Order Sheet

 

IN THE HIGH COURT OF SINDH AT KARACHI

 

Suit No. 135 of 2012

 

Plaintiff                  :  Independent Media Corporation (Pvt.) Limited,

                                     through Mr. Behzad Haider, Advocate.

 

Defendants 1 & 2   :  Ali Azmat and Mubashir Luqman,

 through Mr. Waleed Khanzada Advocate.

 

Dates of hearing    :  24.04.2014, 24.12.2014, 13.02.2016 and 30.05.2016.

 

 

ORDER ON CMA No. 1031 of 2013

           

NADEEM AKHTAR, J. This application has been filed by the defendants under Order VII Rule 11 CPC for rejection of the plaint on the grounds that no cause of action has accrued in favour of the plaintiff nor does the plaintiff have any locus standi to file the same, the Suit is barred under Sections 3 and 13 of the Defamation Ordinance, 2002, and another Suit bearing No.581/2012 filed on the same cause of action is sub judice before this Court.

 

2.         The plaintiff has filed this Suit against the defendants for declaration, permanent injunction and recovery of Rupees 500 million as damages. The case of the plaintiff-company, as averred in the plaint, is that it is a member of Jang / Geo Group, which is a leading media house of the country, and is the operator of its channels ‘Geo News’ and ‘Geo Entertainment’ ; defendant No.1 is a musician / singer and is the lead vocalist of the pop / rock band ‘Junoon’, and defendant No.2 is a TV anchor of ‘Dunya TV’ who hosts a current affairs related show ‘Khari Baat’ on the said channel ;       Mr. Najam Sethi, who is a renowned columnist and a senior journalist of Pakistan, hosts a highly rated and popular news related program ‘Apas Ki Baat’ on the plaintiff’s TV channel ‘Geo News’ ; on 17.10.2011, defendant No.1 gave an interview in the defendant No.2’s program wherein he leveled highly malicious and defamatory remarks against Mr. Najam Sethi ; defendant No.2 has made derogatory and malicious remarks and comments against Mr. Najam Sethi in his program on other TV channels also ; on 10.10.2011 Mr. Najam Sethi served a legal notice to defendant No.2 calling upon him to immediately stop broadcasting such derogatory statements and to tender public apology ; on 14.11.2011, the plaintiff also served a legal notice to the defendants calling upon them to immediately stop leveling such defamatory statements against Mr. Najam Sethi and to seek unconditional apology on the same TV program within 14 days ; the defendants did not comply with the demands of the plaintiff’s legal notice ; and, the above false and defamatory statements have not only caused grave injury to the legal rights of the plaintiff and Mr. Najam Sethi, but have also tarnished Mr. Najam Sethi’s reputation, goodwill, and both, personal and professional lives.

 

3.         In view of the above averments and allegations made in the plaint, this Suit has been filed by the plaintiff with the following prayer :

 

a)      Declare that allegations against Mr. Najam Sethi are baseless and were leveled for defamation and ulterior motives by the defendants ;

 

b)         Decree the suit in favor of the Plaintiff and against the Defendants for an amount of Rs.500,000,000/- (Rupees Five Hundred Million only) ;

 

c)         Permanently restrain Defendants No.1 and 2 from broad-casting and leveling any statement that is defamatory to Mr. Najam Sethi ;

 

c)         In the meanwhile, restrain the Defendants No.1 and 2 from broadcasting / leveling any statement that is defamatory to Mr. Najam Sethi till the final disposal of the suit ;

 

d)         Cost of the suit may graciously be awarded to the Plaintiff ;

 

e)         Grant any other consequential relief or reliefs as this Hon’ble Court may deem fit and proper.

 

