1989 PLP 1989 (CLC)

(f) Civil Procedure Code (V of 1908)‑‑ ‑‑‑O.VII, R.11‑‑Where on a meaningful and not formal reading of the plaint it is found to be meritless, as not disclosing a cause or a clear cut relief, duly based, power under O.VII, R.I1, C.P.C. would be attracted. While a suit is to be dealt with at all its stages, on. the cause of action as it exists at the date of its commencement yet a Court, both at primary and appellate stages, may take notice of intervening events and afford relief on the basis of altered conditions. Thus if on meaningful‑‑not formal‑‑reading of the plaint it is found to be meritless, as not disclosing a cause of action or clear cut relief, duly based, the power under Order VII, rule 11, C.P.C., would be clearly attracted. (g) Civil Procedure Code (V of 1908) ‑ ‑‑‑O.VII, Rr.ll, 7 & 8‑‑No cause of action for the suit enuring, on the altered version of the plaint and, in addition, plaint contravening O.VII, Rr.7 & 8, C.P.C: ‑Plaint, held, was liable to be rejected. [p. 1993] G Raja Oureshi for Plaintiff. A. Wahab for Defendants.( Date of hearing: 19th April, 1989. This order is to be read, if and when relevant, with the case diary dated 19‑4‑1989.

2. The present Suit has arisen in the background of a controversy between the Plaintiff, on the one hand, and the Defendant No.3, Master Enterprises (Private) Ltd., on the other. The case of the Plaintiff, as pleaded, is that it has been with a view to promote its business of manufacture of various kinds of foam products, advertising by way of commercial displayed on Pakistan Television. This, in particular, has reference to its product marketed under the brand name of "Diamond Supreme No.l Quality Foam". The burden of these advertisements i$ as under:

3. Of late, the Defendant No.3, has also resorted to availing of the PTV Commercials in the context of its own product namely "Dura Foam". The theme of such Commercials is depicted thus.:‑

4. The Defendant No.2, has been sued as Agent of Defendant No.3, through whom the abovesaid commercials, 'allegedly, found way to Defendant No.l, Pakistan Television Corporation Ltd.

5. The pleas in the suit proceed on the basis of allegations that the Defendant No.3 has got the referred false advertisements projected through the Defendants Nos.l & 2, as a result of which the viewers have been misled, plaintiff has been put to loss and the PTV Code of Advertising Standards Practice stands violated. As regards the contravention of the PTV Code, section 19, thereof is relied upon. This part of the PTV Code envisages that advertisements containing comparisons with other advertisements are permissible in the interest of competition and public information provided that the same satisfy the requirements of the said section 19, and the following section of the Code. Conditions in section 19 are that all comparative advertisements should be so designed that there is no likelihood of the consumers being misled, that the subject‑matter of comparison should not be chosen so as to confer an artificial advantage upon the advertiser, that points of comparison should be based on facts which can be substantiated and are not unfairly selected and, lastly, that the basis of the comparison should be the same for all products being compared so as to show that like is being compared with like. Section 20 of such Code, which is also relevant, stipulates that advertisements should not unfairly attack or discredit other products, advertisers or advertisements, directly or by implication.

6. Through order dated 6‑4‑1989, passed by my learned brother S. Abdul Rehman, J., the defendant No.3, was dropped from the proceedings, on a statement of Mr. KA. Wahab and acceptance thereof by Mr. Raja Qureshi that the Defendant No.3, had not given the disputed advertisement and had no concern whatsoever with the same. Subsequently, the Defendant No.3, has filed an application (C.MA. 2663/1989) for deletion of the relevant portions in the Plaint wherein averments have been made against that Defendant in the context of the cause of action which, at one time, was stated to have arisen in the Suit against it. On the other hand, an application has been moved by Defendant No.2 (C.M.A. 2664/1989) wherein it is maintained that the Plaint did not disclose any cause of action against the Defendant No.2, which, therefore, is liable to be rejected. Such defendant, as reflected above, has been sued as the agent of the Defendant No.3.

