2017 PLP 218 (CLCN)

IRFAN SAADAT KHAN, J.

This High Court Appeal is directed against the judgment and decree dated 10.08.1998 and 17.09.1998 respectively, passed by the learned Single Judge of this Court, whereby Suit No.650 of 1986, instituted in forma pauperis by the respondent, Under Order XXXIII, Rule 2, C.P.C., for the recovery of Rs.15,00,000/- by way of damages for defamation, was decreed.

2. Briefly stated the facts of the case are that the respondent herein filed the aforementioned civil suit in the original civil jurisdiction of this Court alleging therein that she is an educated lady working as Assistant Director in Sindh Small Industries Corporation. Her father had left her mother and with a great deal of difficulty her mother brought her up and educated her as her only child. She started working from a very young age and supporting her mother when the latter fell sick. Coming from a conservative Katchi Memon Family and being devoted to her mother who did not approve of her marrying outside the community she married the appellant/defendant No.1 on 04.07.1984. The appellant No.1 had been married before, but his first wife had died few years ago. The appellant No.1 used to insist that the respondent should give all her earnings to his mother and did not approve respondent's supporting or attending to her own mother who had fallen seriously ill and was unable to support herself. She was subjected to a great deal of mental and physical torture by the appellant No.1, his mother and his daughters from his first wife. Within three months of her marriage she fell seriously ill and was admitted in Mowloo Jumma Hospital Gari Khata, where she remained from 04.10.1984 to 19.10.1984. Neither the appellant No.1 nor any of his family members visited her in the Hospital and when she was about to be discharged, a message was sent to her that she was no longer welcome in the appellant No.1's house and was advised to go and stay with her mother. During her hospitalization the respondent was informed that she was suffering from Urinary Tract Infection (UTI) and she might have contracted the same from her husband/appellant No.1. The respondent also came to know from members of the community that his first wife who died due to kidney failure also probably contracted the same disease from the appellant No.1. It is further stated that despite several attempts to persuade him, the appellant No.1 was not willing to take the respondent to his own house and maintain her. After eleven months she filed a suit for maintenance (Family Suit No. 313 of 1985) before the Family Court. The appellant No.1 filed his written statement wherein he, inter alia, contended that the respondent was sick health wise and he pronounced divorce to her in terms of the divorce deed and enclosed with his written statement the divorce deed, dated 22.09.1985 and the medical certificate, dated 05.08.1985, issued by the appellant No.2. It was the case of the respondent that the allegations contained in the divorce deed as well as the medical certificate were false and defamatory and the same were made out only with an attempt to defame and humiliate her within her community and generally in the public eyes. Hence, she filed the aforementioned civil suit with the following prayers: (a) A decree in the sum of Rs.15,00,000/- against defendants who are liable jointly and severally to play the said sum to the plaintiff on account of damages/compensation. (b) 15% interest on the amount as mentioned in person (a) from the date of this suit till the realization of decretal amount. (c) Cost of the suit.

3. The appellant No.1 in his written statement admitted the execution of the divorce deed and the certificate issued by the appellant No.2. He, nevertheless, pleaded that the contents thereof were true and in any case were not defamatory. He emphatically denied any allegation of collusion with appellant No.2 or malice on his part. The appellant No.2 admitted the execution of the certificate and contended that he had been treating the respondent before and after her marriage and the statement in the certificate are true.

4. Out of the pleadings of the parties, the following issues were framed by the learned Single Judge of this Court:

1. Whether the allegations in the divorce deed made by the defendants of the certificate issued by the defendant No.2 were mala fide and given vide publicity to cause damage to the plaintiff?

2. Whether the certificate issued by the defendant No.2 in respect of the ailment to the plaintiff are false?

3. Whether the defendants have acted in collusion?

4. What should the decree be?

5. After recording pro and contra evidence and hearing the counsel for the parties, the learned Single Judge of this Court decreed the suit, with costs, in favour of respondent by awarding Rs.75,000/- against the respondent No.1 for the imputations contained in the divorce deed and a further amount of Rs.75,000/-, jointly and severally against both the respondents in respect of the imputations made in the medical certificate with 14% interest from the date of decree till payment is made. It is against this decree that the instant High Court Appeal has been preferred by the appellants. The respondent has also filed Cross Objections in terms of Order XLI, Rule 22, C.P.C.

