Mazhar Alam Khan Miankhel, J.--The plaintiff/appellant through instant appeal has impugned the judgment and decree dated 4.01.2010 whereby her suit for recovery of Rs.50,00,000/- as damages for mental and physical torture, slander/libel was dismissed by the District Judge, Peshawar being a trial Court under Defamation Ordinance 2002 (LVI of 2002). The appellant herself appeared and made her submissions in support of her appeal.
2. The plaintiff submitted that the defendant being brother of her husband was a witness of Nikah of her daughter. The defendant/respondent in a family dispute of her daughter with her husband, did not turn up as a witness and their relations inter se i.e. the plaintiffs family as well as the defendant's family became strained. The respondent wrote baseless and frivolous letter dated 10.4.2004 to the high-ups of the appellant and for that matter proper inquiry was initiated against the appellant and after proper inquiry, she was exonerated of the charges levelled against her by the defendant/ respondent. The letter/complaint of respondent has injured the reputation of the appellant in the department and in her family which resulted into physical and mental torture for her and her family. For this purpose, she served the respondent with .a notice dated 20.8.2004 and then she filed suit for recovery of damages in the Civil Court. Though the same was returned for want of jurisdiction by the Civil Judge on 22.9.2005 but after decision of Writ Petition No. 1800/2005 decided on 31.5.2006, she filed present suit before the District Judge, Peshawar on 7.7.2006. She submitted that writing of letter to the high-ups of the appellant is not denied by the respondent which turned to be a frivolous and baseless letter is a sufficient proof under the law of defamation.
The appellant further submitted that she has also filed an application under Rule-27 of Order XLI of C.P.C. for producing additional evidence to prove the letter/complaint in question according to law.
The learned trial Court in spite of all the above material wrongly and unlawfully dismissed her claim. Lastly she prayed for decretal of her suit for damages.
3. Learned counsel for the respondent by controverting the submissions made by the appellant contended that the letter in question dated 10.8.2004 which has been made bone of contention for the suit of damages has not been proved on the record and the same is also not part and parcel of record. Under the law appellant was also required to serve the statutory notice under Section 8 of the Ordinance ibid. Similarly the present suit against the said letter was also not filed within the statutory period of six months as provided under Section 12 of the Ordinance. So, the suit of the plaintiff/appellant is hopelessly time-barred. His next contention was that the appellant also failed to produce any evidence regarding her defamation on the basis of said letter as neither the said letter was exhibited in the Court nor was published in any manner or was known to public at large.
By further explaining that no such defamatory language was used in the letter; the plaintiff/appellant being an Assistant Director in Employees Old Age Benefit Institution (EOBI) had approached the Head of the defendant's institution just to pressurize the defendant/respondent.
The learned counsel for the respondent further contended that a party cannot be permitted to lead additional evidence to fill up the lacunae of its case as after going through the impugned judgment, she sought permission for leading additional evidence. He lastly submitted that the findings arrived at by the trial Court are in accordance with law and material on the record and appeal. requires dismissal.
4. Learned counsel for the parties were heard and record of the case was perused.
5. Record of the case would reveal that the appellant is Assistant Director in EOBI posted in Zonal Office, Peshawar whereas the respondent is the brother of her husband who was admittedly the witness of Nikah of her daughter. When the relations of her daughter with her spouse became strained, the matter ended in the dissolution of marriage through Court decree wherein the defendant/respondent had refused to appear as a witness on their behalf for the reason that the second party was also closely related to him i.e. the son-in-law of plaintiff was the son of defendant's sister. She being an officer of EOBI visited the head office of the institution of respondent and as alleged by the respondent, the purpose behind the same was just to pressurize him and such acts of the appellant compelled the respondent. to write a letter dated 10.8.2004 to the head office of the department of appellant in response whereof the appellant received a letter dated 19.8.2004 from her head office and as per plaint, she served the respondent with a notice dated 20.10.2004 to pay the damages for her defamation through the said letter. On 2.12.2004 she filed civil suit in the Court of Civil Judge which was returned to her for want of jurisdiction but vide order dated 31.5.2006 in Writ Petition No. 1800/2005, the appellant was allowed to file amended plaint so as to bring it in conformity with the provisions of the Ordinance and ultimately the present Suit before the District Judge was filed on 7.7.2006. The respondent after putting appearance in the Court submitted his written statement by denying the allegations levelled by the appellant in her plaint. Pro and contra evidence of the parties was recorded and on conclusion of the trial, the trial Court dismissed the suit of the appellant vide impugned judgment. The appellant to prove her case produced two witnesses from his department besides her husband as P.W.3. Under the law, she was required to prove the issuance/writing of letter by defendant to the high-ups of plaintiff with a malice to defame her in the eyes of her high-ups, colleagues and other friends and family members. The evidence on the record led by the plaintiff/appellant is deficient in this regard.
Leaving aside the question of defamatory intention behind the letter, the very letter/complaint, the bone of contention of her suit, has not been brought on the record as the same was not tendered in evidence. If for the sake of arguments the same is considered to be present on the record, then question would be as to what type of inquiry was conducted against the plaintiff/appellant; what was the language of the letter and whether the same was defamatory in the light of Ordinance ibid to call for an action for defamation as the record of the case is silent with regard to all the above questions. Plaintiff has failed to prove that in consequence of inquiry, she remained suspended; what was the inquiry report, whether respondent in support of his letter/complaint appeared before the inquiry officer and where the said inquiry was conducted.
6. Being a special law meant to deal with the matters of defamation, requires the plaintiff to serve the defendant with a notice within two months .of the knowledge of defamatory material came into the knowledge of plaintiff. Though such a notice has been alleged to have been given but that too has not been brought on the' record and proved in accordance with the law. Mere assertion in the pleadings would not absolve the plaintiff from her obligation when the same has been denied by the defendant. So, the very foundation of the suit is not in accordance with
7. The perusal of the record would further reveal that the relations between the closely related parties became strained because of .matrimonial dispute of the daughter of plaintiff which also led the parties to provide security to the State for keeping peace when the 'defendant, and other family members 'were complained for under Sections 107/151 Cr.P.C. There was yet another dispute of partition of an ancestral house. The available evidence and material' on the record can in no way be termed as sufficient for grant of decree for damages in favour of plaintiff/appellant.
8. As far as question of additional evidence regarding permission to prove the complaint/letter which forms the basis of this suit is concerned, that cannot be granted at this stage of the case because the plaintiff/appellant after going through the judgment and decree of A the ,trial Court, and getting knowledge of weaknesses of' her paint, applied for the same which in turn would mean filling up the lacunae of one's case and such permission would be totally against the spirit of Rule 27 of Order XLI of C.P.C.
9. So, what has been discussed above would make us clear in our minds that the claim of the appellant being baseless is not tenable. Hence, her appeal along with C.M. for additional evidence is dismissed with no order as to costs.