' ZIA PERWAZ, J.---Plaintiff, Messrs M.A. Majeed Khan, a sole proprietorship firm, through its Propriator M.A. Aziz Khan, has filed this suit for recovery of Rupees One Crore (Rupees Ten Million) against defendant No,1, Karachi Water and Sewerage Board, and Defendant No,2, erstwhile Karachi Metropolitan Corporation, now City District Government, Karachi, for compensation by way of damages.
2. The brief facts are that he Plaintiff claims to be an A Class contractor registered with the Defendants. The Plaintiff was awarded work of laying of sewerage main for disposal of sewerage water of Block 11, Gulshan-e-Iqbal, Karachi from Railway Crossing to Lyari River, along Rashid Minhas Road. Since the work was to be completed on urgent basis within a short period of 45 days, the work was given at 400% above the schedule rates. Pursuant to the award of the work, an agreement was signed between the parties on 15-11-1994. According to the Plaintiff, the work was to be completed within 45 days from 15-11-1994. The Plaintiff claims that immediately after the award of the work, difficulties arose as the work comprised of laying down of 32", 34" and 36" gauges pipelines. At different depths and the drawings were to be supplied by the Defendants for the same. The work also involved laying of pipelines beneath the railway track for which prior approval had not been obtained from railway authorities. Likewise, there were gas and electricity services for which no prior arrangement was made by the Defendants causing delay in execution of the work. It is also claimed by the Plaintiff that the work in progress was stopped and suspended by the staff at site, by verbal order, in obedience to the orders of their superiors on 16-12-1994 for the reason that some changes had to be made in design and specifications of the pipes. The written suspension orders were issued after 112 days i,e, on 8-4-1995. According to the plaintiff, the suspension is still (on the date the suit was presented) in force. In the meantime, a news item appeared in the daily "JANG" on 14-4-1994 regarding the work awarded to the plaintiff. According to the plaintiff, ' this news item is most damaging, defamatory and highly objectionable and, therefore, the plaintiff issued a legal notice dated 15-4-1996 to the defendant number one calling upon it to clarify the position within three days. Thereafter, the plaintiff by the present suit for recovery of damages by way of compensation in the sum of Rs, 10 million.
3. Notices were issued to the defendants who filed their written statements denying the adverse allegations made in the plaint. The Defendant No,2, in it's the written statement, vehemently denied that there was any privity of contract between the plaintiff and the Defendant No,2 It was also denied that the plaintiff was a registered contractor with the Defendant No,2 or that any contract/work was awarded to the plaintiff by the Defendant No,2. Thus, it was denied that any cause of action arose to the plaintiff against the Defendant No,2.
4. The Defendant No,1 in its written statement as completely denied the averments made in plaint and it was stated that the plaintiff was trying to mislead the Hon'ble Court. Regarding the news item appearing in the daily Jang dated 13-4-1994, it was stated that the news was not released by the defendant number 1, the Staff Reporter of the newspaper submitted the news quoting the Chief Engineer, KMC.
5. On the basis of the pleadings of the parties the following issues were framed:
(1) Whether Defendant No,2 as prime agency at relevant time has any concern with the contract executed between the Plaintiff and the Defendant No,1?
(2) Has the plaintiff any actionable claim and/or cause of action against Defendant No,2?
(3) Whether the repeal of any provision of relevant law subsequently does absolve defendant No,2 from any liability.?
(4) Is the plaintiff responsible to have left the work in hand or the Defendant No,1 suspended the Job/work on 16-12-1994 verbally and then on 8-4-1995 through written order.?
(5) Is the plaintiff defamed viz. Subjected to libel and slander through media (Urdu daily Jang) by the defendants.?
(6) Is the plaintiff under circumstances entitled to relief claimed on account of defamation (libel & slander) meted out to plaintiff by the defendants.'?
(7) Whether any cause of action has arisen to the plaintiff.?
(8) What should the decree be?
6. The Plaintiff, on its behalf, examined Muhammad Iqbal Ahmed, son and attorney of the sole proprietor of the Plaintiff firm, who produced a large number of documents marked Exhibit 4 to Exhibit 62. Defendant No,1 examined Mahmood Hussain son of Iqrar Hussain, its Executive Engineer who produced his affidavit-in-evidence as Exh. 64 and some documents as Exhibits 65 to 80. Apart from these two witnesses, two more witnesses, namely, Iftikhar Ahmed Alvi and Malik Muhammad Yasin, two former employees of the Defendant No,1, were examined.
