P L D 1968 Supreme Court 25 (PLP)

FAZLE‑AKBAR, J. This appeal by special leave arises out of an action for defamation and the main question for determination is whether the doctrine of absolute privilege is applicable to a case like this. The facts briefly are as follows. In 1951, Miss Aminabai, sister of the appellant M. Moosa, filed a suit against respondents Nos. 1‑5 and one, Allahrakhia, for removal of a wall of their house as it infringed with her easement right of light and air. On 13th March 1952, Mr. Fonseca, her lawyer, gave a final notice to the aforesaid defendants that his client had also easement right to discharge rain water through their galli and land as provided in the partition‑deed of 1884. To the said notice the defendants' lawyer, Mr. M. A. Lakhani, replied as follows:‑-- "Sir, Your letter dated 13th inst. addressed to our clients (1) Muhammad Ismail, (2) Yoosaf Ismail, (3) Abdul Rehman Ismail, (4) Osman Haji Dada, and (5) Rabhiabai has been placed in our hands with instructions to address you as under:‑ That your client's brother who is no better than a tout is bent upon harassing our clients in spite of the fact that our clients are living there most peacefully without doing any harm to your client or her alleged rights . . . . . Our clients deny that they have thrown earth in the gally to block passage of water; the allegations made by your client at the instigation of her brother/and in whose interest it is to foment litigation to make an unscrupulous livelihood are denied . . . . ." Aminabai then on 14th April 1952, filed a suit for a permanent injunction restraining the defendants from obstructing passage of rain water through their galli, in the Chief Court of Sind and along with the plaint, she filed a petition for a direction on the defendants to remove the obstruction in the galli in order to facilitate the discharge of rain water. On 5th May 1952, at the hearing of the said petition before Mr. Justice Muhammad Bux, a Judge of the Chief Court of Sind, Mr. Lakhani, the learned counsel of the defendants, described the appellant M. Moosa as tout more than once, On 4th June 1952, Mr. Fonseca, the lawyer of M. Moosa, addressed the following letter to Mr. M. A. Lakhani :‑ "Dear Sir, Under instructions from our client, Mr. M. Moosa, we have to state as under:‑ That in your letter No. 37 of 1952 without date purporting to have been written under instructions from your clients, (1) Muhammad Ismail, (2) Yoosaf Ismail, (3) Abdulrehman Ismail, (4) Usman Haji Dada and (5) Mst. Rabhiahai addressed to our Mr. Fonseca as Advocate for Miss Aminabai Moosa, you have described our client as being "no better than a tout". You also in the same letter state that our client's sister's allegations have been "at the instigation of her brother‑and in whose interest it is to foment litigation to make an unscrupulous livelihood". Further you allege in the same letter that it is "at the instigation of her brother" that she "raises false and unnecessary objections which are ground less to her knowledge. Moreover at the hearing of the application in Suit No. 327 of 1952 before the Hon'ble Mr. Justice Mahmadbux on 5‑5‑1952 you described our client as a "tout" more than once. The statements referred to above are serious imputations. You are hereby called upon to either withdraw and apologize or pay to our client or to us on his behalf a sum of Rs. 2,000 as damages for the aforesaid imputations. Failing payment within 24 hours from the receipt hereof we have positive instructions to join you as a defendant in a suit being filed against your aforesaid clients on the same account, at your risk as to costs and consequences. Similarly you will be joined as an accused in a criminal complaint being filed against the same clients of yours in respect of the same imputations." On 5th June Mr. Lakhani replied as follows:‑ "Sir, I have received your letter of the 4th inst. and in reply I have to say that whatever I have said in the letter referred to by you as well as my statements before the Hon'ble Court at the time of hearing of the application referred to by you in the letter under reply were under instructions from the clients. In spite of this your client has the audacity to adopt any proceedings against me he will do so at his risk. As regards our clients, they would welcome any proceedings against them because they will get a chance to expose your client before the Courts so that yours may not prove a curse to many parties who come under his clutches." Furthermore, in the written statement filed on 27‑8‑52 by Mr. Lakhani, it was stated:‑-- "The plaintiff's brother who is interested in fomenting litigation evolves false cases against the defendants to harass the defendants and pat them to unnecessary expenses." On 6‑2‑53, M. Moosa filed the