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Petitioner: Messrs Fact Finders (Pvt.) Ltd. and others VS Respondent: CNBC Pakistan and others
Court Name: Lahore High Court Judge(s): Atir Mahmood Title: Messrs Fact Finders (Pvt.) Ltd. and others vs CNBC Pakistan and others Case No.: F.A.O. No.264 of 2015 Date of Judgment:2020-10-19 Reported As: 2022 CLC 1397 Result: Order accordingly
JUDGMENT
JUDGMENT ATIR MAHMOOD, J. Concisely, the facts of the case are that appellants/plaintiffs (hereinafter called as "appellants") filed a suit for recovery of damages of Rs.350.50 Million in lieu of libel committed by respondents/defendants (hereinafter called as "respondents"), contending therein, that on 17.08.2012, in the evening, respondent No.3 recorded the meeting through his cellular phone and aired/published after fabrication due to malice and grudge in order to perpetrate gigantic loss of the worst magnitude and blackmailing for extorting money from the appellants which caused damage to the reputation of the appellants at national and international level resulted into mental agony and torture as well as financial loss, therefore, the appellants are entitled to damages in accordance with law as perdetail given below: Sr.No.Damages and Expenses Amount 1. The actual dams yes (Business loss). 50 Million 2. Cousequential damages 100 Million 3. Punitive damages 100 Million 4. Damages for tarnishment of reputation and mental anguish (plaintiff No.2)50 Million
5. Exemplary damages 50 Million 6. Costs of suit and expenses 0.5 Million Thereafter, during pendency of the suit, respondents filed an application under Order VII, Rule 10, C.P.C. for return of plaint. Appellants contested the application by way of filing written reply.
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Learned Civil Judge, Lahore, after hearing the arguments from both sides, accepted the application and returned the suit vide impugned order dated 04.03.2015. Hence, this appeal has been filed. 2. It has been contended by the learned counsel for the appellants that the impugned order suffers from material illegality and irregularity; that learned trial Court failed to look into the matter that the jurisdiction of Civil Court to entertain a suit for defamation under general law i.e. Section 9, C.P.C., was not specifically ousted by Defamation Ordinance, 2002 as the jurisdiction of Civil Court and District Court in this regard is concurrent and it was the option of aggrieved person to avail remedy where he wants; that jurisdiction of Civil Court cannot be taken away except, by express provision or by necessary implication. Lastly prayed that the impugned order may be set aside and case be remanded to be tried and decided on merits by the learned Civil Judge being Court of competent jurisdiction. Learned counsel for the appellants has relied upon the judgments reported as "Raees Ghulam Sarwar v. Mansoor Sadiq Zaidi and 4 others" (2008 CLD 1056) and "Ch. Zulfiqar Ali Cheema v. Farhan Arshad Mir and others" (PLD 2015 Supreme Court 134). 3. Controverting the arguments of the learned counsel for the appellants the learned counsel for the respondents 3 has contended that the contents of instant appeal are false, fabricated, misconceived and the same are not maintainable and the appeal is liable to be dismissed; that the order passed by the learned trial Court is legal, valid and there is no illegality in the same; that it is generally acknowledged procedure/law that special law prevails over the general law and after promulgation of The Ordinance w.e.f. 01.10.2002, the jurisdiction of Civil Courts stood automatically ousted and the District Court is the Court where the appeal ant could file the suit for defamation. He seeks help from the dictums laid down in the judgments reported as "State Life Insurance Coporation of Pakistan through Chairman and others" (2017 SCMR '49), "Khadim Hussain and 12 others v. Gul Hassan Tiwano and 3 others" (2013 CLD 981), "Pakistan Herald Publications (Pvt.) Ltd. and 2 others v. Karachi Building Control Authority through Controller of Buildings" (2012 CLD 453), "Syed Mushahid Shah and others v. Federal Investment Agency and others" (2017 SCMR 1218) and "Industrial Development Bank of Pakistan v. Allied Bank of Pakistan and another" (PLD 1986 Supreme Court 74). 4. I have heard the learned counsel for the parties; perused the material and pleadings available on the record of the case and examined the case law cited by the counsel with their able assistance. 5. The moot point involved in this case which requires its determination is that whether suit for defamation is triable before the Civil Court in terms of section 13 of the Defamation Ordinance, 2002 or not. 7. The Defamation Ordinance, 2002 was enacted and published in the Gazette of Pakistan Extraordinary on 1-10-2002 as Ordinance LVI of 2002. By Defamation Amendment Act, 2004, Act IX of 2004, sections 2, 9, 13, 14 and 15 of the Ordinance were amended. In section 2 clause (bb) was added containing the definition of term, Court in the following words:-- "(bb) "Court" means the District Court." Section 13 of the Ordinance ibid reads as follows:-- "13. Trial of cases.---The District Court shall have the jurisdiction to try the cases under this Ordinance." Section 15 reads as follows:-- "15, Appeal.---An appeal against the final decision and decree of the Court shall lie to the High Court within thirty days and the High Court shall decide the appeal within sixty days: Provided no appeal shall lie against an interlocutory order of the Court" The history of Tort and law of Defamation in our country has been derived from the English common law. Even before promulgation and introduction of the Defamation Ordinance, 2002 (Amended in 2004), the A Defamation laws were actionable before the Civil Court under Section 9 of C.P.C. As mentioned in the preceding Para the Defamation Ordinance, 2002 came into being on