7. The first two issues relate to the role of the Defendant No,2 vis-a-vis the contract awarded by Defendant No,1 to the Plaintiff. The Plaintiff claim that the Defendant No,2, being the prime agency at the relevant time, has any concern with the contract executed between the Plaintiff and the Defendant No,1 and whether has plaintiff any actionable claim and/or cause of action against Defendant No,2. A perusal of the plaint shows that apart from mentioning the name of the Defendant No,2 in the array of the defendants, there is no mention of the Defendant No,2 in the entire body of the plaint. Apart from this, the Plaintiff himself mentioned the Defendant No,1 as "a statutory body" who has been sued through its managing director. Similarly, Defendant No,2 has also been shown as "a statutory body". Admittedly, the contract dated 15-11-1994 is between the Plaintiff and the Defendant No,
1. Although it is mentioned that the expenses are chargeable to K.M.C. Fund but this would not make the Defendant No,2 a party to the suit. The Defendant No,2, in its written statement, has denied the averments made in para. 1 of the plaint to the effect that the Plaintiff is "A" class contractor with the Defendant No,2. The Plaintiff has not been able to show any privity of contract between the Plaintiff and the Defendant No,2. At the same time the Plaintiff has also not been able to show that the Defendant No,2 has anything to do with the contract. Nothing has been brought on record to show that the persons executing the contract on behalf of the Defendant No,1 had any connection with the Defendant No,2. The witness appearing on behalf of the Defendant No,1 in his evidence has stated that the project was financed by the Defendant No,2.
Thus, the only connection between the Defendant No,1 and the Defendant No,2 is that the finance for the project was to be provided by the Defendant No,2 to the Defendant No,l. This was a matter between the Defendant No,1 and the Defendant No,2 and, on this basis, it cannot be said that the Defendant No,2 has anything to do with contract. Accordingly, these issues are answered in negative.
8. Issue No,3 is whether the repeal of any provision of relevant law subsequently does absolve Defendant No,2 from any liability. In view of my findings on Issues Nos.5, 6 and 7, since it has not been proved that any liability was caste upon the Defendant No,2, therefore, the question whether Defendant No,2 was absolved of the same due to repeal of some law, does not arise. The issue is answered accordingly.
9. Issue No,4 is for determination as to who stopped the work in hand. The Plaintiff, in para. 2 of the plaint, has stated that pursuant to the award of the contract and execution of the agreement on 15-11-1994, the Plaintiff commenced the work on the same date. Therefore, the date of commencement of work, according to the Plaintiff himself, is 15-11-1994. This work was to be completed within a period of 45 days. Therefore, keeping in view the urgency, the work was awarded to the Plaintiff at a considerably higher rates - to be precise 350% higher than the normal rates. According to the Plaintiff, on 16-12-1994, the work was stopped by the staff at the site 'in obedience to the orders of the superiors viz. The defendants' on the ground that some changes were to be made in design and specifications of the pipes. However, written orders for suspension of the work were received on 8-4-1995, i,e, after 120 days of the suspension of the work on the verbal orders of the staff at the site. However, the attorney and son of the Plaintiff, who appeared as witness on behalf of the Plaintiff, in his affidavit-in-evidence has not stated a single word about such suspension of the work on the orders of the staff of the Defendants at the site. In the affidavit- in-evidence, it is stated that the Defendant No,1 failed to supply drawings, designs and level as per rule 1 of the contract and for such reason and due to noncooperation and non-coordination of other agencies like Karachi Electric Supply Corporation, Sui Gas and PTCL, 'the job had to be abandoned'. It is also stated by the witness that the personnel of the Defendant No,1 at the site 'lacked know-how of technique of underground services, the officers used to give spot-instructions to the Plaintiff's staff and, therefore, up to 12-6-1994, only 700 rft RCC pipe of 36 inches dia could be laid. The Plaintiff also complained of the indifferent attitude of the staff of Defendant No,1 and frequent changes of the design and specifications .
10. On the other hand, the witness of the Defendant No,1, Mahmood Hussain son of Iqrar Hussain, and Executive Engineer by profession, in his affidavit in evidence stated that the following work was to be completed within 45 days:
(1) Laying of 2000 RFT of 36" dia pipes.
(2) Laying of 3000 RFT of 33" dia pipes.
(3) Laying of 1000 RFT of 30" dia pipes.
(4) Laying of 100 RFT of 24" dia pipes.
(5) Laying of 1000 RFT of 12" dia pipes.
