Request for Dais:
The counsel humbly seeks permission to proceed to the dais.
Addressing the Bench:
If it pleases the bench, the counsel respectfully requests to collectively address the bench as
"lordship."
Morning Greeting:
The counsel wishes your lordship a pleasant morning.
Permission to Proceed:
If your lordship is well-versed with the facts of the case, the counsel seeks permission to proceed.
Representation Details:
Your lordship, I am the counsel representing the original petitioner in the matter of Radheshyam
Tiwari v. Eknath Dinaji Bhiwapurkar & others.
Time Allocation:
Your lordship, the counsel will be taking 12 minutes of this court's precious time to present the
contentions and the remaining 3 minutes for rebuttals.
Fact Presentation:
If your lordship permits, the counsel seeks permission to move forward to the facts of the case.
If not:
Thank you, your lordship.
Proceeding with the Issues:
If your lordship is clear with the facts, the counsel requests permission to move forward with the
issues.
If not:
Thank you, your lordship.
Issue 1 - Defamation and Burden of Proof:
The plaintiff alleges defamation through publications in 'Tirora Times.' To prove defamation, the
plaintiff must establish that the statements were published maliciously, defamatory, referred to
the plaintiff, and were indeed published. All the publications have been admitted by defendant 1.
It is crucial to note that defamatory words are presumed false, and the burden of proving their
truth lies on the defendant. However, defendant 1 failed to satisfactorily discharge this burden, as
the evidence presented did not support the serious charges of corruption and misconduct
against the plaintiff.
Issue 2 - Defense of Justification or Truth:
Defendant 1 attempted to justify the publications by claiming truth, but the evidence falls short
of substantiating the allegations. There is inadequate proof to support the charges of corruption,
misappropriation, or misconduct. The publications seem mala fide, consciously attempting to
malign the plaintiff without substantial evidence to back them up.
Issue 3 - Defense of Fair Comment:
Defendant 1 also relies on the defense of fair comment. However, fair comment protects only
statements of opinion, not defamatory allegations of facts. In this case, the publications went
beyond expressing opinions and made specific allegations against the plaintiff without a proper
factual basis.
Issue 4 - Defense of Qualified Privilege:
Defendant 1 claims qualified privilege as an editor, stating a duty to the public to publish matters
of public interest. For qualified privilege to apply, the publisher must have a corresponding duty
or interest in receiving the information. However, defendant 1 failed to demonstrate that
sufficient facts were collected to support the charges of corruption, and the publications lacked a
reasonable occasion or exigency for claiming privilege.
Defense of Freedom of Speech and Expression:
Article 19(1)(a) of the Constitution of India guarantees the fundamental right to freedom of
speech and expression. However, this right is not absolute and is subject to certain exceptions,
including defamation. The appellant's argument that it is an exercise of Article 19(1)(a) is a gross
misuse, as the allegations are not supported by any evidence.
Prayer:
In conclusion, the defendant 1 has not successfully established the defenses of justification, fair
comment, or qualified privilege. The publications were defamatory, lacking truth, and made
without a proper basis, causing serious harm to the plaintiff's reputation. Therefore, I pray that
this Honorable Court grants relief in favor of my client, Mr. BDO, as it deems fit in the interest of
justice, equity, and good conscience, and dismisses the appeal and grants relief to my client.
Principle
. Defamation is publication of a statement which tends to lower a person in estimation of right
thinking members of the society generally or which makes them shun or avoid that person. The
plaintiff has therefore to establish if he wants to succeed in getting damages (1) that the words or
the acts must have been published maliciously, (2) that they are defamatory, (3) that they have
reference to the plaintiff, and (4) that they have been published.
