Code: ___

IV NATIONAL MOOT POOL SELECTION MOOT

COURT COMPETITION 2017-18

BEFORE THE HON’BLE HIGH COURT OF MADHYA PRADESH AT JABALPUR

CIVIL APPEAL NO. ___/2017,

(APPEAL TO THE HON’BLE HIGH COURT OF MADHYA PRADESH)

IN THE MATTER OF:

SMT. PALLAVI KHANNA ………………………………………………………………………………………....... APPELLANT

VERSUS.

MR. RAKESH MEHRA …………………………………………............................................. RESPONDENT NO. 1

DAILY MAIL …………………………………………………………………………………………………... RESPONDENT NO. 2

AS SUBMITTED TO THE HON’BLE HIGH COURT OF MADHYA PRADESH

WRITTEN SUBMISSIONS ON BEHALF OF THE APPELLANT

COUNSEL APPEARING ON BEHALF OF THE APPELLANT

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Table of Contents
INDEX OF AUTHORITIES......................................................................................................................................iii
STATEMENT OF JURISDICTION...........................................................................................................................5
STATEMENT OF FACTS.........................................................................................................................................6
QUESTIONS PRESENTED...............................................................................................................................7
SUMMARY OF PLEADINGS..........................................................................................................................8
PLEADINGS AND AUTHORITIES................................................................................................................9
I. WHETHER THE APPEAL MADE BY THE APPELANT IS MAINTAINABLE
BEFORE THE HON’BLE HIGHT COURT?...................................................................................9
A. THE APPELLANT HAS APPROACHED THE HON'BLE HUGH COURT
UNDER SECTION 96(1) OF CODE OF CIVIL PROCEDURE, 1908 AND
RULE 2(3) OF THE CHAPTER 4 OF THE HIGH COURT OF MADHYA
PRADESH RULES, 2008…………………………………………………………………..9
II. WHETHER THE AUTHOR AND THE NEWSPAPER ARE
LIABLE FOR DEFAMATION?.......................................................................................................11
2.1 WHETHER THE AUTHOR IS LIABLE FOR DEFAMATION ?................................ ........11
A. THE WROTE AN ARTICLE WHICH LEADS TO DEFAMATION
OF THE APPELLANT…………………………………………………………………….11
B. THE ARTICLE HARMED THE REPUTATION OF THE APPELLANT IN
THE EYES OF PUBLIC…………………………………………………………………...12

2.2 WHETHER THE NEWSPAPER IS LIABLE FOR DEFAMATION?.............................. 14

A. IT IS THE DUTY OF THE NEWSPAPER TO CHECK THE ARTICLE
BEFORE PUBLISHING IT………………………..............................................................14

III. WHETHER THE APPELLANT IS ENTITLED FOR DAMAGES?.........................................15

A. THE DEFAMATORY ARTICLE CAUSES MENTAL DISTRESS AND

EMOTIONAL SUFFERINGS TO THE APPELLANT, LOSS OF REPUTATION,
LOSS OF SELF-RESPECT AND HINDRANCE IN THE PROMOTION…………...15
B. EXEMPLARY DAMAGES SHALL BE GIVE FOR DEFAMATION IN THIS
CASE………………………………………………………………………………………………………………………….17

PRAYER FOR RELIEF....................................................................................................................................19

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INDEX OF AUTHORITIES

Cases
W. Hay and Ors. vs. Aswini Kumar Samanta, [1958] AIR Cal 269(HC).....................................................................3
D.P. Chaudhary v. Manjulata, [1997] AIR Raj. 170 (HC)...........................................................................................7
Delacroix v. Thevenot, [1817] 2 Stark 63................................................................................................................4
McCarey v. Associated Newspapers Ltd., [1964] 3 All ER 947...............................................................................11
Morrison v. Retichie andCo., [1902] 4 F. 645.......................................................................................................... 7
Mother Dairy Foods and Processing Ltd. v. Zee Telefilms Ltd., [2005] AIR DELHI 195 (HC)..................................12
O . Ramalingam and Ors . v. The Director , Daily Thanthi , Madras and Anr, [1975] AIR MAD 309 (HC)..............12
Pijush Kanti Datta v Mangilal Gidia, [1987] AIR CAL 136 (HC)...............................................................................12
Ramdhara v. Phulwatibai, [1969] Jab LJ 582 (HC)...................................................................................................5
Rustom K. Karanjia and Anr. vs. Krishnaraj M.D. Thackersey and Ors., [1970] AIRBOM 424...............................11
Satni Bai vs. State of Madhya Pradesh, [2010] ALLMR(CRI) 960 (SC)......................................................................3
Smt. Kiran Bedi vs. Committee of Inquiry and Anr., [1989] AIR 714 (SC)................................................................5
Sodhi Gurbachan Singh Koshan vs. Babu Ram and Anr., [1969]AIR P and H 201 (HC)...........................................7
Subramanian Swamy vs. Union of India (UOI), Ministry of Law and Ors.,[2016] AIR 2728 (SC).............................3
Tushar Kanti Ghose vs. Bina Bhowmick, [1953] 1 CALLT 23 [HC]..........................................................................4

