2016 PLP 94 (CLCN)

SALAHUDDIN PANHWAR, J.

Through applications under Order VII, Rule 11, C.P.C. [C.M.A. No. 7717/11 and C.M.A. No.4765/2011], defendants seek rejection of plaint in captioned suits on the plea that since present suits relate to the Defamation Ordinance, 2002 and the jurisdiction in this regard lies to District Court, therefore, plaintiffs have filed these suits in wrong forum. In support of his arguments, he has relied upon the case-laws reported as Khadim Hussain and 12 others v. Gul Hassan Tivano and 3 others [2013 CLD 981] and Pakistan Herald Publications (Pvt.) Ltd. and 2 others v. Karachi Building Control Authority [2012 CLD 453].

2. In contra, learned counsel for the plaintiffs contends that instant suits can be filed in original jurisdiction of this Court and defendants are responsible for damages to the tune of Rs.500,000,000/- (Rupees Five Hundred Million Only) be (sic.) pecuniary jurisdiction lies to this Court. Further, he contends that repeatedly defendants have published various articles in which they have used defamatory words against the plaintiffs, therefore, they are liable to pay the damages and, thus these suits are very much maintainable; issues are required to be framed; it would be in the interest of justice to decide the controversy on merits through evidence.

3. Perusal of available record reveals that plaintiffs and defendants are media group; the plaintiffs' claims to have been defamed by various articles, appended with plaint, hence have filed instant suits for defamation. Candidly, it is not disputed that through instant suits plaintiffs are seeking reliefs, arising out of alleged defamation due to articles flashed in Daily Express Newspapers. The preamble of the 'Defamation Ordinance' would make its object and purpose clear which is:- 'Whereas it is expedient to make provisions in respect of defamation and for matters connected therewith or incidental thereto;' The preamble sufficiently makes it clear that it (defamation Ordinance) is a special enactment. The provision of section 8 of the Ordinance has explained the 'remedies'. Section 13 of the Ordinance provides the jurisdiction to the District Court under this Ordinance. The deliberate use of the 'the District Court' in section 13 of the Ordinance with word 'shall' is sufficient to establish the intention of the law makers that no other court shall have the jurisdiction to try the cases, filed under this Ordinance. The High Court does as a 'Civil Court' but this should never be confused that it (High Court), while exercising original civil jurisdiction, becomes the 'District Court' or can dress it up as a 'particular court'. Needless to say that what the law itself does not confer the jurisdiction then no court can legally create such jurisdiction, even the High Court because the law permits the Courts the interpretation but not to step onto the domain of legislature i.e. `making of law'. To confer the jurisdiction, undeniably, is the function of the Law Makers. Thus, the instant suits, at material times, were/are triable by the 'District Court' concern which jurisdiction cannot be taken away even on ground of 'pecuniary jurisdiction'. At this juncture, it would be conducive to have a glance over the citations relied upon by learned counsel for the defendants, being relevant paras Nos. 8, 9 and 10 of case of the Pakistan Herald Publications (Pvt.) Ltd. (supra), is reproduced as under:- "

8. The Defamation Ordinance, 2002 on its reading shows that it is a special law made by Federal Government on the subject of defamation creating special remedies and also provide for specific Court for trial of cases and appeal. It has conferred jurisdiction for trial of cases under the Ordinance on the District Court." "

9. The Karachi Courts Order, 1956 so also the Sindh Civil Courts Ordinance, 1962 refer to establishment of the Court which, inter alia, provides for the Court of District Judge. The word District Court in itself is not used in both the laws. The Sindh Civil Courts Ordinance in section 7 as it reads today provides for original jurisdiction of the Court of District Judge and further says that subject to this Ordinance or any law for the time being in force the original jurisdiction of Court of District Judge in civil suits and proceedings shall be without limit of the value thereof except in the Karachi Districts where the original jurisdiction in civil suits and proceedings of the value exceeding Rs.15 million shall be exercised by the High Court.

10. The Defamation Ordinance, 2002 specifically confers jurisdiction for trial of cases on District Court: For its application it is not dependent on the pecuniary limits prescribed by the Sindh Civil Courts Ordinance specially when it is read in the context that it is a Federal law and will hold the field on its own without being subordinated or subjected to the latter Ordinance which only is Provincial law. This is also made clear by section 15 of the Ordinance which has conferred jurisdiction on the High Court to hear the appeal under the Ordinance. It does not require that appeal will be heard by more than one member bench of the High Court. The appeal, therefore, in such state of law could very well be heard by one member bench of High Court. It cannot be that a case heard and decided by one member bench of High Court and then appeal against it is also heard by one member bench of High Court. This cannot be the situation that could have been visualized by framer of the Ordinance as in its mind the concept of District Court and High Court were altogether two different courts." In case of Khadim Hussain (supra) para No.8 is relevant, which is reproduced as follows: "

8. I would like to refer here to two reported cases of this Court on the point of exclusive jurisdiction of the District Court in the cases pertaining to defamation under the Ordinance. In the case of Pakistan Herald Publications (Pvt.) Ltd. and 2 other v. Karachi Building Control Authority through Controller of Buildings 2012 CLD 453, a learned Division Bench of this Court was pleased to hold that the Defamation Ordinance, 2002, on its reading shows that it is a special law made by the Federal Government on the subject of defamation creating special remedies and also provides for specific court for trial of cases and appeal. It has conferred jurisdiction for trial of cases under the Ordinance to the District Court. It was further held that the Ordinance has provided District Court as the court of trial of cases under it; it will be the District Court and no other court including the High Court; it is the appeal against the final decision and decree of that court which will be heard by the High Court. Similarly, in the case of A. Khalid Ansari v. Mir Shakil-ur-Rehman, 2011 CLD 1196, it was held by a learned single judge of this Court that section 13 of the Ordinance has created an exception to the rule contained in section 15, C.P.C. to the effect that now suits in respect of defamation shall be instituted in the District Court." In case of Khadim Hussain (supra) the suit was decreed by Senior Civil Judge, Naushehro Feroz, and in First Civil appeal such judgment was set aside by this Court and it was observed in para 14 that:

14. It is, therefore, concluded that the impugned judgment and decree, being void ab initio, cannot be allowed to remain in field. The objection raised by the learned Counsel for the respondents that this Court has no jurisdiction to decide this appeal as the appeal should have been filed by the appellants before the District Judge, has no force in view of the cases discussed above. It is a settled law that this Court has inherent and constitutional powers to remedy/correct the wrongs committed by subordinate courts by passing judgments/orders which are void or without jurisdiction. It is also a settled law that this Court in its inherent jurisdiction can convert an Appeal, Constitutional Petition or Revision to any other remedy, as held by the learned Division Bench of this Court in the case of Syed Ghazanfar Hussain through Legal Heirs and others v. Nooruddin and others 2011 CLC 1303. In the present case, since the entire proceedings before the Senior Civil Judge were coram non judice, the appellants did not have the remedy for filing the appeal before the District Judge, as in the case of defamation filed under the Ordinance, the appeal lies before the High Court. Even otherwise, this Court has inherent powers to exercise its extraordinary constitutional jurisdiction in case of order or judgments which are void ab initio.

4. In view of above discussion with reference to above judgments I am clear in view that the Defamation Ordinance, 2002, is a special enactment and a case, under this Ordinance, has to be tried by the Court (District Court) directed by such Special Law, hence instant claims in both the plaints are barred. Accordingly both plaints are returned back. Plaintiffs may file the same to the Court having jurisdiction.

5. In view of above, the instant suits are disposed of along with listed applications. SL/I-16/Sindh Plaints returned.