2005 PLP 840 (CLD)

(2) Whether by the acts of omission and commission of the defendants, the plaintiff has been gravely injured in his character and reputation and is entitled to damages by reasons of the publication of the said documentary film? (3) To what amount, if any, is the plaintiff entitled and against which defendant? (4) Whether the impugned broadcast was privileged? (5) What should the decree be? Plaintiffs filed affidavit in evidence and produced various documents in support of quality of his Haleem, and also videotape of the impugned documentary along with its true transcript. Defendant No. 1 though in process of liquidation at that time and despite service on official liquidator did not appear. The defendant No.1 was ultimately dissolved, therefore, the suit for the reasons given in, latter part of the judgment abated as against the defendant No.

1. Heard Mr. Mansoorul Arifin, learned counsel for the plaintiff. Defendant No. 1 since dissolved, suit abated. Defendant No‑2 was debarred from filing written Statement, chose to remain absent. Whether the story in the documentary film shown two times as mentioned in the plaint by the defendant No.1 is correct in respect of the plaintiff, if not, to what effect? On Issue No. 1 plaintiff, who is proprietor of Karachi Haleem, filed his affidavit‑in‑evidence reiterating the contents of the plaint. Plaintiff produced the videotape containing the impugned documentary, along with the transcript of telecast material containing accusation and adverse insinuation directed against the shops selling "Haleem" generally and specifically against the plaintiff.' In the documentary, after showing images of the plaintiffs shop, it was commented that "We were surprised to the limits, when we collected the sample of Haleem, from one of the busiest shop selling it. When we washed it, with water, some pulses and spices were washed out leaving a ball of cotton, later on investigation, it revealed that, Haleem sellers use cotton to thicken the Haleem". Such comments were followed by the Interviews of the customers who specifically named "Karachi Haleem". Such documentary carried images of plaintiff's shop in the background. It was commented that "the people are innocent and they do not know that what they are eating". While drawing to end, it was commented that, "the people are very innocent, for savor and taste they eat what not, they may only learn later. Playing with the health of innocent people, for the sake of few bucks, playing with the health of thousand, is not a tradition of a civilized society, who are these people? Spreading poison in whole society and making people run around clinics". At the close of documentary, it was commented "Whether the cotton used in preparation of Haleem, is not seen by the officials of Ministry of Health? Why action is not taken against them? Think about it also". Plaintiff also produced Materials/Products Evaluation Report dated 13‑6‑1997 issued by Pakistan Council of Scientific & Industrial Research, (Karachi Laboratories Complex) as Exhibit P/3, to demonstrate that the Haleem, cooked by the plaintiff; is fit for human consumption. Plaintiff has also produced the "Letter of Appreciation" issued by District Officer, Regulation & Quality Control, CDGK. Plaintiff also produced the clipping of various newspapers condemning the NTM campaign against Haleem vendors. Plaintiffs evidence has gone unrebutted. Mr. Mansoor‑ul‑Arifin learned counsel for the plaintiff contends that the material telecast was highly- defamatory, which has not only tarnished the image but has also damaged‑ the goodwill and reputation of the plaintiff's concern and their Haleem, in addition caused mental torture to the plaintiff. I have heard the learned counsel and perused the record. Defamation is insinuating representation or image disseminated or conveyed to a third person, through any tangible medium of perception, may it be print, oral, audio or visual media or devices or any combination thereof causing harm, and impairment to the reputation, goodwill or estimation of a person, vocation goods. From the evidence that has come on record it appears that the defunct defendant No.1, produced and telecast a defamatory documentary, authored by the defendant No.2, seemingly against the Haleem vendors generally but, it was an innuendo against the plaintiff'. Innuendo, in the context of action for tort of defamation, means oblique, subtle or indirect implication in words or expression usually reckless, insolent and derogatory ensuing harm, injury and damage to the reputation, goodwill and estimation of a person, goods or vocation (see also Tolley v. J.S Fry & Sons Ltd., 1931 A.C. 333 and Charlston v. News Group Newspapers Ltd. (1995 (2) A. 65). Generally speaking a class or particular section group of people cannot claim to be defamed as a class, section, group or community nor an individual can claim be defamed by general reference to the class, section, group or community to which he belonged. Exception this generality could be claimed, where it is demonstration that, the maligning or offensive defamation was directed, or innuendo angled or obliquely aimed towards a particular individual, person and or concern or few identifiable individual, persons, goods or vocation. Once the case is brought within the exception, action for libel or innuendo could be maintained by