' KHALID ALI ,Z. QAZI, J.---This order shall dispose of the three listed applications. The first listed application i,e, C.M.A. 4708 of 2007 is moved by the plaintiff for contempt of court under Article 204 of the Constitution read with section 3 of the Contempt of Court Ordinance, 2003. The second listed application i,e, C.M.A. 8186 of 2007 is moved by the defendants under Order VII, rule 11, C.P.C., while the third listed application i,e, C.M.A. 1216 of 2007 is moved by the plaintiff under Order XXXIX, rules 1 and 2 read with section 151, C.P.C.
2. In this suit the plaintiff has, inter alia, sought reliefs by way of declaration, injunction and damages against the defendants for their attempt to dispossess the plaintiff from his business establishment and for having caused adverse propaganda and publication, which is alleged to have damaged the reputation of the said plaintiff. The facts shall be further elaboratd later, however, since the defendants have sought rejection of the plaint under Order VII, rule 11, C.P.C. It shall be first convenient to tackle the listed application at serial No,2.
' C.M.A. No,8186 of 2007
3. This is an application under Order VII, rule 11, C.P.C. Moved by the defendants seeking rejection of the plaint. The main grounds alleged by Mr. Muhammad Khalid, the learned counsel for the defendants, are as follows:--
(a) after the advent of the Defamation Ordinance, 2002 (hereafter referred to as "the 2002 Ordinance") no civil suit under section 9 of the C.P.C. Would be maintainable; Note: The Defamation Ordinance, 2002, being Ordinance No,LVI of 2002, is reported in PLD 2003 Federal Statutes [Supplement-1] 86, while the Defamation (Amendment) Act, 2004, being Act No IX of 2004, is reported in PLD 200 Federal Statutes 61.
(b) as the plaintiff has failed to give the required notice under section 8 of the 2002 Ordinance the suit is not maintainable;
(c) the reliefs claimed by the plaintiff in the suit are contrary to Articles 15, 16, 17 and 19 of the Constitution.
4. Before I advert to the above grounds raised by the learned counsel for the defendants, it shall be pertinent to observe that in the prayer clause the plaintiff has not only sought reliefs against the alleged defamatory publications/propaganda but he has also prayed for declaration and injunction in respect of unauthorized or forcible dispossession from his premises. It is an elementary principle of law that plaints cannot be rejected piecemeal. Even if one prayeris maintainable, the plaint could not be rejected under Order VII, rule 11, C.P.C. If there A is any authority needed for this proposition it is Younus Textile Mills y. Muhammad Fazal Tayyab 2004 MLD 1081. The above is enough to reject the application under Order VII, rule 11 but since an important question has been raised by the learned counsel for the defendants, I deem it necessary to decide the same. Ever since the advent of the 2002 Ordinance a question of public importance has loomed large, which is as to whether a civil suit under section 9 of the C.P.C. Seeking relief against an act of defamation could be maintained by the civil courts. And I feel that such a question requires immediate resolution.
5. The tort of defamation has been actionable before the civil courts of our country under section 9 of the C.P.C. Even prior to the introduction of the 2002 Ordinance. Reference is invited to M. Moosa v.
Mahomed and others PLD 1959 Karachi 378. In this case a Division Bench of this Court was pleased to observe that the English common law in respect of the tort of defamation was applicable in Pakistan as a matter of justice, equity and good conscience, unless some other feature or circumstance operative in Pakistan made application of such common law undesirable here. The judgment of the High Court was upheld by the Hon'ble Supreme Court in M. Moosa v. Mohmmad and others PLD 1968 SC 25. I have also been able to lay my hands on a judgment of a Division Bench of this Court reported as Government of Punjab v. Mst. Kamina 1990 CLC 404 wherein it has, inter alia, been held that the law of tort as administered in England has been administered in the Province of Sindh under Regulation 26 of the Sindh Regulations IV of 1827 as a rule of justice, equity and good conscience. I may further invite reference to Ghulam Ali v. Abdul Hafiz PLD 1962 Lahore 765, Adeeb Javedani v. Yahya Bakhtiar 1995 CLC 1246 and Capt. Benaras Khan v. Commodore Akhtar Hanif and another 1988 CLC 1093 to emphasize the point that even before the 2002 Ordinance the civil courts in Pakistan have been entertaining civil suits under section 9 of the C.P.C.
