' MUNIB AKHTAR, J.---The present application has been filed by the defendant under Order VII, Rule 11, C.P.C., seeking rejection of the plaint and/or the dismissal of the suit as not maintainable. The plaintiff was, at the material time, a partner in a firm of chartered accountants. The defendant is the editor-in-chief and group chief executive of a well-known media group, which comprises of a number of companies, and which provides content and news coverage through print and electronic means.
2. Learned counsel for the defendant submitted that the claims made by the plaintiff against the defendant, as stated in paras 25 and 26 of the plaint, fell into two categories. One set of claims (set forth in para 25) was for outstanding audit fees and Work done for a documentary project. The second claim (set -forth in para 26) was a libel claim on the basis of the alleged defamation of the plaintiff by the defendant. As regards the first claim, learned counsel submitted that it was clear from a bare perusal of the plaint and its annexed documents that the work done, both in relation to audit and for the documentary project, had been done by the firm of chartered accountants of which the plaintiff was a partner. Thus, the claim could, if at all, be agitated by the firm and not by the plaintiff in his personal capacity. Although Order XXX, C.P.C. Permitted a partner of a firm to sue for the firm, in the present case, the suit had been brought by the plaintiff for himself alone, and was not therefore maintainable. Secondly, learned counsel submitted that the work had been done for the various group companies, of which the defendant was merely a director and/or shareholder. The work had not been done for the defendant personally, and the cause of action, if any, in this regard was against the companies, and not the defendant. Learned counsel submitted that it was a settled principle that a company was a separate legal entity in its own right, and any liability of a company (save in the case of a limited number of exceptions, none of which applied in the present case) was solely and exclusively that of the company, and not of its officers, directors or shareholders.
3. As regards the libel claim, learned counsel submitted that a perusal cf the plaint (as per paras 14, 19 and 20 thereof) showed that it was based on an e-mail that the defendant had sent to the plaintiff. Learned counsel based his, submissions on the Defamation Ordinance, 2002, as amended in 2004 (hereinafter referred to as "the Ordinance"). He submitted that the plaintiff had not given the notice required by section 8 of the Ordinance to the defendant, and hence the suit was not maintainable. He also referred to section 12 to contend that the period of limitation as therein prescribed was six months, and the suit had been filed after this period had expired (the e-mail having been sent on 6-10-2009, and the plaint presented on 4-62010). Learned counsel also submitted that the e-mail alleged to be defamatory had been sent directly and only to the plaintiff by the defendant, and there was therefore no publication of the contents thereof to any other person or third party by the defendant. He submitted that publication to a third person was a necessary ingredient of defamation, which was completely lacking in the present case. He placed reliance, in particular, on Azhar Chaudhry v. Residents Executive Committee and another 2007 YLR 2231(1) and Raees Ghulam Sarwar v. Mansoor Sadiq Zaidi, and others PLD 2008 Kar. 458, two single Bench decisions of this Court, in respect of the submissions made by him under the Ordinance. On the basis of the foregoing, he prayed that the plaint merited rejection.
' Learned counsel for the plaintiff opposed the application under consideration. He submitted that the documents annexed to the plaint clearly showed that the plaintiff had been a partner in the firm that did the audit work, and the work in relation to the documentary. The documents also showed that large sums, as quantified in the plaint, were outstanding. He submitted that in such circumstances, it was not necessary for the suit to have been brought on behalf of the firm; it was sufficient that the partnership deed was annexed to the plaint. He further submitted that the defendant was clearly liable to the plaintiff, and the relationship between the two was of a personal nature, and therefore the suit, as filed, was maintainable. As regards the libel claim, learned counsel submitted that it was a matter of evidence, which could only be led at the trial, as to how publication had taken place. He contended that the defendant could have dictated the e-mail to his Secretary, which would clearly have resulted in publication. He also contended that the defendant had, along with his e-mail, forwarded another e-mail to the plaintiff, and the contents of the latter email were also clearly defamatory. The latter email had been sent to the defendant by one of the journalists working for the media group. His case was that a bare perusal of the latter e- mail, when read with the defendant's e-mail, clearly constituted defamation. He, also relied on the Raees Ghulam Sarwar case referred to by learned counsel for the defendant, and certain English cases, which are considered below. He contended that the provisions of the Ordinance, and in any case, the provisions relied on by learned counsel for the plaintiff had no application in the facts and circumstances of the present case. Learned counsel also submitted (without prejudice to his other contentions) that it was well-settled that a plaint could not be rejected in part, and therefore, even if only one of the claims was sustainable, the application had to be dismissed. He prayed that no case had been made out for the rejection of the plaint, and that the suit was maintainable.
