SALAHUDDIN PANHWAR, J.---Through instant application i,e, C.M.A. No,382 of 2016 (application under Order XXXIX, Rules 1 and 2, C.P.C. r/w section 151, C.P.C.), the plaintiff prays as under:- "... To grant interim-injunction during pendency of the suit restraining the Defendant from filing false and frivolous applications against the plaintiff to the authorities."
2. Succinctly, facts as set out in the plaint are that plaintiff is Chief Medical Officer in. PIA and serving for last more than 25 years with a clean record of service and is a gentleman. Defendant is an Airhostess/ employee of PIA with Staff No,61842 whom plaintiff does not know personally except that she, being employee, visits the Medical Centre, as a patient. Per plaintiff, defendant had some grievance against one of the Medical staff members Dr. Ayaz Khaskheli and in that regard she was sending applications to plaintiff for taking action against -Dr. Ayaz Khaskheli. Plaintiff though is administrative head of the doctors working under him but has no authority to hire or fire anyone, however, he had called comments from Dr. Ayaz Khaskheli wherein allegations were denied. Before plaintiff could order for an inquiry the defendant moved an application to Women Protection Cell of PIA against Dr. Ayaz Khaskheli hence plaintiff not initiated the matter. The Women Protection Cell of PIA after inquiry completely exonerated Dr. Ayaz Khaskheli. Being dissatisfied the defendant approached the Federal. Ombudsman, Islamabad wherein she (defendant) included the plaintiff in such complaint; plaintiff engaged advocate for appearance but he was asked to appear personally which he did and filed reply; defendant withdrew application from office of Federal Ombudsman for Women Protection while seeking direction to move to Provincial Ombudsman. The defendant filed another application at Karachi in the office of Provincial Ombudsman for Protection of Women and the Ombudsman issued notice for appearance; plaintiff engaged advocate but was directed to appear in person which he did. The defendant did not stop and again moved an application to the Chairman PIAC, Head Office, Karachi against the plaintiff; management had called comments from plaintiff which he submitted.
3. Plaintiff further claims that defendant is habitual of making application(s) against her colleagues; she made number of applications against different employees during her service tenure and for that on in past she was issued a warning letter. He claimed that by leveling false, fabricated and male fide allegations against the plaintiff, the defendant caused harassment and damaged to reputation/good name of plaintiff amongst all his colleagues, patients, staff members, his friends and relatives; claimed to have undergone tremendous mental torture hence claimed Rs,20 Million as damages.
4. In above back ground, the plaintiff sought following relief(s):-- A) Order her to pay Rs,20,000,000/- (Rupees Twenty Million) to the plaintiff towards compensation and damages and also apologize from the plaintiff for moving false and frivolous application against him; B) To grant interim-injunction during pendency of the suit restraining the Defendant from filing false and frivolous applications against the plaintiff to authorities; C) Ad-interim injunction is solicited during, pendency of the suit; D) Cost of the suit; E) Any other relief or reliefs, which this Hon'ble Court may deem fit and proper in the circumstances of the case.
5. The defendant filed affidavit wherein sticking with her plea of being harassed; applications by her to be lawful and that harassm ent is continuing to her. She pleaded that matter was pending before WPC (Women Protection Cell) but the plaintiff and others avoided and obtained suspension order of such proceedings.
6. It is worth to add that during proceedings/hearings, the plaintiff was also asked to satisfy the maintainability of the suit.
7. I have heard the respective sides and have gone through the available material.
8. The learned counsel for the plaintiff has argued that the plaintiff has a prima facie case in his favour; since admittedly plaintiff was not a party in first complaint hence inclusion of plaintiff at later stage is mala fide; plaintiff is being harassed causelessly hence allowing application shall meet ends of justice. Regarding maintainability of suit, it is argued that suit is maintainable and has rightly been filed.
9. On the other hand, defendant pleaded that her claim/assertion had/has been genuine and she lawfully approached the legal fora hence neither suit is maintainable nor the application.
10. Since question of maintainability of the Suit is strongly pressed, therefore, it would be in all fairness to decide this issue first because for deciding an injunction (interim order under Order XXXIX, Rules 1 and 2, C.P.C.) 'prima facie' case is one of the ingredients which undeniably has nexus with maintainability of a lis. Therefore, in all fairness, I would like to attend the question of maintainability of suit first.
