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Official Citation: 2023 SHC 1016
Court / Jurisdiction: Sindh High Court
Year of Decision: 2023
Decision Date: 2023-08-21
Parties: Samaa TV and others vs Mr. Anwar Mansoor Khan and others
Ruling Summary: This decision was rendered by the Sindh High Court on 2023-08-21, officially reported as 2023 SHC 1016. In this matter between Samaa TV and others and Mr. Anwar Mansoor Khan and others, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2023SHC1016
Court Name: Sindh High Court Judge(s): Muhammad Abdur Rahman Title: Samaa TV and others vs Mr. Anwar Mansoor Khan and others Case No.: M.A No.07 of 2022 Date of Judgment:2023-08-21 Reported As: 2023 SHC 1016 Result: Order Accordingly
Judgment JUDGEMENT MOHAMMAD ABDUR RAHMAN, J. The Appellants have maintained this Appeal under Section 15 of the Defamation Ordinance, 2002 against the order dated 11 February 2020 passed by the XIth Additional District Judge Karachi (South) that was passed in Civil Suit No. 34 of 2019 and by which the XIth Additional District Judge Karachi (South) had in effect failed to decide an application under Order 7 Rule 10 of the Code of Civil Procedure, 1908 that had been filed by the Appellants. A. Civil Suit No. 34 of 2019 2. The Appellant No. 5 holds a license to operate a television channel in Pakistan and which it operates in the name and style of "SAMMA TV." The Respondent No. 2 and the Respondent No. 3 are both Advocates and Partners of a firm i.e. the Respondent No. 4. It would seem that on 10 October 2018, the Appellant No. 4 had, on their television channel, broadcasted a news item which the Respondents Nos. 2 to 4 allege is defamatory. The broadcast prompted the Respondent No. 2 to 4 on 13 October 2018 to send a legal notice to the Appellants alleging therein that the news items that had been broadcast were defamatory and seeking certain relief as against the Appellants. The Appellants on 24 October 2018 replied to the legal notice issued by the Respondents No. 2 to 4 and justified the broadcast, giving the Respondents No. 2 to 4 the opportunity to appear on their television channel to put forward their point of view. 3. The Respondents No. 2 to 4 rejected both the explanation given by the Appellants justifying the broadcast and the opportunity to appear on the Appellants television channel to put forward their point of view and preferred to institute Civil Suit No. 34 of 2019, under Section 13 of the Defamation Ordinance, 2002 seeking the following relief:
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" ... i. Declare that the Defendants have made defamatory, both liable and slander statements in and before print and electronic media, on 10.10. 2018, against the Plaintiffs ii. Restrain the Defendants or any of their colleagues servants or subordinate or subordinates or any person that may make such comments on and under the influence of the Defendants from making any comments and/or give any remarks to the Press or the Electronic Media against the Plaintiff in any form what so ever ; iii. to grant a judgement and decree against the Defendants for defamation in a sum of Rs. 90,000,000/- As compensation for causing loss of reputation, mental stress, anxiety to the Plaintiff No. 1 iv. to grant a judgement and decree against the Defendants for defamation in a sum of Rs. 30,000,000/- As compensation for causing loss of reputation, mental stress, anxiety to the Plaintiff No. 2 v. to grant a judgement and decree against the Defendants for defamation in a sum of Rs. 60,000,000/- As compensation for causing loss of reputation, mental stress, anxiety to the Plaintiff No. 3 vi. to grant a judgement and decree against the Defendants for defamation in a sum of Rs. 60,000,000/- As compensation for causing loss of future prospects vii. Any other relief or reliefs, order or orders that this Hon'ble Court may on the facts and circumstances of the case may pass." 4. The Appellants contested Civil Suit No. 34 of 2019 and maintained the following three applications: (i) An application under Order I Rule 10 (2) of the Code of Civil Procedure, 1908 seeking to strike out the names of the Appellants No. 1 and 2 from Civil Suit No. 34 of 2019; (ii) An application under Order VII Rule 11 of the Code of Civil Procedure, 1908 seeking the rejection of the plaint of Civil Suit No. 34 of 2019 as it did not disclose a cause of action as against the Appellants; and (iii) An Application under Order VII Rule 10 of the Code of Civil Procedure, 1908 seeking the return of the Plaint of Civil Suit No. 34 of 2019 arguing that as the quantum of damages sought by the Responent No. 2 to 4 in the lis brought it within the jurisdiction of the High Court under the