In respect of actions based upon defamation. The 2002 Ordinance has simply statutorily codified both the right and remedy in respect of defamation. The fact that the 2002 Ordinance is a statutory codification of the preexisting law of defamation applicable in Pakistan is also borne out from Syed Mehmood Ali v. Network Television Marketing (Pvt.) Ltd. And another PLD 2005 Karachi' 399. The relevant excerpt from this judgment, available at page 407, is as follows:-- "Prior to promulgation of 'Defamation Ordinance (LVI of 2002)' civil action for defamation was actionable under tort, now it has been made actionable under statute law, (see sections 3, 4 and 9 of Defamation Ordinance, 2002).Once it is established that the liable has beep committed, injury or damage in the reputation, goodwill is presumed this long-standing principle has now been assimilated in section 4 of the Ordinance LVI, 2002."
6. Just for 'the sake of completeness it may also be mentioned that Articles 24 and 25 to the 1st Schedule of the Limitation Act, 1908 provide for a one year limitation period hi respect of suits for compensation regarding libel and slander, respectively (see Major (Retd.). Tanvir Hussain Shah v.
Government of The Punjab and others 1986 MLD 1089 and Mohiuddin Ansari and another v.
Muhammad Arif Siddiqui 1989 MLD 3875).This again confirms that a suit for defamation (i,e, libel or slander) was maintainable under section 9 of the C.P.C. Even before the 2002 Ordinance.
7. Section 13 of the 2002 Ordinance (as amended by Act IX of 2004) provides that the trial of cases under the 2002 Ordinance shall be conducted by the District Court. Furthermore, section 15 of the 2002 Ordinance (as amended by the Act IX of 2004) provides for an appeal to the High Court against the final decree and decision of the District Court under section 13. The key question is that in view of the statutory codification of the right and remedy in respect of defamation, which was earlier founded in general/common law, whether the remedy under general law could still be available?
8. A detailed reading of the 2002 Ordinance (as amended) would reveal that the same does not contain any ouster clause. Nowhere has it been stated that the jurisdiction of the civil courts would be barred in respect of actions against defamation. Section 13 of the 2002 Ordinance prescribes the remedy to enforce the right under the said Ordinance without ousting the general jurisdiction of the civil courts under section 9 of the C.P.C. The elementary principle founded in section 9 of the C.P.C. Is that the civil courts are the courts of ultimate jurisdiction, which will continue to assume jurisdiction in respect of all civil matters, unless their jurisdiction is expressly or impliedly barred. I have already observed that the 2002 Ordinance does not contain an express bar with regards the jurisdiction of the civil Courts. However, the important legal issue is whether any implied bar could be inferred? In order to resolve this conundrum reference is invited to the classical pronouncement in Wolverhampton New Water Works Company v. Hawkesford (1859) 37 LJ 248. The relevant excerpt, as authored by Wills J, is as follows:-- "There are three classes of cases in which a liability may be established by statute. There is that class where there is liability existing 'at common law, and which is only re-enacted by the statute with a special form of remedy there, unless the statute contains words necessarily excluding the common law remedy, the plaintiff has his election of proceeding either under the statute of common law. Then there is a second class, which consists of those cases in which a statute has created a liability but has given no special remedy for it; there the party may adopt an action of debt or other remedy at common law to enforce it. The third class is where the statute creates a liability not existing at common law, and gives also a particular remedy for enforcing it. Now it appears to me that the present case falls Within such third class; and as with respect to that class it has been always held that the party must adopt the form of remedy given by the statute; so I think the company are bound here to follow the form given by this statute which creates the rights."
9. The above excerpt from Wolverhampton New Water Works Company v. Hawkesford was cited and applied by a Full Bench of the Lahore High Court comprising Muhammad Munir A.C.J. Cornelius and Muhammad Khurshid Zaman JJ. In Mian Sultan Ali Nanghiana v. Mian Nur Hussain PLD 1949 Lahore 301 at P.
