A SOLICITOR AND HIS CLIENTS-1916
 
(Surajmal B. Mehta v. B. G. Horniman)


Judgment 1     Judgment 2    Judgment 3
 

This case had a chequered and unusual career.  Six judges were concerned with the case at various stages, and all of them delivered judgments.  Surajmal B. Mehta, a solicitor of the High Court, had filed an action for libel against B. G. Horniman, Editor of the "Bombay Chronicle", in respect of two articles dated 7-3-1916 and 15-3-1916, claiming Rs. 25,000 as damages.  Strangman (Advocate-General) appeared for the plaintiff, and Bahadurji with Setalvad for the defendant.  The suit was decreed by Macleod J., who awarded Rs. 3,000 as damages, observing that the impugned articles were "a flagrant instance of trial by newspaper under the guise of fair comment."
 
Horniman appealed.  The appeal was heard by Scott C.J. and Heaton J. Scott C.J. was of the opinion that the articles were a fair and honest comment on a matter of public importance.  Heaton J. was of the view that the comments were not fair.  If the appeal was governed by section 98 of the C.P.C., the appeal would have to be decided according to the opinion of the majority of the judges, who heard the case, including the trial judge.  In that case, the appeal would have failed.  However, as this was an Original Side appeal, Clause 36 of the Letters Patent applied, and the opinion of the senior judge, viz., the Chief Justice, prevailed; and the appeal was allowed.
 
Surajmal thereupon filed an appeal under clause 15 of the Letters Patent; and the matter came on before a Bench consisting of Batchelor, Beaman and Marten, JJ.  Strangman with Mulla appeared for Surajmal. Chimanlal Setalvad with Bahadurji and Bhulabhai Desai appeared for Horniman.
 
The two articles were a trenchant comment on a suit on a promissory note tried by Davar J., which suddenly collapsed.  One Haji Ahmad Haji Hassam Dada had agreed to buy a bungalow from Tatia Saheb Holkar.  Tatia Saheb was unable to carry out the agreement as he had previously agreed to sell the bungalow to another party, who successfully sued him for specific performance.  Surajmal's firm were the solicitors for Tatia Saheb.  After this suit, it was alleged that Surajmal instigated Dada to file a suit against his own client Tatia Saheb for damages, assuring him that he, as Tatia's solicitor, would use his influence to procure Rs. 20,000 to Rs. 25,000 to Dada by way of damages, out of which Dada should pay him Rs. 3,000.  Dada agreed.  As a security for this, Surajmal induced Dada, who was a wealthy man, to pass a pro-note for Rs. 3,000 in the name of one Shambhuprasad, a clerk of Surajmal (who was getting a salary of Rs. 100 p.m.), as it would not be proper to have the pro-note in his own name.  Dada accordingly filed a suit against Tatia Saheb which was settled for Rs. 9,000.  Dada refused to pay Rs. 3,000 to Surajmal, as the amount recovered was much less than Rs. 20,000. Shambhuprasad having died, his brother Bhagwandas obtained Letters of Administration, and was put up by Surajmal to file a suit against Dada on the promissory note.  Dada's defence was that there was no consideration for the promissory note, which, according to him, was passed in the circumstances mentioned above.
 
The suit was heard by Davar J.  Since Shambhuprasad was dead, Bhagwandas could say nothing about the consideration.  Two witnesses were called to prove the consideration, but they fared miserably. Then Surajmal went into the box in support of the plaintiff's claim.  He was severely cross-examined by defendant's counsel, J. D. Davar, and he cut a very sorry figure.  He denied Dada's story; but gave evasive replies in answer to allegations that he had instigated Dada to file the suit against his own client, Tatia Saheb, and had sent Dada to a solicitor of his own choice (one D'Cunha), and had compromised the suit directly with Dada over the head of his solicitor, D'Cunha.   Surajmal was still under cross-examination and the suit was part-heard, when suddenly on the following day, the plaintiff consented to the dismissal of the suit with costs.  Surajmal made no protest as regards the withdrawal of the suit in this abrupt manner, while very serious aspersions had been cast upon his professional character.  Davar J. remarked that the plaintiff in withdrawing his suit had adopted "a very wise course".
 
In the issue of 7-3-1916 of the "Bombay Chronicle", an article was published commenting on the suit under the caption   "A solicitor and his client".  It stated inter alia: " The bare recital of the main allegations of the defendant (Dada) is sufficient to reveal very grave misconduct on the part of a solicitor (Surajmal), if the allegations were well founded.  That the plaintiff was merely the creature of Surajmal admits of little doubt. . . and that Surajmal should have thus been content to have the case withdrawn, and the very ugly allegations against him left unrefuted, is a matter which demands further enquiry.  If the charge that he deliberately instigated one of his clients to bring an action for damages against another of his clients, sending him to another solicitor for the purpose, and then arranging a settlement over that solicitor's head, were true, then it is perfectly clear that Mr. Surajmal would not be a suitable person for the practice of the honourable profession of a solicitor."
 