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1-10-2002 which was subsequently amended through Defamation Amended Act, 2004. It is true, as provided by section 13 of the Ordinance, 2002, the District Court shall have the jurisdiction to try the cases under the Ordinance, 2002. Similarly, Section 15 provides that appeal against final decision and decree of the trial court shall lie to the High Court, within thirty days and the High Court shall decide the appeal within sixty days. Bare reading of Ordinance, 2002, would disclose that the same does not contain any ouster clause. It has nowhere mentioned in the Ordinance that the jurisdiction of the Civil Court would be barred with regard to the actions against Defamation. Section 13 of the Ordinance, 2002, only prescribed the remedy to enforce the right, without ousting the general jurisdiction of the civil courts. It is settled law that the civil courts, under Section 9, C.P.C. are courts of ultimate jurisdiction and shall continue to assume jurisdiction in respect of all civil matters, unless their jurisdiction are expressly or impliedly barred. Since right against defamation was already existing and actionable under the general law, even prior to the advent of Ordinance, 2002, and the later, though provide a particular remedy without any clause ousting the general jurisdiction of the civil court, therefore, any person aggrieved by any act of defamation has got two remedies. The aggrieved person has to select one of the two remedies i.e. under civil law or general law, however, after selecting anyone, of the above remedy the other remedy, would become completely barred. I would like to give reference to the dictum laid down by the August Supreme Court of Pakistan in a case reported as "Ch.. Zulfiqar Ali Cheema v. Farhan Arshad Mir and others" (PLD 2015 Supreme Court 134) wherein it has been observed as under: "2(bb) "Court" means the District Court." (9) "Remedies.---Where defamation shall be proved to have occurred, the Court may pass order directing the defendant to tender an apology, if acceptable to the plaintiff and publish the same in similar manner and with the same prominence as the defamatory statement made and statement made and pay reasonable compensatory damages as general damages with a minimum to Rs. 50,000 (Rupees fifty thousand) and in addition thereto, any special damage incurred that is proved by the, plaintiff to the satisfaction of the Court: (10) Code of Civil Procedure and Qanun-e-Shahadat Order to apply. --The code of Civil Procdure 1908 (Act No. V of 1908) and the Qanun-e-Shahadat Order, 1984 (P.O. No.10 of 1984) shall mutatis mutandis, apply to the proceedings under this Ordinance. (11) Ordinance not to prejudice action shall prejudice any action for criminal libel or slander under any law for the time being in force." Before proceeding further, by adverting to section 11 ibid, it is clear that the Ordinance in no way prejudices or prevents a criminal action which an aggrieved party could initiate under criminal law. It may also be pertinent to mention here that from the reading of the Ordinance as a whole it does not again preclude a person from initiation an action for damages under the general law of the land i.e. under the law of Torts by filing a suit for damages under the general law of the land i.e. under the law of Torts by filing a suit for damages under C.P.C. The definition of the court envisages it to be District Court, which otherwise has original civil jurisdiction; section 10 makes the Civil procedure Code and Qanun-e-Shahadat Order, 1984 applicable mutatis mutandis, thus for all intents and purposes the proceedings before the court primarily are of the civil nature. Per the law (Ordinance, 2002) in fact composite civil, remedies have been provided which are clearly mentioned in the section and need no elaboration. Though the section is composite, at the same time it can be split and segregated into two parts: The first is relatable to tendering of apology and statutory damages which the court can allow, the extent whereof (damage) shall be determined by the court within the ambit of the section. For this no court fee is payable. The second part however starting with the expression "and in addition thereto, any special damage incurred that is proved by the plaintiff to the satisfaction of the court", is an added right of the party, filling him a choice and option to claim special damages for the special forum or to resort
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to this remedy available to suit. Undoubtedly this remedy available to the person approaching the "Court" is in the nature of a civil suit and the claim shall attract the payment of ad valorem court fee under section 7(1) of the Court Fees Act. In light of the above, these appeals have not merits and are accordingly dismissed. (Emphasis provided) The plain reading of above said judgment concludes that whole reading of Ordinance did not preclude a person from initiating an action for damages under the law of Torts by filing a suit for damages under Civil Procedure Code, 1908. The appellants in order to substantiate his arguments also relied upon case law reported in "Raees Ghulam Sarwar v. Mansoor Sadiq Zaidi and 4 others" (PLD 2008 (Karachi) 458) wherein it is held that the District Judge and the Civil Court have concurrent jurisdiction as far as suit for defamation is concerned and it is open for the plaintiff to choose the remedy either under the Defamation Ordinance, 2002 or the