11. Thus, it would be seen that 7100 RFT of different dia pipes was to be laid within a period of 45 days. Accordingly to the Defendant No, 1 's evidence, out of this total work, only 1815 RFT pipe of 36" dia could be laid up to 16-12-1994. It has further come in the evidence that in 32 days only 33 % work was completed by the Plaintiff and since it was not possible to complete the remaining work within a short period of 13 days, the Plaintiff abandoned the work. The witness also produced a letter dated 17-7-1994 as Exh.70 complaining of the delay caused by the Plaintiff in starting the work.
12. The work was awarded to the Plaintiff on 15-11-1994 and it was to be completed within 45 days of the award of the work. Admittedly, the work was not completed within the stipulated time. The Plaintiff, in para. 3 of the Plaint states that the work was verbally stopped by the staff of the 'Defendants' on 16-12-1994 and a suspension order in writing was delivered on 8-4-1994. However, this factum does not find any mention in the affidavit-in-evidence of the attorney of the Plaintiff.
There is a clear contradiction in the averments in the plaint and the contents of the affidavit in evidence of the Plaintiff's attorney on this point.
13. Although, this suit is for recovery of damages on account of defamation caused by the news item published in the daily JANG dated 14-4-1996 and a finding on this issue would not have any effect on the outcome of the suit. However, since an issue has been framed and argued, therefore, it has been discussed above. In my view, the Plaintiff has not been able to prove that the delay in completing the work was caused by the Defendant No,1. The issue is answered accordingly.
14. The entire claim of the Plaintiffs pivots on findings on Issues Nos.5, 6 and 7 which are the main issues. The attorney of the Plaintiff has filed an affidavit-in-evidence comprising of 10 pages and 64 paras. Although the Plaintiff has filed this suit for compensation by way of damages, more than nine pages of the affidavit-in-evidence refer to the causes of delay caused in completing the work.
It is only in paras. Nos.58 and 59 of the affidavit in evidence that reference to the news item dated 14-4-1996 has been made and that too in a cursory way.
15. The only grievance of the Plaintiff is the publication of a news item in the daily JANG dated 14-4- 1994. The attorney of the Plaintiff in his evidence has stated that on 13-4-1996 a news item was published in the daily JANG "suo motu hitting at the defendants" mismanagement and mal- administration leading to inefficiency even in maintaining the record and preserving the documents. He further states in his evidence that on the same day i,e, 13-4-1996, highups of Defendants Nos.1 and 2 held a meeting and issued the statement for press about the news published on 13-4-1996 to create confusion, harassment and panic. The witness states that this statement is wholly incorrect, frivolous, vexatious, most damaging, defamatory and highly objectionable. The Plaintiff immediately addressed a legal notice titled "Legal notice for redemption of obligation" to the Defendant No,1 which has been produced as Exh.55. In the second para. Of this legal notice, which is numbered as 1, it is stated that 'some for-n-against news items have been appearing in leading dailies especially the daily "JANG" dated 13th and 14th April, 1996'. The third para. Of this legal notice, numbered 2, does not lend itself to lucid explanation. However, at least it can be said that no allegations are levelled in this para. Against the Defendant No,1 vis-a-vis the Plaintiff.
16. In a suit for damages on account of defamation based on publication of a news item, the question of primal importance is whether the complained imputations are libellous to the Plaintiff.
A perusal of the news items appearing in the daily JANG dated 13-4-1996 and 14-4-1996 reveals that both the news items accuse the Defendant No,1 of incompetence. While the first news item mentions the name of the contractor i,e, M/s. M.A Majeed Khan, the Plaintiff in this suit, the second news item, which has been the basis for filing the present suit for compensation on account of damages for defamation, nowhere the name of the contractor has been mentioned. All along he has been referred to as "contractor" {{URDU TEXT}}. The heading of this news item states that two letter were issued by the Defendant No,1 while record pertaining to one is available, the record for the other is not available and the reference number is the same. This does not in any way impute any wrongdoing to the Plaintiff. So far as the allegation regarding increase in the rates in concerned, it is not disputed that the work was awarded to the Plaintiff at a rate 350% higher than the normal rate and the reason therefor has also been mentioned. The news item mainly concerns issuance of two letters with the same reference number. The incompetence, if any, in this regard can only be attributed to the Defendant No,1 only. Nowhere the news item speaks of any wrongdoing by the Plaintiff. It only highlights a dispute between the Plaintiff and the Defendant No,1 .
