1. ' SYED SAEEDUDDIN NASIR, J.--Through this constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, the petitioners impugned the validity of Orders dated 16.8.2010 passed by 2nd Senior Civil Judge, Larkana, in F.C. Suit No,3 of 2010, whereby the learned Senior Civil Judge dismissed the application of the petitioner under Order VII, rule 11 of the Code of Civil Procedure, 1908, for the rejection of plaint in the aforesaid suit, and also Order dated 18.10.2011 passed by 4th Additional District Judge, Larkana, dismissing the revision petition preferred against the above-said order of the 2nd Senior Civil Judge, Larkana.
2. ' Brief facts giving rise to the present petition are that the respondent No,3 filed a suit for recovery of an amount of Rs,10 million as damages for malicious prosecution and defamation in the Court of 2nd Senior Civil Judge, Larkana, vide F.C. Suit No,3 of 2010. The respondent stated in the plaint that he was elected member of the Provincial Assembly of Sindh as well as the National Assembly of Pakistan from Ratodero, and remained as Governor, Chief Minister of the Province of Sindh, and Federal Minister from time to time and so also presently he is a senior politician of the country, being Chairman of the Sindh National Front, Barrister at Law, Zamindar and member of noble family of Bhuttos and was nominated as "Sardar" of his community. On 02.01.2009 the petitioner No,2 Dr. Khair Muhammad lodged an F.I.R at P.S. Frere Clifton, Karachi, vide Crime No,01 of 2009 for offences punishable under Sections 147, 148, 149, 506(2), 452, 504, 109 P.P.C., wherein the respondent was nominated with mala fide intention and ulterior motives. On the basis of the said F.I.R the respondent was arrested from his residence situated in village Mirpur Bhutto, Taluka Ratodero on 03.01.2009 and was taken to Karachi in police custody by air from Sukkur Airport to Karachi Airport, and was ordered to be admitted in National Institute of Cardiovascular Disease on the application of respondent's advocate at Karachi, on the Orders of the Hon'ble High Court of Sindh at Karachi.
3. Thereafter, the plaintiff was bailed-out by the Court of Law and an application under Section 561-A Cr.P.C. Was filed by the respondent before the principle bench of this Court at Karachi for abashment of the proceedings arising out of the aforementioned F.I.R. The Hon'ble High Court of Sindh, was pleased to quash the proceedings against the respondent vide short Order !Dated 18.8.2009 followed by the detailed Order later on.
4. ' Neither the petitioners nor the State challenged the said Order, quashing the proceedings against the respondent. Besides, the aforementioned malicious prosecution lodged against the respondent by the petitioners, various news items were published in the newspapers from time to time against the respondent in order to harm the reputation and fame of the respondent under political considerations. On account of the malicious prosecution of the respondent and defamatory news items published against him from time to time by the petitioners the respondent suffered a lot of mental anguish and serious harm was caused to his respect and reputation. The respondent feeling himself aggrieved by such mental torture and loss of reputation filed the aforesaid suit claiming damages to the tune of Rs,10 millions from the defendants jointly and severally.
5. ' The petitioners upon being served by the process of the Court filed an application under Order VII, rule 11 C.P.C. On the grounds that the Court of learned 2nd Senior Civil Judge had no jurisdiction to entertain the suit in as much as after promulgation of Defamation Ordinance, 2002 the jurisdiction of the Civil Court is specifically barred by Section 13 of the Defamation Ordinance, 2002, and that it is the exclusive jurisdiction of the District Court to try such suits.
6. ' The above suit was not filed before the Court of competent jurisdiction, therefore, the plaint was liable to be rejected returned at first instance without wastage of further time. The respondent filed objection to the aforesaid application of the petitioners for rejection of plaint, stating therein that, the Senior Civil Judge had jurisdiction under general Law, i.e. Under Section 9 of the C.P.C. The suit for damages and defamation is maintainable.
