2016 PLP 1654 (MLD)

KHADIM HUSSAIN M. SHAIKH, J.

Through the captioned Civil Revision Application, the applicant has called in question order dated 16-6-2015, passed by the learned Court of III-Additional District Judge, Sukkur in a suit bearing F.C. Suit No.2 of 2014 re: Abdul Hanan Bandani v. Nauman Shehzad and others, whereby the learned IIIrd Additional District Judge, Sukkur has dismissed the application under Order VII, Rule 11, read with section 151, C.P.C. filed by the applicant/defendant No.1, seeking rejection of the plaint of the above suit filed by the respondent No.1/plaintiff.

2. Briefly, the facts of the case are that on 26.7.2014, respondent No.1 filed a suit being F.C. Suit No.2 of 2014 re: Abdul Hanan Bandhani v. Nauman Shehzad and others in the learned Court of District Judge, Sukkur for damages under section 3 of the Defamation Ordinance, 2002. The case of the plaintiff, as set out in his plaint, is that he is respectable citizen of Pakistan and is a transporter, managing private carrier in the name and style of Smile and Sons and enjoying a good reputation and respect in the society and is also Chairman of Sindh Cooperative Housing Society Limited, Sukkur. It is averted that the defendants in collusion with each other in order to defame the plaintiff and to damage his reputation flashed a false story, containing baseless and false allegations against the plaintiff regarding alleged corruption in allotments in Sindh Cooperative Housing Society Limited, Sukkur in newspaper daily "Jahan-e-Pakistan" Karachi dated 8.4.2014 and such act of vilification and slander, launched by the defendants in collusion with each other lowered down the plaintiff in the estimation of his friends, relatives, business community and general public besides agony and mental torture caused to the plaintiff. It is further stated that the plaintiff through his counsel sent a 14 days notice dated 23.5.2014 to the defendants of his intention to bring in action specifying the defamatory nature complaint, as required under section 8 of the Defamation Ordinance, 2002 by TCS and that in spite of service of notice upon the defendants, they have not paid the amount of Rs. Ten Lacs as damages claimed in the aforesaid notice and even the defendants did not bother to furnish the reply of the said notice to the plaintiff, which amounted to admission of facts narrated in the said notice. Hence, respondent No.1/plaintiff has filed aforesaid suit for damages under section 3 of the Defamation Ordinance, 2002.

3. On service of summons, the defendant No.1 has filed his written statement in denial of the allegations leveled in the plaint. The defendant No.1 also filed an application under Order VII, Rule 11 read with section 151, C.P.C. seeking rejection of the plaint of F.C. Suit No.2 of 2014, which was heard and decided by the learned Court of III-Additional District Judge, Sukkur vide impugned order dated 16.6.2015, whereby the said application under Order VII, Rule 11, C.P.C. has been dismissed. Hence, this Civil Revision Application.

4. Learned advocate for the applicant has mainly contended that all the claims leveled by the plaintiff in his plaint have been specifically denied by the applicant in his written statement, therefore, plaintiff has no cause of action to file present suit; that the suit filed by the respondent No.1 /plaintiff is barred under section 5 of the Defamation Ordinance, 2002 and is also time barred, and he states that the plaint of the above suit was liable to be rejected under the provisions of Order VII, Rule 11, C.P.C., but the learned trial court instead of rejecting the plaint, has dismissed the application under Order VII, Rule 11 read with section 151, C.P.C. filed by him. He, however, placed his reliance on the cases of Mst. Hajiani Khatija Bai and 8 others v. Haji Dawood and 11 others (2003 MLD 828), Abdul Ghaffar Mahenti and 2 others v. Kathiawar Cooperative Housing Society Limited and another (2003 YLR 2635) and Anwar Khan v. Abbas Khan (2003 YLR 712).

5. I have considered the arguments so advanced by learned Advocate for the applicant and have also gone through the material available on record.

6. Perusal of record reflects that defamatory material was published against the plaintiff/respondent No.1 in newspaper, which per the plaintiff has caused him mental torture lowering his prestige and honour in the locality and in his association namely, friends, relatives and affected his business as is averred in the plaint. The defendant No.1 has filed written statement wherein he has denied all the allegations and claims of the plaintiff as set out in his plaint, therefore, these divergent pleadings filed by the parties have given rise to various issues to be framed and decided by the learned trial Court by allowing the parties to lead their evidence for and against their respective pleadings and claims. Thus the contention of the learned Advocate for the applicant/defendant No.1 that the applicant has no cause of action to file the above suit is mis-conceived. The second contention of learned counsel for the applicant/defendant No.1 that the suit is hit by section 5 of Defamation Ordinance, 2002 is also untenable for the reason that section 5 of the Ordinance ibid provides only pleas of defence to be shown by the defendant in defamation proceedings and for the sake of convenience, section 5 of the Ordinance ibid is reproduced below:

"

5. In defamation proceedings to person has a defence if he shows that:

(a) he was not the author, editor, publisher or printer of the statement complained of; (b) the matter commented on is fair and in the public interest and is an expression of opinion and not an assertion of fact and was published in good faith; (c) it is based on truth and was made for public good; (d) assent was given for the publication by the plaintiff; (e) offer to tender a proper apology and publish the same was made by the defendant but was refused by the plaintiff; (f) an offer to print or publish a contradiction or denial in the same manner and with the same prominence was made but was refused by the plaintiff; (g) the matter complained of was privileged communication such as between lawyer and client, or between having fiduciary relations; (h) the matter is controverted by absolute or qualified privilege."

7. The cases relied upon by learned advocate for the applicant/defendant No.1 are not helpful to him inasmuch as in the case of Mst. Hajiani Khatija Bai (supra) the question involved was that earlier two suits were filed and in the wake of earlier round of litigation, the plaint of third suit being not maintainable was rejected. In the case of Abdul Ghaffar Mahenti (supra), the plea taken by the defendants for rejection of the plaint was that the suit related to the dispute touching the business of Cooperative Society, therefore, the same was claimed to be barred under section 70-A of the Cooperative Societies Act and it was held that the fact as to whether the dispute touches the business of society or not can be thrashed out by allowing the parties to lead their evidence. In third case of Anwar Khan (supra), which involved the dispute between the plaintiff and the defendant, who were real brothers, with regards to landed property jointly owned by them and in order to reach a just and fair question of limitation being a mixed question of fact and law, held, was always attended to after recording evidence of the parties. Thus the third ground urged for rejection of the plaint that the suit is time barred is also mis-conceived.

8. In view of what has been discussed above, I have felt no difficulty in reaching to the conclusion that the learned trial Court has not committed any illegality while passing the impugned order dated 16.6.2015 dismissing the application under Order VII, Rule 11, C.P.C. and the impugned order also does not suffer from any jurisdictional defect attracting provisions of section 115 of the Code of Civil Procedure (Act V of 1908). Learned advocate for the applicant/defendant No.1 has also not been able to point out any illegality committed by the learned trial Court while passing the impugned order dated 16.6.2015 and these are the reasons for the same.

9. C.M.A. No.491 of 2015 having become infructuous is dismissed as such.

10. The observations made hereinabove in this order being tentative in nature shall not influence the trial Court in any manner while deciding the suit. ZC/N-7/Sindh Revision dismissed.