Bhaskar Bhattacharya, J. - (1.) The defendant in a suit for defamation has come up with the instant application for rejection of plaint on the ground that even on the basis of averment made in the plaint, the same is liable to be rejected.
(2.) The plaintiff has filed the instant suit claiming Rs. 5 crore as damages for defamation and his case as made out in the plaint may be summarized thus: (1) The plaintiff is an ophthalmologist of repute and a leading practitioner in the said field. He has chamber at 2. Russel Street. Calcutta and residence at Flat No. 9H, 67 Park Street Calcutta. (2) The plaintiff is also a trustee of charitable organization named 'Sarala Pahwa Memo-rial Eye Centre which treats eye aliments at minimal and/or at no cost. (3) On January 20, 2000 at about 8.30 a.m., the defendant, an Income Tax Officer with a team of several persons came to the chamber of the plaintiff while he was examining his patients and started conducting raid, search and seizure and such raid continued till 6 a.m. on the next day. (4) After interrogating the plaintiff for about an hour the defendant left the sitting room of the plaintiff and went to the waiting room and loudly uttered the following statements falsely and maliciously in the presence of Saikat Biswas, Raju and Ayan Ghosh and also to the hearing of the plaintiff and other officers of the Income Tax Department sitting in the chamber of the plaintiff: (a) Dr. Pahwa is a hardened criminal: (b) Dr. Pahwa is a phoney and a quack: (c) Dr. Pahwa is a man who cheats his patients of money and should be debarred from practicing medicine." (5) The plaintiff came to know that the said allegations of the defendant had been given wide publicity and special damage resulted to the plaintiff within May 31, 2000 when many of his regular patients cancelled appointments and he was requested by the trustees of the said 'Sarla Pahwa Memorial Eye Centre' to either give up his trusteeship or refrain from operating or treating any patients. The plaintiff also suffered loss of reputation and prestige in the eye of his professional peers and increasingly between May 31, 2000 to January 31, 2001 his clientele had diminished as a result of such slanderous statements. (6) In Paragraph 14 of the plaint, the following averments were made to show that the suit is not barred by limitation: "14. The said special damage having occurred since May 31, 2000 and being in the nature of a continuing breach where slander is concerned the suit is not barred by any statute including the statute of limitation."
(3.) Mr. Shome, the learned counsel appearing on behalf of the defendant has first submitted that the defendant being a public officer and the accusation made herein having been allegedly done by the defendant in course of her official duty as such public officer, in the absence of any notice under Section 80 of the Code of Civil Procedure ('Code') the suit is not maintainable. Mr. Shome contends that in the plaint no averment has been made that any notice under Section 80 of the Code has been served upon the defendant. According to Mr. Shome, such averments are mandatory and in the absence of such averments the plaint is liable to be dismissed.;