7. ' The learned 2nd Senior Civil Judge, Larkana, after hearing both the parties dismissed the application of the petitioners, stating therein that under Section 9 of the C.P.C. The Court had jurisdiction to try all the suits unless specifically barred and that the general law is not repealed after enforcement of Defamation Ordinance, 2002.
8. ' Thereafter, the petitioners filed a revision application before the learned Court of 4th Additional District Judge, Larkana, being Civil Revision No,7 of 2011 against the Order of the learned Senior Civil Judge, who after hearing the parties upheld the order passed by the learned Senior Civil Judge and dismissed the revision application.
9. ' Mr. Imdad Ali Mashori, the learned counsel for the petitioners has inter alia, argued that both the orders passed by the learned trial Court as well as the Revisional Court are perverse, against the law, have resulted into miscarriage of justice; that both the orders are a result of misreading and non-reading of the facts asserted by the petitioners and the relevant law relied upon by them; that both the Court below had committed irregularity and illegality by not appreciating the legal points submitted at the time, of arguments and no efforts has been made by the Courts below, the expressed provisions contemplated by the Defamation Ordinance, 2002; that both the Courts below have failed to appreciate that after promulgation of Defamation Ordinance, 2002 the jurisdiction of the Civil Court to try and adjudication upon a civil suit for defamation has been expressly barred and such jurisdiction has been exclusively conferred upon the District Court to try and adjudicate upon the litigation with regard to defamation Ordinance 2002; that it is the cardinal principle of law that question of jurisdiction is to be decided first in as much as the order passed by a Court without jurisdiction is nullity in the eye of law; that both the Courts below have failed to appreciate that the provisions of special law shall override the provisions of general law and whenever enacted the special law shall take precedence over the general law; that the order of revisional Court is non-speaking order and the same has been passed without discussing the relevant law and the authorities cited by the counsel for the petitioners at the time of hearing of the revision application.
10. ' In order to substantiate his arguments the learned counsel for petitioners has placed reliance on the case of Khadim Hussain and 12 others v. Gul Hassan Tiwano and 3 others (2014 M LD 574), 2012 CLD 453 (Sindh), Pakistan Herald Publications (Pvt.) Ltd. And 2 others v. Karachi Building Control Authority, 2012 SCM R 669; Capt. (Rtd.) Nayyar Islam v. Judge, Accountability Court No,III and others, 2008 CLC 759 (Lahore), Lahore Beverage Company (Pvt.) Limited v. Muhammad Javed Shafi and 2 others, 1989 CLC 1146 (Karachi) Muhammad Abul 011a v. Islamic Republic of Pakistan and another, and 2007 YLR 2231 (1) (Karachi) Azhar Chaudhary v. Presidents Executive Committee and another.
11. ' Controverting the arguments of the learned counsel for the petitioners the learned counsel for the respondent No,3 has inter alia contended that the contents of instant petition are false, fabricated, misconceived and the same is not maintainable and is liable to be dismissed; that the orders passed by the two Courts below viz. The trial Court and revisional Court are legal, valid and there is no illegality in the same; that the ultimate territorial jurisdiction of the Civil Court is intact and has not been expressly ousted by the promulgation of Defamation Ordinance, 2002; that the suit filed by the respondent No,3 before the trial Court is for the recovery of damages on two counts viz. (1) for malicious prosecution and (2) for defamation as is apparent from the title of the plaint in suit, therefore, the plaint filed in the trial Court is not barred by any law;- that even otherwise the District Judge and the Civil Court have concurrent jurisdiction as far as the suit for defamation is concerned and it is open for the plaintiff to choose the remedy either under the Defamation Ordinance, 2002 or under the general law that is to say under Section 9 of the C.P.C.; that scheme of law as aforesaid is further clarified in the decision of this Court that once a person opts for a remedy under the general law then the remedy under Defamation Ordinance is completely barred and vice versa; that the instant petition has been filed to prolong the proceedings before the Court of competent civil jurisdiction.