6. Mr. Khalid Javed, advocate has appeared on behalf of the appellants and submitted that some basic facts going to the roots of the case have not been considered by the learned Single Judge. While elaborating his view point, the learned counsel has submitted that the medical certificate upon which much emphasis has been placed was produced in the proceedings before the Family Court is a "privileged document"; hence, according to him, no adverse inference could be drawn against the appellants on the basis of said medical certificate. The learned counsel has further submitted that the learned Single Judge has erred in fixing the amount of damages at Rs.75,000/- on the appellant No.1 and further Rs.75,000/- on the appellants jointly and severally without their being any basis how the Single Judge has arrived at this figure. He has also submitted that the respondent claimed the amount of damages merely on the basis of conjectures and surmises and the learned Single Judge while awarding the amount of damages did not ask from the respondent to furnish break up of her claim. He has; therefore, submitted that award of the damages was arbitrary, hence the impugned judgment and decree being not sustainable in law, is liable to be set aside. In support of the above contentions, the learned counsel has placed reliance on the following judgments: i. Madhab Chandra Ghose and others v. Nirod Chandra Ghose (AIR 1939 Calcutta 477). ii. Sedimbi Hanumantharow and others v. Nidumolu Seetharamayya (AIR (29) 1942 Madras 343). iii. M. Moosa v. Mahomed and others (PLD 1954 Sindh 70). iv. Ghulam Muhammad Sagarwala v. National Bank of Pakistan and another (1982 PLC (C.S.) 61). v. Sufi Muhammad Ishaque v. The Metropolitan Corporation, Lahore through Mayor (PLD 1996 Supreme Court 737).

7. Messrs Farrukh Usman and Aamir Maqsood, advocates vehemently refuted the arguments advanced by the learned counsel for the appellants and have maintained that the learned Single Judge through an exhaustive order has rightly come to the conclusion that the appellant has defamed the respondent and has made her life miserable and nobody would now marry with her as she is leading a lonely life after being defamed. They have added that the respondent has filed cross-objections so far as the quantum of the claim awarded by the learned Single Judge is concerned; hence, the decree may be modified to the extent of the amount of damages demanded by the respondent in the suit. They have further maintained that if the appellant No.1 was not happy with the respondent he could have divorced her in simple and plain terms but since he was bent upon to make her life miserable, he leveled false allegations upon her while pronouncing "Talaq" and also managed to get a false and fabricated medical certificate from the appellant No.2, which, under no circumstances, can be presumed a "privileged document". The learned counsel also maintained that the appellant No.1 even circulated the said divorce deed and medical certificate in the community with ill-will to defame her. In this regard, the learned counsel read out the contents of the affidavits-in-evidence filed by the witnesses of the respondent and, in the end, submitted that this High Court Appeal not only may be dismissed with costs but the decree passed by the learned Single Judge of this Court may be modified to the extent of respondent's 'claim of Rs.15,00,000/-. In support of their contentions, the learned counsel have placed reliance on the following judgments:- i. Liberty Papers Ltd. and others v. Human Rights Commission of Pakistan (PLD 2015 SC 42). ii. Mst. Hussain Bibi v. Saleh Muhammad (PLD 1996 Lahore 50). iii. Abdul Wahab Abbasi v. Gul Muhammad Hajano (2008 CLD 1230). iv. Shahida Parveen v. Samiullah Mailk (PLD 2006 Lahore 401). v. Sufi Muhammad Ishaque v. The Metropolitan Corporation of Lahore through its Mayor (PLD 1996 SC 737). vi. Master Abdul Basit and another v. Dr. Saeeda Anwar and another (PLD 2011 Karachi 117).

8. We have heard the learned counsel for the parties at length and have also perused the material available on record and the decisions relied upon by them.

9. The point arises for our determination is whether the impugned judgment and decree suffer from any illegality or irregularity requiring any interference of this Court.

