P L D 1959 (W (PLP)

CONSTANTINE, J.‑This is an appeal against the decision of our learned brother Inamullah, J. upholding an application under Order VI1, rule 11, C. P. C. and rejecting the plaint of the appellant on the ground that it disclosed no cause of action. The plaint alleged that the plaintiff's sister filed two suits 296/51 and 327/52 against respondents 1 to 5 in the Chief Court of Sind. As a preliminary to those suits a notice was sent by the plaintiff's sister's advocate, Mr. Fonseca, and in reply to that notice respondent No. 6 Mr. Lakhani the advocate for respon dents 1 to 5 stated that he had been instructed to refuse to comply with the demands made by the plaintiff's sister and further that he had been instructed by his clients to describe the plaintiff, as being "no better than a tout" and to say that it is "at the instigation of her brother and in whose interest it is to foment litigation to make an unscrupulous livelihood that she raises false and unnecessary objections which are groundless to her knowledge". The plaint further said that on the hearing of an application in Suit No. 327/52 on 5‑5‑52 Mr. Lakhani professing to act under instructions described the plaintiff as a "tout" more than once. Lastly it stated that in the written statement in Suit No. 327/52 respondents 1 to 5 averred that the plaintiff is "interested in fomenting litigation and evolves false cases against the defendants to harass the defendants and put them to unnecessary expenses". He therefore claimed damages from all the respondents on the basis of defamation. The application under Order VII, rule 11 having been made certain preliminary objections were dismissed by our learned brother Inamullah, J. and these objections have been given up by Mr. Castellino in appeal. The sole point before us is whether absolute privilege covers the defamatory statements made by defendant No. 6 and defendants 1 to

5. The leading case in Munster v. Lamb ((1883) 11 Q B D 588) in which it was held that the absolute privilege which extends to Judges and witnesses upon grounds of public policy and free administration of law extends to counsel. In Baboo Gunnesh v. Mugneeram (11 Beng. L R 321) decided in 1872 their Lordships of the Privy Council held that absolute privilege attaches to the evidence of witnesses. They said "The ground of it is this, that it concerns the public and the Administration of justice that witnesses giving their evidence on oath in a Court of Justice should not have before their eyes the fear of being harassed by suits for damages ; but that the only penalty which they should incur if they give evidence falsely should be an indictment for perjury". That statement of law is still binding upon us vide remarks at page 165 in State of Pakistan v. Mehrajuddin (P L D 1959 S C (Pak) 147) in the absence, A after abolition of the jurisdiction of the Privy Council, of any ruling to the contrary by the Federal Court or by the Supreme Court. The normal rule is that in actions of tort the common law of England will be applied as a matter of justice, equity and good conscience unless there is some feature or circumstance in Pakistan which makes the application of the common law undesirable. In the cases upon the subject of absolute privilege a point has sometimes been taken that the English Common law regarding civil actions for defamation must be read subject to limitations contained in section 499 of the Penal Code. The argument is that since that section does not recognise any absolute privilege it would be anamolous to hold a per on liable to punishment under the criminal law, but not to damages under the civil law. But this loses sight of the fact that when the Privy Council announced its judgment in 1872 the Penal Code had already been enacted for about 12 years. It is true that according to the report in Baboo Gunesh's case no argument was raised regarding S. 499, but it does not appear to us that we are at liberty to disregard the ruling of the Privy Council on the ground that it proceeded per incuriam. After all it is quite possible that a man should have a remedy only under the criminal law, and not under the civil law. Equally remote from the tort of defamation is the discip linary jurisdiction of the High Courts which they exercise over advocates. Mr. Castellino relied upon the Full Bench decision in P L D 1953 Lah. 188 which was a disciplinary case, but in that judgment itself it was stated. "The citing of rulings relating to cases of defamation would obviously be an inapt procedure in a case of the present kind", and it appears to us that all that was decided in that case is that absolute privilege is no defence in disciplinary cases. Mr. Sharifuddin stated that there is now no lack of unanimity in the High Courts on the point that the same absolute privilege as that in England applies to this country. In A I R 1946 All. 213 Braund, J. delivered an exhaustive judgment. He first reviewed the English law upon the question ; and then proceeded to consider whether the same law of absolute privilege extended to India. He referred to 14 Born. 97 in which the Chief Justice of Bombay following the Privy Council case of 11 B L R 321 held that there was nothing in the circumstances of the country which makes it less desirable that such statements should in no case be made a subject of civil action, quite independently of the question as to their being criminally punishable. He then referred to a Full Bench case of 40 ‑All. 341 where again it was held that whatever might be the law applicable to criminal proceedings the law relating to absolute privilege in relation to defamation in civil proceedings might be quite different and absolute privilege was upheld. He also referred to I L R 1939, 1 Cal. 574 where Mukerji, J., stated that the Privy Council decision was binding and that despite the anomaly absolute privilege applied in the Civil Courts though not in Criminal Courts, The rule as to absolute privilege was also followed in Pachaiperumal Chettiar v. Dasi Thangam (31 I L R Mad. 400). We conclude therefore that it is not the law in Pakistan that in the tort of defamation absolute privilege is not a defence. The fact that the occasion falls within the scope of the rule is a complete defence per se. The further question is whether the rule of absolute privilege extends to the circumstances of this case. Mr. Castellino argued that it did not apply if a stranger to the proceeding were defamed. The case which Braund, J. had to consider was very similar to the present case. There the defendant was a pleader who alleged in a written statement that the plaintiff was an "awara" who had instigated the suit against his clients. Moreover in the judgment upholding absolute privilege no such distinction has been drawn. As regards therefore the written statement and proceedings in Court it is clear that absolute privilege arises. The only further question is whether it covers the reply to the notice. There we think Lord Halsbury's judgment (in which the House of Lords concurred) in 1905 A C 480 shows that the privilege is not confined to matters which have arisen after the filing of a suit ; it was held that the obtaining of the proof of an intended witnesse's statement by a solicitor is necessary preliminary for the purpose of litigation. Similarly here a reply to a notice is a necessary preliminary to litigation. We therefore dismiss this appeal with costs. K. B. A./A. H. Appeal dismissed.