339. This judgment from the Lahore High Court was followed by a Division Bench of this Court in H.H.
Ahmed v. Pakistan PLD 1972 Karachi 366, the latter having been affirmed by the Hon'ble Supreme Court in Pakistan v. H.H. Ahmed 1971 SCMR 626. In turn a single Judge of this Court in United Bank.
LTD v. Messrs Akbar Agencies Ltd. PLD 1987 Karachi 81 followed H.H. Ahmed v. Pakistan.
10. The case of Wolverhmpton New Water Works Company v. Hawkesford identifies three categories of cases. The juridical consequences flowing in these three categories can be conveniently summarized as follows:--
(a) in the first category are cases where a legal right is already recognized in common or general law, which is later codified through statute and such statute also provides a remedy. In such cases unless there is an ouster clause barring jurisdiction of civil courts, both the remedies under the general and special laws would be available, subject to the doctrine of election i,e, the Plaintiff/Applicant will have to choose as to whether he would pursue the remedy under special or general law;
(b) in the second category of cases the legal right itself is created by the statute but no remedy is provided under the codified law. In such cases the statutory right will be enforceable by the procedure given under the general law. To illustrate this second category, reference is invited to West Punjab Government v. Pindi Jhelum Valley Transport Ltd. PLD 1953 Lahore 339. In this case the Motor Vehicles Act, 1939 had provided for certain permits but no remedy was provided by the statute in case of unlawful cancellation of the said permits. It was held that suit before the civil court under section 9 of the C.P.C. Was maintainable to question such unlawful cancellation of permits;
(c) in the third category are all those cases where not only the right is created by the statute but the said statute also prescribes a procedure for its enforcement. In such cases the rights strictly enforceable through the mechanism provided by the statute.
11. The present case falls in the first category mentioned above i,e, right was recognized under general law and subsequently it has been codified and in such statutory codification the remedy is also provided but without a provision ousting the general jurisdiction of the civil courts. Since the right against defamation was already recognized and actionable under general law even prior to the advent of the 2002 Ordinance and the later though providing a procedural remedy without a clause ousting the general jurisdiction of the civil courts, 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.P.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, the remedy under general law i,e, under section 9 of the C.P.C. Would be barred; and vice versa. The doctrine of election apart from the aforementioned cases of Wolverhampton New Water Works Company v. Hawkesford and Mian Sultan Ali Nanghiana v. Mian Nur Hussain (cited above) has been reiteratcd and applied in Tanveer Jamshed v. Raja Ghulam Haider 1992 SCMR 917 and Mst. Fehmida Begum v. Muhammad Khalid 1992 SCMR 1908. In the latter two judgments it has been held that in order to challenge adverse orders a stranger/third party to rent proceeding could either file a civil suit or an application under section 12(2) of the C.P.C., however, he has to elect one of the two remedies. And after exercising an option to pursue one remedy, the other remedy would be completely barred. This principle is fully applicable here.
12. In the present case the plaintiff has not pursued his claim or remedy under the 2002 Ordinance but has rather opted to file the present suit under section 9 of the C.P.C. The suit is thus maintainable. The statutory remedy under the 2002 Ordinance is, however, now barred for the plaintiff as he has exercised his option to pursue the general law remedy under section 9, C.P.C.
13. During the course of arguments the defendant placed reliance upon a judgment of a Single Bench of the Peshawar High Court reported as Shafqat-ur-Rehman v. Daud-ur-Rehman PLD 2006 Peshawar 206 which suggests that after the introduction of the 2002 Ordinance the civil courts are deprived of their jurisdiction to take cognizance of any suit against defamation under the general law i,e, section 9 of the C.P.C. I am afraid in view of the discussion above I do not agree with the views expressed in the latter judgment from the Peshawar High Court.
14. The next ground taken by the defendants is that the plaint should be rejected as the plaintiff has not issued the notice under section 8 of the 2002 Ordinance. The argument is misconceived since I have already held that the present suit is maintainable under general law i,e, section 9 of the C.P.C, which does not require any prior notice.
