' MAZHAR ALAM KHAN MIANKHEL, J.---Through this appeal under section 15 of Defamation Ordinance, 2002, the appellant has challenged the validity of the judgment and decree of learned Additional District Judge-VI, Peshawar dated 18-3-2011 whereby suit of the plaintiff/respondent No,1 has been decreed to the tune of Rs,10,00,000.
2. Concise facts of the case are that on 11-3-2010 the defendant No,1, the appellant, convened a press conference against the plaintiff/respondent wherein he levelled frivolous allegations against the plaintiff which were published in the newspapers including "The Mashriq", "The Aaj" and "The Express". It was alleged during the press conference that the plaintiff/respondent is a quack playing with the health and wealth of the general public and a person of loose and bad character and has occupied his house illegally and defaulter of rent; that he did not pay the utility bills etc. After publication of this statement in the press, the plaintiff/respondent No,1 issued notice (Exh.P.W.4/5) to defendant and then filed a suit for recovery of Rs,50,00,000 for causing damage to his reputation, loss of business, mental torture and humiliation against the appellant/defendant No,1 and others before Additional District Judge-VI, Peshawar. The defendants in pursuance of notice appeared before the Court and filed their written statements raising several legal and factual pleas therein. Evidence pro and contra was recorded and after hearing learned counsel for the parties, suit of the plaintiff/ respondent No, 1 was decreed to the tune of Rs, 10,00,000 by the learned Additional District Judge-VI, Peshawar vide his judgment dated 18-3-2011. Hence present appeal.
3. Learned counsel for the appellant contended that the judgment and decree of the learned lower Court is illegal and against the material available on the record; that the impugned judgment is the result of misreading and non-reading of evidence; that no legal notice was served on the appellant/defendant as no official from the postal department was produced to prove issuance of legal notice and thus mandatory provision of section 8 of Defamation Ordinance, 2002 has not been complied with and prayed for setting aside of the impugned judgment and decree dated 18- 3-2011 being in utter disregard of the relevant provisions of law and for dismissal of suit of the plaintiff/respondent No,
1. In support of his submissions, the learned counsel placed reliance on the cases of Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore Division, Lahore and 2 others (PLD 1971 Supreme Court 61), Siemens Pakistan Engineering Co. Ltd. v. Pakistan and others (1999 PTD 1358), Mudasser lqbal Butt v. Shaukat Wahab and others (PLD 2006 Lahore 557), Badar Zaman v. Sultan (1996 CLC 202), Raja Hamayun Sarfaraz Khan and others v. Noor Muhammad (2007 SCMR 307), Tehsil Nazim TMA, Okara v. Abbas Ali and 2 others (2010 SCMR 1437).
4. As against that, learned counsel for the plaintiff/respondent No,1 argued that it has been proved on the record that the appellant/defendant convened a press conference wherein frivolous and false accusations were levelled against the respondent/plaintiff and the statement appeared in the newspapers was at the instance of the appellant/defendant. The learned counsel further argued that issuance of the legal notice has been proved through the evidence brought on the file and that the judgment of the trial Court is based on cogent reasons and proper appraisal of evidence which requires no interference and requested that the appeal be dismissed.
5. Learned counsel for the parties were heard and record of the case was perused.
6. Perusal of the record would reveal that the defendant/appellant had convened a press conference wherein certain allegations were levelled against the plaintiff/respondent. This stuff in the shape of libel was published in three leading daily newspapers having wide circulation i,e, "The Mashriq", "The Aaaj" and "The Express". The clippings of the said publications were brought on the record as Exh.P.W.1/1 to Exh.P.W.1/3. The above said material has not been denied by the defendant/appellant in his written statement as well as in his statement before the Court as DW-1.
He even failed to raise any objection when the press clippings were tendered in evidence. He while recording his own statement as DW-1 has further produced the copy of such like material without any further proof of its genuineness which was placed on the record as Exh.DW 1/1. Instant suit with regard to defamation against the above said material was filed under Defamation Ordinance, 2002 wherein special procedure for the claim of damages has been provided. Before detailed deliberation and discussion, it would be in the fitness of things that the relevant provisions of the law be reproduced:--
3. Defamation.---(1) Any wrongful act or publication or circulation of a false statement or representation made orally or written or visual form which injures the reputation of a pep son, 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.
(2) Defamation is of two forms, namely:- (1) Slander; and
(ii) Libel.
(3) Any false oral statement or representation that amounts to defamation shall be actionable as slander.
(4) Any false written, documentary or visual statement or representation made either by ordinary form or expression or by electronic or other modern means of devices that amounts to defamation shall be actionable as libel.
4. Defamation Actionable.---The publication of defamatory matter is an actionable wrong without proof of special damage to the person defamed and where defamation is proved, damage shall be presumed.
5. Defences.---In defamation proceedings a person has a defence if ke shows that:--
(a) He was not the author, editor, publisher or printer of the statement complained of;
(b) 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;
(c) It is based on truth and was made for the public good;
(d) Assent was given for the publication by the plaintiff.
(e) Offer to tender a proper apology and publish the same was made by the defendant but was refused by the plaintiff.
(f) An offer to print or publish a contradiction or denial in the same manner and with the same prominence was made but was refused by the plaintiff;
(g) The matter complained of was privileged communication such as between lawyer and client or between persons having fiduciary relations; and
(h) The matter is covered by absolute or qualified privilege.
