P L D 2006 Lahore 401 (PLP)

MIAN SAQIB NISAR, J.

Both the noted R.F.A. No.331 and R.F.A. No.334 of 1999 have been filed by the parties to the litigation, against the same judgment and decree of the learned trial Court, therefore, these are being disposed of together.

2. Briefly the facts, of the case are:-- that the appellant in R.F.A. No.331 of 1999, was married to the respondent; Nikah between the parties was performed on 7-2-1997 and the Rukhsati took place on 15-2-1997, but the marriage could not be consummated due to the reason that the same night, the appellant's father allegedly fell sick; her near relations came to fetch her from the respondent's house on the above pretext and took her back and thereafter, she never returned to the respondent, rather brought, the suit for the dissolution of her marriage, on the ground stated therein, primarily on account of Khula. However, in the plaint of this suit, the allegations about the character of the respondent were made; he was imputed of being a professional dancer, who performs in the public functions for consideration. To be more precise, he was alleged to be a. This suit for the dissolution of marriage was contested by the respondent, who took up the defence that the story about the ailment of the appellant's father was false, and was a bluff, concocted by the appellant's relations with an object to take her back. Be that as it may, the Family Court, on the basis of Khula, passed the decree for the dissolution 'of marriage in favour of the appellant and against the respondent, which has attained finality. There were some other cases pending inter se the parties, such as for the recovery of dower, dowry etc. when on 6-7-1998 the respondent tiled the present suit for the recovery of an amount of Rs.30,00,000 as damages, against the appellant and her father averring therein that in the suit for the dissolution of marriage, the appellant on the behest of her father has levelled false, unfounded, frivolous and malicious allegations about the character of the respondent/plaintiff, which are defamatory in nature and thus, on the basis of the above, he has been ridiculed and defaced in the eyes of his friends, family and the public and, therefore, he sought the decree for the damages of an amount of Rs.24,00,000 on this account; further damages were also claimed under the various heads, the breakup of all is provided as under:--

3. The appellant contested the matter. She denied of having made any defamatory remarks against the respondent and set out the defence of truth. Thus, the parties were put to trial and the following issues were framed:-- (1) Whether the suit of the plaintiff is frivolous and vexatious? (2) Whether the plaintiff has not come to the Court with clean hands? OPD.2. (3) Whether the plaintiff is estopped by his words and conduct to tile the suit? OPD.2. (4) Whether the plaintiff has got no cause of action against the defendant No.2 to file the suit? OPD.2. (5) Whether the plaintiff and his parents concealed the facts and fraudulently got married the plaintiff with the defendant No.2: whereas after the Nikah and Rukhsati the parents of the defendant No.2 came to know that the plaintiff was not a potent man but an eunuch and a professional dancer, as such, the parents of the defendant No.2 called back her from the house of the plaintiff to save their prestige and honour? OPD.2. (6) Whether the defendant No.2 is entitled for the special damages under section 35-A of the C.P.C., if the suit of the plaintiff is dismissed? OPD.2. (7) Whether the plaintiff's suit is liable to be dismissed under Order VII, Rule 11, C.P.C.'? OPD.2. (8) Whether the plaintiff is entitled for the decree of recovery of Rs.30,00,000 being the damages etc.? OPP.

4. The plaintiff/respondent examined Naseer-ud-Din Hamayun as? P.W. who is his first cousin; P.W.2 Muhammad Musa is also the relative of the plaintiff, P. W.3 Afzaal Ahmad is his brother-in-law, whereas the plaintiff Sami Ullah appeared as P.W.4. No documentary evidence has been adduced by the plaintiff/respondent. Contrarily, the appellant examined herself as D.W.1, D.W.2 Abdul Aziz and D.W.3 Shakeel are her brothers, whereas D.W.4 is Tassaduq Hussain. The documentary evidence produced by the appellant is, the plaint in the dissolution case filed by her (Exh. D. 1), evidence of Sami Ullah in that suit (Exh.D.2), suit for the recovery of damages of Rs.22,00,000 (Exh.D.3), suit for the recovery of the dowry articles (Exh.D.4), suit for the recovery of dower (Exh.D.5), judgment in the suit for the dissolution of marriage (Exh.D.6), Marriage Card (Exh.D.7), written statement in the suit for the recovery of dowry articles (Exh.D.8), written statement in the suit for dower (Exh.D.9), written statement in the damages suit (Exh.D.10) and written statement in the dissolution suit (Exit.D.11); besides, (Exh.D.12) is the photograph of the respondent and (Exh D. 13) is the Video Cassette, perhaps showing him dancing in some private function.

5. On the conclusion of the trial, the learned Civil Judge by returning his findings on issue No.8 in favour of the respondent, has decreed the suit to the extent of Rs.10,00,

000. Rs.8,00.000 out of which have been granted in pursuance of the cause of action of the respondent for his libel/defamation, while Rs.2,00,000 on account of the other heads. Both the parties aggrieved of this judgment and decree dated 29-4-1999, have filed the present appeals.