5. I have heard learned counsel for the parties, examined the record with their assistance, and considered the case-law relied on by them. Insofar as the claims on the basis of audit work done, and the work done on the documentary, there is, in my view, great force in the submission by learned counsel for the defendant that the liability, if any, under these heads was that of the companies concerned and not the defendant. A perusal of the plaint, .And the annexed documents clearly shows that the claims are against companies registered under the Companies Ordinance or other legal entities. It is a bedrock principle, and one that is absolutely fundamental to company law, that a company is a separate legal entity in its own right, and any liability of a company is solely and exclusively that of the company itself, and not of its officers, directors or shareholders.
There are of course, a limited number of exceptions to this rule, both statutory and judicially evolved. However, none of these apply in the present case. Thus, e.g., the fact (which for present purposes must of course be assumed to be true) alleged in para 9 of the plaint, namely that the defendant holds the majority shares in the companies, and that "the remaining shares had been distributed amongst his own kin and kiths" is of no relevance. There is no doubt in my mind that the causes of action, if any, in relation to the audit work, and the work on the documentary, arose only against the companies concerned and not the defendant personally, who had no liability on this score towards the plaintiff. To this extent therefore, the plaint does not disclose any cause of action against the defendant.
6. I now turn to consider the defamation claim. The important question whether or not the Ordinance, having put the law of defamation (in respect of its civil aspect) on a statutory footing, is now exhaustive of this branch of the law, is not something that requires determination in these proceedings. It is however clear that reference must be made to the Ordinance to the extent that a matter is covered by it. Defamation is defined in section 3(1) as follows:-- "Any wrongful act or publication or circulation of a false statement or representation made orally or in written or visual form which 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."
' Thus, defamation is either
(a) a wrongful act, or
(b) the (i) publication or (ii) circulation of a false statement or representation, which may be in (x) oral, or (y) written, or (z) visual form, and which (in either case) injures the reputation of a person, or tends to lower him in the estimation of others, or tends to reduce him to ridicule, unjust criticism, dislike, contempt or hatred.
' In the present case, the alleged defamation is the result of an e- IB mail. Defamation by e-mail is clearly libel in terms of section 3(4), which provides as follows: "Any false written, documentary or visual statement or representation made either by ordinary form or expression or by electronic or other modern means or devices that amounts to defamation shall be actionable as libel."
' The question is whether the e-mail of the defendant to the plaintiff was "published" or "circulated".
Now "publication" is defined in section 2(e) as follows: "'publication' means the communication of the words to at least one person other than the person defamed and includes a newspaper or broadcast through the internet or other media." (Emphasis supplied)
This is of course, entirely uncontroversial. An alleged libel must injure the reputation of a person, or tend to lower him in the estimation of others, or tend to reduce him to ridicule, unjust criticism, dislike, contempt or hatred. It can hardly do so if the communication is confined only to the person being allegedly defamed. If therefore, there is no publication (or circulation), there can be no defamation. It must now be considered whether there was any publication of a libel by the defendant against the plaintiff, on the basis that all the factual statements made in the plaint are assumed to be true.
7. It is clear from the e-mail of 6-10-2009 that it was sent by the defendant directly to the plaintiff, and to no other. Person. There was therefore, no publication of the e-mail itself within the meaning of the Ordinance. Although the defendant did attach the e-mail of a journalist working for the media group along with his e-mail, that e-mail, if libelous, was a libel committed by the sender of the e-mail (i,e,, the journalist) and not the recipient (i,e,, the defendant). The plaintiff has reproduced in para. 19 of the plaint the specific extract from the e-mail that, according to him, constitutes defamation. In para 20, the plaintiff has alleged as follows: "The above complained e-mail containing defamatory statement is highly objectionable in particular in a prominent form duly published having e-mailed that the plaintiff is of a very bad character."
' Thus, the libel claim put forward by the plaintiff is based squarely on, and limited to, the e-mail in question. When confronted with the question as to whether there had been any publication of the alleged libel, learned counsel for the plaintiff sought to argue, as noted above, that this was a matter of evidence, and gave, as an example, the possibility of the defendant having dictated the email to his Secretary. Now one of the English cases relied on by learned counsel was the decision of the Court of Appeal reported as Pullman and another v. Walter Hill and Co. [1891] 1 QB 524. In that case, the libel was by means of a letter written by the defendant to two of the partners of a firm. It was found as a fact (or was not disputed) that the letter had been sent by post in an envelope addressed to the firm, and not personally to the plaintiffs, and the letter was opened in the ordinary course by the clerks in the plaintiffs' office. It was also found as a fact that the letter had been dictated by the managing director to a clerk, who had then typed it up on a typewriter.