present action in the Chief Court of Sind for defamation and claimed damages against the defendants of Suit of 1952 as well as their Advocate, Mr. Lakhani. In his written statement Mr. Lakhani averred: (4) The defendant acting in his professional capacity and under instructions from defendants 1 to 5 sent a notice bearing Reference No. 37/52 to Mr. A. P. Fonseca, Advocate. (6) The said written statement was filed under instructions from the clients of this defendant. (8) This defendant was all along acting in his professional capacity as an Advocate and under instructions from his clients . . . . .". (10) None of these defendants was present but if defendant No. 6 described the plaintiff as a tout in Court, it was perfectly correct." The other defendants filed a separate written statement and took the plea of justification. The defendants (then filed an application under rule 11 of Order VII of the Code of Civil Procedure, for rejection of the plaint on the ground that it did not disclose any cause of‑ action. A learned Single Judge of the Chief Court of Sind accepted the said petition and rejected the plaint and his order was upheld on appeal by the High Court. The question raised in the petition for special leave to appeal was "that of privilege of counsel and parties in respect of defamatory statements, made by them either in pleadings or in notices preceding the litigation, in respect of third parties". To consider the above question of general public importance the Court granted leave in this case. Mr. Khalid M. Ishaque, the learned counsel for the appellant, has ''contended that the doctrine of absolute privilege is not applicable to a case like this. He has further argued that, in any event, such privilege cannot be extended to a defamatory statement with regard to a third party who was not a party to the suit and bad no opportunity of meeting it. On the other hand, the learned counsel for the defendant lawyer, has contended that the statements of the lawyer are absolutely privileged and could not constitute a foundation for libel. Mr. Tufail Ali A. Rahman, who has appeared on behalf of the Bar Council, has contended that in such a case a lawyer is entitled to claim only a qualified privilege. No doubt, the word "tout" is an expression which is highly offensive and hence its application to a person of normal reputation and standing would be prima facie defamatory of him. It is therefore conceded that the impugned statements have a sting of the libel. I would, therefore, first consider the extent of privilege that surrounds a lawyer in the course of proceedings for which be has been engaged by his client. Under the provisions of section 499, of the Pakistan Penal Code, defamation is a criminal offence. There is, however, no codified law with regard to a claim for damages for defamation. In the absence of the statutory rules, civil liability for defamation was decided by British Indian Courts either upon the principles of public policy or upon the principles of justice, equity and good conscience. In applying these principles they followed the English law and usage as seemed reasonably applicable to India. Under English law the Judges, counsel, witnesses and parties have been given absolute privilege for words written or spoken in the course of any proceeding before any Court of law. Dealing with the question of the privilege the Court observed in Dawkins v. Lord Rokeby ((1873) 8 Q B D 255);

"No action for libel or slander lies, whether against Judges, counsel, witnesses or parties for words written or spoken in the course of any proceeding before any Court recognised by law." In Munster v. Lamb ((1883) 11 Q B D 588), the Court while dealing with the question of immunity enjoyed by counsel under Common Law, observed:‑

"If upon the grounds of public policy and free administration of the law the privilege be extended to Judges and witnesses, although they speak maliciously and without reasonable or probable cause, is it not for the benefit of the administration of the law that counsel also should have an entirely free mind? Of the three classes‑Judge, witness and counsel‑it seems to me that a counsel has a special need to have his mind clear from all anxiety. A counsel's position is one of the utmost difficulty. He is not to speak of that which he knows he is not called upon to consider, whether the facts with which he is dealing are true or false . . . , , The rule of law is that what is said in the course of the administration of the law, is privileged; and the reason of that rule covers a counsel even more than a Judge or a witness. To my mind it is illogical to argue that the protection of privilege ought not to exist for a counsel who deliberately and maliciously slanders another person. The reason of the rule is, that a