6. The claim of the appellant in R. F.A. No.331 of 1999 is that the judgment and decree should be set aside and the suit be dismissed, whereas the plaintiff/respondent in the other case, seeks the enhancement of the damages and his grievance is that the damages under the head No.VII have been erroneously less allowed, which should be increased.

7. Learned counsel for the appellant has argued that in the present suit for the recovery of damages, the respondent/plaintiff has only referred to paragraph No.5 of the plaint in the suit for the dissolution of marriage, to allege a cause of action, by stating therein about the impeachment of his character, which according to him, is defamatory. But, in the relevant para, there is no defamatory material at all, as no reference to any other paragraphs, in which, he is alleged to be a "Naacha/Dancer" has been made, therefore, the averments of any other part of the plaint do not constitute the cause of action, with the consequences, that the decree cannot be awarded to the respondent for what has not been pleaded. It is also submitted that suit of the respondent was barred by Article 24 of the Limitation Act, because the suit for the dissolution of marriage, which allegedly contains defamatory material, was filed on 3-3-1997, whereas the present suit has been instituted on 6-7-1998, which is beyond limitation by about 4 months. However, when confronted, if the limitation has been a ground of defence in the written statement and any issue was framed by the Court or the parties have led any evidence on this point, the learned counsel for the appellant, by relying upon the judgments reported as Muhammad Shah through legal representatives v. Abdul Rehman through legal representatives PLD 2005 Lah. 129 and Government of Pakistan v. Muhammad Bashit PLD 2005 Lah. 74 has argued that the proposition of limitation is a pure question of law and under section 3 of the Limitation Act, it is the duty of the Court to decide it the suit etc. as been brought within the prescribed period of limitation, even if the defence has not been set out. It is further submitted that for the purpose of a cause of action on account of libel/defamation, the malice and mala fide on part of the defendant should be alleged and proved by the plaintiff, but no evidence in this behalf has been produced by the plaintiff/respondent, rather the contrary, on the basis of Exh.D.12, the photograph of the plaintiff, which depicts his posture as a dancer, and the video cassette Exh. D.13, in which the respondent is dancing, it stands proved, that the assertion of the appellant in her plaint, imputing the respondent being a "dancer", is correct and based upon truth. It is further submitted that the Court below has illegally and unlawfully granted an exorbitant amount of damages to the respondent on account of alleged defamation/libel, which on the face of the judgment, are punitive in nature and could not be so granted under the law. Reliance in this behalf has been placed upon the judgment reported as Dr. Q.M. Qarni v. Khalilur Rehman and 4 others PLD 1975 Karachi

379. It is further stated that in the statements made by the witnesses of the respondent, none has deposed, if they had read the plaint in the suit for the dissolution of marriage filed by the plaintiff, on account of which, the respondent's prestige, reputation and position in their eyes has been lowered, therefore, it being a case of no evidence, the suit should have been dismissed, rather decreed. Lastly, it is argued that the decree passed by the Court below amounting to Rs.2,00,000 under other heads i.e. Nos. iv, v, vi, is absolutely without any proof on. the record; the statements of the P. Ws. in this behalf are of the close relatives of the plaintiff, which have no evidentiary value.

8. Heard. First of all, we would like to meet the point of limitation, raised by the learned counsel for the appellant. In this behalf, it may be held that the plea of limitation has not been set out as a defence by the appellant, therefore, no issue has been framed and resultantly, the parties have not produced evidence on this point. Though, it is the duty of the Court under section 3 of the Limitation Act to dismiss the suit, appeal etc. if it is barred by time, even if the defendant/respondent has not taken an objection in this behalf, but at the same time, if the question of limitation is dependent upon the proof and determination of facts and the factual foundation has neither been pleaded or proved by the defence, the Court is not bound to decide the same. It may further be held that the appellant not only has set out any ground of limitation as an attack in the written statement, but this omission is conspicuous in the memo. of appeal as well, therefore, the pea is repelled.

9. As regards the argument that there is no defamatory material in that para. of the plaint on account of which, the cause of action has been structured by the plaintiff/respondent, suffice it to say that it is the plaint as a whole, which has to be taken into consideration; besides, it is incorrect to state that the character of the respondent has not been attacked in para. No.5, because the contents of the said para. suggest otherwise; moreover, according to the rule of construction of the legal documents, such as the pleadings the contents of para. No.2 shall be deemed embodying in the subsequent para. of the plaint, which reads as:-- Obviously, the reference about the respondent's character in paragraph No.5 relates to the reproduced paragraph; furthermore, while answering the present suit, in paragraph No.5 of the preliminary objections of the written statement, it has been averred by appellant t h a t : - Viewing the case in its over all context, the above allegations are the continuation of the earlier stance of the appellant, which reflect her aversion and venom towards the respondent; these remarks undoubtedly are beyond the limits of decency, and tantamount to deface, defame and ridicule the respondent by the use of derogatory and defamatory language; the appellant in reality throughout has been challenging the respondent's manhood, without having the requisite experience. Furthermore, there is no proof on the record that the respondent is professional dancer; his picture Exh.D.12, which shows him standing at sonic Hill Station, in no manner depict of him being the dancer; same is the position about the video cassette, in which, the appellant is dancing in a marriage function of either the family or a friend, which now-a-days is common, with the males as well. Even otherwise, dancing is no vice of a character, rather it is a feature of art. Therefore, we are of the considered view that the allegations of the appellant in the plaint for dissolution of marriage, amounts to defamation/libel and were made to deface and ridicule the respondent, and those are not proved to be based upon the truth. However, we agree with the learned counsel for the appellant that the amount of Rs.8,00,000 awarded on account of the defamation/libel are on the higher side and are punitive in nature, therefore, which cannot sustain in the light of the law laid down by the Honourable Supreme Court, in the case of reported as Sufi Muhammad Ishaque v. The Metropolitan Corporation, Lahore through Mayor PLD 1996 SC 737, which laid down the rule as under:

"There can be no yardstick or definite principle for assessing damages in such cases. The damages are meant to compensate a party who suffers an injury. It may be bodily injury loss of reputation, business and also mental shock and suffering. So far nervous shock is concerned, it depends upon the evidence produced to prove the nature, extent and magnitude of such suffering, but even on that basis usually it becomes difficult to assess a fair compensation and in those circumstances, it is the discretion of the Judge, who may, on facts of the case and c considering how far the society would deem it to be a fair sum, determines the amount to be awarded to a person who has suffered such a damage. The conscious of the Court should be satisfied that the damages awarded would, if not completely, satisfactorily compensate the aggrieved party." Although, we are of the considered view that the respondent has proved his case of defamation/libel against the appellant. But at the same time, the damages awarded to him under the impugned decree are punitive, rather compensatory, therefore, in the light of the above dictum, we reduce the amount to Rs.1,00,000 (one lac rupees).

10. As far as the damages under the other heads is concerned, we are of the considered view that those have not been proved; all the? witnesses appearing for the respondent, are his very close relatives, whose oral statements, have not been corroborated by any documentary proof or independent evidence. It is not proved on the record, if in the situation, as reflected in the pleading of the parties, the appellant was wearing any jewellry, when she hurredily left for the hospital to see her father. The respondent has also failed to prove the amount of Rs.25,000 allegedly spent on the Baarat, or the other rituals; there is also no proof, if the respondent has booked any hotel or marriage Hall for his Walema, paid any advance, spent any money for the food, etc. to be served on the occasion. We also find that the respondent has not been able to prove his claim about the damages regarding the other heads.

11. Notwithstanding the above, although the marriage bond between the two Muslims is in the nature of a civil contract, but at the same time, it shall be a grave misconception to equate it with the ordinary contracts of sale-purchase, the property transactions or for those to provide personal services etc., entered into between the parties under the Contract Laws. Rather such a contract has its genesis in the social norms of the Muslim society and is structured upon the commands of Allah Almighty and the Sunnah of the Holy Prophet (p.b.u.h.). This contract is blended with the human emotions and the sentiments, such as the love, affection, likes, dislikes, tolerance, aversions, and the equation/ compatibility of two personalities and the minds. Therefore, the failure and the success of a marriage is dependent upon the existence or the lack of the above factors, and it shall be wrong and absolutely inapt to attribute any breach of the contract in a case, where marriage does not work out and either party declines to submit to the other, which may ultimately result into the divorce by the husband, the termination, dissolution or denunciation of the marriage in any manner permissible under the law. Therefore, as there is no concept of any breach of marriage contract, obviously the provisions of sections 73 and 74 of the Contract Act, 1872, or the General Laws in this behalf, shall not be attracted; with the further consequences that any expenses incurred by either party in connection with the marriage ceremonies, or the gifts exchanged by the bride and the bridegroom or given to them by the relatives of the either side, including the Salamis, cannot be recovered through the process of law. But this shall not affect the bride's right to seek the return of her dowry (??????????? ) articles, and the bridegroom's right to recover the Buri ( ) articles', a term which is well-understood in Pakistan culture and the marriage rituals. Therefore, the judgment and decree of the trial Court awarding Rs.2,00,000 under heads No. iv, v. and vi of para. No.8 of the plaint, cannot sustain and is hereby set aside. Whereas in view of the above discussion, the judgment and decree of the learned trial Court is modified in the manner that the amount of Rs.8,00,000 on the basis of the defamation is set aside to the extent of Rs.7,00,000 and upheld to the tune of Rs.1,00,000; this, we feel shall be adequate compensation to the respondent. Because of the decision iii the noted appeal, we are not persuaded in the other appeal filed by the respondent that any enhancement of the damages should be granted. In the light of above, this appeal is party allowed; the judgment and decree to the extent of Rs.9,00,000 is, set aside but upheld to the extent of Rs.1,00,000 whereas the connected R.F.A. stands dismissed. M.B.A./S-77/L??????????????????????????????????????????????????????????????????????????????????? Order accordingly.