4.         Mr. Waleed Khanzada, learned counsel for the defendants, contended that there is not a single allegation in the plaint regarding defamation relating to the plaintiff, and all the allegations in the plaint are in respect of the alleged defamation of Mr. Najam Sethi, therefore, the plaintiff does not fall within the definition of person mentioned in Section 3 of the Defamation Ordinance, 2002, and such person at best could only be        Mr. Najam Sethi. He further contended that Mr. Najam Sethi has filed a separate Suit bearing No.581/2012 before this Court against the present defendant No.2 for declaration, permanent injunction and recovery of Rupees one billion on account of damages sustained by him because of the alleged defamation. He also contended that the instant Suit has been filed by the plaintiff on the same cause of action on which Mr. Najam Sethi has filed the above Suit, which is sub judice before this Court. He submitted that in view of this admitted position, the plaintiff, being a separate and distinct entity from Mr. Najam Sethi, has no locus standi to file the instant Suit and no cause of action has accrued to the plaintiff for filing this Suit. He further submitted that the Suit is also barred under Section 13 of the Defamation Ordinance, 2002, as only the District Court has the jurisdiction in respect of cases under the said Ordinance. In support of his submissions, learned counsel for the defendants relied upon (1) Ghulam Murtaza V/S The State and another, PLD 1966 (W.P.) Karachi 337, (2) Pakistan Herald Publications (Pvt.) Ltd. and 2 others V/S Karachi Building Control Authority through Controller of Buildings, 2012 CLD 453, (3) A. Khalid Ansari V/S Mir Shakil ur Rahman, PLD 2011 Karachi 484, and (4) Khadim Hussain and 12 others V/S Gul Hassan Tiwano and 3 others, 2013 CLD 981.

 

5.         Mr. Behzad Haider, learned counsel for the plaintiff, conceded that the allegations in the plaint are in relation to the defamation of Mr. Najam Sethi. He has conceded to this aspect in his written synopsis as well. He, however, contended that since Mr. Najam Sethi works only for the plaintiff, the reputation and goodwill of the plaintiff has been seriously damaged because of the defamation of Mr. Najam Sethi for which the defendants are responsible, and the instant Suit has been filed by the plaintiff in view of such loss sustained by it and cause of action accrued to it. Regarding the Suit filed by Mr. Najam Sethi, he contended that the said Suit has been filed by him in his personal capacity for the loss caused to his name and reputation by defendant No.2. It was urged that the causes of action accrued to the plaintiff and Mr. Najam Sethi are separate and distinct. It was further urged that the plaintiff’s allegations regarding losses on account of defamation cannot be decided without evidence, and the plaint cannot be rejected in piecemeal if any one of the prayers is maintainable. Regarding the jurisdiction of this Court, he submitted that this Court has the jurisdiction to adjudicate this Suit in view of the prayers for declaration and permanent injunction and also as the valuation of the Suit is much more than the minimum pecuniary jurisdiction of this Court. In support of his submissions, learned counsel for the plaintiff relied upon (1) Jewan and 7 others V/S Federation of Pakistan through Secretary, Revenue, Islamabad and 2 others, 1994 SCMR 826, (2) Muhammad Altaf and others V/S Abdur Rehman Khan and others, 2001 SCMR 953, (3) Mir Shakeelur Rehman  and others V/S Yahya Bakhtiar and others, PLD 2010 S.C. 612, (4) Stanley Thomes Publishers Ltd. and another V/S National Book Foundation and others, 2003 CLD 1400, (5) Allied Bank of Pakistan Ltd. V/S Shifa Laboratories through Sole Proprietor and another, 2010 CLD 716,            (6) A. Khalid Ansari V/S Mir Shakil ur Rahman, 2011 CLD 1196,               (7) Muhammad Anwar Chaudhry V/S Imtiaz Butt and 2 others, 2004 MLD 752, and (8) Fasihuddin V/S Umar Cheema, 2013 MLD 1532.

 

6.         I have heard the learned counsel for the parties at length, and with their able assistance have also examined the material available on record as well as the law cited at the bar. I shall first deal with the objection raised by the learned counsel for the defendants that this Court has no jurisdiction in respect of this Suit in view of Section 13 of the Defamation Ordinance, 2002. In Pakistan Herald Publications (Pvt.) Ltd.  (supra), 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 a specific Court for trial of cases and appeal ; it has conferred jurisdiction for trial of cases under the Ordinance to the District Court ; the Ordinance has provided District Court as the Court of trial of cases under it ; for such purpose, it will be the District Court and no other Court including the High Court ; and, it is the appeal against the final decision and decree of the District Court that is heard by the High Court. The judgment delivered by the learned Division Bench of this Court in the case of Pakistan Herald Publications (Pvt.) Ltd. (supra) has been challenged before the Hon’ble Supreme Court in CPLA No.936-K/2011, wherein vide order dated 23.12.2011 leave was granted and the operation of the said judgment was stayed. Needless to say that even the leave granting order of the Hon’ble Supreme Court is binding on this Court. The question as to whether this Court has the jurisdiction to adjudicate upon Suits filed under the Defamation Ordinance, 2002, wherein the amount involved exceeds Rs.50.000 million, or the “District Court” specified in Section 13 of the said Ordinance shall have unlimited pecuniary jurisdiction to try Suits under the said Ordinance, is sub judice before the Hon’ble Supreme Court. Therefore, no finding regarding the maintainability of this Suit on this ground can be given by this Court at this stage till the jurisdiction of this Court under the Defamation Ordinance, 2002, is finally decided by the Hon’ble Supreme Court.