provision of Section 7 read with Section 24 of the Sindh Civil Courts Ordinance, 1962 the Plaint was liable to be returned. Counter Affidavits and Rejoinders were exchanged as between the Appellants and the Respondent No. 2 to 4 on each of the Applications and which were heard by the XIth Additional District Judge Karachi (South) and who by an order dated 11 February 2019 held that: (i) in respect of the application under Order VII Rule 10 of the Code of Civil Procedure, 1908 as there were various pronouncements of this Court and certain orders passed by the Supreme Court of Pakistan suspending a judgement of a Division Bench of this Court as the matter was "sub judice" he could not "comment on this proposition"; (ii) in respect of the application under Order VII Rule 11 of the Code of Civil Procedure, 1908 that the determination of the cause of action required evidence as such the application was not maintainable and was dismissed; and (iii) in respect of the application under Order I Rule 10 (2) of the Code of Civil Procedure, 1908 as the Respondents No. 2 to 4 were by virtue of Section 12 of the Defamation Ordinance, 2002 permitted to sue the "officer, servant or employee of the newspaper or broadcasting station", the Application was not maintainable and was dismissed. B. Miscellaneous Appeal No. 7 of 2022 (i) The Initial Proceedings as an Application for Revision and the Conversion of the Revision Application into an Appeal
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5. Being aggrieved and dissatisfied by the order dated 11 February 2019 passed by the XIth Additional District Judge Karachi (South) in Civil Suit No. 34 of 2019, the Applicants had maintained this lis as an application under Section 115 of the Code of Civil Procedure, 1908 seeking to revise that order on each of the applications and which was numbered Revision Application No. 43 of 2020. However, on 11 February 2022, the Appellants preferred not to pursue their remedy for revision as against the two applications filed under Order VII Rule 11 of the Code of Civil Procedure, 1908 and under Order I Rule 10 (2) of the Code of Civil Procedure, 1908 and had stated that they would only maintain the lis as against the findings of the XIth Additional District Judge Karachi (South) on the Application under Order VII Rule 10 of the Code of Civil Procedure, 1908 and sought an order to convert the Civil Revision into a Miscellaneous Appeal filed under Section 15 of the Defamation Ordinance, 2002. This Court was on 11 February 2022 pleased to allow such a request and Civil Revision Application No. 43 of 2020 was by an order of the same date converted into an Appeal under Section 15 of the Defamation Ordinance 2002 and renumbered as "M A No. 7 of 2022". (ii) Arguments of the Appellant 6. Mr. Abdul Moiz Jafri advanced arguments on behalf of the Appellant. He contented that a Suit under Section 13 of the Defamation Ordinance, 2002 would be read with Section 7 read with Section 24 of the Sindh Civil Courts Ordinance, 1962 thereby confining the pecuniary jurisdiction of the District Court to an amount specified in those Section and consequentially requiring any lis under Section 13 of the Defamation Ordinance, 2002 in excess of the amount specified in Section 7 read with Section 24 of the Sindh Civil Courts Ordinance, 1962, to be instituted before this Court in its Original Civil Jurisdiction. In support of his contentions he relied on a decision of a Division Bench of this Court reported as Pakistan Herald Publications (Private) Limited and 2 others vs. Karachi Building Control Authority[1] wherein it was held that: ".... 6. It may be noted that for the purpose of trial of the cases under the Ordinance forum was provided that of District Judge which through amendment was substituted by District Court. There is no elaboration of term District Court in the Ordinance and it is obvious that Ordinance is a Federal law. 7. The case of Rimpa Sunbeam Cooperative Housing Society (supra) a three members bench of this Court on examining section 7 of West Pakistan Civil Courts Ordinance, 1962 as amended by Sindh Civil Courts (Amendment) Ordinance, 2002 has observed that jurisdiction of Sindh High Court to entertain suits is basically neither the ordinary nor the extraordinary original civil jurisdiction of High Court but simply a District Court jurisdiction which was conferred and regulated by provincial statutes. The Karachi Courts Order, 1956 which was not a law made by the Parliament in exercising the power under the concurrent legislative list of Constitution of Pakistan and there was no conflict between Federal and Provincial law in the above context and therefore in accordance with section 7 of Sindh Civil Courts Ordinance, 1962 the jurisdiction of Sindh High Court to try civil suits is confined to the matter where pecuniary value of subject matter exceeds Rs.30,00,000 and all other suits are liable to be tried by District Courts. It was also observed in the said judgement that where an Act of Provincial Legislature relating to a subject falling within the concurrent legislative list of Constitution was repugnant to an Act of Parliament whether enacted before or after the provincial law, the latter would invariably prevail. 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