Statutes
Section 9, Code of Civil Procedure 1908, ................................................................................................................1
Libel and Slander Act, 1952, Section 4 of England.................................................................................................5

Section 96(1), Code of Civil Procedure,1908.........................................................................................................1

Websites
<https://www.merriam-webster.com/dictionary/hysteria > accessed 4 August 2017..........................................3

Rules
Rule 2(3)(a) of the chapter 4 of the High Court of Madhya Pradesh, 2008............................................................1
The High Court of Madhya Pradesh Rules 2008, preface III....................................................................................2

Books, Articles and Law Journals

Ramaswamy Iyer, Ramaswamy Iyer’s Law of Torts, (10, LexisNexis India 2007)....................................................8
Stevens George, Personal Liability of Newspaper Employees for Defamation Stevens, (1988) 9 Newspaper
Research Journal 49.............................................................................................................................................7
W. H. Rogers (ed), Winfield and Jolowicz on Tort, 18th Edn.,Sweet and Maxwell 2010, p. 241............................5
 iv

Warren and Brandies, ‘The Right to Privacy’ (1890) IV Harvard Law Review 195................................................10
 5

STATEMENT OF JURISDICTION

The Appellant has approached the Hon’ble Court under section 96 of Code of Civil
Procedure, 1908 read with rule 2(3)(a) of the chapter 4 of the High Court of Madhya Pradesh,
2008.

The Appellant humbly submits to the jurisdiction of this Hon'ble Court.

 6

STATEMENT OF FACTS

1. On 26th may 2016 at about 10 am a 15 year old boy consumed antidepressant

medication and benzodiazepine and rushed to the ONP General hospital by his
neighbours. The neighbours called his mother and at about 10:30 am she reached the
hospital. At the time when operation was going on she asked to be with her son and
was losing her temper and in that moment she was cursing her husband who according
to her was the real cause behind all this. She was also criticizing the boy’s school
counsellor for not sharing the situation with her. Unfortunately the boy didn’t survive
and died in few hours.
th
2. On 30 may 2016 while reading the newspaper “Daily Mail” she came to read and
article on “Need and importance of child counselling in case of single parenting “. The
article was written by the Respondent no. 1, he quoted several examples with holding
the real names and one example was same with the name of her and her son. On
inquiring she found that the writer of the article was attached to several hospitals and
had access to ONP general hospital’s record as well.
3. Her relatives, neighbours and colleagues were calling her for condolence and also
mentioning the article too. Her superior asked about the incident and informed her
that her promotion and salary increment has been delayed further for 6 months.
4. During lunch time her colleagues discussed the same issues with her and due to this
she was mentally and emotionally exhausted. She found everything unbearable and
filed a suit against the newspaper and the author of the article and sued them for
defamation and asked for hospital’s medical record.
5. When Smt. Pallavi Khanna read the clinical note made by the Sara she was stunned as
the note’s language was “Mother noticeable symptoms of pre- morbid separation
issues and egocentric/hysterical tendencies. History of troubled marriage and differing
relationships, She clearly has persistent unresolved issues around grief and loss”.
6. The same words were published in the article as well. And due to this article
published on her personal character Pallavi khanna was so enraged. And asked
compensation for the damages of Rupees 50lakhs. The lower court passed the
judgment against the Pallavi Khanna, so she challenged the judgment by filing an
appeal in the high court.
 7

QUESTIONS PRESENTED

THE APPELLANT VERY RESPECTFULLY PUTS FORTH TO THE HON’BLE HIGHT COURT, THE
FOLLOWING QUERIES:

I. WHETHER THE APPEAL MADE BY THE APPELANT IS MAINTAINABLE

BEFORE THE HON’BLE HIGHT COURT?