 

7.         In order to appreciate the other submissions made by the learned counsel and to ascertain whether the plaint is liable to be rejected or not, the contents of the plaint and the averments, assertions and allegations made therein were carefully examined by me. Since some of such averments, assertions and allegations are relevant and important for the purpose of the just and proper decision of this application, the same are briefly highlighted below (emphasis is added) :

 

i)          In paragraph 6 of the plaint, the plaintiff has stated that Mr. Najam Sethi is a renowned columnist and a senior journalist of Pakistan ; he hosts a highly rated and popular news related program ‘Apas Ki Baat’ on the plaintiff’s TV channel ‘Geo News’ ; and, his services are very highly admired and respected by the plaintiff.

 

ii)         In paragraph 7 of the plaint, details of the achievements and the local and international awards received by Mr. Najam Sethi have been given by the plaintiff.

 

iii)        In paragraph 8 of the plaint, the plaintiff has alleged that defendant No.1 leveled highly malicious and defamatory remarks against     Mr. Najam Sethi in an interview on 17.10.2011 in defendant No.2’s program. The plaintiff has also reproduced in this paragraph the alleged defamatory statement against Mr. Najam Sethi.

 

iv)        Paragraph 9 of the plaint states that a legal notice was served by the plaintiff on 04.11.2011 to the defendants instructing them to immediately stop leveling defamatory statements against Mr. Najam Sethi and immediately tender unconditional apology to him on the same TV program.

 

v)         In paragraph 11 of the plaint, the plaintiff has alleged that this was not the first time, as defendant No.2 has made derogatory and malicious remarks and comments against Mr. Najam Sethi in his program on other TV channels as well. The alleged defamatory comments against Mr. Najam Sethi have been reproduced in this paragraph by the plaintiff.

 

vi)        Paragraph 12 of the plaint states that Mr. Najam Sethi also served   a legal notice on 10.10.2011 to defendant No.2 calling upon him to immediately stop broadcasting derogatory statements and to tender public apology.

 

vii)       In paragraph 13 of the plaint, the plaintiff has alleged That all the above reproduced statements are not only false but also extremely defamatory and prejudicial and have not only caused grave injury to the legal rights of Plaintiff and Mr. Najam Sethi but also tarnished his reputation and goodwill and as well as damaged the personal and professional life of Mr. Najam Sethi……. .

 

viii)      In paragraph 14 of the plaint, it is alleged by the plaintiff That the above reproduced false and malicious allegations due to the current tense political situation in the country, are intentionally aimed at provoking and inciting the masses to engage in physical violence against Mr. Najam Sethi and his family and have put their lives   at serious risk.

 

ix)        In paragraph 15 of the plaint, the plaintiff has alleged that defendants have pursued a defamatory campaign against Mr. Najam Sethi  only for the reasons of personal vendetta.

 

x)         In paragraph 16 of the plaint, it is stated that the plaintiff and          Mr. Najam Sethi enjoy excellent national and international repute, and that they have suffered immeasurable loss to their reputation as well as severe mental distress and trauma due to the defamatory statements leveled / broadcasted by the defendants. The damage and loss allegedly caused to the reputation and name of the plaintiff and Mr. Najam Sethi has been assessed at Rs.500 million.

 

xi)        Paragraph 18 of the plaint states that cause of action accrued to the plaintiff on all such dates when the defamatory statements were leveled / broadcasted by the defendants, and also on the dates when legal notices were issued to the defendants by Mr. Najam Sethi and the plaintiff.

 

xii)       In prayer (a), the plaintiff has prayed for a declaration that allegations against Mr. Najam Sethi are baseless, and were leveled by the defendants for defamation and ulterior motives.

 

xiii)      In prayer (b), a decree in the sum of Rs.500 million has been sought in favour of the plaintiff.

 

xiv)      In prayer (c), the plaintiff has sought permanent injunction restraining the defendants from broadcasting and leveling any statement that is defamatory to Mr. Najam Sethi.

 

xv)       The second prayer (c), which ought to have been (d), is for interim injunction restraining the defendants till the final disposal of the Suit from broadcasting and leveling any statement that is defamatory to Mr. Najam Sethi.