counsel, who is not malicious and who is acting bona fide, may not be in danger of having actions brought against him. If tile rule of law were otherwise, the most innocent of counsel might he unrighteously harassed with suits and therefore it is better to make the rule of law so large that an innocent counsel shall never be troubled, although by making it so large counsel are included who have been guilty of malice and misconduct. Into the rule thus stated the word `counsel' must be introduced, and the rule may be taken to he the rule of the common law. That rule is founded upon public policy. With regard to counsel, the question of malice, bona fides and relevancy, cannot be raised, the only question is, whether what is complained of has been said in the course of the administration of the law. If that be so, tile case against a counsel must be stopped at once. No action of any kind, no criminal prosecution, can be maintained against a defendant, when it is established that the words complained of were uttered by hire as counsel in the course of a judicial inquiry, that is, an inquire before any Court of justice into any matter concerning the administration of the law". Similar observations will also be found in Bottomley v. Brougham ((1908) 1 K B 584) and in Rodriguez v. Speyer Brothers (1919 A C 59). Thus, under English law an Advocate was conceded absolute privilege with reference to the words spoken or written in his professional capacity. It seems that following the above principles the British Courts in India held that an Advocate enjoyed an absolute privilege in respect of civil liability for words spoken or written by him in the course of legal proceeding in which he was engaged. In the case of Baboo Gunnesh Dutt Singh v. Mugneeram Chowdhry (11 B L R 321), the Judicial Committee invoked the principle of English law and held that the statements of defendants as witnesses in the Bar were absolutely privileged and could not form the foundation of a libel suit. Their Lordships observed:‑‑ "The ground of it is this, that it concerns the public and the administration of justice that witnesses giving their evidence on oath in a Court of justice should not have before their eyes the fear of being harassed by suits for damages; but that the only penalty which they should incur, if they give evidence falsely, should be ate indictment for perjury." These principles of public policy and justice upon which the English view is based, were not, however, un-informally applied by the High Courts in British India. In some of the cases it was held that a defamatory statement which does not fall within the exception of section 499, I. P. C., is not privileged. In other words, they took the provisions of the Penal Code as a criterion for determining as to what could be the extent of such privilege. See Satish Chandra Chakravarti v. Ram Dayal De (I L R 48 Cal. 388), Tiruvengada Mudali v. Tripursundari Ammal (A I R 1926 Mad. 906 ), Nirsu Narayan Sinha v. King‑Emperor (A I R 1926 Pat. 499), Tulsidas Amanmal Karani v. S. F. Billimoria (A I R 1932 Bom. 490 ) and T. F. R. McDonnell v. King‑Emperor (A I R 1925 Rang. 345 ). Some of the Courts, however, following the English haw, held that an Advocate was entitled to an absolute privilege for acts done in his professional capacity. See Madhab Chandra Ghose and others v. Niroda Chandra Ghose (A I R 1939 Cal. 477 ), B. Sumat Prashad Jain v. Sheo Duet Sharma (A I R 1946 All. 213), In re: P. Venkala Reddy (I L R 36 Mad. 216) and Anthony Udayar v. Velusami Thevar (A I R 1928 Mad. 469). Thus, there are two schools of thought represented by the published decisions of the Indian High Courts. Acceptance of the views that the rule of absolute privilege is applicable in such a case would mean that a statement which may be the subject of a criminal prosecution may, however, be absolutely privileged as far as Civil Courts are concerned. It will be really, to some extent, anomalous that a statement which is absolutely privileged in Civil Courts, may be at the same time the subject of a criminal proceeding. In my opinion, it is not always safe and proper to import, in its entirety, the rules of English law on this subject as principles of equity, justice and good conscience. No doubt, upon the grounds of public policy and free administration of law certain privileges are extended to the Judges, Advocates and witnesses. Now, the question is, as to what extent a lawyer should enjoy this privilege? Should he be given protection of absolute privilege? In other words, can the question of malice, mala fide and irrelevancy be raised with reference to words spoken or written by an Advocate in his professional capacity. The English law gives absolute privilege on the ground that in the public interest it would not be desirable to enquire