II. WHETHER THE AUTHOR AND THE NEWSPAPER ARE LIABLE FOR
DEFAMATION?
1. WHETHER THE AUTHOR IS LIABLE FOR DEFAMATION OR NOT?
2. WHETHER THE NEWSPAPER IS LIABLE FOR DEFAMATION?

III. WHETHER THE APPELLANT IS ENTITLED FOR DAMAGES?

 8

SUMMARY OF PLEADINGS

I. WHETHER THE APPEAL MADE BY THE APPELANT IS MAINTAINABLE

BEFORE THE HON’BLE HIGHT COURT?
It is respectfully submitted that the Appellant has approached the Hon’ble Court under
section 96(1) of Code of Civil Procedure, 1908 read with rule 2(3)(a) of the chapter 4 of
the High Court of Madhya Pradesh, 2008.

II. WHETHER THE AUTHOR AND THE NEWSPAPER ARE LIABLE FOR
DEFAMATION?

1. WHETHER THE AUTHOR IS LIABLE FOR DEFAMATION?

It is submitted that the author of the article, Respondent no. 1, wrote outside his limit and
defamed the Appellant. This is because, [A] he wrote an article which leads to defamation
of the Appellant and; [B] the article harmed the reputation of the Appellant in the eyes of
public.

2. WHETHER THE NEWSPAPER IS LIABLE FOR DEFAMATION?

It is submitted the Respondent no. 2, is liable for defamation. This is because, [A] it is the
duty of the newspaper to check the article before publishing it.

III. WHETHER THE APPELLANT IS ENTITLED FOR DAMAGES?

The Appellant is entitled for the compensation of 50 lakhs from the Respondent no. 1 and the
Respondent no. 2 jointly. This is because, [A] the defamatory article causes mental distress
and emotional sufferings to the Appellant, hindrance in the promotion and loss of reputation
and; [B] exemplary damages for defamation shall be given in this case.
 9

PLEADINGS AND AUTHORITIES

C. P. No. ___/2017
(Appeal to the Hon’ble High Court of Madhya Pradesh)

I. WHETHER THE APPEAL MADE BY THE APPELANT IS MAINTAINABLE

BEFORE THE HON’BLE HIGHT COURT?
1. It is respectfully submitted that the appeal made by the Appellant is maintainable
before the Hon'ble High Court. This is because, [A] the Appellant has approached
the Hon’ble Court under section 96(1) of Code of Civil Procedure, 1908 read with
rule 2(3)(a) of the chapter 4 of the High Court of Madhya Pradesh Rules, 2008.
A. THE APPELLANT HAS APPROACHED THE HON'BLE HUGH COURT
UNDER SECTION 96(1) OF CODE OF CIVIL PROCEDURE, 1908 AND
RULE 2(3) OF THE CHAPTER 4 OF THE HIGH COURT OF MADHYA
PRADESH RULES, 2008
2. It is submitted that section 96 of the Code of Civil Procedure, 1908 states that:

“96. Appeal from original decree—

1. Save where otherwise expressly provided in the body of this Code
or by any other law for the time being in force, an appeal shall lie
from every decree passed by any Court exercising original
jurisdiction the Court authorized to hear appeals from the
decisions of such Court.”
3. It is submitted that the lower court passed the decree by exercising original
jurisdiction1, thus the Hon’ble Court is authorized to hear the appeal.
4. It is respectfully submitted that the rule 2(3) of the chapter 4 of the High Court of
Madhya Pradesh Rules, states that:
“2. The following matters shall be heard and disposed of by a bench
comprising two Judges, i.e. a division bench-
(3) First Appeal - A first appeal under –
(a) Section 96 of the Code of Civil Procedure, 1908, against a
judgment and decree passed in a –
(i) ‘A’ class suit where valuation of appeal is above Rs. 3,00,000/-
(Rs.Three lac), or
(ii) ‘B’ class suit, where the claim in appeal is above Rs. 5,00,000/-
(Rs. Five lac)”

