1. ' MUHAMMAD ALI MAZHAR, J.-By this order, I will dispose of C.M.A. No, 11433 of 2009 filed by the defendant under Order Vll, Rule 11, C.P.C. The Suit pertains to the Recovery of Damages on account of alleged Defamation, Wrongful Assault and Battery, Trespass, Illegal restraint and wrongful confinement.
2. ' Brief facts of the case are that the plaintiff had married to defendant No,2 but Rukhsati was kept in abeyance for some time with the mutual consent of the elders. The defendant No,l being father of defendant No,2, after some time of Nikah, started finding fault with the said marriage and creating obstacles on one pretext or the other to wind up the wedlock arrangement and therefore, the idea of Rukhsati appeared to be dropped. The attempts were made for reconciliation by the Aunt of the plaintiff Ms. Fareeda Zeab, but the defendants decided not to honour the contract of Nikah and therefore they abandoned the obligation of Rukhsati. It is further alleged in the plaint that since the plaintiff and his family was not happy with such move of breaking the marriage, the plaintiff came from Peshawar to resolve the issue in an amicable manner with the defendant No,2 without any intervention of others. A meeting was proposed to be held on lst May, 2008 at the house of defendant No,3 at Karachi. In the said meeting, the plaintiff along with his Aunt Ms. Fareeda Zeab went to the house of defendant No,3 and the moment they entered into the drawing room, the defendant No,6 stepped in after couple of minutes and started beating the plaintiff. It is further stated in the plaint that subsequently, it transpired to the plaintiff that the defendant No,2 filed a Family Suit No,375 of 2008 against the plaintiff in the Court of Xth Civil and Family Judge, Karachi- West for Khula. In paragraphs (4), (5) and (6) of the memo of plaint, following false and baseless allegations were levelled against the plaintiff:- "That after Nikah, it has been established that the defendant is the vagabondish person and has suspicious character".
3. "That the defendant having illicit involvement with the bad character women and with so called own noble/prestigious relation".
4. "That the defendant is having liberal immoral mental approach upto the unlimited negativity and the plaintiff belongs to a noble and religious family and she cannot even think of it".
5. ' The Family Suit was fixed for pretrial on 8-10-2008, since the defendant No,l declined to join the plaintiff and exhibited extreme hatred against him, the pre-trial failed and Khula was granted. The plaintiff after having come to know that consequent upon the decree granted in the aforesaid Family Suit, the defendant No,l in collusion with other defendants is communicating to other relatives, friends and colleagues of the plaintiff regarding the offending contents of the plaint containing scurrilous allegations of scandalous nature, hence a legal notice dated 18-11-2008 was sent to the defendants Nos.l and 2 which was returned unserved. The plaintiff had mentioned all the above facts in the legal notice and also claimed that the plaintiff is defaming, injuring the reputation and causing enormous loss to the plaintiff. The plaintiff again sent a notice of action through registered post A/D on 28-11-2008 which was duly received and replied on behalf of the defendants No,l and 2 through their learned counsel vide reply dated 16-12-2008, wherein the defendants Nos.l and 2 had not denied the averments of notice but they rather endorsed and affirmed the allegations against the plaintiff and further asserted that it was good-luck of the plaintiff that the evidence was not recorded before the Court of law as in such eventuality, the plaintiff would have been held answerable for the same. The plaintiff further alleged that cause of action arose initially on 1-5-2008 when the plaintiff kept in wrongful custody and illegal confinement and was subjected to assault and further cause of action accrued on 8th October, 2008 when the defendants Nos.l and 2, after the decree was passed in the Family Suit, managed to falsely represent before the public at large and amongst the known circle of the plaintiff by communicating the slanderous remarks as contained in the memo of plaint filed in the Family Suit and also thereafter, by distributing the copies of the said plaint amongst the colleagues, friends, and other persons to the entire detriment of the plaintiff's reputation and continuously doing propaganda by spoken words and by showing the copies of the plaint containing scandalous allegations with false representation that the decree had been granted as the allegations were proved. It is further alleged in the plaint that cause of action further arose on 18-11-2008 when the notice of action was sent to the defendant and subsequently when the defendants sent their reply on 16-12-2008 in which the defendants proceeded to further affirm and endorse the scandalous allegations.