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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 dependant on the pecuniary limits prescribed by the Sindh Civil Court 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. 11. In such view of the matter, we do not think that jurisdiction with regard to District Court will have to be read as provided in Sindh Civil Courts Ordinance, 1962 where the High Court has been conferred now the jurisdiction to hear the suits exceeding value of Rs.15 million as a principal civil Court of original jurisdiction. The Ordinance has provided District Court as Court of trial of cases under it, it will be the District Court and no other Court including the High Court and it is the appeal against final decision and decree of that Court which will be heard by High Court. We, therefore, find no illegality in the impugned order and same is therefore maintained and appeal is dismissed." Mr. Abdul Moiz Jafri thereafter stated that an appeal had been preferred against the decision reported as Pakistan Herald Publications (Private) Limited and 2 others vs. Karachi Building Control Authority[2] before the Supreme Court of Pakistan in CPLA No. 936-K of 2011 and on 23 December 2011, the Supreme Court of Pakistan had been pleased to "stay" the operation of that Judgement. 7. He further submitted that in a decision reported as A. Khalid Ansari vs. Mir Shakil ur Rahman,[3] on an application maintained by the Plaintiff under Order VII Rule 11 of the Code of Civil Procedure, 1908, in a suit filed before this Court for Defamation, while giving a finding on the issue as to the pecuniary jurisdiction of this court to deal with such a lis it was held that: "... 11. It remains only to consider section 13 of the Ordinance. This section, as substituted in 2004, provides as follows: "The District Court shall have the jurisdiction to try the cases under this Ordinance." On the basis of the foregoing section, a learned single Judge in the Azhar Chaudhry case ordered that the plaint be returned for presentation at the District Court. In the subsequent Raees Ghulam Sarwar case, another learned single Judge (who was not, it appears, referred to the Azhar Chaudhry case) concluded that since the law of defamation had been codified by the Ordinance, but without any specific ouster of the jurisdiction of the civil courts, the first limb of the well-known rule in Wolverhampton New Waterworks Company v. Hawksford (1859) 6 CB (NS) 336, 144 ER 486 applied, and therefore:-- "...any person aggrieved by any act of defamation has now two remedies. The aggrieved person may either pursue the statutory remedy under the 2002 Ordinance, or he may file a civil suit under general law under section 9 of the C.F.C. But the aggrieved person will have to choose, under the doctrine of election, one of the said two remedies. In case he opts to pursue the statutory remedy,
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the remedy under general law i.e. under section 9 of the C.P.C. would be barred; and vice versa." (at pg. 466, Para 11). Since I do not, with the utmost respect, agree with either of the views that found favour in the two cited cases, it is only proper that I should state my reasons for having come to a different conclusion. 12. In my respectful view, the attention of the Court in the earlier cases vas not drawn towards sections 3 and 7 of the Civil Courts Ordinance, 1962 ("the 1962 Ordinance") and section 15, C.P.C. Section 3 of the 1962 Ordinance lists the classes of civil courts, and at the apex of this hierarchy is the District Court. Section 7 provides (subject to the well-known exception in the case of the civil districts of Karachi) that the original jurisdiction of the District Court is without limitation. Now as is also well-known, there is a class of civil courts below the District Court, which also have original jurisdiction without limitation. Section 15, C.P.C. provides that "every suit shall be instituted in the Court of the lowest grade competent to try it". It is for this reason that suits in the ordinary course are filed in the courts of the concerned civil Judges, and