whether the words spoken or written by him in his professional capacity, were malicious or not. In my opinion, the English Courts have it extended this privilege much more than was reasonably necessary to protect the interest or discharge of the duty of an Advocate which is the foundation of his privilege. It is true that in public interest and for the benefit of administration of law, a lawyer requires protection and that his immunity should be large enough to enable him to perform his legal duties honestly and fearlessly and that he should not be exposed to the risks of a spiteful litigation. But it does not mean that he should also have the privilege of being malicious. His duty is to assist the Court, to protect the interests of his client. He, however, should not be given a licence to make such defamatory statements which are not pertinent to the discharge of his duties or to the protection of the interests of his client. Where there are privileges there are also corresponding obligations and liberty should not be allowed to degenerate into licence. The Court has, therefore, to see whether what is said in response to a duty or right, is quite connected with and relevant to the issue in question. But, if the statement deals with a matter which is not in any reasonable sense germane to the subject‑matter in issue, the protection of privilege should not be extended to that statement. If, however, having regard to all the circumstances of the case, the Advocate might have honestly and on reasonable grounds believed that what he wrote or said was true and necessary for the protection of the interest of his client or discharge of his duties, he would be protected. This view, in my opinion, will be more consistent with justice and legal principles. I, therefore, concur in the view taken by the Full Bench of the High Court of Lahore In the matter of S. M. Haq (P L D 1953 Lah. 188), that the privilege enjoyed by an Advocate is of a qualified nature. I may also point out that this is the present view in America where it has been repeatedly held that no privilege would attach to words spoken by an Advocate unless they are material and pertinent to the question involved in the inquiry. See American Jurisprudence, Vol. 33, Libel and Slander, p. 179, Irwin v. Aschrust ((1938) 74 P (2d) 1127) and Layne v. Kirby ((1929) 278 Pac. 1046). For the reasons stated above, I am of the opinion that privilege will apply to an' Advocate with reference to what is written and published in response to a duty or right and that if anything is found in the thing published which is not reasonably appropriate to that duty or right then privilege could not be extended to that. In other words, an Advocate will be entitled only to claim qualified privilege for words spoken or written in his professional capacity and not an absolute privilege as found by the High Court. The next question is whether in this case the lawyer /defendant is entitled to claim qualified privilege. If so, was his act malicious? The learned counsel has contended that what was done by the Advocate went beyond what privilege could protect. According to him, what the Advocate stated in his letter, written statement and in Court, was not germane to the subject‑matter in issue. In this case litigation was going on between the sister of the appellant and the present respondents Nos. 1‑5, for a long time. Under instructions of his clients the Advocate replied to the notice given by the lawyer of Mst. Aminabai as follows: "That your client's brother who is no better than a tout is bent upon harassing our clients in spite of the fact that our clients are living there most peacefully without doing any harm to your client or her alleged rights. Our clients deny that they have thrown earth in the gaily to block passage of water; the allegations made by your client at the instigation of her brother‑and in whose interest it is to forment litigation to make an unscrupulous livelihood‑

are denied." During the hearing of the stay petition the Advocate of the defendants again described the plaintiffs brother as a tout. Furthermore, in the written statement filed by the Advocate, it was also stated:‑ "The plaintiff's brother who is interested in fomenting litigation evolves false cases against the defendants to harass the defendants and put them to unnecessary expenses." Unless the lawyer had grounds for knowing that the allegations were false, it was clearly his duty to act in accordance with the instructions of his client. The impugned statements sought to allege a motive for the suit. It, therefore, cannot be said that they were not made with reference to the suit. It may be that a better draftsman would have put them in different language, but the mere fact that they were couched in a strong language, would