6. ' In the application filed under Order Vll, Rule 11 read with section 151, C.P.C, the defendants have stated that the plaintiffs has placed his case upon an incident in which the plaintiff and his Aunt were subjected to criminal harassm ent and in that respect, an F.I.R, was registered. The case was investigated by the police several times and a report was submitted to the Court that no such incident has occurred and a minor incident of "Tu Tu Mai Mai" was glorified. It is further submitted in the application that in any case, the police submitted a charge sheet on the orders of the learned Magistrate which was considered by this Court and criminal proceedings were quashed. It is further stated that against the order, the plaintiff and her Aunt preferred a petition before Supreme Court of Pakistan, which petition was dismissed. The defendants in the application prayed that the plaint be rejected at this stage instead of pending the same, which amount to the harassment.
7. ' Along with the application, the learned counsel for the defendants has also filed copies of F.I.R.
8. No,210 of 2008 lodged by Ms. Farida Zaed and order of this Court passed in Cr. Miscellaneous.
9. Application No,114 of 2009, whereby the F.I.R. No,210 of 2009 registered at Police Station Saudabad was quashed. The learned counsel also attached a copy of order passed by the honourable Supreme Court on 17th September, 2009, whereby the order passed by this Court in Cr.
10. Miscellaneous Application No, 114/2009 was affirmed. The learned counsel for the defendants in support of his application also filed an additional statement in which he asserted that Suit is barred under sections 11, C.P.C.
11. ' In response to the application, the plaintiff filed his counter-affidavit in which he totally denied the averments made in the application under Order Vll, Rule'll, C.P.C, and stated that he never lodged any F.I.R, nor his present case is wholly based on the incident mentioned therein. The F.I.R, was lodged by his Aunt Ms. Farida Zaeb. The plaintiff further stated that he has filed the present Suit for claiming damages on account of actionable wrong of the defendants in defaming him and causing undue restraint of his liberty and other omissions and commissions which formed the part of pleadings. In the nutshell, the plaintiff wants to place that his Suit is based on actionable wrong and in the criminal proceedings, he was not the complainant and no F.I.R, was lodged for libel and slander but in the present Suit, he has claimed the damages on account of defamation.
12. ' I have heard the learned counsel for the parties. The main thrust of the arguments of the learned counsel for the defendants was that the F.I.R, lodged by Ms. Farida Zaeb has been quashed and, therefore, the present Suit is hit by res judicata. In support of his arguments, he relied upon a judgment reported in 1995 CLC 1662 Malik Gul Hassan and Co. v. Federation of Pakistan through the Secretary, Ministry of Health, Islamabad and 9 others in which the learned Balochistan High Court in a Constitutional Petition held that whenever there is a judgment by a competent Court having jurisdiction, inter parties, it will prevent a fresh Suit or proceedings between them regarding the same matter. It has been further held in the same judgment that doctrine of res judicata is of universal application and in fact a fundamental concept in the organization of every judicial system. If a cause has been definitely determined by a competent Court or Tribunal, it shall be accepted as "irrefragable legal truth". The learned counsel further argued that the judgment passed by this Court in quashment petition may be considered in this Suit as solid evidence against the plaintiff, hence the present Suit is hit by principle of res judicata. In the above judgment cited by the learned counsel the facts of the case were that a Constitutional Petition came up for preliminary hearing and notices were issued to the Advocate-General and Standing Counsel.
13. However, the petition was dismissed by the Division Bench of Balochistan High Court. Feeling aggrieved, the petitioner had approached the honourable Supreme Court in which the counsel appearing for the petitioner candidly submitted that the petitioner will have to file some other legal proceedings, inter alia, for impugning the Ordinance and, therefore, he did not press petition for leave to appeal with the clarification that the observation made by the High Court on factual aspects will not be considered as res judicata. On this statement, the learned counsel for the parties agreed that both the parties will be at liberty to raise whatever factual and legal pleas as may be available to them in any future proceedings which may be initiated by either of the parties and that any observation in the impugned order of the High Court will not prejudice either of the parties. On this firm statement, the petition in the Supreme Court was disposed of as withdrawn.
14. The facts and circumstances mentioned in the aforesaid reported judgment are highly distinguishable to the facts of the present case.
15. ' In order to press the provisions of section 11, C.P.C, five conditions are very important: ~
(i) The matter directly and substantially in issue in the subsequent Suit must be the same matter, which was directly and substantially in issue actually or constructively in former Suit;
(ii) The former Suit must have been a Suit between the same parties or between the parties under whom they or any of them claim;
(iii) The parties as aforesaid must have litigated under the same title in the former Suit;
(iv) The Court which decided the former Suit must have been a Court competent to try the subsequent Suit in which such issue is subsequently raised; and
(v) The matter directly or substantially in issue in subsequent Suit must have been heard and finally decided by the Court.