8. Notice of Action. ---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, specking the defamatory matter complained of.
7. A look at the above provisions of special law would make is clear that before initiating proceedings under the Ordinance ibid, one has to give fourteen days' notice to the wrongdoer within two months of the publication of defamatory material or its knowledge and if there is no response by the other side, then the suit for defamation could be filed under the law. Here in this case, notice of action as provided in section 8 ibid is there on the file as Exh.P.W.4/5. This notice was neither specifically denied nor any objection was raised at the time when the same was tendered in evidence. So, a prima facie compliance of the prerequisite for an action under the Ordinance ibid has been made. But the intense effort of the learned counsel for the appellant during his arguments was regarding non-compliance of section 8 of the Ordinance by submitting that there is nothing on the record in the shape of postal receipt/A.D. Card or receipt of any courier service confirming the fact that any notice of action was served on the appellant. The learned counsel for the appellant did not even touch the merits of the case.
8. This Court before discussing the merits of the case, would like to discuss and consider this legal aspect of the case first.
9. The plaintiff/appellant came with a stance of issuance of notice under the law and annexed the same with his plaint. He while appearing as a witness P.W.4, categorically alleged issuance of notice of action and then tendered the same in evidence as Exh.P.W.4/5. This stance of the plaintiff went unrebutted. There was no objection regarding its issuance and service of the same on appellant. Even the entire statement of the plaintiff went unrebutted. Not a single question regarding the subject matter of dispute and the issuance of notice was put to plaintiff whereas on the other hand, the defendant/appellant failed to deny specifically the issuance and receipt of notice in his written statement as well as in his statement before the Court. The appellant even failed to deny the factum of press conference not only in his written statement but also in his statement before the Court. He even did not raise any objection against the press clippings, he rather reiterated his stance against the plaintiff/appellant in his Court statement and produced some other written material as Exh.DW 1/1 but the genuineness and its source was not proved. So, in the given situation, presumption under the law would be that before filing of suit for defamation, provisions of section 8 of the Ordinance ibid were complied with and the effort, so strongly and forcefully made by the learned counsel for the appellant in the circumstances was un-persuasive and was nothing more than an afterthought. There is no cavil to the proposition laid down in the cases of Tehsil Nazim TMA, Okara v. Abbas Ali and 2 others (2010 SCMR 1437 citation (b)), Raja Hamayun Sarfaraz Khan and others v. Noor Muhammad (2007 SCMR 307 citation (b)), Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore Division, Lahore and 2 others (PLD 1971 Supreme Court 61 citation (c)) that even a thing or an act is to be done in a particular manner, it must be done in that way and not otherwise. The learned counsel by referring the above said case-law, cannot derive benefit in his favour as the compliance of relevant provision of law has been made whereas case of Siemens Pakistan Engineering Co. Ltd. v. Pakistan and others (1999 PTD 1358) citation (b) is not applicable to the present case. As far as case of Mudasser Iqbal Butt v. Shaukat Wahab and others (PLD 2006 Lahore 557) is concerned, it is under the Ordinance ibid and in that case notice under section 8 was sent through a registered post and it was held that presumption of delivery of said registered notice went unrebutted, so not helpful to appellant in the circumstances. The learned counsel for the appellant was unable to refer to any other case specifically dealing with issuance of notice under section 8 of the Ordinance ibid as no such case-law, as per reported judgments, has been developed on the issue so far. However, the intention of the legislature is quite visible from the plain reading of section 8 of the Ordinance ibid. The perusal of the provision of law would make it clear that notice of action prior to filing of any claim/suit for damages is must but the mode of communication of the same is not the concern of the legislature as nothing special in this regard has been given in the Statute. Had there been any such intention, then the same would have been expressly provided in the Statute like notice of "Talb-iIshhad" in pre-emption matters. So what can be gathered is that it can be by any means whether it is through a messenger or through an ordinary post or any other possible mode and purpose of the same is only to communicate one's intention to file a suit for damages in case the wrongdoer does not respond to the notice. It is not necessary that this notice must be sent through registered post with its acknowledgment for proof of its delivery. As discussed earlier, presumption under the law in the circumstances would be that the plaintiff/respondent had issued notice under section 8 of the Ordinance.
10. Now comes the question of defamation. The contents of the press conference, press release and then its publication in three daily newspapers of wide circulation is sufficient for proof of defamation specially when the defamatory substance has not been denied by the other side. This act of the appellant is an actionable wrong under the Ordinance and the same has been established and proved. The defendant/appellant even failed to raise any defence plea as provided in section 5 of the Ordinance. In such like situation, formal and further proof of the defamatory material would not be required. The learned counsel for appellant was also unable to point out any such discrepancy in the available record. The trial Court while facing such a situation, has rightly awarded the damages to the plaintiff/respondent but the quantum of damages awarded in the given circumstances appears to be a bit harsh as no special damages has been proved by the plaintiff/respondent and the general damages has to be considered by keeping in mind the gravity of allegations, the effect of publication and size and influence of the publication.
So, in the opinion of this Court, Rs,5,00,000 would be an appropriate amount of damages in the given circumstances. Hence, this appeal is partially fallowed and the decree is modified accordingly.
Appeal partially allowed.