2024 PLP 541 (MLD)

ABDUL HAMEED BALOCH, J.

Through this petition the petitioner has prayed as under: "It is, therefore, respectfully prayed that the impugned judgement dated 13.02.2014 passed by learned Majlis-e-Shoora Lasbella at Hub may kindly be set aside and to accepted the petition, in the interest of justice, fairplay and equity."

2. Relevant facts for disposal of the instant petition are that the petitioner/plaintiff filed a "Suit for Damages" in the court of Qazi Uthal (Trial Court) with the averments that the defendants Nos. 1 to 4 with connivance of defendants Nos.5 to 8 published a false speech/report in Daily Newspaper Intikhab and daily Eagle Hub even dated 11.10.2010, which caused to the reputation, dignity, honor and business of plaintiffs, as such the petitioner prayed for recovery of Rs.10 million as damages.

3. The defendants/respondents Nos.1 to 4 filed written statement, contested the plaintiff on legal as well factual grounds and prayed for dismissal of the suit. The trial court out of the pleadings of the parties framed issues. The plaintiff in support of his claim produced three witnesses and got recorded his own statement on oath. The attorney of defendants Nos.5 to 8 produced one witness. The attorney of defendants Nos.1 and 3, defendants Nos.2 and 4, defendants Nos.5 to 8 got recorded their statements. On conclusion of trial the trial court vide judgment and decree dated 30.08.2013 decreed the suit with 16% profit per annum till execution of decree.

4. Being aggrieved from the judgment and decree of the trial court, the defendants filed an appeal before the Majlis-s Shoora, 1.asbella at Hub (appellate Court). The appellate court vide judgment and decree dated 13.02.2014 allowed the appeal and dismissed the suit of plaintiff by setting aside the judgment and decree dated 30.08.2018 passed by the trial court. Hence this petition.

5. Heard. Perused the record. The perusal of record reveals that the plaintiff in support of his claim produced three witnesses. Before dilating upon the merit of the case, it would be appropriate to answer the objection of defendants regarding jurisdiction of the trial court, because the trial court has not framed the issue in respect of jurisdiction, whether the civil court has jurisdiction to try the case of defamation or under Defamation Ordinance, 2002 the power vest only to District Court, while the appellate court also ignored such aspect of the case. Section 13 of the Defamation Ordinance, 2002 prescribed the remedy before District Court. Section 13 of the Ordinance reads as under:

13. Trial of cases.

No Court inferior to that of the District Judge shall have jurisdiction to try cases under this Ordinance.'

6. The above referred section has no ouster clause regarding the jurisdiction of Civil Court (Civil Judge, Qazi Court) to entertain the suit for defamation. The civil court being court of ultimate jurisdiction can be invoked in all civil matters unless its jurisdiction is expressly or impliedly barred by statute. Hence without an ousting clause the jurisdiction of civil court any person aggrieved by act of defendant can also approach the civil court by filing suit before the civil court. Reliance is placed on the case of Hazoor Bakhsh v. Mir Nasrullah 2016 CLC 1936, whereby it has been held as under: "

11. Bare perusal of the Ordinance reveals that the same does not contain any ouster clause or any overriding effect qua jurisdiction of the ordinary civil court, which has been provided by the legislature. Prior to its promulgation the tort of defamation was actionable before the civil court of ordinary jurisdiction. Therefore, the courts in Pakistan were entertaining the suits for damages in respect of defamation and malicious prosecution under section 9, C.P.C. Thus, the suit for defamation was maintainable before the civil court of original jurisdiction. Even after promulgation of the Ordinance, because the provision of the Ordinance prescribes the remedy to enforce the right under the said Ordinance before the District Judge but without ousting the ordinary jurisdiction of the civil courts. The basic concept of Section 9, C.P.C. is that the civil courts are courts of ultimate jurisdiction, which can try suits in respect of civil disputes, unless their jurisdiction is expressly or impliedly barred. The Ordinance does not contain an express bar with regards to jurisdiction of the civil courts. In the present case the appellants have not pressed their claim or remedy under the Ordinance rather opted to file the suit under Section 9, C.P.C. It is always open to the litigant to choose either of two statutory remedies i.e. as provided under the Ordinance or the court of civil jurisdiction under Section 9, C.P.C. Reference in this regard is made to the case of Ch. Zulfiqar Cheema v. Farhan Arshad Mir (PLD 2015 SC 134). Thus, in view of above the trial court has rightly held that under the ordinary law the appellants have the option to choose either of two remedies for claiming general damages. which in that case will be governed by the law of torts. This issue qua the original jurisdiction of civil court is resolved in negative."