7. The current position in the case, however, seems to be still worse. The I relief in the case is directed in relation to the quoted "commercial" alleged to have been initiated on Pakistan Television, by the Defendant No.3, the Defendant Nos.l and 2, the Pakistan Television Corporation and abovesaid agent, operating,; allegedly, at the behest of that Defendant. This is so as the relief has to be seen m the context of the pleas in he Plaint Rule 7 of Order VII C.P.C. postulates that a plaint shall specifically state the relief, which the plaintiff claims either simply or m the alternative whereas rule 8 of the same order envisages that where relief is ! sought on several distinct claims or causes of action, founded upon separate and, distinct grounds, the same shall be stated separately and distinctly. In view of all the defendants having been joined together the requirements of rules 7 & 8, following upon deletion of Defendant No.3, cannot, at this stage, be said to be j satisfied. In addition, the Defendant No.3, having been deleted, no cause of action, even if there was one at the time of filing of this Suit, subsists. For the purposes of rule 11 of order VII C.P.C. it is not necessary that the plaint, coming up for consideration, be identical to the one that was filed. Provisions in such rule apply in the context of the plaint, as it stands, at any given time. This is clearly so in context of cause of action and the bar under "any law". If, at any given time, cause of action ceases to subsist or bar under any law comes into operation and that position is discernible from the plaint, recourse to Order VII, rule 11 C.P.C can be taken. In the instant case, upon the deletion of the main party to the suit namely, the Defendant No.3 hardly any cause of action survives and as to relief what remains of it is an incoherent one and the bar under rules 7 and 8 of Order VII has come into play. This will become more manifest as I am inclined to allow the application of Defendant No.3, namely, C.M.A.2663/1989, and permit the deletion of all that is mentioned in the Plaint pertaining to that Defendant, since no adverse allegation against a party can be allowed to remain in the plaint after its deletion from the suit. Such application being, accordingly, allowed nothing further remains in the case and the application of the Defendant No.2 for rejection of the plaint, gains additional strength as no cause of action, which did not subsist after 6‑4‑1989, can even be alleged to subsist now, since the Defendant No.2, has been sued as agent of Defendant No.3. Even otherwise, an agent, under section 230 of the Contract Act, 1872, cannot be made personally liable, except in specified circumstances, which do not arise here. Reference in this behalf may, inter alia, be made to the cases of M/s. Azam Agencies Ltd. and another v. The Trans‑Oceanic Steamship Co. Ltd. and another PLD 1971 Kar. 56 and Burjorjee Cowasjee & Co. v. Habib Insurance Co. Ltd. PLD 1975 Kar.

194. The plaint is, therefore, liable to be rejected in the context of defendant No.2 also and C.M.A. No.2664/1989, for that relief, is allowed.

8. The position of defendant No.l PTV, may not be different for, with a view to establish liability of that defendant it is to be averred and proved that such Defendant has acted in violation of its own Code particularly, Sections 19 and 20 j thereof. The facts pertinent thereto cannot be agitated or established in isolation j unless the person at whose instance the offending advertisement has been carried, ` is identified and is a party to the proceedings because under the referred Section 19, questions regarding misleading the viewers or conferring an artificial ; advantage upon the advertiser or substantiation of points of comparison etc., are matters which cannot be agitated against the Defendant No.1, unless the latter has recourse to the relevant information of the party at whose instance the advertisement was displayed. Greater weight comes to attach to the situation as the advertisement carried by the Plaintiff itself, may have to be explained as regards the nexus between weight and the quality of foam just as it would be for the principal defendant to show whether Chalk is capable of being used in the manufacture of foam with a view to artificially enhance its weight, to cause deception as to quality. Obviously, all these are matters which cannot be urged or decided unless the principal, at whose instance the offending advertisement has c been carried, is party to the suit.

9. In view of this situation, the defendant No.l, Pakistan Television Corporation, acting in this context, on a commercial basis, at the instance of an unidentified person, cannot also, in the present state of the plaint, be held to be liable any further and, this being so, the Suit cannot stand against that defendant ,either. The provisions in rules 7 and 8 of Order VII C.P.C., as to relief against the Defendant No.], also, accordingly, assume pointed significance. In the present state of the plaint no such inchoate relief can be pursued. That such subsequent events are to be taken note of is well established. The principle is that while a suit is to be dealt with at all its stages, on the cause of action as it exists at the date of~ its commencement yet a Court, both at primary and appellate stages, may take F notice of intervening events and afford relief on the basis of altered conditions. Thus if on a meaningful‑‑nor formal‑‑reading of the plaint it is found to be meritless, as not disclosing a cause of action or a clear cut relief, duly based, the power under Order V11, rule 11 C.P.C., would be clearly attracted. Reference in this connection may be made to the cases of Narayan and others v. Mst. Tulshi and others AIR 1925 Nagpur 104, Hanmant Ramchandara Kulkarni v. Secy. Of State AIR 1930 Bom. 254, Priyambada Decbee v. Bholanath Basu AIR 1933 Cal. 534 and T. Arivandandam v. V. Satyapal and another AIR 1977 SC 2421.

10. Even regarding cause of action, as such, against defendant No.l, PTV,' nothing independently or in isolation with Defendants Nos. 2 and 3, is said nor is there any allegation as to untruthfulness against that defendant. None of the G cause of action, therefore, remains in this Suit, even if there was any substance on the date it was instituted, after the deletion of Defendant No.3, and after the elimination of the allegations against that defendant, in pursuance of the application, C.M.A.2663/1989. As such, no cause of action for the Suit enuring, on the altered version of the plaint, and, in addition, the plaint, contravening Order VII, rules 7 and 8, is liable to be rejected, which, I accordingly, reject. The remaining C.M.A. namely C.M.A. 1690/1989, for injunction, as a result, having become infructuous, is also dismissed. C.M.As. 1690, 2663 and 2664, all of 1989, stand, accordingly disposed of.

11. In conclusion, it may be added that I may still have been prepared to consider an amendment in the plaint if one was moved. Even substitution of the necessary defendants could have been considered. Not only that none was moved or sought but not even a request in that context was preferred. Even so, it is to be observed that the rejection of the plaint in this suit shall not bar a fresh suit against appropriate persons provided that due cause of action is spelled out and due relief is sought and it is for this reason that I have refrained from dilating on merits. M.B.A./D‑55.K Order accordingly.