15. The last ground in mpport of this application that the claim of the plaintiff is barred under Articles 15, 16, 17 and 19 of the Constitution is again meritless.. Article 15 of the Constitution guarantees freedom of movement, Article 16 freedom of assembly, Article 17 freedom of association and Article 19 freedom of press. The freedoms envisaged in all these Articles are not absolute but subject to reasonable restrictions. In respect of the freedom of press suffice would it be to say that the propagators, printers and publishers are bound by a fundamental duty to establish that whatever they publish is based upon the truth.
16. The upshot of the above discussion is that the C.M.A. No,8186 of 2007 under Order VII, Rule 11, C.P.C. Is hereby dismissed, being devoid of any force, with no order as to costs.
' C.M.A. No,12i6 of 2007
17. This is an application under Order XXXIX, Rules 1 & 2 read with section 151, C.P.C. Moved by the plaintiff praying that the defendants be restrained from dispossessing the plaintiff from his business establishment and from disseminating malicious propaganda against the plaintiff by taking out rallies and effecting publication of "Khabaranama Awaz" and from any other spoken words and written material. The background facts leading to this application are that the plaintiff has claimed himself to be a successor proprietor to the business of real estate/construction under the name and style of Gul Estate and Gul Construction situated at Plots Nos. B-5, C-5, B-6, C-6 and B-7, Block 9, Gulistan-e-Jauher, Karachi. The plaintiff referred to an ongoing dispute between Messrs Architects and Engineer's Employees' Cooperative Housing Society Ltd. Messrs Syed Zafar Hussain, Riffat Zaman Kiyani and Abdul Rahim Jamot have allegedly claimed to be the Secretaries of the aforementioned society. Reference is also invited to previous litigation and F.I.Rs,, which are not relevant to the matter in issue. According to the plaintiff on 4-2-2007 the defendants instigated several residents of the aforementioned society to take out rallies against the plaintiff and his proprietary concern. It is alleged that the defendants attempted to dispossess the employees and guards of the plaintiff with the help of "GUNDA elements of the area". It is further alleged that defamatory material adverse to the plaintiff was published in a bogus newspaper under the name "KHABARNAMA AWAZ". This document is attached as Annex. A/18 to the plaint. It does not bear the names and addresses of any editor, owner, publisher or printer. In the written statement the defendants have denied to have made any attempt to dispossess the plaintiff. It has been averted by the defendants that the plaintiff himself is involved in unlawful activities and is one of the leading land grabbers of the city. It has been stated by the defendants that in view of existence of armed guards/gundas of the plaintiff at his premises it was absolutely impossible for the innocent residents of the society to make any attempt to dispossess the plaintiff. With regards the publication the defendants have stated that although the contents of the publication are true, they have neither published nor circulated the same. Attempt is also been made to raise the defence that no injunction can be ' granted to restrain any publication. Also the case of the defendants is that the citizens of the country have an inherent right to assemble and raise their voices against the misdeeds of the plaintiff. In this regard the learned counsel for the defendants has relied upon the fundamental rights guaranteed under the Constitution and the judgment reported as Puri Terminal Ltd. v. Government of Pakistan 2004 SCMR 1092.
18. It is by now a very well-established principle of law that courts are very reluctant in granting temporary injunctions against publications. In this respect one may refer to the judgment reported as Majid Nizami v. Sheikh Muhammad Rashid PLD 1996 Lah. 410 and Sultan Ali Lakhani v. Mir Shakeelur Rehman PLD 1997 Karachi 41. However, to contend that the courts are completely debarred from granting any temporary injunction in any matter of defamatory publication would be too over-stretching the principle of law. I have already observed that the freedom of press guaranteed under Article 19 of the Constitution is not absolute. In recent times we have seen a growing tendency of yellow journalism. While there is no cavil with the proposition that public policy and interest necessitate a very liberal construction of the right of freedom of expression, collaterally the need to stringently visit recalcitrant and irresponsible publication is also imperative.