not deprive the lawyer of the benefit of the qualified privilege, as pointed out by Lord Esher in Nevill v. Fine Arts and General Insurance Company Ltd. ((1895) 2 Q B 156). "In none of the cases on the subject, so far as I know, has it been held that the privilege is taken away when there has been such an excessive statement, unless the jury has found that there was malice." Furthermore, this privilege can also be claimed with reference to the defamatory statement made in reply to a lawyer's notice because such notice is really a step in the proceedings. See Sir Patrick H. Watson v. Mrs. J. P. Jones Or M'Ewan (1905 A C 480). It was then said that an Advocate might be protected from an action in respect of allegations made against him by the parties to the suit, but no such protection could be claimed in respect of defamatory statements affecting a third party who is outside the litigation. The question whether the defendants can claim privilege with regard to the defamatory statement affecting one why is indirectly concerned in the charge, would depend on the relevancy of that statement to the circumstances in which it was made. Now, the appellant Moosa has said in his plaint that since March 1958 "he has been in service of Mr. Fonseca, Advocate, as his clerk". He then says "that the plaintiff's sister is an illiterate pardanashin and the plaintiff who is living with her, has been helping her to protect her interest, thus preventing the defendants from having their own way". It seems that he was looking after his sister's suit and at his instance various notices had been sent by Mr. Fonseca to the defendants. It is, therefore, obvious that he was very much in the litigation and not outside the litigation. Here, the imputation was made jointly against Aminabai and her brother. The conduct charged against one could not be explained without introducing the part played by the other. In these circumstances, the defamatory statements will be privileged against both. There remains the question of malice. There is no suggestion of any personal ill‑will extraneous to the actual acts which have been set out. Hence, there was no question of the lawyer acting in bad faith. On the other hand, it is clearly stated in the plaint that the defamatory statements were made by the lawyer under instructions from his client, Simply because the Advocate thought it to be necessary as a part of his duty to criticise the conduct of the appellant, it would be difficult to hold that he acted in bad faith. Hence, no useful purpose would be served by sending back the case for a finding whether in publishing the libel the Advocate was actuated by spite or indirect motive. In the appeal the main argument was advanced on the question as to the privilege that surrounds an Advocate in a case like this. I would however like to add that what I have said' about the privilege of an Advocate will also apply to the parties in the litigation to the same extent. For the reasons stated above, this appeal fails and is hereby dismissed. I shall, however, make no order as to costs. FAZLE‑AKBAR, J.‑I agree. S. A. RAHMAN, J.‑I agree. HAMOODUR RAHMAN, J.‑I agree. YAQUS Am, J.‑I agree. CORNELIUS, C. J.‑I agree that this appeal should be dismissed. A reply to a lawyer's notice threatening a suit is to be treated as a step in the proceedings where a suit follows. 7'o allege in reply to such a notice that the threatened suit is fats‑ and vexatious is in no way improper or excessive and the respondent is therefore within his rights to state the grounds on which the allegation is based, e.g., that the suit has been brought at the instance of a third party (in this case, a brother of the plaintiff in the threatened suit) who makes a habit of "fomenting litigation, evolves false cases against the defendants to harass the defendants and put them to unnecessary expenses. The quoted words are taken from paragraph 7 of the written statement of the defendants in the suit which was subsequently filed. It follows that the allegedly defamatory statements in the reply to the notice of suit were not made in any irresponsible way, merely to malign the present appellant. but were made with relevance to a defence which could be taken and was in fact taken, in reply to the plaint. Accordingly, the words must be held to be covered by the privilege of counsel and parties in litigation, even on the view that that privilege is of a qualified nature and is not absolute. I agree with my learned brother Fazle‑Akbar in thinking that the privilege to be allowed to counsel and parties, in respect of statements made in proceedings in litigation, which would include proceedings that are necessary and preliminary to the commencement of litigation, is not absolute, but is of a qualified nature. S. Q. Appeal dismissed.