16. A The essential principles of res judicata are that a relief which is or which can be claimed and prayed for by a litigant through one recourse to law cannot be claimed or prayed for again by the same litigant before the same forum. The principle of res judicata aims to save the Court from being vaxed repeatedly by a litigant for the same relief or for a relief which could have been claimed or prayed for by him in earlier action. In order to support a plea of res judicata, the former decision must have been on merits of the question in issue in the subsequent litigation and it should be inter se parties having same cause of action, subject-matter and claim. If anyone of these elements is missing, this section would not be applicable. The principle of this doctrine is that the judgment and decrees bind only parties.
17. ' The learned counsel for the plaintiff argued that though the plaintiff was not the complainant in the F.I.R, even otherwise the defendants cannot claim res judicata. He has referred to the cause of action and averments of the plaint wherein the main cause of action is based on account of alleged defamation made by the defendant No, 1 in her plaint for Dissolution of Marriage. The learned counsel for the plaintiff states that after failure of pre-trial and passing of decree for dissolution of marriage by way of Khula, the defendant No, 1 along with other defendants circulated the copy of plaint to show that Khula was granted on the basis of alleged libelous averments made in the plaint. He further argued that for the purpose of rejection of a plaint under Order Vll, Rule 11, C.P.C, only the averments of the plaint should be looked into and even the documents filed in defence are not liable to be considered. He further argued that judgment passed by the Court in criminal cases cannot be considered as the criminal case has no relevance for the determination of civil liability. The standard of appraisements of evidence in criminal and civil cases are altogether different and findings of criminal Courts would not be binding on civil Court. In support of his contention he relied upon judgment reported in 2009 M LD 1093 Province of Sindh and another v. Shams-ul-Hassan and others in which the main defence of the defendant was that one of the defendants had been acquitted by the trial Court from the criminal case. In response to this plea the learned Division Bench of this Court observed that fate of criminal A proceedings had no relevance for the purpose of determination of the civil liability as in civil case judge of facts must find for the party in whose favour there was preponderance of probability, though evidence be not entirely free from doubts while in criminal cases, the factum of incident should be proved beyond any reasonable doubt. Even the acquittal findings of guilt in criminal case did not carry bearing for adjudication of civil cases in any manner. In the same line of arguments, he further relied upon judgment reported in 2009 SCM R 1005 Karachi Transport Corpn. And another v. Muhammad Hanif and others in which it has been held that standards of appraisement of evidence in criminal and civil cases are altogether different and findings of criminal Court would not be binding on civil Court. As regards the basic principle of Order Vll, Rule 11, C.P.C, is concerned, it is clear that while deciding such application only the contents of the plaint are to be looked into without any extraneous consideration. In support of this plea, the learned counsel for the plaintiff relied upon a judgment reported in 1994 SCM R 826 Jewan and 7 others v. Federation of Pakistan through Secretary, Revenue, Islamabad and 2 others in which it has been held that the rejection of plaint under Order Vll, Rule 11, C.P.C, is contemplated at a stage when the Court has not recorded evidence in the Suit. It is for this reason precisely, that the law permits consideration of only averments made in the plaint for the purpose of deciding whether the plaint should be rejected or not for failure to disclose cause of action or the Suit being barred under some provision of law. The Court while taking action for rejection for plaint under Order Vll, Rule 11, C.P.C, cannot take into consideration pleas raised by the defendants in the Suit in his defence as at that stage the pleas raised by the defendants are only contentions in the proceedings unsupported by any evidence on record. The learned counsel further relied upon another judgment reported in PLD 2008 SC 650 Saleern Malik v. Pakistan Cricket Board PCB and 2 others in which the Honourable Supreme Court has held that the plaint in the Suit cannot be rejected on the basis of defence plea or material supplied by the opposite party with the written statement. This is settled law that in case of controversial questions of fact or law, the provision of Order Vll, Rule 11, C.P.C, cannot be invoked rather the proper course for the Court in such cases is to frame issue on such question and decide the same on merits in the light of evidence in accordance with the law. The Court may in exceptional cases, consider legal objection in the light of averment of the written statement but the pleadings as a whole cannot be taken into consideration for rejection of plaint under Order Vll, Rule 11, C.P.C. From the aforesaid judgment of the honourable Supreme Court, it is clear that while deciding an application under Order Vll, Rule 11, C.P.C, only contents of the plaint are to be seen and defence cannot be considered. While deciding the civil cases, the judgments passed in criminal cases have no relevance and standard of proof of evidence are altogether different in both species of litigation.