not the District Court, notwithstanding its (unlimited) original jurisdiction. In my view therefore, all that section 13 of the Ordinance has done is to create 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. However, insofar as the civil districts of Karachi are concerned, the jurisdiction of the District Court itself is limited by section 7 of the 1962 Ordinance, and beyond the stipulated limit, suits are to be filed in this Court on its original side. Thus, the combined effect of the foregoing is that if the pecuniary claim in a defamation suit is greater than the limit stipulated in section 7, the suit is, as before, to be brought in the High Court; otherwise, it is now to be instituted not in the court of the concerned Civil Judge, but in the District Court. 13. It follows from the foregoing that the decision to return the plaint in the Azhar Chaudhry case was, in my respectful view, incorrect (assuming [fiat the relief claimed in the suit was above the limit then stipulated in section 7). Furthermore, if the view in the Raees Ghulam Sarwar case were adopted, that could lead to anomalous situations. For example, if the facts of a case came squarely within the scope of section 12, then Notwithstanding that the six-month period therein stipulated may have expired, the plaintiff may choose to "elect" to file his suit in the "civil courts", where the period of limitation is one year. The result could be, to in effect, render section 12 otiose. Equally, a plaintiff could, regardless of the quantum of the relief claimed, "elect" to bring his suit (in Karachi) either in the District Court, or this Court. This would be contrary to the provisions of section 7 of the 1962 Ordinance. At the very least therefore, the rule laid down in the Raees Ghulam Sarwar case would require putting a rather strained interpretation on the relevant provisions in more than one statute, when applied to a defamation suit. In my respectful view, the Ordinance does not create a "statutory remedy", as opposed to the "ordinary" remedy available with the "civil courts". As is clear from section 3 of the Ordinance, 1962 the District Court is as much a civil court as is the court of a Civil Judge. All that has happened is that section 13 has particularized one of the civil courts (namely, the District Court) as the appropriate forum for filing a suit under the Ordinance. There is no question of any "election": it is now not permissible or open to the plaintiff to file his defamation suit in any civil court other than the District Court. And of course, if the claim is over the limit stipulated in section 7, the suit must be instituted in this Court. I would therefore, with the utmost respect, conclude that the rule laid down in the Raees Ghulam Sarwar case ought not to be regarded as correct, and should not be followed or applied." Mr. Abdul Moiz Jafri, argued that as per this decision, the High Court of Sindh at Karachi continues to exercise its jurisdiction as a District Court in terms of Section 7 read with Section 24 of the Sindh Civil Courts Ordinance, 1962 and which valuation at the time of the institution of Civil Suit No. 34 of 2021 was to entertain matters in excess of Rs. 15,000,000 (Rupees Fifteen Million). As the valuation
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that had been attributed by the Respondents No. 2 to 4 in Civil Suit No. 34 of 2021 was in excess of Rs. 15,000,000 (Rupees Fifteen Million) the Plaint in Civil Suit No. 34 of 2021 was liable to be returned for presentation before this Court. 8. Mr. Abdul Moiz Jafri, concluded his arguments by stating that the Section 13 of the Defamation Ordinance, 2002 by either expressing a tentative view as to this Court's jurisdiction by relying on either the order dated 23 December 2011 passed by the Supreme Court of Pakistan in CPLA No. 936- K of 2011 or on the decision reported in A. Khalid Ansari vs. Mir Shakil ur Rahman.[4] (ii) Arguments on behalf of the Respondents No. 2 to 4 9. Mr. Tahmas Rasheed Razvi advanced arguments on behalf of the Respondents No. 2 to 4 and stated that the Respondents were willing to accept whatever decision this Court made as to jurisdiction and if the plaint of Civil Suit No. 34 of 2021 was returned they would thereafter present their Suit in a court of appropriate jurisdiction. Mr. Tahmas Rasheed Razvi did not rely on any caselaw in support of his submissions. (iii) Submissions of the Amicus Curiae 10. During the arguments of the counsels appearing on behalf of the Appellants and the Respondent No. 2 to 4, I had inquired from Mr. Abdul Moiz Jafri and Mr. Tahmas Rasheed Razvi as to whether any appeal had been preferred as against the order passed in A. Khalid Ansari vs. Mir