P L D 2016 Peshawar 105 (PLP)

MUHAMMAD GHAZANFAR KHAN, J.--By way of this judgment we intend to dispose of two regular First Appeals, bearing No. 128 of 2010 titled "Mst. Dr. Yousaf Fida and others Vs Justice (R) M. Azam Khan and, RFA No. 138 of 2010 titled Justice (R) M. Azam Khan v. Dr. Yousaf Fida & others, as both the appeals are directed against the judgment and decree dated 02.03.2010 whereby the suit of appellant in appeal No. 138 of 2010 was decreed to the tune of Rs.1000000/-

2. Brief facts of the present lis between the parties are that the appellants wife prior to the instant suit challenged the validity of a private partition deed allegedly executed on 20.9.2003. The present appellants of appeal No. 128/2% while contesting the suit submitted their written reply, wherein certain allegations were leveled against the present appellant in appeal No. 138/2010 which necessitated him to sue them for damages under the Defamation Ordinance, 2000.

3. We have heard counsel for the parties and have carefully gone through the record available on the file.

4. Perusal of the case file reveals that this is a suit under Special Enactment, before bringing a suit under this law; certain formalities have to be fulfilled. Section 8 of the Defamation Ordinance reads as fallows:-- "Notice of action.--No action lies unless the plaintiff has, within two months after the publication of the defamatory matter has come to his notice of knowledge, given to the defendant, fourteen days notice in writing of his intention to being an action, specifying the defamatory matter complained of"

5. In the instant case the plaintiff/appellant in case No. 138/2010 was bound to prove that before institution of suit he has served a notice well within time on the respondents. The points for determination before this court are that:-- (i) Whether the plaintiff hereinafter called the appellant has served the notice prior to the institution of the suit as required under the law. (ii) Whether the allegations & cross allegations in civil suits or judicial proceedings are qualified to be absolute privileged statements or qualified privilege and hence no action lies against such statements. (iii) Whether a suit for damages can be brought during pendency of a civil suit, on the basis of which the present suit has been instituted. (iv) What are the repercussions of the dismissal of the suit, on the basis of which present suit was brought. 6. he parties are litigating since long and besides instant litigation there are countless claims and counter claims pending adjudication between them. A perusal of the plaint reveals that the plaintiff has not given a specific date and source of his knowledge, though he has given a notice to the defendants prior to institution of the suit. Admittedly the notice was sent to the defendants on 25.12.2008 as is evident from para No.8 of the plaint.

7. Now we have to see in the light of the record that whether this notice was sent within time. To answer this question we have to revisit the record.

8. It is evident from the record that in a suit titled "Mst. Zainab Akhtar v. Dr. Yousaf Fida and 12 others" the plaintiff was defendant No.13, wherein he moved an application U/s 10 of CPC for stay of proceedings in the instant suit till decision of the suit titled as "Mst. Yasmeen Azam v. DoR & others". The suit on the basis of which the present suit was brought. It is pertinent to mention here that this application was made on 27.07.2008. So, admittedly all the impugned allegations have come into the knowledge of the plaintiff on the day he served the defendant with a legal notice. So, he should have served notice upon the defendants within two months of the knowledge but according to his own version advanced in the plaint he served legal notice upon the defendants on 25.12.2008, so the notice has been served after laps of more than two months, hence, the suit is not maintainable as the notice has not been served properly and legally.

9. The second proposition invoked in the present case is that whether the allegations and cross allegation in civil suits or in any judicial proceedings are qualified privileged statements and hence, no action lies against such statements. Sections 6 & 7 of the Ordinance define such statements which are reproduced for ready reference. Section 6. "Absolute privilege. Any publication of statement made in the Federal of provincial legislatures, reports papers, notes and proceedings ordered to be published by either House of the Parliament or by the Provincial Assemblies, or relating to judicial proceedings ordered to be published by the Court or any report, note or matter written or published by or under the authority of a Government, shall have the protection of absolute privilege". Section 7. "Qualified privilege. Any fair and accurate publication of parliamentary proceedings, or judicial proceedings which the public may attend and statements made to the proper authorities in order to procure the redress of public grievances shall have the protection of qualified privilege".

10. Bare perusal of above sections confirmed that the statements or any judicial proceedings are qualified privileged statements and hence, no action lies in such like cases. In this respect we lend wisdom from cases reported in 2007 CLC page 1174, 2006 YLR page 1623, PLD 1954 Sindh page 70 and AIR 1939,,Calcutta page 477.

11. The proceedings on the basis of which the plaintiff has based his claim were pending adjudication before a Competent Court of law, so the suit at the time of its inception was premature and no action can be claimed on the basis of a subjudice case. Further more the suit of the plaintiff, in reply whereof the impugned written statement was presented, has been dismissed by the trial court which too confirm the stance of the present appellant, further more the present claim / suit of the plaintiff rests upon civil proceedings, in our view no damages can be claimed on the basis of civil litigation even though based on mala fide intention as the section 35-A CPC provides dismissal of suit with special compensatory cost, if found to be mala fide and fraudulent. The present suit is misconceived against the law and facts, so deserves dismissal.

12. In the present case section 35-A, C.P.C. has also lost its significance as the suit in which the written statement was presented has been dismissed.

13. In the light of what has been discussed above, the plaintiff/respondent of appeal No. 138/10 has failed to prove the claim for damages as required by law, hence, we accept the appeal No.128/10 set aside the judgment and decree of the trial court dated 02.03.2010 and consequently appeal No. 138/10 stands dismissed. ZC/370/P Order accordingly.