(Typewriters, it is interesting to note, were invented around 1870, and were therefore the "modern" technology of the time.) The question was whether there had been publication of the libel. Lord Esher, MR, observed as follows:-- "The first question is, whether, assuming the letter to contain defamatory matter, there has been a publication of it. What is the meaning of "publication"? The making known the defamatory matter after it has been written to some person other than the person of whom it is written. If the statement is sent straight to the person of whom it is written, there is no publication of it; for you cannot publish a libel of a man to himself If the writer of a letter shews it to his own clerk in order that the clerk may copy it for him, is that a publication of the letter? Certainly it is shewing it to a third person; the writer cannot say to the person to whom the letter is addressed, "I have shown it to you and to no one else." I cannot, therefore, feel any doubt that, if the writer of a letter shews it to any person other than the person to whom it is written, he publishes it. If he wishes not to publish it, he must, so far as he possibly can, keep it to himself, or he must send it himself straight to the person to whom it is written. There was, therefore, in this case a publication to the type-writer. (pg.
527; emphasis supplied)
' Lord Esher held that there were two publications in the case before him, one to the "type-writer" (or typist or stenographer, as we would call him today) and the second to the clerks in the plaintiffs' office who opened the letter.
8. As is clear from the foregoing, the dictation of the e-mail by the defendant to the Secretary would constitute a distinct and separate publication in its own right. But each publication of the alleged defamation, in circumstances such as the present, must be distinctly alleged and pleaded.
No such averment is to be found in the plaint. This lack is materially important, and cannot be regarded merely as a matter of form or procedure. The plaintiff has to prove the defamation, and if publication is denied by the defendant, he has to prove the publication as well. In cases and fact- situations similar to the present, each act of publication is a separate act of defamation, and must therefore be pleaded and proved accordingly. For example, if the defendant had copied the e-mail sent by him to the plaintiff to other persons, then the sending of the e-mail to each such person would have constituted a separate publication of the alleged libel. However, there is no such averment in the plaint It is also to be noted that in the present case (i,e,, when an application seeking rejection of the plaint is being considered), all the factual averments in the plaint are assumed to be true. Thus, no question of having to lead evidence arises: the application is considered on the basis of an assumption regarding the facts that is most favourable to the plaintiff. In other words, his case is put on its highest footing (without his having to go the trouble of proving it), and if even then no cause of action is disclosed against the defendant, the plaint is liable to be rejected. But the concomitant requirement of such an assumption is that the plaintiff must have averred or alleged all the facts that, taken together, constitute his cause of action. If he fails to aver all the facts, he cannot ask the court to assume the relevant fact in his favour. If at all therefore, it was the plaintiff's case that the defendant had dictated the e-mail to his Secretary, or made some other publication of the e-mail, he should have averred this fact in his plaint, since it was an essential and necessary ingredient of the cause of action of the alleged defamation.
Insofar as the email received by the defendant from the journalist (and forwarded to the plaintiff) is concerned, it is obvious that even if that e-mail was defamatory of the plaintiff, the defendant was merely the recipient, and not the author or "orginator" (to use the term preferred by the Ordinance) of the defamation. In forwarding the e-mail to the plaintiff himself as an attachment to his email, the defendant did not republish the journalist's e-mail in a manner as would make the defendant liable to the plaintiff.
9. It follows therefore that there was no publication of the e-mail as required by, and for the purposes of, the law of defamation (including the Ordinance), and hence there was no cause of action in favour of the plaintiff against the defendant in this regard as well.
10. In view of what has been stated above, it is not necessary to consider in detail the various cases referred to by learned counsel for the plaintiff and the defendant, save to note that in the other English cases relied on by the former, a distinct act of publication (in the sense noted above) to a third party was found to exist. However, it is necessary to consider the pleas taken by learned counsel for the defendant in respect of the Ordinance, and the two single Bench decisions of this Court relied on by him, one of which (as noted above) was also referred to by learned counsel for the plaintiff. Section 12, which specifies the period of limitation as six months, applies only to "defamation contained in the newspaper or broadcast from the station or in publication otherwise".
Obviously, the e-mail was not published in a newspaper, nor was it "broadcast" from a "station". It may be noted that "broadcast" is defined in section 2(b) in terms that clearly preclude its application to the facts as averred in the plaint. As regards "publication otherwise", in my view, this phrase should be read ejusdem generis with the two specific categories which precede it, namely, newspaper publication and publication by way of broadcasting from a "station". Thus, section 12 had no application in the facts and circumstances, of the present case, and the suit, having been brought within one year of the alleged libel, is within time. As regards the notice required under section 8, it may be noted that in a subsequent e-mail sent by the plaintiff to the defendant on 29- 3-2010, the former asked for an unconditional apology and that, in the present circumstances, constitutes sufficient compliance with the requirements of the section. (There is also the question, which I leave open, whether, on a proper construction of the Ordinance, section 8 is not intended to be limited to the sort of publication to which section 12 applies. If that is indeed the correct interpretation, then obviously, section 8 would not have any application at all.)
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 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.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."
(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 was 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 mat 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.
14. It follows from the foregoing discussion that I am of the view that the plaint does not disclose any cause of action against the defendant in favour of the plaintiff, and the suit is even otherwise not maintainable. Accordingly, this application is allowed, and the plaint is hereby rejected.