12. ' That the learned counsel in order to substantiate his arguments has relied upon case law reported in PLD 2008 (Karachi) 458 (Raees Ghulam Sarwar v. Mansoor Sadiq Zaidi and 4 others) wherein it is held that the District Judge and the Civil Court have concurrent jurisdiction as far as suit for defamation is concerned and it is open for the plaintiff to choose the remedy either under the Defamation Ordinance, 2002 or the general law. The scheme of law as aforesaid is further clarified in the decision of this Court that once a person opts for a remedy under the general law then the remedy under Defamation Ordinance is completely barred and vice versa; that the instant petition has been filed to prolong the proceedings before the Court of competent civil jurisdiction.
13. ' We have heard the learned counsel for the parties; perused the material and pleadings available on the record of the case and examined the case law cited by the counsel with their able assistance.
14. Upon perusal of plaint and its prayer clause of F.C. Suit No, 3 of 2010, it transpires that the respondent No,3 has joined two causes of action in the suit, namely; (1) for an amount of Rs,10 millions as damages for malicious prosecution of the respondent No,3 and; (2) for defamation caused by the petitioners to the respondent No,3. In our view in the wake of promulgation of Defamation Ordinance, 2002 and a lot of case law developed by the Superior Courts including this Court, upon the jurisdiction of suits for damages by virtue of whatever is contemplated by Section 13 of the Defamation Ordinance, 2002, we are of the view that the instant case of the respondent No,3 is bad for mis-joinder of causes of action, in other words we (;n say that the cause of action accrued to the respondent No,3 for damages can be filed for the recovery of the same before the District Court due to the fact that Section 13 of the Defamation Ordinance, 2002 confers exclusive jurisdiction upon the District Courts to try all suits of the defamation. For the sake of convenience Section 13 of the Defamation Ordinance, 2002 is reproduced as under: ' The Defamation Ordinance, 2002 (LVI of 2002).
15. ' Section 13. Trial of Cases.--The District Court shall have the jurisdiction to try the cases under this Ordinance.
16. ' In 2012 CLD 453 (Sindh) (D.B) Pakistan Herald Publications (Pvt.) Ltd. Arid 2 others v. Karachi Building Control Authority it is held by a division bench of this Court as under: "The Defamation Ordinance, 2002 on its reading shows that it is a special law made by Federal Government on the subject of defamation creating special remedies and also provide for specific Court for trial of cases and appeal. It has conferred jurisdiction for trial of cases under the Ordinance in the District Court.
17. ' In such view of the matter, we do not think that jurisdiction with regard to District Court will have to be read as provided in Sindh Civil Courts Ordinance, 1962 where the High Court has been conferred now the jurisdiction to hear the suits exceeding value of Rs,15 million as a principal civil Court of original jurisdiction. The Ordinance has provided District Court as Court of trial of cases under it, it will be the District Court and no other Court including the High Court and it is the appeal against final decision and decree of that Court which will be heard by High Court. We, therefore, find no illegality in the impugned order, and same is therefore, maintained and appeal is dismissed."
18. ' In the next case reported in 2014 M LD 574 (Khadim Hussain and 12 others v. Gul Hassan Tiwano and 3 others), it is held as under: "In addition to the above authority cited by the learned counsel for the appellants, I would like to refer to one more authority of the Hon'ble Supreme Court and one reported Division Bench case of this Court. In the case of Attaullah Khan and others v. Samiullah and others 2007 SCM R 298, it was held by the honourable Supreme Court that it is a settled law that special law excludes the general law. In the case of Shahid Maqbool v. Mst. Ayesha Saleem Khan and 24 others, 2009 CLC 1452, it was held by the learned Division Bench of this Court that it is a settled principle of law that where a special tribunal/Court is constituted to hear and dedcide dispute which come under the relevant statutes, then all other Courts shall stand debarred from exercising the powers of the same nature.
