowlimits." Lord Buckmaster adopted this statement in London Association v.Greenlands (1916) 2 A.C. 15, 22 and added the important observation: "Thecircumstances that constitute "a privileged occasion can never be cataloguedand "rendered exact. New arrangements of business, "even new habitsof life, may create unexpected combinations of circumstances, which, thoughthey "differ from well-known instances of privileged "occasion, maynone the less fall well within the "plain, yet flexible language of thedefinition."

15. Tested in the light of the rule thus explained, thedefence of privilege must fail in the case before us. The number of concernsaffected by the report of the Champaran Agrarian Enquiry Committee as tosarabeshi or tawan, was two or three in the one case and fifteen to twenty inthe other. The Defendant might appropriately take steps, as he did, to move thePlanters Association, the European Association and his own, company; but wecan see no justification for publication to the world at large. If the commentshad been based on an accurate statement of the facts, he would no doubt havebeen protected; but, in that case, recourse to the defence of privilege wouldnot have been necessary. The Defendant has thus failed to bring himself withinthe rule that if the occasion is privileged, the burden lies on the Plaintiffto prove malice in fact: Clark v. Molyneux (1877) 3 Q.B.D. 237, Jenoure v.Delmege (1891) A.C. 73. We are further of opinion that even if the statementcould be treated as made in discharge of a public duty, the privilege was lost,because the statement was made maliciously. It is sufficient in this connectionto refer to the exposition, given by Lord Esher, of the meaning of the term"malice," in the case of Royal Aquarium Society v. Parkinson (1892) 1Q.B. 431, 443, 454.

16. "The question is, whether the Defendant is using"the occasion honestly or abusing it. If a person "on such anoccasion states what he knows to be "untrue, no one ever doubted that hewould be "abusing the occasion. But there is a state of mind, "shortof deliberate falsehood, by reason of which a "person may properly be heldby a jury to have "abused the occasion and in that sense to have spoken"maliciously. If a person from anger or some other "wrong motive hasallowed his mind to get into such "a state as to make him cast aspersionson other "people, reckless whether they are true or false, it "hasbeen held and I think rightly held, that a jury "is justified in findingthat he has abused the occasion. Therefore, the question seems to me to be"whether there is evidence of such a state of mind "on the part ofthe Defendant. It has been said that "anger would be such a state of mind;but I think "that gross and unreasoning prejudice, not only "withregard to particular people, but, with regard "to the subject-matter inquestion, would have the "same effect. If a person, charged with the duty"of dealing with other peoples rights and interests "has allowed hismind to fall into such a state of "unreasoning prejudice in regard to thesubject-" matter, that he was reckless whether what he stated "wastrue or false, there would be evidence upon "which a jury might say thathe abused the occasion "

17. To the same effect is the statement of Lopes L.J. in thecase just mentioned:

Not only must the occasion create the privilege, "butthe occasion must be made use of bond fide and "without malice. TheDefendant is only entitled "to the protection of the privilege, if he usesthe "occasion in accordance with the purpose for which "the occasionarose. He is not entitled to the protection of the privilege if he uses theoccasion for "some indirect or wrong motive. This cast upon the "Plaintiffs the burden of proving express malice or "malice in fact. If itbe proved that, out of anger "or for some other wrong motive, theDefendant has "stated as true that which he does not know to be "trueand he has stated it, not stopping or taking the "trouble to ascertainwhether it is true or not,--stated "it recklessly by reason of his angeror other indirect "motive--the jury may infer that he used the"occasion not for the reason which justifies it, but "for thegratification of his anger or other indirect "motive."

18. In the case before us, we have already held that therewas a needlessly extensive publication of the allegations made by the DefendantGilpin v. Fowler (1854) 9 Exch. 615, the language used was also needlesslyviolent Wright v. Woodgate (1835) 2 C.M. and R. 573, Oddy v. Paulet (1865) 4 F.and F. 1009, Spill v. Maule (1869) L.R. 4 Ex. 232, 235, Edmondson v. Birch andCo. (1907) 1 K.B. 371, 381, Nevill v. Fine Art Co. (1895) 2 Q.B. 156, 170 :(1897) A.C. 68, Laughton v. Bishop of Sodor (1872) L.R. 4 P.C. 495, Adam v.Ward (1917) A.C. 309, 330, the statements themselves were contrary to the factsand the Defendant has persisted in his allegations, even after he has beenassured by Mr. Norman and Mr. Hill that the charge he had brought forwardagainst the Plaintiff was unfounded: Warwick v. Foulkes (1844) 12 M. and W.507, 508, Simpson v. Robinson (1848) 12 Q.B. 511. Some of these circumstancestaken individually might not have been conclusive; but estimating theircumulative effect, we are not prepared to dissent from the view that thestatements were made maliciously in the sense explained above and that the pleaof privilege cannot be sustained.

19. As regards the cross-objections, we are of opinion thatthey are unsubstantial. As we have already explained, there is really a singledefamatory statement and the Plaintiff could not and did not claim separatedamages in respect of each letter. As regards the amount of damages, we see noreason to alter the award at the instance of either party.

20. The result is, that the decree is affirmed and theappeal and cross-objections are both dismissed with costs.

Ashutosh Chaudhuri, J.

21. I agree and have nothing to add.

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W.S. Irwin vs. D.J.Reid (07.06.1920 - CALHC)