JUDGMENT Mohammad Ismail, J.
1. This is a plaintiff's appeal from a decree of the learned civil Judge of Fatehpur which affirmed a decree of the learned Munsif of that district. The plaintiff brought a suit for recovery of Rs. 1100 as damages for defamation. It appears that the defendant, who is a Tahsildar, attached certain property of the tenants of the plaintiff's master. The plaintiff who is an agent of a leading zamindar of Patehpur presented an application to the Collector of the district praying that the defendant be ordered to have the rent due to the zamindar paid out of the attached property and that the Government revenue be adjusted by taking into account the rents payable by the tenants whose property was attached. It is alleged that the defendant was very much enraged by the conduct of the plaintiff; that on 10th May 1935 when the plaintiff was present outside the Khajua tahsil Court room the defendant called him and said:
That you have presented an application to the Collector to have your Government revenue adjusted. By this you have not been able to remove one hair of my jax.
2. The plaintiff referring to the above remarks stated in paras. 6 and 7 of the plaint as follows:
(6) That the words quoted above were highly insulting and had the effect of degrading the plaintiff in the eyes of others and were used maliciously with the object of causing humiliation and pain to the plaintiff.
(7) That the words quoted above and the occasion on which they were used make them highly defamatory and the plaintiff has suffered greatly in reputation and esteem and mental pain and injury have been caused to him. The plaintiff has also suffered heavy damages.
3. The suit was resisted by the defendant on a variety of grounds. It was pleaded inter alia that the words attributed to the defendant were never uttered by him; that the plaintiff did not suffer any damages; that the suit was barred by the Judicial Officers' Protection Act; that the words alleged to have been uttered were not defamatory; that the words said to have been used were never uttered maliciously and that the plaintiff was not entitled to any damages. Several issues were struck by the learned Munsif. He however on the application of the defendant decided to dispose of Issue 4 before recording evidence for the parties. Issue 4 was decided against the plaintiff and the decision of the trial Court was affirmed by the learned District Judge on appeal. The learned Judge was of the opinion that the words complained of, if used, were no doubt highly insulting and must have caused much mental pain to the plaintiff, but they were not legally actionable. In arriving at this conclusion the learned District Judge followed Girish Chunder Mitter v. Jatadhari Sado Khan (1899) 26 Cal. 653 which held that Damages are not recoverable for mental distress alone caused to the plaintiff by slanderous words conveying insult.
4. The plaintiff has now come to this Court in appeal. It is contended that the view of law taken by the Courts below is erroneous and that the trial Court erred in not recording evidence before deciding the suit. The procedure followed by the trial Court does not commend itself to me. In a case of this description in the interests of the parties it was absolutely necessary to have decided fill the issues after recording evidence. Even the point of law decided by the Court below could not be properly decided without some evidence having been produced by the plaintiff in support of his allegations. For the decision of this point of law argued before me I have to assume that the offending expressions attributed to the defendant were in fact uttered by the defendant in the manner alleged by the plaintiff in the plaint. The case in Girish Chunder Mitter v. Jatadhari Sado Khan (1899) 26 Cal. 653 no doubt lays down that mere use of abusive and insulting language was not sufficient to justify a claim for damages. But the facts of that case were somewhat different, ft was pointed out in that case that the tendency and probable effect of words must be determined in reference to the circumstances in which they were used and words not per se actionable may become actionable under other circumstances. The finding upon which that ruling was passed was that no one who heard the words thought the worst of the person to whom or in respect of whom they were addressed, and though the words were insulting the reputation of the person addressed was in no way affected. The rule of law laid down in that ruling and followed in Bhooni Money Dosse v. Natobar Biswas (1901) 28 Cal. 452 has not found favour with this Court. I now proceed to examine some of the authorities of this Court on the subject. In Dawan Singh v. Mahip Singh (1888) 10 All. 425 Mahmud J. has exhaustively dealt with the law of defamation and has drawn attention to the distinctions between the English law on the subject and the Indian law. The learned Judge observed:
That the English law of slander as forming part of the law of defamation, and, as such, drawing some arbitrary distinctions between the words actionable per se and words requiring proof of special or actual damage, is not applicable to this country, either by reason of any statutory provision or by any uniform course of decision sufficient to establish such distinctions as forming part of the common law of British India.