18. ' It is advantageous to point out that before promulgation of Defamation Ordinance 2002, the suits based on law of Torts/Libel or Slander of recovery of damages were being filed under the common law. However, in the year 2002 a special law has been promulgated in which certain provisions have been incorporated relating to law of defamation. In this Ordinance, publication means the communication of the words to at least one person other than the person defamed and to include a newspaper or broadcast through the Internet or other media. Communicating defamatory matter to some person other than the person of whom it is written is publication in its legal sense. If the statement is sent straight to the person of whom it is written, there is no publication of it. The words "complained of" should be communicated to some person other than the plaintiff. Section 3 of the Ordinance provides that any wrongful act or publication or circulation of a false statement or representation made orally or in written or visual from which B injures the reputation of a person, tends to lower him in the estimation of others or tends to reduce him to ridicule, unjust criticism, dislike, contempt or hatred shall be actionable as defamation. The same section further provides that defamation is of two forms namely (i) slander and (ii) libel. Any words will be deemed defamatory which expose the plaintiff to hatred, contempt, ridicule, or obloquy, or tend to injure him in his profession or trade, and cause him to be shunned or avoided by his neighbours.
19. Everyman has an absolute right to have his reputation preserved inviolate. The right of reputation is acknowledged as an inherent personal right of every man and a man's reputation is his property and, if possible more valuable than other property. The concept of defamation is as old as the hills and the Pakistan Penal Code makes no distinction between written and spoken defamation and the term "defamation" includes both libel and slander. "Denigratio alienate framae", in the Latin of the medieval schoolman. A good name is better than great riches. According to Shakespeare in Othello, Act II, Scene 3165:-- "Good name in man and woman, dear my lord, ' Is the immediate jewel of their souls; ' Who steals my purse, steals trash; tis something nothing; ' T was mine, `tis his, and has been slave to thousands; ' But he that filches from me my good name, ' Robs me of that which not enriches him, ' And makes me poor indeed."
20. ' The speech of Lord Denning in Plato Films Ltd. v. Speidal 1961 A.C. 1090 and 1961 1 All. E.R. 876 provides helpful guidance as to the kind of evidence, which is admissible to show bad or good reputation, as the case , may be. The defendant may mitigate damages by giving evidence to prove that the plaintiff is a man of bad general reputation and the plaintiff may rebut it by coming prepared with friends who have known him to prove his reputation has been good. Lord Denning in his speech states that in order to arrive at a man's character and reputation, you should call those who know him and have had dealings with him, for they provide the only sound foundation on which to build, if it is evidence of good character, a witness of good standing is called such as a clergyman, schoolmaster or an employer and is asked such questions as these: "What are you?
21. How long have you known him? Have you known him well? Have you had an opportunity of observing his conduct?
22. ' What character has he borne during that time for honestly, morality or loyalty?" ...
23. ' Defamation may be broadly defined as a false statement of which tendency is to disparage the good name or reputation of another person. Section 4 of the Defamation Ordinance 2002 further provides that publication of defamatory matter is actionable wrong without proof of special damage to the person defamed and where defamation is proved, damage shall be presumed. In section 5 of the same Ordinance, certain lines of defence have also been provided for the defendant to prove that he was not the author, editor, publisher or printer of the statement complained of; the matter commented on is fair and in the public interest and is an expression of opinion and not an assertion of fact and was published in good faith; it is based on truth and was made for public good; assent was given for the publication by the plaintiff; offer to tender a proper apology and publish the same was made by the defendant but was refused by the plaintiff; an offer tb print or publish a contradiction or denial in the same manner and with the same prominence was made but was refused by the plaintiff; the matter complained of was privileged communication such as between the lawyer and client or between having fiduciary relations; and the matter is covered by absolute or qualified privilege. The legislature has also provided two kinds of privileges, one is absolute privilege and another is qualified privilege. Any publication of statement made in the Federal or Provincial legislatures, reports, papers, notes and proceedings ordered to be published or by the Provincial Assemblies, or relating to judicial proceedings ordered to be published by the Court or any report, note or matter written or published by or under the authority of a Government shall have the protection of absolute privilege while any fair and accurate publication of parliamentary proceedings, or judicial proceedings which the public may attend and statements made to the proper authorities in order to procure the redress of public grievance shall have the protection of qualified privilege. Before taking action under this Ordinance, notice of action is mandatory. Section 8 of the Ordinance provides that no action lies unless the plaintiff has, within two months after the publication of the defamatory matter has come to his notice or