JUDGMENT
1. This is an appeal from the Court of the Second Additional Subordinate Judge of Cawnpore. It was connected with first appeals from Orders. Nos. 62 of 1930 and 41 of 1930. We have heard these latter appeals and have dismissed them with costs. Those first appeals from order were in matters arising out of arbitration proceedings in connexion with alleged breaches of contract. This appeal arises out of a libel action. The plaintiffs alleged that they had been libelled. The defendants, who were importers of piece-goods sold by auction the goods which were the subject-matter of the contract between the plaintiffs and the defendants because the plaintiffs failed to take delivery. The plaintiffs complain of the terms of the notice published by the auctioneers, which read as follows:
Under instructions from Messrs. Jainy Brothers, the undersigned will sell by public auction the following goods near the shop of Messrs. Umrao Lal on account and risk of Messrs. Shankar Lal Lachhmi Narain, General-ganj, Cawnpore, who in spite of repeated demands and notice have failed to pay for and take delivery of the goods they had purchased.
2. The plaintiffs alleged that that notice is libellous upon them and that they suffered damage as merchants because of it. The defendants-respondents pleaded first that the words were not capable of a libellous meaning, and although the 2nd plea in the written statement is not clear nor drawn up with art, we are satisfied that it amounts to plea of justification. The lower Court dismissed the suit with costs, and the plaintiffs appeal.
3. It was agreed by counsel on both sides on 25th February 1930 that the issue as to whether the plaintiffs were liable . or not on the contract, must be taken for the purposes of this appeal as finally decided by the arbitrators if the award stands good. By our judgments in the first appeals from order we have upheld the award and therefore for the purposes of this judgment we must take it that the plaintiffs have broken their contract with the defendants.
4. The first point we have to consider is whether the words complained of are in fact defamatory. In other words, whether they are capable of a defamatory meaning. In the words of Lord Selborne in Capital and Counties Bank v. Henty & Sons [1882] 7 A.C. 741, the test is:
whether, under the circumstances in which the writing was published, reasonable men to whom the publication was made would be likely to understand it in a libellous sense, or in the words of Lord O'Brien in Keogh v. Incorporated Dental Hospital of Ireland [1910] 2 Ir.R. 166, we must:
consider what might be conveyed by the notice to a reasonable, fair minded man and not what might be inferred from it by a man of a morbid or suspicious mind.
5. We must also take notice of the words of Brett, L.J., in the Capital and Counties Bank case that it is unreasonable that where there are a number of good interpretations, the only bad one should be seized upon to give a defamatory sense to the document.
6. It is strenuously pressed by the appellants that the words " have failed to pay for and take delivery of the goods they have purchased " impute insolvency, or that the plaintiffs were bad payers. It is true that the words are capable of bearing that meaning, but we must take all the circumstances into account. This was a commercial transaction between importers from England and buyers, in this country. In such commercial transactions there are many reasons which would justify the buyers in this country failing to pay for and take delivery of goods which they had ordered, all of them consistent with a perfectly sound commercial morality on the part of the buyers and by no means necessarily pointing to inability or unwillingness to pay. In this particular case a dispute arose over the question as to whether or not the shipping documents ought to be delivered to the buyers before they paid for the goods. The notice itself was in common form. A large number of such notices are continually being published when buyers fail to take delivery of goods they have purchased, and under the contract form of the Delhi Piece goods Association, the sellers then proceed to sell the goods against the buyers by public auction. Although the matter is not without difficulty, we are on the whole satisfied that the words did not, under the circumstances, bear a libellous meaning, and we rely in particular on the words of Brett, L.J., quoted above.
7. In view of our opinion upon the second point raised by the defence, that of justification, it would not of course matter if the words complained of did in fact bear a libellous meaning. There can be no doubt that the words used in the notice, and which the plaintiffs complain of, are true in substance and in fact. We have decided against the plaintiffs-appellants in the former appeals, and in view of that decision it cannot now be argued that the plaintiffs had not broken their contract and had not, in spite of repeated demands and notice, failed to pay for and take delivery of the goods they had purchased.
8. The only point which we had to consider was whether or not the plea of justification had been taken in the written statement of the defendants. Para. 21, the defendants allege, raises the plea of justification. It is to be noted that in this province legal practitioners have very little practice in pleading in cases arising out of tort, and if we were to judge such pleadings in the same strict manner as in England, injustice might well be done to the litigating public. In this case it is nowhere said in clear terms that the words complained of were true in substance and in fact. But in para 21, Clauses (a), (b), (c), (d), (e), (f), (g) and (h), we are satisfied that in effect the plea is raised with the necessary particulars.
9. A cross-objection has been taken with regard to costs awarded in the lower Court. This is a matter in the discretion of the Judge and there is no question of principle involved. We do not feel that we ought to interfere. The appeal is dismissed with costs.