11. I have no hesitation in acknowledging that law of torts does permit filing of a suit for recovery of damages against an informant/ complainant of criminal charge/allegation; to succeed in such a cause it shall require the person, claiming damages, to first establish. i) That he/she was prosecuted; ii) Prosecution ended in his/her favour; iii) It (prosecution) was without reasonable and proper cause; iv) It (prosecution) was malicious one;
16. A reference can well be made to the case of Abdul Majeed Khan v. Tawseen Abdul Haleem (2012 PLC (C.S.) 574) wherein it is held as:--
21. It is well-known that a person who is maliciously prosecuted on a criminal charge can sue in tort for damages if the prosecution ends in his acquittal and the prosecution was malicious in the sense that it was without any reasonable cause. To ground a claim, for malicious prosecution a plaintiff must prove (1) that the law set in motion against him on a criminal charge; (2) that the prosecution was determined in his favour; (3) that it was without reasonable and proper cause; and (4) that it was malicious.
Out of the above four ingredients, two are such which should exist for maintaining a suit for damages i,e,:
(1) that the law set in motion against him on a criminal charge;
(2) that the prosecution was ended in his favour; because later two will be opened to be proved by respective parties as per their respective claims i,e,: i) it (prosecution) was either reasonable and under proper cause or otherwise; ii) it (prosecution)was malicious or otherwise.
Thus, it is pertinent to mention that in absence of co-existence of above two conditions, a suit for damages under law of Torts shall not be competent because such remedy cannot be allowed to frustrate a legal right i,e, to set the law into motion either by way of a complaint, application or FIR etc. Which otherwise (setting law into motion) is meant to inquire into / investigate or trial an allegation/ charge.
Now, I shall go a little further and would say that mere filing/ moving a complaint or application shall not give a right for filing a suit for damages but shall earn a right of hearing or participation. It must always be kept in view that terms 'damages' and 'defamation' are not synonyms to each other but in law both have independent meanings and characters.
Damage, (Per Black's Law Dictionary (Ninth Edition).
'Of or relating to monetary compensation for loss or injury to a person or property.Defamation. (Section-3 of Defamation Ordinance, 2002).
1) 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.
From reading of above, it should not be difficult any more that both 'terms' portray entirely different situation(s) hence remedy available in such different situations cannot be said to be one.
At this juncture, it would be conducive to refer case of Abdul Maieed Khan (supra), wherein it is held that,-
20. Where the claimant has been subjected to a criminal prosecution as a consequence of which he loses or risks of losing his liberty and/or his reputation, a remedy in the tort of malicious prosecution will lie. The institution of a civil action should exceptionally, results in liability under tort when the claimant loses the suit, the defendant's reputation is restored and he recovers his cost spent on defending the action. However, for malicious proceedings in bankruptcy and winding up, which may wreck the claimant's business, destroy, confidence in his competence and integrity and in his company's goodwill, a remedy in the Tort will lie; (Emphasis supplied)
In the same judgment the case of Gregory v. Portsmouth Council (2001) 1 ALL ER 560 was referred to make the scope of tort available for civil action (s) too as:-- In English Law the tort of malicious prosecution has never been held to be available beyond the limits of criminal proceedings and special instances of abuse of civil legal process... ...
(Emphasis supplied)
Now, I can safely conclude that one can sue for being prosecuted even in a civil legal process (suit) for recovery of damages under 'malicious prosecution' but pre-requisite conditions shall be the same i,e, coexistence of above said conditions i,e, prosecution and its end in acquittal/favour of person, intending to file a list for damages.
11. Having said so, now I would like to revert to the merits of the instant case. Since the plaintiff nowhere claims his case to be falling within meaning of Defamation Ordinance hence the case for recovery of damages shall be under no other head but 'malicious prosecution'. This being so, shall require co-existence of two above discussed conditions so as to let the instant suit proceed further for determination of existence or otherwise of remaining two conditions/ingredients.