19. ' Section 13 of the Ordinance provides that the District Court shall have the jurisdiction to try the cases under the Ordinance. The language used in section 13 is absolutely clear and unambiguous, and the word "shall" used therein is of great significance. The Preamble of the Ordinance reads as "An Ordinance to make provisions in respect of defamation. Whereas it is expedient to make provisions in respect of defamation and for matters connected therewith or incidental hereto". In the case of Fazal Dad v. Col. Rtd. Ghulam Muhammad Malik and others PLD 2007 SC 571, the honourable Supreme Court was pleased to hold that "it is a settled law that preamble is always key to interpret the statute". In view of the unambiguous language of section 13 of the Ordinance read with its Preamble, as well as the law laid down by the Honourable Supreme Court in the aforementioned case of Fazal Dad regarding the importance of the Preamble for interpreting the statute, it is abundantly clear that all cases, in respect of defamation and/ or the matters connected therewith or incidental thereto can be tried under the Ordinance only by the District Court, and no other Court, including the High Court, shall have the jurisdiction in respect thereof.
20. The view expressed by me is supported also by the cases of Pakistan Herald Publications (Pvt.) Ltd.
21. (supra) and Khalid Ansari (supra) decided by this Court."
22. ' In 2012 SCM R 669 Capt. (Retd.) Nayyar Islam v. Judge, Accountability Court No,11l and others, it was held as under: "Having heard learned counsel for the parties at some length, we find that it is by now a settled principle of interpretation of statutes that the provisions of special law exclude the application' of general law in the context in which the former provision has been enacted."
23. ' In 2008 CLC 759 (Lahore), Lahore Beverage Company (Pvt.) Limited v. Muhammad Javed Shafi and 2 others, it was held as under: "The precise objection raised by the petitioner in the proceedings before the trial Court was, whether it had jurisdiction to adjudicate or try the present suit or was its jurisdiction specifically barred under section 7(4) of Financial Institutions (Recovery of Finances) Ordinance, 2001. The language couched in this section clearly ousts the jurisdiction of the ordinary courts. The Financial Institutions (Recovery of Finances) Ordinance, 2001 is a special law, and it is a settled proposition of law, that whenever a special law is enacted, it takes precedence over general law ' Section 15(11) of Financial Institutions (Recovery of Finances) Ordinance, 2001 reads: "(11) All disputes relating to the sale of mortgaged property under this section including disputes amongst mortgagees in respect of distribution of the sale proceeds shall be decided by the Banking Court."
24. "Therefore, it is absolutely clear and unambiguous that all disputes relating to a mortgaged property even inter se mortgagees, in respect of distribution of sale proceeds are to be tried by the Banking Court "The jurisdiction in mortgage matters is exclusive to the Banking Court and the jurisdiction of the Civil Court is barred in this context. Therefore, the impugned order is without jurisdiction and hence illegal."
25. ' In case of Muhammad Abul Olla v. Islamic Republic of Pakistan and another (1989 CLC 1146 (Karachi), it was held as under: "The general principle is that every right has remedy. It is also general principle that where two remedies are available under the law, one of them that must not be taken as operating in derogation to other. But where a special remedy is provided, the general remedy of filing suit is barred."
26. In 2007 YLR 2231 (1) (Karachi), Azhar Chaudhary v. Presidents Executive Committee and another, it is held:- "A perusal of the plaint shows that the plaintiff has made letter dated 26.3.2004 basis of his claim which contains certain allegations, the said letter was allegedly pasted on the outer wall of the flat and that has caused serious mental torture and since its language was defamatory therefore, the suit for defamation has been filed. The prayer clauses also show that the only basis on which all the reliefs have been claimed is based on the said notice. In the circumstances the alleged defamation is covered under Section 13 of the Ordinance and it is to be tried by District Court in terms of section 13 of the said Ordinance. In the circumstances plaint is returned to the plaintiff for presentation to the proper Court. This suit may be detached from suit No,273 of 2005."