17. The most important aspect of the news item is that it was published by the newspaper on the report of one of its staff reporters. It does not disclose that any press conference was held by any officer of the Defendant No,1 or Defendant No,2 in which any allegation was levelled against the Plaintiff. Since the news was initiated by the staff reporter, referring to 'reliable sources' in KMC, it was incumbent upon the Plaintiff to have arrayed the said staff reporter and the news paper itself as Defendants in this suit. In the case of Pakistan Coast Guards v. Umar Saleya (1997 CLC 1), the Defendant Umar Saleya, held a press conference in which he levelled allegations against the Plaintiff. In this case, the Plaintiff rightly filed the case against the said defendant only and did not array the newspaper as a Defendant because whatever was published in the news item was provided by the said Defendant and he was himself responsible for the same.
18. Another aspect of this case is that the Plaintiff has filed this suit against two statutory bodies and no natural person is a Defendant in this suit. Though it is settled law that a statutory body can maintain an action for libel, but whether an action for libel/slander can be maintained against a statutory body. In my opinion a statutory body is not capable of issuing any defamatory statement/material. It is the staff/officers of a statutory body which can do so and for such action only they can be held responsible. Thus, it was incumbent upon the Plaintiff to have arrayed the person, who, according to the Plaintiff, was responsible for issuing a damaging statement to the press.
19. The upshot of the above discussion is that the Plaintiff has not been able to prove by cogent evidence that any libellous imputations were made by the Defendants.
20. In support of his case Mr. Iqbal Kazi has relied upon the cases of Mst. Abida Amin v. Muhammad Amin and another (PLD 1999 Kar. 30) Sufi Muhammad Ishaque v. The Metropolitan Corporation, Lahore (PLD 1996 SC 737), Pakistan Coast Guards v. Umar Saleya (1997 CLC 1), Miss Irshad Jahan v.
P.N.S.C. (1999 CLC 192), and Mst. Kaniz Fatima v. Farooq Tariq and others (PLD 2002 Kar. 20).
21. In the case of Mst. Abida Amin (supra), the facts were that the husband of the Plaintiff in the divorce deed made allegations against his wife, the Plaintiff to the effect that she suffered from gynecological disease and that the Plaintiff used to come home late and would pretend that she had gone to visit her mother or some friend. The Plaintiff filed a suit alleging that the allegations contained in the divorce deed as well as the certificate issued by the doctor to her husband are false and defamatory. It was held by the learned Single Judge that there was absolutely no need to make aforesaid allegation in the divorce deed and the marriage could be terminated without making such imputations, therefore, it is impossible to resist the arguments that such statement was made and circulated maliciously. Therefore, it was held that it is quite clear that the imputations made in the divorce deed were calculated to defame the Plaintiff. However, this case is of no help to the learned counsel for the Plaintiff as the Plaintiff has not been able to prove that the news item was got published by the Defendants or even that the same was defamatory to the Plaintiff.
22. Similarly, in the case reported as Pakistan Coast Guards (supra), the suit for defamation was filed by the Plaintiff on the basis of a press conference held by the Defendant and widely covered by the local newspapers. In this case also it was not in dispute whether the alleged libellous material emanated from the Defendant or not. Therefore, this case is also distinguishable and of no help to the Plaintiff.
23. The remaining cases of Miss Irshad Jehan, Mst. Kaniz Fatima and Sufi Muhammad Ishaque (supra) relate to the determination of quantum of the damages to be awarded to the Plaintiff.
Since in this case, it has not been proved by the Plaintiff that the news item was defamatory and libellous to him, therefore, no question of deciding the quantum of damages arises. Therefore, these cases are of no help to the Plaintiff.
24. The Plaintiff has not been able to prove that any officer of the defendant No,1 or defendant No,2, duly authorized to issue the alleged press statement, had in fact issued such statement. Even the name of any such officer issuing the alleged statement has not been placed on record. It is settled that acts of an agent without authority, even if proved, would not affect the principle. See the cases of (1) M/s. Abdul Latif Abdul Shakoor Madraswala v. The Karachi Steam Navigation Co. Ltd. PLD 1981 Kar. 367 and (2) Muhammad Saghir Ahmad v. Qurban Ali and others 1983 CLC 2127. There is nothing on record to show that the press statement was issued by any officer of the defendants authorized to do so. The plaintiff has failed to join any officer of the defendants, who is alleged to have issued the press statement has been joined as a party to the proceedings.
25. In view of the above discussion, I answer Issues Nos.5, 6 and 71L in the negative.
26. Regarding the other claims of the Plaintiff, the Plaintiff has filed a separate suit bearing Suit No,89/1996 in which the matter is to be adjudicated on its own merits while in the present suit pertains to claim of damages on account of defamation only.
27. The upshot of the above discussion is that the Plaintiff has failed to prove that he was subject to any libel or slander through media,. M therefore, this suit is dismissed with costs.