affected persons to vindicate the honour, compensate the loss and restore the image reference can be made to Knupffer v. London Express Newspaper Ltd., 1944 AC 116, Aspro Travel Ltd., v. Owners Abroad Group (1995) 4 All E R 728 CA, Hassan Razzaqi v. Mst. Mehrun Nisa Meher 1972 PCr.LJ 1175, Mst. Hussain Bibi v. Saleem Muhammad PLD 1996 Lah. 50). From the tenor of the evidence that has come on record, it appears that documentary titled as "Zara Sochiyay" in the garb of general insinuations against the vendors of Haleem, the plaintiffs concern "Karachi Haleem" was focused in particular. In the background, images of plaintiffs concern were shown and in the foreground people were shown commenting on Plaintiffs Haleem, an average person with ordinary prudence would be led to believe, as if the documentary is specifically aimed and insinuate the plaintiffs concern and his Haleem. "Documentary" leaves a detestable, aversive and damaging impression, as regards the product (Haleem) of the plaintiffs concern. Initial burden, to prove that defamatory material or innuendo was pointed towards the plaintiff or his good (i.e. Haleem) was on the plaintiff to show that the documentary was obliquely aimed at the plaintiffs concern or his Haleem. Plaintiff has successfully demonstrated that in the documentary, shop of the plaintiff was shown, customers interviewed commented about the plaintiffs Haleem, therefore, ordinary viewer reasonably would be led to believe that the documentary is about the plaintiffs Haleem. Plaintiff successfully demonstrated that, the damaging, maligning and offensive defamation telecast and aired twice, was directed, referable or aimed towards the plaintiffs concern, the insinuating innuendo was covertly angled towards the plaintiffs Haleem. Therefore, the burden to establish that the "Documentary" carried the true story or for that matter it was not aimed or focused toward the plaintiff was on the defendants, which burden was not discharged. Defendant No.2 failed to prove that the story in the documentary film shown two times as mentioned in the plaint, by the defendant No. 1, is correct in respect of the plaintiff. Defendants are accordingly liable for consequence of defamation. Issue No.1 answered accordingly. Issue No.2. Whether by the acts of omission and commission of the defendants, the plaintiff has been gravely injured in his character and reputation and is entitled to damages by reasons of the publication of the said documentary film? Prior to promulgation of "Defamation Ordinance (LVI of 2002)" civil action for defamation was actionable under tort, now it has been made actionable under statute law. (see sections 3, 4 and 9 of Defamation Ordinance, 2002). Once it is established that the libel has been committed, injury or damage to the reputation, goodwill is presumed this long‑standing principle has now been assimilated in section 4 of the Ordinance LVI, 2002. In this case, defendant No.1 (since defunct) admitted that the impugned documentary containing insinuation conveyed innuendo at the plaintiffs concern and Haleem, was telecast but, pleaded justification. Plea of justification, fair comment or any other admissible defence in like action, may not wipe out the effect of defamation altogether but may be considered as an exonerating and or mitigating circumstance. Though the defendant No. 1, since defunct, had pleaded justification, no evidence was led either by defendant No.2, which is stated to be the author of the script, or by the defendant No.1 as the suit abated against it. Once, defamation is proved, damage injury and impairment to the reputation, goodwill or estimation of a person, vocation or goods as the case may be, is invariably presumed. Whilst deciding Issue No. 1, it was held that the documentary telecast, was not true, therefore, there is no difficulty to arrive at a conclusion that the insinuating documentary that was telecast twice, harmed and impaired the estimation, reputation and goodwill of the plaintiff and his Haleem. Converse to the criminal liability, civil liability for libel, slander or innuendo does not depend on the intention of the offender but on the fact of defamation. (Compare section 499, P.P.C. and section 3 of the Defamation Ordinance, 2002, refer also Cassidy v. Daily Mirror Newspapers Ltd. (1929) 2 KB 331). While deciding Issue No.1, it was observed that the defendants failed to prove the documentary innuendo conveyed or telecast was not angled to insinuate, malign or defame the plaintiffs concern or his product i.e. Haleem. Therefore, as a consequence the plaintiff is entitled to claim damages both special as well as general. The issue is answered in affirmative. Issue No.3. To what amount, if any, is the plaintiff entitled and against which defendant? Mr. Mansoor ul Arifeen, learned counsel for the plaintiff fairly conceded that, no evidence was led to substantiate special damages and the claim remains only for the general damages. In support he has placed reliance on PLD 1960 Karachi 568, PLD 1975 Karachi 379 and PLD 1981 Karachi