27. Upon appreciation of aforesaid case law it become crystal clear that the jurisdiction of the Civil Court in respect of a suit for damages on the ground of loss of reputation and defamation is expressly barred by Section 13 of the Defamation Ordinance, 2002, in as much as the same confers exclusive jurisdiction upon the District Court to adjudicate upon the same. It is settled principle of law that special law excludes general law and where a special tribunal or Court has been established to hear and decide a dispute, which is contemplated by the special law, then the jurisdiction of the Courts constituted under the general law shall be ousted from exercising the powers of the same nature. It may be noted that Section 13 of the Defamation Ordinance, 2002, provided in unequivocal terms that the District Court "shall have the jurisdiction to try cases under the Ordinance." The word "shall" used in Section 13 denotes the mandatory nature of the provision with regard to jurisdiction of the Court contemplated by the Ordinance, therefore, there is no cavil to the fact that the District Court has exclusive jurisdiction to try cases of defamation.
28. ' In the case of Pakistan Herald Publications (Pvt.) Limited and 2 others v. Karachi Building Control Authority (supra) reported in 2012 CLD 453, which is division bench judgment of this Court, it has been made abundantly clear that the jurisdiction of the Civil Court to try and adjudicate upon the suit for defamation, has been expressly ousted by virtue of Section 13 of the Defamation Ordinance 2002. It is also made clear in the said judgment that under Section 15 of the aforesaid Ordinance the jurisdiction to hear the appeal from the final judgment and decree of the District Court is conferred upon the High Court.
29. ' Following the dicta laid down in the aforesaid case law the single bench of this Court in the case of Khadim Hussain v. Gul Hassan Tiwano (supra) reported in 2013 CLD 981, has also held that jurisdiction of the Civil Courts is expressly barred from adjudicating upon the suit for defamation and held that the entire proceedings before the Senior Civil Judge being corum non judice were void, ab initio. Moreover, in the judgment relied upon by the learned counsel for the petitioners Azhar Chaudhry v. Residence Executive Committee and another (2007 YLR 2231 (1) (Karachi) it was further held that defamation suit is to be tried by District Court in terms of Section 13 of the Defamation Ordinance, 2002.
30. ' It has been held in Ghulam Hussain and another v. Malik Shahbaz and another 1985 SCM R 1925 that High Court would decline to interfere in its Constitutional jurisdiction in matter arising out of civil suit wherein plaint had not been rejected. Additionally, order passed in Revisional jurisdiction cannot be successfully assailed in Constitutional jurisdiction of this Court. If any authority is needed reference may made to Manzoor Hussain Shah and 15 others v. Allah Bachaya Khan and 5 others 1986 CLC 1813. Needless to add that the Revisional jurisdiction is almost akin to the constitutional jurisdiction of this Court and if this Court starts looking into the Revisional order it would tantamount to entertaining a second Revision against the original order, which is specifically prohibited under the law. It is no doubt true that in certain cases where the orders passed by the Revisional Court are found to be without jurisdiction and nullity in the eye of law or some patent illegality is pointed out on the record, this Court may exercise its Constitutional jurisdiction but normally this Court has loathed to exercise such a jurisdiction." It has been further held in the case of Noor Muhammad v. Sarwar Khan and 2 others PLD 1985 SC 131 that "impugned order having been passed in Revision, may not be further assailed in a writ petition."
31. Moreover, since it is well settled law that a plaint cannot be dismissed in piecemeal, even if out of several prayers, one could not be granted as has been held in 2004 M LD 1081 Karachi, therefore, without disturbing the impugned orders, we direct the learned trial Court to frame an issue with regard to the maintainability of the suit pending before it in respect of its jurisdiction in view of the bar created by Section 13 of the Defamation Ordinance, 2002, and pronounce its judgment on the same along with other issues as may be framed by the learned trial Court upon the pleadings and as proposed by the parties.
32. ' The petition is disposed of, in the aforesaid terms, along with all the listed applications.