knowledge, given to the defendant, fourteen days' notice in writing of his intention to bring an action, specifying the defamatory matter complained of. The remedies are available under section 9 of the Ordinance which says that where defamation shall proved to have occurred, the Court may pass order directing the defendant to tender any apology, if acceptable to the plaintiff, and publish the same in similar manner and with the same prominence as the defamatory statement made and pay reasonable compensatory damages as general damages with a minimum of Rs,50,000 and in addition thereto, any special damage incurred that is proved by the plaintiff to the satisfaction of the Court. Award of general damages is comprised on three conditions such as (a) vindication, (b) injury to reputation, (c) injury to feelings. The amount of damages awarded in respect of vindication and injury to reputation and feelings depends on number of factors such as (a) the gravity of the allegation (b) the size and influence of the circulation (c) the effect of the publication (d) the extend and nature of the claimant's reputation
(e) the behaviour of the defendant (f) the behaviour of the claimant. The standard of proof is the normal civil standards of the balance probabilities. However, in common with a plea of justification to serious charges, the evidence must be clear and cogent. Proof of a state of mind can only be inferred from the facts. Section 11 of the Ordinance clearly stipulates that Ordinance not to prejudice any action for criminal defamation which means that the Ordinance does not prejudice any action for criminal libel or slander under any law for the time being in force which makes clear that both remedies are available to an aggrieved person and he is at liberty to file both, civil and criminal proceedings against the actionable wrong simultaneously and there is no bar imposed under the Ordinance. Though under Article 19 of the Constitution of Islamic Republic of Pakistan freedom of speech and expression is a fundamental right which provides that every citizen shall have the right to freedom of speech and expression, and there shall be freedom of the press, subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign States, public order, decency or morality or in relation to contempt of Court (commission of) or incitement of an offence, Freedom of expression is one of those fundamental rights which are considered to be the corner stone of democratic institutions. The right of free speech extends to all subjects which affect ways of life without limitation of any particular fact of human interest and include in the main term "freedom of expression". Moreover the right of freedom of speech and expression carries with it the right to publish and circulate one's ideas, opinions and views with complete freedom and by resorting to any available means of publication. However, the right of freedom of speech and expression is not unfettered and unbridled. Absolute and un-restricted individual rights do not exist in any modern State and there is no such thing as absolute and uncontrolled liberty.
24. While allowing freedom of speech and expression as a fundamental right, our Constitution also provides under Article 14 that the dignity of man and, subject to law, the privacy of home shall be inviolable. The principle is required to be extended further to the cases where any defamation is caused, because the human dignity, honour and respect is more important than physical comforts and necessities. No attempt on the part of any person individually, jointly or collectively to detract, defame or disgrace another person, thereby diminishing, decreasing C and degrading the dignity, respect, reputation and value of life. This provision providing for the dignity of man as a fundamental right is the most valuable right. Dignity of man is not only provided by Constitution of Pakistan, but according to history and belief under Islam great value has been attached to the dignity of man and the privacy of home. So in all fairness, while exercising the right of freedom of speech and expression, one has to keep in his mind that he has also a corresponding responsibility and duty to ensure that his freedom of expression or speech may not transgress the limits of freedom beyond the boundaries of Article 14 of the Constitution.
25. Reverting back to present case, I am of the view that the assertion of the learned counsel for the defendant that present Suit is hit by res judicata is not correct as in the criminal proceedings no F.I.R. Was lodged by the plaintiff or his Aunt on account of any defamation under section 500 or 501, P.P.C. In fact, F.I.R. Was lodged by the Aunt of the plaintiff but the plaintiff was not complainant in the case. The present case of the plaintiff is for the recovery of damages on account of libel and main cause of action is against the allegations levelled in the Suit filed for the D Dissolution of Marriage by way of Khula, therefore I am of the view that the present Suit is not hit by the principle of res judicata.
26. ' From the contents of the plaint, it is clear that the main claim of the plaintiff is against the libelous allegations levelled against him in the Family Suit. The plaintiff further claims that a notice of action was tendered upon the defendant No,1 in which the defendant No,1 aggravated the situation. All these questions whether the plaintiff is entitled to claim any damages on account of his alleged defamation can only be decided once the appropriate issues are framed and evidence is recorded in the Suit. The defendant have already filed their E written statement and they will be also at liberty to rise their defence in accordance with Defamation Ordinance 2002. The present application under Order VII, Rule 11, C.P.C. Is not maintainable which is dismissed accordingly.