2013 PLP 1026 (MLD)

WAQAR AHMAD SETH, J.

Rashid Khan appellant has filed this appeal against the judgment and decree dated 10-7-2008, whereby learned Additional District Judge-II, Abbottabad decreed suit of respondent for Rs.1,00,000 as general damages with costs.

2. Brief and relevant facts leading to instant appeal are that Rashid Khan respondent filed a suit for restitution of conjugal rights against his wife and others. The suit of wife was decreed on the basis of khulla whereas appellant was dismissed. Thereafter respondent filed a suit for damages under Defamation Ordinance, 2002. Appellant appeared and contested the suit by filing written statement and learned Additional District Judge after recording evidence and hearing the parties decreed the suit. Hence, this appeal.

3. Learned counsel for appellant mainly argued that learned court below has no jurisdiction to entertain such like suits and pass a decree in haste manner and that too without considering the evidence on record, which is liable to be set aside.

4. On the other hand, learned counsel for respondent supposed the impugned judgment and decree.

5. Arguments heard and record perused.

6. A perusal of record would show that Rashid Khan appellant had filed a suit for restitution of conjugal rights against his wife Mst. Robina and in the plaint has had also arrayed respondent No.1 as defendant No.4 in the plaint and during reconciliation proceedings marriage of the spouses was dissolved on the basis of khulla. The respondent has filed a suit for damages under Defamation Ordinance, 2002 on the ground that appellant in order to defame the respondent had unnecessary impleaded him as party in the suit and levelled allegations against him to the effect that he is involved in trafficking of women and as such lowered his status. Although the appellant finding strong nexus arrayed respondent as defendant No.4 in his plaint by disclosing his character in the episode, which statement does not amount to defamation. Different sections of Defamation Ordinance, 2002 being relevant are reproduced as under:-- "

3. Defamation.

(1) Any wrongful act or publication or circulation of a false statement of representation made orally or in written or visual from which injures the reputation of a person, tends to lower him in the estimation of others or tends to reduce him to ridicule, unjust criticism, dislike, contempt or hatred shall be actionable as defamation. (2) Defamation is of two forms, namely:-- (i) Slander; and (ii) Libel (3) Any false oral statement or representation that amounts to defamation shall be actionable as slander, (4) Any false written, documentary or visual statement or representation made either by ordinary from or expression or by electronic or other modern means of devices that amounts to defamation shall be actionable as libel. Section

4. Defamation actionable.

The publication of defamatory matter is an actionable wrong without proof of special damage to the person defamed and where defamation is proved, damage shall be presumed. Section 12 of Defamation Ordinance reads as under:--

12. Limitation if action.

An action against: (a) an author, editor, proprietor, or publisher of a newspaper; (b) the owner of a broadcasting station; (c) an officer, servant or employee of the newspaper or broadcasting station or (d) any other purpose. for defamation contained in the newspaper or broadcast from the station or its publication otherwise shall be taken within six months after the publication of the defamatory matter came to the notice or knowledge of the person defamed." The plain reading of above referred sections and the whole of the Ordinance LVI of 2002 would reflect the impression that the scheme and theme of the Ordinance, 2002 is regarding the defamatory acts through electronic or print media whereas no such thing is involved in the instant case.

7. In the circumstances, it appears that such action of arraying of respondent as defendant No.4 in the plaint and disclosure about his character does not amount to defamation actionable as slander and there is no proof of special or general damages allegedly caused to the appellant. In this respect, reliance is placed on "Anwar ul Haq Anjum v. Mian Anjum Yousaf reported in 2006 YLR 1623, wherein it has been held that any statement or assertion which is made before any Court, cannot give rise to any action for libel for slander.

8. Even otherwise, for the purpose of damages party would be bound to prove factum and quantum of damages sustained by it by producing cogent evidence. The suits for damages cannot be decreed without proof and every averment in the plaint has to be separately and individually, proved by evidence, on each point. General, vague and scanty evidence cannot be relied upon. The damages suffered and the quantity of the amount claimed item-wise has to be proved by cogent evidence. Mere assertion in the plaint and replication in evidence is of no avail to the party. In the instant case, all such necessary requirements are missing, hence a case of non-reading and misreading, as well.

9. The learned Court below has wrongly and illegally passed the judgment and decree in favour of respondents, on merits and on jurisdiction as the Defamation Ordinance, 2002 is not applicable to the case of respondents/decree holder. Consequently, this appeal is allowed and impugned judgment and decree of the Court below is hereby set aside by dismissing the suit of respondent. No order as to costs. JJK/98/P Appeal allowed.