1 S9, Code of Civil Procedure, 1908.

 10

5. It is submitted that the valuation of the claim under the appeal is Rs.
50,00,000. Thus, with the reference of section 96 of Code of Civil
Procedure, 1908 and the rule 2(3) of the chapter 4 of the High Court of
Madhya Pradesh, 2008, this appeal is maintainable under the Hon’ble High
Court.
6. It is respectfully submitted that the Hon’ble Court has jurisdiction to hear all the
appeals arriving from revenue district of Bhopal. In point no. 3 of the preface 2, it is
stated that:
“III) Territorial Jurisdiction of the Judges in the Principal Seat – The
Judges sitting in the Principal Seat at Jabalpur shall exercise the
jurisdiction and power for the time being vested in the High Court, in
respect of cases arising in all revenue districts of the State of Madhya
Pradesh, except those excluded by two Presidential orders dated 28th
of November 1968.”
It is submitted that the instant case is arising in the revenue district of Bhopal,
which is under the appellate jurisdiction of the principal seat of the Hon’ble
Madhya Pradesh High Court.
7. It is respectfully submitted that the judgement of lower court is against law
and facts of the case and the same is liable to set aside in instant appeal.

2 The High Court of Madhya Pradesh Rules 2008, preface III.

 11

II. WHETHER THE AUTHOR AND THE NEWSPAPER ARE LIABLE FOR
DEFAMATION?
2.1 WHETHER THE AUTHOR IS LIABLE FOR DEFAMATION?
[A] It is submitted that the author of the article, Respondent no. 1, wrote outside
his limit and defamed the Appellant. This is because,[A] he wrote an article which
leads to defamation of the Appellant and; [B] the article harmed the reputation of the
Appellant in the eyes of public.
A. HE WROTE AN ARTICLE WHICH LEADS TO DEFAMATION OF THE
APPELLANT
9. It is respectfully submitted that the author did not have any right to write such
defamatory article about the Appellant, he made defamation by stating defamatory
sentence about the Appellant and also published it in the general public.
10. As per W. Hay and Ors. vs. Aswini Kumar Samanta3, the Hon’ble bench set three
elements which need to be proved in an action for defamation. These elements are
(a) there must be a defamatory statement; (b) it must concern the claimant, and (c)
publication of the statement by the defendant to a third person.
11. The “defamatory statement” means “A defamatory statement is one which has a
tendency to injure the reputation of the person to whom it refers; which tends to
cause him to be regarded with feelings of hatred, contempt, ridicule, fear, dislike, or
disesteem. The statement is judged by the standard of an ordinary, right thinking

member of society.”4
12. In the instant case, the Respondent no. 1 mentioned the Appellant as an egocentric
5
and having hysterical tendencies . The term “hysterical tendencies” can be derived
6
from Satni Bai vs. State of Madhya Pradesh , where the Hon’ble court considered it
7
as ferocious Reaction from uncontrolled emotions. The marriam-webster dictionary
also described hysteria as “a psychoneurosis marked by emotional excitability and
disturbances of the psychogenic”.
13. It is submitted that this statement had tendency to injure reputation of the person to
whom it refers and caused her feelings of hatred, contempt, ridicule, fear, dislike, or
disesteem, because it defamed the Appellant in the mind of other people as they
started thinking that she is not stable from mind. Thus, it fulfils the first condition
that the statement is defamatory in nature.

3 [1958] AIR Cal 269(HC).

4 Subramanian Swamy vs. Union of India (UOI), Ministry of Law and Ors., [2016] AIR 2728 (SC).
5 Para 4, Factsheet.
6 [2010] ALLMR(CRI) 960 (SC).
7 <https://www.merriam-webster.com/dictionary/hysteria > accessed 4 August 2017.
 12

14. It is respectfully submitted that, as per the case of Tushar Kanti Ghose vs. Bina

Bhowmick8, in order to prove defamation it referred to the Appellant, evidence of

surrounding circumstances which would lead the readers to conclude that the
plaintiff was the person referred to, is admissible. In the instant case, the author
mentioned the name of the Appellant, and also he used the same name of the
hospital i.e. ONP General Hospital, which shows that the article is referred to the
Appellant and everyone thought that the article is about the Appellant.
15. It is submitted that as per facts of the instant case, the details mentioned is the article
leaded the readers to conclude that the plaintiff was the person referred to 9, thus the
second condition is also fulfilled that the article referred to the Appellant.
10
16. It is respectfully submitted that in the landmark case Delacroix v. Thevenot ,
publication of defamatory statement means that the defamatory statement comes to
the knowledge of third person. In the instant case, it is not difficult to consider that
there was publication of such a defamatory article in the newspaper and it is res ipsa
locuiter.
17. Therefore, in the present matter, this can be accordingly put forth that all the three
elements are fulfilled in this case also; that the Respondent no. 1 made defamatory
statement through the article which was referred to the Appellant and made
publication also, which shows the Respondent no. 1 committed defamation to the
Appellant.
B. THE ARTICLE HARMED THE REPUTATION OF THE APPELLANT IN
THE EYES OF PUBLIC
18. It is humbly submitted that the article tarnished the reputation of the Appellant in the
eyes of public by saying “Mother noticeable symptoms of pre-morbid separation
issues and egocentric/ hysterical tendencies. History of troubled marriage and
differing relationships, she clearly has persistent unresolved issues around grief