515. As noted above, during the pendency of the instant proceedings defendant No.1 was wound up and ultimately dissolved, in J. Misc. No.3 of 2000 under the Companies Ordinance, 1984 by the Company Judge. Official Assignee/Liquidator had sold the assets and properties, and distributed the same amongst the creditors of the company. Nothing remained in the hands of the liquidator for further distribution. The Company was formally ordered to be dissolved by the Company Judge, vide order dated 24‑12-2002 in terms of section 350 of the Companies Ordinance, 1984. The date of order of dissolution of a company, is the dooms day for the company. The order of dissolution, by the Court in a dissolution proceeding, is a death warrant for a juristic person, with order of dissolution, company is declared dead, and it ceases to exist under law. However, it could be resurrected within two years of‑ the date of dissolution provided, conditions furnished in section 429 of the Companies Ordinance, 1984 are met. In the instant case, more than two years have passed, there seems to be no possibility of its being resurrected. Therefore, it cannot be argued that two years from the date of dissolution have not passed and company is in comma or that its corps could be exhumed to rekindle it. It has come on record that all the assets of the dissolved company have since been applied to set off the liabilities, nothing remains in the hands of the liquidator to be further distributed. A company which has been dissolved, no longer exist as a separate juristic person or legal entity, capable of holding any property or being sued in any Court; as against the company in liquidation, which retains its corporate existence, as during liquidation, its administration and management converges into liquidator. If the winding up is, revoked, company revives. (See Employer's Liability Assurance Corporation v. Sedgwick Collin & Co., (1927) AC 95 followed in re: Travancore National and Quilion Bank Ltd. AIR 1939 Mad. 318 at page 332). I see is no reason why the principle, "actio personalis moritur cum persona" (cause disappeared and extinguished with the death of wrong doer or the party wronged), applicable, in, case of a living person may not be extended in cases of, corporate or juristic person. Where the right of action is personal in nature or arising out of action in tort excepting tort against the estate. (See Muhammad Yousuf v. Ghayyur Hussain Shafi 1993 SCMR 1185), then, in the case of death (i.e. dissolution) of corporate or Juristic person such right of action abates, as it abates on the death of natural person. Admittedly defendant No.1, is no more in existence, suit for all intent' and purposes stood abated as against the defendant No.1. Therefore, cause of action to the plaintiff as against the defendant No.1, if any, disappeared and extinguished with the death of wrong doer, the defendant No.

1. No damages could be awarded against the company that is no more in existence as nothing remains to follow them. Since instant suit was filed against more than one tortfeaser. Defendant No. 1 published/ telecast the insinuation authored by the defendant No.2. Both the publisher i.e. telecaster and the author are jointly and I severally' liable for the act of defamation (see Adeeb Javedani v. Yahya Bakhtiar 1995 CLC 1246 at page 1253). Abatement of suit .as against one of the tortfeaser will not relieve the other or surviving tortfeaser from the liability of consequences thereof. Since in the instant case liability of the defunct defendants Nos. 1 and 2 is joint and several, therefore, defendant No.2 who is stated to be the author of the libelous material and innuendo being joint tortfeaser is equally responsible for the consequences. Defendant No.2 has not defended the claim, there is no defence plea on record; libel is established therefore, on account of the contents of telecast material, the liability squarely falls upon the author the defendant No.2, Admittedly, the plaintiff has not led any evidence to substantiate special damages, therefore, the claim of special damages is disallowed. As held above, once the defamation is proved general damages are presumed. Looking at the facts and circumstances of the case, I consider that award of general damages, to the plaintiff, to the extent of Rs.50,000 (rupees fifty thousand only) as against the .defendant No.2 would be fair, and adequate compensation for, the impugned innuendo, suit as against the defendant No. 1 stood abated. Issue No.4. Whether the impugned broadcast was privileged? The person accused of libel may defend the action on the plea of fair comment on a matter of public good or interest, absolute or qualified privilege or if it is shown to be with the permission or consent of the injured and aggrieved person. Now the "Defamation Ordinance, 2002" gives statutory backing to defence available to libeller, as enumerated in section 5 thereof. In the instant case, though the defendant No.1 sought refuge behind the plea of fair comment on the matter of public interest, but before any evidence could be led in support of defence plea the defendant No.1 Company was dissolved. Defendant No.2, who was author of the insinuating documentary chose not to appear. Burden to prove the issue was on the defendants, which was not discharged: Issue is therefore answered in negative. Issue No.5. What should the decree be? On the facts stated and reasons discussed suit of the plaintiff is decreed to the extent of general damages, in the sum of Rs.50,000 (rupees fifty thousand only) as against the defendant No.2 only. Suit as against the defendant No. 1 stood abated. Suit stand disposed of in above terms. M.B.A./M‑208/K Order accordingly.