That whilst the English law of defamation recognizes no distinction between defamation as such and personal insult in civil liability, the law of British India recognizes personal insult conveyed by abusive language as actionable per se without proof of special or actual damage.
That such abusive and insulting language, unless excused or protected by any other rule of law, is in itself a substantive cause of action and a civil injury, apart from defamation and that malice is an element of liability for abusive and insulting language, and that such malice will be presumed or inferred, unless the contrary is shown.
5. In that case a witness referring to the plaintiff stated. "Iske ma bap men faraq hai; aur is wajah se khana pina nahin hai." The trial Court had dismissed the suit but the District Judge on appeal held that the words were actionable and remanded the case for the decision of the remaining issues. The matter came to this Court in appeal and one of the learned Judges Broadhurst J. held that assuming that the expression attributed to the defendant was used it was privileged because the defendant was a witness and as the statement complained of was made by the witness while deposing in the witness-box it was absolutely privileged. Mahmud J. however took a different view and upheld the order of remand passed by the learned District Judge. In the result the appeal was dismissed and the order of the District Judge was upheld. Mahmud J. followed the view of Turner C.J. expressed in Parvathi v. Mannar (1885) 8 Mad. 175. In that case it was held that the rule of English law which prohibits, except in certain cases, an action for oral defamation unless special damage is alleged, being founded on no reasonable basis, should not be adopted by the Courts of British India. In Harakh Chand v. Ganga Prasad Rai (1925) 12 A.I.R. All. 371 Lindsay and Kanhaiya Lal JJ. observed:
The true test of the defamatory nature of any given language is its tendency to excite against the plaintiff feeling of hatred, contempt, ridicule, fear, dislike or disesteem, regard being had to the time at, and the circumstances in which, such language was used so as to cause the plaintiff to have a reasonable apprehension that his reputation had been injured and to inflict upon him pain in consequence of such belief.
6. In that case abusive and vulgar language was used publicly and deliberately with reference to the plaintiff who was a wealthy man of high social standing and who was seeking re-election to the Chairmanship of a Municipality, in order to deter voters from voting in the plaintiff's favour, and such abusive and vulgar language subjected the plaintiff to public humiliation and disgrace in the presence of the persons who had come to vote for him. Under these circumstances, the learned Judges held that the language complained of was defamatory and actionable and that the plaintiff was entitled to damages. In the above case the case in Dawan Singh v. Mahip Singh (188) 10 All. 425 was considered and followed.
7. No other authority of this Court has been cited before me in which a different opinion has been expressed. Under the circumstances I am bound to hold that it was not necessary for the plaintiff to prove any pecuniary loss in order to succeed in his claim provided he succeeded in proving that the words used by the defendant excited against the plaintiff feelings of contempt and ridicule, etc.
8. Learned Counsel for the respondent has strenuously argued that the expression said to have been used by the defendant was merely vulgar and thereby the plaintiff was in no way humiliated in the eyes of these who were said to have been present. It is contended that unless there is a clear imputation on the character of the plaintiff no suit for damages is maintainable. In my opinion there can be no doubt whatsoever that the words complained of were insulting and were likely to expose the plaintiff to ridicule and humiliation. It is true that no imputation on the character of the plaintiff was suggested by the defendant but the words complained of undoubtedly humiliated him in the eyes of the persons present. In Rahim Baksh v. Bachcha Lal (1929) 16 A.I.R. All. 214 it was held:
A malicious intent or intent to damage the reputation of a particular person is not one of the ingredients of actionable slander. The true test of a certain statement made with regard to tradesman being defamatory is whether the words uttered were of such a nature and character as in natural course calculated to harm the plaintiff's reputation without proving special damage.
9. The question is how the words affected the plaintiff. In my opinion it is natural that the plaintiff would resent being addressed in the manner the defendant is alleged to have addressed him publicly and in presence of a large crowd. In view of the authorities cited above I am not prepared to accept the observation of the learned District Judge that in no circum-stances slanderous words conveying insult are actionable. Whether in the circumstances of this case they were actionable will depend on the evidence that may be produced in support of the allegations of the plaintiff. It is not possible to decide this matter finally unless the parties have adduced evidence. I therefore allow this appeal, set aside the decree of the Court below and remand the case to the trial Court through the lower Appellate Court for being registered under its original number to be tried according to law. The trial Court is requested to decide all the issues that have been raised in this case. Costs here and hitherto will abide the result. Leave to appeal under the Letters Patent is refused.