and loss.”11 As by reading this article, anyone’s respect and reputation would be
affected in the eyes of reasonable man. According to well-known scholar Winfield,
a reasonable man means:
“A right thinking man is a reasonable man who is neither unusually
suspicious nor unusually naive and he does not always interpret the
meaning of words as in case of a lawyer since he is not inhibited by a

knowledge of the rules of construction.”12

8 [1953] 1 CALLT 23 [HC].

9 Para 1, Factsheet.
10 [1817] 2 Stark 63.
11 Ibid 5.
12 W. H. Rogers (ed), Winfield and Jolowicz on Tort, 18th Edn.,Sweet and Maxwell 2010, p. 241.
 13

13
19. It is respectfully submitted that in Ramdhara v. Phulwatibai , the Madhya Pradesh
High Court observed that:
“It is the essence of defamation that words uttered tend to be injurious to
person’s character or reputation in estimation of right minded citizen, a
man of fair intelligence. Where words was uttered in circumstances
tending to lower person addressed in estimation of people present and to
bring him into ridicule or contempt, would constitute defamation and
would be actionable”
20. In the instant case, all the relatives and colleagues were the reasonable people and
14
they advised her to control over her temperament , her superior told her that her
promotion and salary increment was delayed15.
21. It is respectfully submitted that as per the incidents described in Para 13, her
reputation was degraded in the eyes of her colleagues, friends, relatives and other
people whoever read that article. The serious imputations made against the
Appellant in the said article have created a bad feeling among the general public
against the plaintiff and have also damaged his name, fame and reputation, and thus,
it can be submitted that the same amounts to defamation.
22. Moreover, it is respectfully submitted that the significance of reputation in the
Indian society can be understood by referring the case of Smt. Kiran Bedi vs.
Committee of Inquiry and Anr.16, in which the Hon’ble Supreme Court stated that:
“The right to the enjoyment of a good reputation is a valuable privilege, of
ancient origin, and necessary to human society, as stated in Libel and
Slander Act, 1952, Section 4 of England, and this right is within the
constitutional guaranty of personal security as stated in Constitutional
Law, and a person may not be deprived of this right through falsehood and
violence without liability for the injury. Detraction from a man's
reputation is an injury to his personality, and thus an injury to reputation
is a personal injury, that is, an injury to an absolute personal right.”
23. Therefore, it is conclusively submitted that the author degraded the reputation of the
Appellant in the eyes of general public, before this, she had a good reputation.
Therefore, by writing such defamatory article reduced her reputation and the same
amounts to defamation.

13 [1969] Jab LJ 582 (HC).

14 Para 2, Factsheet.
15 Ibid 14.
16 Smt. Kiran Bedi vs. Committee of Inquiry and Anr., [1989] AIR 714 (SC).
 14

2.2 WHETHER THE NEWSPAPER IS LIABLE FOR DEFAMATION?

24. It is submitted the Respondent no. 2 is liable for defamation. This is because, [A] it
is the duty of the newspaper to check the article before publishing it.
A. IT IS THE DUTY OF THE NEWSPAPER TO CHECK THE ARTICLE
BEFORE PUBLISHING IT
25. It is respectfully submitted that Hon’ble Punjab and Haryana High Court in the case
of Sodhi Gurbachan Singh Koshan vs. Babu Ram and Anr.17, held that:
“it was duty of newspaper editor to check news or information that was
supplied, before publishing same, especially when news might be of
defamatory nature. However, if he did not do that, he had to suffer
consequences for his neglect and remissness”
26. Along the lines, it the instant case, the newspaper published the article of
defamatory nature without inspecting it, if they would inspect it, they would not
have published such defamatory article. Thus, it is submitted that the newspaper was
negligent in checking the article and hence, it has to suffer the consequences for the
neglect and remissness. “The articles are actionable if false and defamatory even if

published inadvertently.”18
27. It is humbly submitted that in the instant case, the newspaper published the article
erroneously and thus, liable for defamation. In United Kingdom, courts observed
that if the article in the newspaper is published erroneously, the newspaper shall be
19
held liable for defamation.
28. It is conclusively submitted that the newspaper ultimately assisted is publication of
the defamatory article against the Appellant and hence, is liable for defamation of
the Appellant. In the Newspaper Research Journal20,it was observed that:
“Any person who directly or indirectly publishes or assist in publication of
an actionable defamatory statement is liable for defamation.”