Shakil ur Rahman[5] on the finding in that order as to the jurisdiction of this Court to entertain a suit for defamation under Section 13 of the Defamation Ordinance, 2002 on the basis of Section 7 read with Section 24 of the Sindh Civil Courts Ordinance, 2002. When both the counsel replied that they did not have any knowledge of this fact, I noted that Mr. Hussain Ali Almani, who had represented the Defendant in that matter, was available in court and I had asked him as to whether such an appeal had been preferred or not. When he confirmed that no appeal had been preferred against the order, I had confronted all the counsels with the proposition that as this Court has been constituted under Sub-Article (1) of Article 175 of the Constitution of the Islamic Republic of Pakistan, 1973 as a "High Court" would it be open for an interpretation to be made that this court would continue to be "District Court" keeping in mind the recent pronouncements of the Supreme Court of Pakistan on this issue. I at that time, appointed Mr. Hussain Ali Almani as an Amicus Curiae to assist the Court on this point and as the courts roster was ending he was directed to submit his submissions in writing. (a) The High Court and its Jurisdiction 11. Mr. Hussain Ali Almani in his submissions began by explaining the entire legislative history regarding the establishment of this Court and its evolution under various statutes and constitutions up to date. I have taken the liberty to reproduce the entire written submission made by Mr. Hussain Ali Almani in this regard as an Annex to this Judgement and hope that by doing so I do not belittle the exceptional assistance that was provided to the Court and which I do believe is a correct statement of the the establishment and historical evolution of this Court from a "Chief Court" under the Sind Courts Act, 1926 to its status as a "High Court" under Sub- Article (1) of Article 175 of the Constitution of the Islamic Republic of Pakistan, 1973. 12. After explaining the historical evolution of the Courts and the manner in which its jurisdiction has been determined, Mr. Hussain Ali Almani submissions can be summarised as follows : (i) That through the Sindh Courts Amending Act, 1906, the Bombay Act XII of 1866 was amended and a Court of the Judicial Commissioner was established for the Province of Sindh. Section 2 of that statute specifically providing that this Court would be the District Court for Karachi. (ii) The Sind Courts Act, 1926 Act established a Chief Court which, for the district of Karachi, was to be the principal civil court of original jurisdiction. This he contends marked a clear break from the past as the Chief Court was no longer the District Court for Karachi but the principal civil court of
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original jurisdiction. This was clarified in a series of judgements by the Chief Court holding that it could not be equated with the District Court.[6] (iii) After the promulgation of the Government of India Act, 1935, this Court in the decision reported as Firdous Trading Corporation and others vs. Japan Cotton & General Trading Co. Limited[7] while reaffirming the status of the Chief Court as a High Court under the Government of India Act, 1935 went on to hold that under the Sind Courts Act, 1926 it was exercising the jurisdiction of a "District Court" in contradistinction to the ordinary original civil jurisdiction of the High Court. He therefore submitted that this case, therefore, recognised that the status of the High Court was distinct from the jurisdiction it exercised when hearing civil suits at Karachi. (iv) In Haji Razak vs Usman and others[8] a Division Bench of this Court addressed the primary grounds which found favor in the Firdous Trading Corporation and others vs Japan Cotton & General Trading Co. Limited[9] and declined to follow that Judgement. In particular, the Division Bench addressed the meaning of the phrase "ordinary original civil jurisdiction" and observed that it could only refer to the jurisdiction of a court to decide a matter as a court of first instance and therefore, a suit decided by the High Court is decided in exercise of its original civil jurisdiction. According to the Division Bench, the original civil jurisdiction of the Karachi Bench of the High Court is, therefore, its own ordinary original civil jurisdiction and not the original civil jurisdiction of the District Court. (v) He contended that the Firdous Trading Corporation and others vs Japan Cotton & General Trading Co. Limited[10] was relied on and affirmed by the Supreme court of Pakistan in the Province of Sindh vs. Haji Razak,[11] in which it…
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