Another article on 15-3-1916 stated inter alia: "Mr. Surajmal settled the suit for Rs. 9,000 over the head of the solicitor who was acting for Mr. Dada, dealing with the latter direct and paying to him his own cheque, while he afterwards wrote to Mr. Dada's solicitor a letter stating that his (Surajmal's) firm had been informed by the Tatia Saheb's agent that the suit had been settled by the parties out of court.  In regard to this grave allegation, Mr. Surajmal was unable to remember whether the defendant went to the other solicitor Mr. D'Cunha at his suggestion or not, nor did he remember whether a draft of the notice sent by the defendant to Tatia Saheb was written by him and given to the defendant to be taken to Mr. D'Cunha.  Other matters of importance he had also forgotten."   In the libel suit, Surajmal contended that the articles insinuated that he had been guilty of dishonourable and improper conduct as a solicitor.  The defence was that the articles were not libellous; they were fair and accurate reports of facts, published bona fide without malice in the public interest.
 
It transpired in the evidence that Horniman had sent for one Nanabhai Engineer, a former Managing Clerk of Surajmal (who had fallen out with Surajmal and was now on hostile terms with him), to get further particulars of the background of the case.  Nanabhai procured a copy of the plaint and the proceedings and observations for Dada's counsel, which were written by Dada's usual solicitor who had acted for him in the original suit.  Later, Dada, at Surajmal's instance, had gone to another solicitor, D'Cunha, who did not have these observations, and which were therefore not in the hands of Dada's counsel.  Horniman, however, through the good offices of Nanabhai, had the benefit of these observations.
 
Macleod J.'s  "sense of justice was affronted", in the words of Beaman  J., "by the twin facts of Horniman having consulted Surajmal's enemy, after which he could not be impartial, and his having read the observations, which were not in the hands of Dada's counsel".  The judge held that Horniman mis-stated the facts; that he had laid the greatest stress on allegations which were never revealed to the public to support the conclusions he had arrived at; that it could not be reasonably inferred that Bhagwandas was the nominee of Surajmal.  As regards Horniman's comment that a further inquiry into the matter was necessary, the judge observed, "What need of further inquiry?  Mr. Horniman had conducted the inquiry.  The accused had been convicted in absentia,"
 
In the original appeal, Scott C.J. observed that he could find nothing in the articles to indicate that the writer was not discussing with care, reason and judgment the position of Surajmal as disclosed in the materials available, in perfect good faith.  It was a fair inference that the plaintiff was the creature of Surajmal.   Heaton J., in his judgment, said that the articles insinuated that Surajmal had committed the serious offence of engineering a false claim, which was a grievous thing to say of any man, and atrocious to say of a solicitor; and holding that since, neither of these things was true, nor were there valid reasons for saying them, he concluded that Horniman's comments were neither legitimate nor fair.   What Dada said may be true, a view which undoubtedly a reasonable man may have adopted; but it was a conjectural view.  In writing as he did, Horniman eschewed impartiality.  " When he becomes partisan, a journalist takes greater risks, though no doubt he writes more interesting matter."
 
In the Letters Patent appeal, Batchelor J. was of the view that Horniman's object was not to condemn Surajmal out of hand, but to seek for further investigation into very serious allegations.  It was not necessary that the statements of facts should be absolutely true.  It was enough if they were substantially true, as in this case.  The antecedent probabilities were in Dada's favour; it was obviously unlikely that a rich man like him would borrow a sum of Rs. 3,000 from a solicitor's clerk of very limited means.  The circumstances bore on the face of it an appearance of being true, "as anyone familiar with Indian methods" would know.  "If I was on the jury, I should have said that the conclusion drawn by the defendant (Horniman) ought to have been drawn and was in fact the only reasonable conclusion open to a disinterested man."  Referring to the sequence in which during cross-examination Surajmal gave evasive replies, the judge commented:   "In plain English, when directly questioned whether he did not do certain thoroughly unprofessional and dishonourable things, plaintiff's only answer is that he cannot remember.  Had his conscience been easy, there could have been no tax on his memory.  As to the excuse that he was 'frightened by counsel",  I do not believe it.  That would be a good argument in the case of an illiterate villager, but it is very unlikely to be true of a Bombay solicitor."
 
About the withdrawal of the suit, the judge said, "I should not hesitate to draw the inference that Surajmal's main anxiety was to escape further cross-examination.  So he made no protest that the charges against him should be withdrawn or investigated."
 
In his long analytical judgment, Beaman J. said that in his opinion, no fact was untruly stated that was in any sense material to the comment; upon the facts truly stated, the comment was fair, and, therefore, no libel.  He remarked that Dada's defence revealed Surajmal from first to last as the protagonist in a subtle piece of roguery.  He must have procured the witnesses who had been called to prove cash payment as consideration for the pro-note.  If there was no cash consideration, what consideration was there?  The most probable and most reasonable inference to be drawn was that Surajmal was the real plaintiff.
 
As regards the withdrawal of the suit, Beaman J. observed that Surajmal must have been consulted before it was withdrawn; and he wound up his judgment by observing "under rigorous analysis, this (Macleod's) elaborate and impressive judgment is shown to be devoid of any important or relevant content."  Marten J. said "I regard it as almost inexplicable for any respectable solicitor to behave as Surajmal did in making no protest or appeal whatever either to the judge or to the Law Society, so that his character might be cleared of the charges of fraud made against him. "In the result, Surajmal's appeal was dismissed with costs throughout.