17 Sodhi Gurbachan Singh Koshan vs. Babu Ram and Anr., [1969]AIR P and H 201 (HC).
18 D.P. Chaudhary v. Manjulata, [1997] AIR Raj. 170 (HC).
19 Morrison v. Retichie andCo., [1902] 4 F. 645.
20 Stevens George, Personal Liability of Newspaper Employees for Defamation Stevens, (1988) 9
Newspaper Research Journal 49.
 15

III. WHETHER THE APPELLANT IS ENTITLED FOR DAMAGES?

29. The Appellant is entitled for the compensation of 50 lakhs jointly from the
Respondent no. 1 and the Respondent no. 2. This is because, [A] the defamatory
article causes mental distress and emotional sufferings to the Appellant, hindrance in
the promotion and loss of reputation and; [B] exemplary damages for defamation
shall be given in this case.
A. THE DEFAMATORY ARTICLE CAUSES MENTAL DISTRESS AND
EMOTIONAL SUFFERINGS TO THE APPELLANT, LOSS OF
REPUTATION, LOSS OF SELF-RESPECT AND HINDRANCE IN THE
PROMOTION
30. It is submitted that the article was defamatory in nature and it caused mental distress
and emotional sufferings as people started talking about her temperament, at the
workplace every colleague was discussing the same issue 21, which also caused loss
of reputation.
31. It is humbly submitted that the reaction of her colleagues, friends and relatives was
changed negatively and everyone started talking about her behaviour because of the
article, which leads to loss of self-respect in the eyes of the Appellant herself.
32. It is submitted that the hindrance in the promotion of the Appellant was the result of
the defamatory article. The Multi National Corporation, in which the Appellant
22
works stopped her promotion and her salary increment was also delayed.
33. It is respectfully submitted that in commentary by Ramaswamy Iyer23, it is stated
that :
“A common form of such misconduct which causes emotional disturbance
like annoyance, mental pain or distress is the unauthorized publication of
one's name, likeness or private affairs by photographers, pressmen or
commercial adventurers.”… “Formerly in the U.S.A. and also in England
emotional distress was not by itself a cause of action but compensation for
it could be claimed when it accompanied an independent tort like an

invasion of the right to person, property or reputation.” 24 Also “The trend

of case-law and legislation is towards recognizing a general right to
freedom from emotional disturbance caused intentionally or by
unreasonable conduct. This is spoken of as the right to or of privacy. The
right has grown beyond its original dimensions and is now a well-
recognized subject of claim in the Courts. The

21 Para 3, Factsheet.
22 Ibid 14.
23 Ramaswamy Iyer, Ramaswamy Iyer’s Law of Torts, (10, LexisNexis India 2007).
24 Ramaswamy Iyer, Ramaswamy Iyer’s Law of Torts, (10, LexisNexis India 2007) 318.
 16

-PLEADINGS AND AUTHORITIES-

law on this subject is thus set out in a well-known treatise in that country,
on the Law of Torts by Harper and James, 'as civilization becomes more
complex
and varied, new interests emerge and new values evolve and not the least
of them are the interests in privacy. The most important of these interests
are four, (i) The interest in seclusion. An illustration of a violation of it is
wiretapping or eavesdropping on the telephone, (ii) The interest in
personal dignity and self-respect. Cases under this head relate to conduct
such as the use of abusive or insulting language, or indecent proposals,