 

8.         It is well-settled that for deciding the question of rejection of plaint, only the plaint and its accompaniments can be examined. Perusal of the plaint clearly shows that all the allegations made therein relate only to the alleged defamation, personal insecurity, and damage and loss caused to the reputation and name of Mr. Najam Sethi, and no defamation whatsoever has been pleaded or alleged in relation to the plaintiff. Only a general and vague statement has been made in paragraphs 13 and 16      of the plaint that legal rights, reputation and name of the plaintiff and        Mr. Najam Sethi have been prejudiced, and that too because of the defamatory statements made only against Mr. Najam Sethi. Under Rule 2 of Order VI CPC, every pleading shall contain a statement of the material facts in concise form on which the party pleading relies for his claim or defence, as the case may be ; and under Rule 4 of Order VI CPC, in all cases in which particulars may be necessary, such particulars with dates and items if necessary shall be stated in the pleadings. In my humble view, the plaintiff has not complied with the mandatory requirements of Rules 2 and 4 ibid in order to justify or even plead its case for damages on account of the alleged defamation.

 

9.         Admittedly, a legal notice dated 04.11.2011 was issued by the plaintiff to the defendants before filing the instant Suit. In paragraph 3 thereof, it was alleged That the baseless defamatory statement that had been broadcasted and leveled by you against Mr. Sethi has tarnished his image and reputation and as such it amounts to defamation under the laws of Pakistan. In paragraphs 4 and 5, it was alleged that it was not the first time that derogatory and malicious remarks and comments were made against Mr. Sethi during the defendant No.2’s programs, and defendant No.2 had been pursuing a highly defamatory campaign against Mr. Sethi by leveling extremely derogatory comments and remarks against him. In paragraphs 6 and 7, it was stated that Mr. Najam Sethi had issued legal notice to defendant No.2 at the request of the plaintiff, and despite such legal notice by Mr. Najam Sethi, defendant No.2 had failed to comply with the demands of Mr. Najam Sethi. In paragraph 8, it was alleged that the false and malicious allegations by defendant No.1 were aimed at provoking and inciting the masses to engage in physical violence against Mr. Najam Sethi and his family putting their lives at risk. In paragraph 9, the defendants were called upon by the plaintiff to immediately stop leveling defamatory statements against Mr. Najam Sethi and apologize with him on the same TV program. In paragraph 10, it was stated that in case of the defendants’ failure in doing the above within 14 days, legal proceedings will be initiated by the plaintiff. In paragraph 11, the plaintiff had stated that the defendants will be held personally liable in case any physical harm is caused to Mr. Najam Sethi or any of his family members as a consequence of the defendants’ actions against him. In paragraph 12, the damage and loss caused to the reputation and name of Mr. Najam Sethi has been estimated by the plaintiff at Rs.500 million for the purpose of jurisdiction of the Court.

 

10.       In Jewan and 7 others V/S Federation of Pakistan, 1994 SCMR 826, it was held by the Hon’ble Supreme Court that if there is some other material before the Court apart from the plaint which is admitted by the plaintiff, the same can also be looked into and taken into consideration by the Court while rejecting the plaint under Order VII Rule 11 CPC. In S. M. Shafi Ahmed Zaidi through Legal Heirs V/S Malik Hassan Ali Khan (Moin) through Legal Heirs, 2002 SCMR 338, the Hon’ble Supreme Court was pleased to hold that besides the averments made in the plaint, other material available on record, which on its own strength is legally sufficient to completely refute the claim of the plaintiff, can also be looked into for the purpose of rejection of the plaint. In view of the law laid down by the Hon’ble Supreme Court in the above-cited authorities, the plaintiff’s legal notice filed along with the plaint can be looked into and taken into consideration at this stage. Perusal of the said legal notice, which is the basis of the instant Suit according to the plaintiff itself, also reflects the same position as noted in paragraph 9 above that the plaintiff had alleged therein only the alleged defamation, personal insecurity, and damage and loss caused to the reputation and name of Mr. Najam Sethi, and no defamation whatsoever was alleged in relation to the plaintiff. Not only this, the damages estimated at Rs.500 million in its legal notice by the plaintiff for the purpose of jurisdiction of the Court, were specifically for the damage and loss allegedly caused to the reputation and name of Mr. Najam Sethi.