10. Perusal of the record reveals that in the family suit filed by the respondent against the appellant No.1 for maintenance, the latter filed his written statement and attached along with it a divorce deed, dated 22.09.1985 and a medical certificate, dated 02.08.1985, issued by the appellant No.2, with regard to the health condition of the respondent as well as. The relevant paragraph 5 of the divorce deed and contents of the medical certificate are reproduced herein under for the convenience sake: Divorce Deed: "

5. That Mst. Abida was also suffering from gynecological disease prior to the solemnization of the marriage as she had urinary tract infection of serious nature, which she never told me but the same came to my knowledge afterwards when she was given medical treatment by our family doctor on her bad health conditions." (Emphasis supplied) Medical Certificate: "It is certified that Mrs. Abida Ameen was treated by me after her marriage for many time. She has got Urinary Tract Infection and some serious Gynaecological diseases. Her UTI is leading her to chronic Renal failure. She had got many mental symptoms of Hallucination and psychosis." (Emphasis supplied)

11. It is also seen from the record that the appellant No. 1 has categorically denied in paragraph No. 10 of his written statement that the respondent suffered from UTI so also in para No. 6 of his affidavit-in- evidence he has denied it in similar manner. This assertion of appellant No.1 is contrary to the submissions made by him in his written statement before the Family Court in family suit. Thus, a question would arise that which of the two statements are correct. If the contents of his written statement and affidavit-in-evidence are considered to be true then it would become an admitted position that the respondent was not suffering from UTI and whatever he has stated in paragraph No. 5 of his divorce deed was false, fabricated and malicious. Otherwise if the appellant No.1 was not ready to live with the respondent, he could have divorced her in plain terms rather than mentioning in the divorce deed about the so-called health condition of the respondent. It is also seen that the respondent's witnesses have categorically stated that the appellant No.1 has not only shown them the divorce deed but also the medical certificate by alleging that the respondent was suffering from some serious gynecological problems and was unable to lead a happy life with him he; therefore, had divorced her, which clearly reflect malice on the part of appellant No.1.

12. The appellant No.2, in his medical certificate, has mentioned that he had treated the respondent many times in his clinic after the marriage and as she had UTI and some serious gynecological diseases and her UTI is leading her to chronic renal failure and she has also got many mental symptoms of hallucination and psychosis and her diseases were persistent before the marriage also, whereas in the cross examination he has mentioned that she has visited his clinic on two or three occasions before marriage with the complaint of UTI only; hence, the question arises as to how come the appellant No.2 has mentioned in the certificate about the other diseases, other than UTI, i.e. mental symptoms of Hallucination and psychosis, if she had come to him, with regard to the complaint of UTI only. This implies that the certificate issued by the appellant No. 2 was tainted with malice and the same on the very face of it appears to fictitious, fake, concocted or issued on the instructions of the appellant No.1. It is also seen from the cross-examination that while giving the said opinion not a single evidence was produced with regard to other diseases "persistent" in the respondent other than UTI.

13. It may be examined that the appellant No.2 being a simple MBBS, as is evident from his certificate, whether had the occasion of examining the respondent with regard to the alleged serious gynecological disease, mental symptoms of hallucination and psychosis, which not only requires specialized expertise but special treatment as well. Moreover, the appellant No.2 has mentioned in his affidavit-in-evidence that he has treated the respondent prior to marriage with regard to UTI and other gynecological diseases; hence, how can he opine that the respondent had got many mental symptoms of hallucination and psychosis also, which were according to him persistent before the marriage also when according to his own assertions he had treated the respondent with regard to UTI only before the marriage. The appellant No.2 in his cross-examination has stated that it was the appellant No.1 who approached him for issuance of the medical certificate and no specific reason was assigned by the appellant No.1 for obtaining the said certificate from him.

14. It has been argued by the counsel for the appellants that the medical certificate issued by the doctor/appellant No.2 is a privileged document. Suffice to say that a communication, injurious to the character of another made bona fide from a sense of duty legal, moral or social, and reasonable necessary for the due discharge of such duty and made with a belief in its truth, is "privileged", but where the plaintiff claims malice, as claimed by the respondent in the case in hand, the action lies, even through a communication or statement is claimed to have a qualified privileged. The case-law cited by the learned counsel for the appellants are distinguishable so far the facts of the case in hand are concerned.

15. As regard the cross-objections, filed by the respondent is concerned, it may be examined that there is no yardstick for determination of the amount of damages, which is to be seen examined and granted on a case to case basis. It is an admitted position that no working, basis and quantification of the amount of the claim has been furnished by the respondent, which is always a guesswork depending upon the facts of each case. We, therefore, in the situation found the amount of the damages awarded by the learned Single Judge to be in accordance with law and no interference in this regard also is warranted.

16. We, therefore, do not find any illegality or irregularity in the impugned judgment and decree passed by the learned Single Judge of this Court requiring any interference of this Court, hence, this High Court Appeal so also the cross objections are hereby dismissed, with no order as to costs. MH/M-90/Sindh Appeal dismissed.