(iii) The interest in privacy of name, likeness and life history. Cases
under this head are fairly common, such as the unauthorized publication
of one's photograph for commercial purposes, improper methods adopted
by debt-collecting agencies, as by sending letters in envelops
conspicuously proclaiming the Plaintiff's failure to pay his just debts,
annoyance caused by publicity given to biographical details, (iv) The
interest in sentimental associations. A violation of this right would be the
unauthorized publicity or exposure of personal experiences with intimate
friends or loved ones, of letters keepsakes and other symbols of

sentimental associations with such persons.”25

34. The right to privacy has been used in the United States and also in England to
mean the right to freedom from emotional disturbance like annoyance, mental pain
or distress. Law of the United States affords protection against unauthorized
publicity of a person's name or private affairs. The trend of English case law is
however against any right of action for mere annoyance or injury to feelings
independently of the recognized heads of actionable injury like assault or
defamation. However, for years there has been a feeling that the law must afford
some remedy for the circulation of portraits of private person and evil of the

invasion of privacy by newspapers.26

35. It is conclusively submitted that the principle of mental and emotional

suffering or pain is well known recognized in the common law system and in the
instant case the mental and emotional suffering or pain is present in the instant
case. Thus, the Appellant is entitled for damages for defamation caused by the
article.
25 Ramaswamy Iyer, Ramaswamy Iyer’s Law of Torts, (10, LexisNexis India 2007) 319.
26 Warren and Brandies, ‘The Right to Privacy’ (1890) IV Harvard Law Review 195.
 17

B. EXEMPLARY DAMAGES SHALL BE GIVE FOR DEFAMATION

IN THIS CASE
36. It is respectfully submitted the Respondents jointly are liable to pay damages of
50lakhs to the applicant, the reason behind this argument is a landmark case,
McCarey v. Associated Newspapers Ltd.27, where Lord Justice Pearson stated that:
“if there has been any kind of high-handed, oppressive, insulting or
contumelious behaviour by the defendant which increases the mental pain
and suffering which is caused by the defamation and which may constitute
injury to the plaintiff's pride and self-confidence, those are proper
elements to be taken into account in a case where the damages are at
large. The object of the award of damages in tort nowadays is not to
punish the wrong-doer, but to compensate the person to whom the wrong
has been done. Moreover, it would not be right to allow punitive or
exemplary damages to creep back into the assessment in some other guise.
For instance, it might be said: 'You must consider not only what the
plaintiff ought to receive, but what the defendant ought to pay'.”
37. It is humbly submitted that, in the instant case, the article published in the
newspaper was oppressive as well as insulting in nature because it defamed her by
28
stating that she is egocentric and has hysterical tendencies , which increased the
mental pain and suffering, which ultimately injured the Appellant’s pride and self-
confidence.
38. This case29 is also referred in Indian judiciary by Hon’ble Bombay High Court30,
where the court observed that:
“Damages for defamation are purely compensatory. There is no room
hereafter for importing the concept of exemplary or punitive damages
except in two well-defined categories of cases. The first category is of
those cases where the plaintiff is injured by the oppressive, arbitrary or
unconstitutional action. The second category is comprised of those cases
in which the defendant's conduct has been calculated by him to make a
profit for himself which may well exceed the compensation payable to the
plaintiff.”
In addition, it is humbly submitted that many High Courts of India31 referred to
these cases for deciding the exemplary damages.

27 McCarey v. Associated Newspapers Ltd., [1964] 3 All ER 947.

28 Ibid 5.
29 Ibid 27.
30 Rustom K. Karanjia and Anr. vs. Krishnaraj M.D. Thackersey and Ors., [1970] AIRBOM 424.
 18

39. Therefore, it is conclusively submitted that the nature of the defamation was
oppressive as well as insulting which results in the mental pain and sufferings to the
Appellant and also injured her pride and self-confidence. Thus, exemplary damages
shall be awarded to the Appellant.

31 O. Ramalingam and Ors . v. The Director, Daily Thanthi, Madras and Anr., [1975] AIR MAD 309 (HC);
Pijush Kanti Datta v Mangilal Gidia, [1987] AIR CAL 136 (HC); Mother Dairy Foods and Processing Ltd. v.
Zee Telefilms Ltd., [2005] AIR DELHI 195 (HC).
 19

-PRAYER FOR RELIEF-

PRAYER FOR RELIEF

Wherefore, in the light of the issues raised, arguments advanced and authorities cited, it is
humbly requested that this Honorable Court may be pleased to adjudge and declare:

1. That the appeal filed by the Appellant is maintainable before the principal seat of Madhya
Pradesh High Court.

2. That the author and the newspaper are liable for defamation.

3. That the Appellant is entitled for damages.

And any other relief that this Hon’ble Court may be pleased to grant in the interests of justice,
equity and good conscience, all of which is respectfully submitted.

COUNSEL FOR THE APPELLANT