general law. 8. The scheme of law is further clarified in the decision of this Court in learned Division Bench reported as "Dr. Faiza Asghar v. Nighat Nasir Sheikh and others" (PLD 2017 Lahore 884) that once a person opts, for a remedy under the general law then the remedy under Defamation Ordinance is completely barred and vice versa. The relevant portion of said judgment is reproduced herein below: A careful perusal of the Ordinance reveals that neither there is any repealing clause nor ouster of jurisdiction of the Civil Courts to try the suit filed before it being the Courts of ultimate jurisdiction. To this extent, we are comfortable to say that there is neither any ouster nor repealing clause in the Ordinance respecting jurisdiction of Civil Courts to try a civil action, if instituted, claiming damages on account of defamation committed by the opposite party. 10. The plain reading of this provision of law manifestly shows that the jurisdiction under Section 13 of The Ordinance is with the District Courts. If a case is filed under Section 9 of The Code is to be dealt with by the Civil Courts which is reproduced hereunder: "Courts to try all civil suits unless barred.---The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred". 11. Now we have also considered to have a look and expressed ourselves on effectiveness of Section 9 of the Code reproduced hereinabove. It is general principle that if in respect of same disputes/litigation general law and special law are in the field, the special law shall prevail subject to condition that the special law contained provisions of ouster of jurisdiction of Civil Courts whereas it is not the situation in the present case. We are of the view that it was intention of the legislation to keep special law as well as general law in the field giving option to the aggrieved persons either to opt for their redressal against defamatory action before court of general jurisdiction i.e. Civil Courts or in the special law. It has been further held in the judgment (supra) that: We are convinced that the option is with the aggrieved person either to go to file civil suit or to avail of the remedy provided under the special law (Ordinance, 2002). The appellant availed 1st option with the learned Civil Court which was not found favour and had been turned down by the learned trial court while misinterpreting the afore-mentioned provision of law vide order dated 04.01.2010 which, in the circumstances is not sustainable. It is manifestly clear from the above judgment that the Ordinance does not debar the plaintiff to file the suit for defamation before the Civil Court and the Defamation Ordinance, 2002 that not any overriding effect qua the jurisdiction of the ordinary civil court which has been provided by the legislature, therefore, the suit of the appellant was not returnable under Order VII, Rule 10, C.P.C. This view has also been taken by this Court in a case titled "Zafar Ali v. Additional District Judge, Pakpattan and another" (2017 CLC 45). In this case the question before the High Court was same
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as in the instant case that whether a suit for damages on account of defamation resulting from alleged malicious prosecution was maintainable before the court of ultimate jurisdiction under Section 9 of the C.P.C. or the same could only be adjudicated under Section 13 of the Defamation Ordinance, 2002. It was observed in the judgment that Section 13 of the Defamation Ordinance, 2002 prescribed the remedy to enforce a right before the District Court, however, the same did not contain any repealing or ouster clause regarding jurisdiction of civil court to entertain a suit under the general law that section 9 of the C.P.C. 9. The C.P.C. under Order VII, Rule 10, C.P.C., empowers the civil courts to return the plaint to the plaintiff if the court believes that the plaint is not properly filed. Return is different from rejection and it needs to be noted. Return of plaint does not connote that the plaint had mistaken or that the rules for drafting the plaint were not conformed to. It simply means that the court is not empowered to try the suit for which the plaint is filed. According to Order VII, Rule 10(1) of C.P.C., a plaint is returned on the sole ground of lack of jurisdiction with the concerned court. There is misapplication of law in the instant case regarding return of plaint as the learned trial Court could not rightly follow the spirit of Section 13 of Defamation Ordinance, 2002. 10. The main emphasis of respondents is on the point, which is a well settled law by superior courts that special law excludes the general law and they maintained that the Defamation Ordinance, 2002 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 and it has conferred jurisdiction for trial of cases under the Ordinance in the District Court. In support of their contention, they relied on different judgments as mentioned above. In the judgment reported as "Pakistan Herald Publications (Pvt.) Ltd.(supra) stipulates that: "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." 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." By taking view of the above dictums, there is no cavil to the proposition that special law excludes the general law but it is also to be seen that if in respect of same dispute/litigation general law and special law were in field, special law would prevail subject to condition that special law contained provisions of ouster of jurisdiction of Civil courts, however, in the Defamation Ordinance, 2002, neither there is any repealing clause nor ouster of jurisdiction of civil court to try the suit filed before it with regard to damages on account of defamation.