7. Now adverting to the evidence of plaintiff, it appeared that the witnesses are not eye-witnesses of the press conference, their statement being hearsay is not admissible in evidence. For the purpose of damages party would be bound to prove the quantum of damages sustained to him by producing trustworthy evidence. The decree for damages cannot be granted without proofs. The plaintiff does not take benefit from the testimonies of other side's witnesses. The plaintiff neither produced any person who was present at the time of press conference nor the plaintiff exhibited the copies of newspaper.

8. So far the loss of business is concerned, none of the witness uttered a single word that what was the business of the plaintiff and how he sustained loss and during which period. The plaintiff did not produce any evidence to allow that he suffered loss in the business. For special damage the plaintiff is duty bound to prove each item of loss on the strength of evince, the uniform rule for case of malicious prosecution, the damage cannot be stretched in favour of plaintiff ignoring the established principle of law. For establishing the alleged defamation, the person claiming to have been injured must establish the case that his reputation has been diminished due to action of defendant. Mere assertion in the plaint that on account of act of defendants he suffered loss could not be sufficient to grant the damages. Reliance is placed on the case of Aftab Hussain v. Suhail Yousuf 2007 CLC 1964, whereby it has been observed as under:

7. It has been held in the case of Azizullah v. Javed Bajwa reported in 2005 SCMR 1950 that the Court must determine proper damages keeping in view the nature of the wrong done and loss caused to such person: Similarly in the case of Dr. Prof Haroon Ahmed v. Messrs British Airways reported as PLD 2004 Kar. 439, it has been held that damages are usually considered under two heads viz, general or non pecuniary loss or damages i.e. physical injury, pain and sufferings impaired capacity for the enjoyment of life or lessen capacity and special or pecuniary damages that are actual incidental and direct expense, capable of calculation in terms of monetary value may it he on account of medical treatment loss in business profit earning or otherwise and the burden of proof in an action for damages either general or special is always on the plaintiff.

9. The power under section 115, C.P.C. is directed against the irregular exercise, non-existence an illegal assumption of jurisdiction and not against the conclusion of law, fact not involving the question of jurisdiction, however erroneous that may be. The scope of High Court in revisional jurisdiction is limited, cannot reappraise the evidence. Reliance is placed on the case of Munawar Ali v. Sepco Through Chief Executive, Sukkur 2020 MLD 918, whereby it has been held as under:

15. The provisions of section 115, C.P.C. envisage interference by the High Court only on account of jurisdiction alone, i.e. if a Court subordinate to the High Court has exercised a jurisdiction not vested in it, or has irregularly exercised a jurisdiction vested in it or has not exercised such jurisdiction so vested in it. It is settled law that when a Court has jurisdiction to decide a question it has jurisdiction to decide it rightly or wrongly both on fact and law. Mere fact that its decision is erroneous in law does not amount to illegal or irregular exercise of jurisdiction. For an Applicant to succeed under section 115, C.P.C., he has to show that there is some material defect or procedure or disregard of some rule of law in the manner of reaching that wrong decision. In other words, there must be some distinction between jurisdiction to try and determine a matter and erroneous action of a Court in exercise of such jurisdiction. It is a settled principle of law that erroneous conclusions of law or fact can be corrected in appeals and not by way of a revision which primarily deals with the question of jurisdiction of a Court i.e. whether a Court has exercised a jurisdiction not vested in it or has not exercised a jurisdiction vested in it or has exercised a jurisdiction vested in it illegally or with material irregularity.

18. In the case of AASA v. Ibrahim (2000 CLC 500), learned Single Judge of the Quetta High Court held that, "If no error of law or defect in procedure had been committed in coming to a finding of fact the High Court cannot substitute such finding merely because a different finding could be given." In view of above, the petitioner has failed to establish any illegality and irregularity in the impugned judgment and decree passed by the appellate court, warranting interference by this court, as such the petition being devoid of merit is dismissed. JK/108/Bal. Revision dismissed.