Competing interests are required to be- balanced. Therefore in a fit case for example where on the fact the publication is untrue or has been caused with an attempt to blackmail the plaintiff, a temporary injunction could well be granted. Reference is invited in this regard to Quartz Hill v. Beall (1882) 20 Ch D 501, Bonnard v. Perryman (1891) 2 Ch 269 and Harishakar v. Kailash Narain 1981 MPLJ 589 as quoted in "Ratanlal and Dhirajlal on the Law of Torts" by Justice G.P. Singh, 24th Edition at pages 307 and 308.
19. There are two further principles which are relevant in the grant of temporary injunctions in defamation matters. These two principles have been cited in "Mehrotra's commentary on the Law of Defamation, Damages and Malicious Prosecution", by G.S. Kalra, 5th Edition at page 89. These two'principles are that the court will not grant temporary R injunction unless it is satisfied that immediate and irreparable injury to person or property will most probably result to the plaintiff if the publication is allowed to continue; and no interlocutory relief will be granted if injury caused to the plaintiff can be compensated in damages.
20. In the present case the plaintiff has alleged attempted dispossession and adverse publication by the defendants. The defendants have denied to have ever caused any adverse publication or afflicted an attempt of dispossession in relation to the plaintiff. This is typically a case of "word against word" wanting in evidence. The Hon'ble Supreme Court in Mashkoor Khan v. Province of Sindh 1971 SCMR 572 has been pleased to hold that where a prima facie case cannot be established without recording evidence, courts should refrain from granting temporary injunction.
To similar effect is the judgment reported as Fazal Din v. Rubina Aurangzaib 1983 CLC 1280.
21. There is another aspect of the case. Having read the respective pleadings of the parties and documents no case is made out against the defendants since the defendants have clearly denied any responsibility for printing/circulating the publication or attempting to dispossess the plaintiff.
The Court thus cannot draw any inference and hence on this principle again no injunction can be issued. Reference in this regard is invited to Balagamwala Oil Mills v. Shakarchi Trading 1991 CLC 2071.
22. Also in para 19 of the plaint the plaintiff himself has quantified damages to the tune of Rs,5 crores. In Tahir Zaman v. Jin Wei 2004 CLD 603 a learned Single Judge of this Hon'ble Court was pleased to hold that quantification of damages disentitles the plaintiff to the grant of temporary injunction. The law in this regard seems to be that where the plaintiff prays for damages in the alternative, then despite quantification of damages he may still be able to obtain temporary injunction under Order XXXIX, however, where the prayer of damages w is not made in the alternative that by itself could be a factor in disentitling the plaintiff to seek temporary injunction. In the present case the plaintiff while seeking damages has not prayed for the same in the alternative.
23. The plaintiff having failed to establish a prima facie case and also having prayed for damages, which are not in the alternative, this is not a fit case where temporary injunction could be granted.
Accordingly, C M A. No,1216 of 2007 is dismissed, but with no order as to costs. The two ad interim orders passed on 19-2-2007 are hereby vacated.
' C.M.A. No,4708/2007
24. This is an application for contempt of court moved by the plaintiff under Article 204 of the Constitution read with section 3 of the Contempt of Court Ordinance, 2003. The plaintiff has alleged that the defendant No,1 i,e, Mansoor Sadiq may be punished for contempt of Court since despite the Court's ad interim order dated 19-2-2007 he has continued to distribute defamatory pamphlets against the plaintiff. In the counter affidavit the defendant No,1 has denied that he did not publish or distribute any defamatory pamphlet against the plaintiff. It is correct that vide order dated 19-2- 2007 this Court was pleased to restrain the defendants from publishing any adverse report against the plaintiff. However, a perusal of the respective affidavits of parties would show that once again this is a case of "word against word". There is nothing on record to suggest that the defendant No,1 has violated the Court order which is specific to a publication of adverse report against the plaintiff by the defendants. As the plaintiff has failed to establish even a prima facie violation of the Court order by the defendant No,1, once again no interference by the Court is warranted. Resultantly C.M.A. No,4708 of 2007 is also dismissed but with no order as to costs.
25. To sum up, all the three listed applications are dismissed with no order as to costs.