 

11.       In addition to the above, the prayers made in this Suit show that the plaintiff is not seeking any declaration for itself, but has sought a declaration that the allegations against Mr. Najam Sethi are baseless. Likewise, the consequential relief of permanent and temporary injunction sought in this Suit also has no nexus with the plaintiff as such relief has been sought for restraining the defendants from broadcasting and leveling any statement that is defamatory to Mr. Najam Sethi. The plaintiff cannot seek the specific reliefs of declaration and injunction in favour of a stranger who is not a party to this Suit. In view of the above, the Suit is clearly barred under Section 42 of the Specific Relief Act, 1877, as the plaintiff does not have any legal character or right in relation to the declaration sought herein ; and the Suit is also barred under Section 56 of the Specific Relief Act, 1877, in relation to the consequential relief of injunction. The prayer of damages is also consequential as it cannot be granted unless the main relief of declaration is granted. Moreover, from the averments made in the plaint and in view of the admitted material on record, I have come to the conclusion that the facts averred and the allegations made in the plaint do not disclose any cause of action. In the case of Abdul Nasir and another V/S Haji Saeed Akbar, 2010 SCMR 1770, the Hon’ble Supreme Court was pleased to maintain the order of rejection of the plaint, by holding that no cause of action had arisen in favour of the plaintiff when the Suit was filed. In view of my above findings, I do not agree with the learned counsel for the plaintiff that the plaint cannot be rejected in piecemeal or the matter requires evidence, as these principles are not applicable in the instant case.

 

12.       Section 3(1) of the Defamation Ordinance, 2002, provides that only such wrongful act or publication or circulation of a false representation or statement made orally or in written or visual form shall be actionable as defamation which injures the reputation of a person, or tends to lower him in the estimation of others, or tends to reduce him to ridicule, unjust criticism, dislike, contempt or hatred. I have already held that the plaintiff has all along alleged only the defamation, personal insecurity, and damage and loss caused to the reputation and name of Mr. Najam Sethi and no defamation whatsoever has been alleged in relation to the plaintiff, and that the plaintiff cannot seek the specific reliefs of declaration and injunction in favour of Mr. Najam Sethi, who is a stranger and not a party to this Suit. As such, the plaintiff cannot be deemed to be the person mentioned in Section 3 ibid whose reputation has been injured, or who has been subjected to ridicule, unjust criticism, dislike, contempt or hatred. This also shows that no cause of action has accrued to the plaintiff for filing this Suit.

 

13.       Rule 11 of Order VII CPC provides that the plaint shall be rejected in any of the four eventualities mentioned therein, including where from the statements made in the plaint the Suit appears to be barred by any law, and where the plaint does not disclose any cause of action. In Raja Ali Shan V/S Messrs Essem Hotel Limited and others, 2007 SCMR 741, the Hon’ble Supreme Court was pleased to hold that it is the duty of the Court to reject the plaint if, on a perusal thereof, it appears that the Suit is incompetent ; and, the Court is not only empowered but also under an obligation to reject the plaint, even without any application from a party, if the same is hit by any of the clauses mentioned under Rule 11 of Order VII CPC. In Pakistan Agricultural Storage and Services Corporation Ltd. V/S Mian Abdul Latif and others, PLD 2008 Supreme Court 371, it was held by the Hon’ble Supreme Court that the object of Rule 11 of Order VII CPC is primarily to save the parties from rigors of frivolous litigation at the very inception of the proceedings, and if the Court on the basis of averments made in the plaint and documents available, comes to the conclusion that even if all the allegations made in the plaint are proved, the plaintiff would not be entitled to the relief claimed, the Court would be justified in rejecting the plaint in exercise of powers available under Rule 11 of Order VII CPC. In the instant case, neither can the main relief of declaration nor can the consequential reliefs of injunction and damages be granted to the plaintiff.

 

 

14.       In view of the above discussion, the plaint is liable to be rejected under Order VII Rule 11 CPC as it does not disclose any cause of action, and also as from the statements made in the plaint the Suit is clearly barred under Sections 42 and 56 of the Specific Relief Act, 1877, and Section 3 of the Defamation Ordinance, 2002. C.M.A. No.1031 of 2013 filed by the defendants is, therefore, allowed, and resultantly the plaint is rejected with costs of Rs.50,000.00 (Rupees fifty thousand only), which amount shall be deposited by the plaintiff with the Nazir of this Court in the account of High Court Employees’ Benevolent Fund within thirty (30) days. Consequently, CMA No.1179 of 2012 filed by the plaintiff stands dismissed.

 

 

 

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         J U D G E