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11. While relying upon the case reported as "Syed Mushahid Shah and others v. Federal Investment Agency and others" (2017 SCMR 1218) respondents tried to make a case that the Defamation Ordinance, 2002 is a special law creating special remedies and also provide for specific Court for trial cases and appeal which had override effect over the general law i.e. Section 9 of C.P.C., therefore, when the special law is available the general law on that context has no force. I perused the said judgment which is with regard to the interpretation of Financial Institution (Recovery of Finances) Ordinance, 2001. The august Supreme Court of Pakistan in the judgment examined the question of concurrent jurisdiction with reference to the FIO, PPC and ORBO in great detail. Para 9 of the stated Judgment reads as follows: Section 7(4) of the Ordinance, 2001 confers exclusive jurisdiction on the Banking Courts with respect to certain matters albeit subsection (5) creates an exception to the exclusive jurisdiction of the Banking Courts. This confers a right on the financial institution to seek any remedy before any court or otherwise which may be available to it under the law by which the financial institution may have been established [Section 7(5)(a)]. According to Section 4 of the Ordinance, 2001 reproduced above, its provisions "shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force." This is essentially a non obstante clause Which is defined as "A phrase used in documents to preclude any interpretation contrary to the stated object or purpose. "Notwithstanding" means despite, in spite of or regardless of something. In this respect Justice G.P. Singh has aptly explained:- "A clause beginning with notwithstanding anything contained in this Act or in some particular provision in the Act or in some particular Act or in any law for the time being in force" is sometimes appended to a section in the beginning, with a view to give the enacting part of the section in case of conflict an overriding effect over the provision or Act mentioned in the non obstante clause. It is equivalent to saying that in spite of the provision or Act mentioned in the non obstante clause, the enactment following it will have its full operation or that the provisions embraced in the min obstante clause will not be an impediment for the operation of the enactment." In the judgment reported as Packages Limited through its General Manager and others v. Muhammad Maqbool and others (PLD 1991 SC 258) this Court observed:- "In our opinion a 'non-abstante' clause operates as an ouster of the earlier provisions only where there is a conflict and inconsistency between the earlier provisions and those contained in the later provision and, therefore, must be read in the context in which it is operating. Accordingly, a non- obstante clause will operate as ouster only if an inconsistency between the two is found to exist." In the judgment reported as Muhammad Mohsin Ghuman and others v. Government of Punjab through Home Secretary, Lahore and others (2013 SCMR 85), this Court cited with approval a passage from Interpretation of Statutes by N.S. Bindra which reads as under:- It has to be read in the context of what the legislature conveys in the enacting part of the provision. It should first be ascertained what the enacting part of the section provides on a fair construction of words used according to their natural and ordinary meaning and the non obstante clause is to be understood as operating to set aside as no longer valid anything contained in relevant existing law which is inconsistent with the new enactment. The enacting part of a statute must, where it is clear, be taken to control the non obstante clause where both cannot be read harmoniously, for even apart from such clause a later law abrogates earlier laws clearly inconsistent with it. The proper way to construe a non obstante clause is first to ascertain the meaning of the enacting part a fair construction of its words. The meaning of the enacting part Which is so ascertained is then to be taken as overriding anything inconsistent to that meaning in the provisions mentioned in the non obstante clause. A non obstante clause is usually used in a provision to indicate that that provision should prevail despite anything to the contrary in the provision mentioned in such non obstante clause. In case there is any inconsistency between the non obstante clause and another
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provision one of the objects of such a clause is to indicate that it is the non obstante clause which would prevail over the other clauses. It does not, however, necessarily mean that there must be repugnancy between the two provisions in all such cases. The principle underlying non obstante clause may be invoked only in the case of 'irreconcilable conflict'." From the above it is clear that the non obstante clause of Section 4 of the Ordinance, 2001 has been used by die legislature to give the provisions of the said Ordinance an overriding effect over any other law for the time being in force which may be contrary thereto. The use of the word "notwithstanding" in Section 4 ibid indicates the legislative intent to avoid the operation of conflicting provisions, by providing that in the event of Such conflict, the provisions of the Ordinance, 2001 would take precedence over any such inconsistent law. In terms of these findings, the FIO is a special law which gets priority over the ORBO, the Cr.P.C. and the P.P.C. to try the same offence, hence the Banking Court has exclusive jurisdiction to try such cases. 13. In terms of these findings, there is no cavil to the fact that the FIO is special law which gets priority over the ORBO, the Cr.P.C. and the P.P.C. to try the same offence and the Banking Court has exclusive jurisdiction to try such cases. It would be beneficial to reproduce relevant provisions of FIO, 2001 herein below: 4. Ordinance to override other laws. The provisions of this Ordinance, shall have effect notwithstanding anything inconsistent…
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