12. A careful sail through the pleading (plaint) and its enclosed documents does not show that there had been any decision in favour of the plaintiff either by the Federal Ombudsman for Women Protection at Islamabad or by Provincial Ombudsman for Protection of Women's Office proceed but his grievance prima facie appears to be inclusion of his name by the defendant before said forums which shall stand clear from paras-6 to 8 of the plaint i,e,:-- "6. That to the surprise of the plaintiff the Defendant had withdrawn her application from the office of Federal Ombudsman for Women protection and had sought a direction for moving the same in the Provincial Ombudsman for protection of Women's Office. The matter at Islamabad was disposed of:
7. That the Defendant had filed another application at Karachi in the office of Provincial Ombudsman for Protection of Women and the Ombudsman was pleased to issue notice for appearance to the plaintiff. The Plaintiff had appointed a lawyer to represent him before the.
Provincial Ombudsman who had appeared on the given date. The Ombudsman was pleased to direct for personal appearance of the Plaintiff which he did on the following date.
8. That the matter did not stop here. The Defendant had again moved an application to the Chairman PIAC Head Office Karachi against the Plaintiff The copy is enclosed herewith as annexure-E. The management had called for the comments of the Plaintiff which he had submitted."
Accordingly, filing of a complaint/application does not necessarily fulfill the term 'prosecution' because it (prosecution) necessarily require ' commencement, and carrying out of any action or scheme as it shall stand clear from definition of prosecution with reference to Black's Law Dictionary i,e,: '1. The commencement and carrying out of any action or scheme (the prosecution of a long, bloody war).
2. A criminal proceeding in which an accused person is tried.'
The above permits me to conclude without any hesitation that mere filing of a complaint/application shall not earn a right for filing a suit for 'damages' because it short falls the term prosecution' and even an application/complaint does not always result in 'commencement andl F carrying out of any action or trial.
I would also add here that an addition of word 'false or frivolous' alone would not help one to maintain a suit for 'damages' because the filing of a suit for 'damages' in law of torts has not been confined for a 'false or frivolous' prosecution but success in such suit is dependent upon establishing rest two conditions i,e, 'proving it (prosecution) to be causeless and malicious' and nor on establishing it (prosecution) to be 'false or frivolous'. Thus, a causeless prosecution may not be necessarily 'false or frivolous' . Even otherwise, it is not the domain of plaintiff to 'declare' an application, complaint etc. As 'false' or otherwise but it is the competent forum alone hence mere addition of word 'false or frivolous' is of no help for prejudicing or escaping the legally established ingredients for maintaining and succeeding in a /is for damages under the law of Torts. However, it needs not be mentioned that every single 'malicious prosecution' shall earn an independent right for bringing independent suit for damages. Thus, I would hold that an injunctive relief of vague or general nature against a person for restraining him/her from approaching competent forum/authority by way of application or complaint etc shall not be maintainable as this is not only against the right of such person but also against the spirit of section 56 of the Specific Relief Act.
13. In the instant matter, it has never been the claim of the present plaintiff that he was ever prosecuted on a causeless complaint of defendant which ended in his favour rather the pleading (plaint) of the plaintiff makes it patent that complaint, made by defendant, is pending determination, hence the instant suit for 'damages' is not sustainable and deserves its rejection on this count alone.
14. In addition to above, the suit of the plaintiff would also fail because such a claim in law shall fail where the plaintiff fails, to specify and quantify the claimed damages. The position, being so, shall stand clear from a direct reference to the para-11 of the plaint which is: The plaintiff due to these false complaints had undergone tremendous mental torture. The torture and damage caused to the Plaintiff cannot be assessed in terms of money but for the purpose of recovering damages the Plaintiff estimates it as Rs,20,000,000/- (Rupees Twenty Million). The plaintiff is even presently under stress due to fear that the defendant at any moment may involve him or implicate him in any false serious case with her mala fide intentions and ulterior motives.
This stress and fear is permanent till the matter is resolved by this Hon'ble Court."
The plaintiff nowhere given the details of 'special damages' nor classified the claimed amount as 'general damages'. The absence thereof would restrict the plaintiff to legally prove what he deliberately omitted in his pleading.
15. In view of above discussion, I find the instant suit (plaint) failing to satisfy co-existence of first two ingredients for maintaining a suit for 'damages'. Accordingly, I am left with no option but to reject the plaint without any further discussion on interlocutory application(s), including the instant CMA which, in consequent to rejection of plaint, stood dismissed automatically.
16. While parting, I would add that since within the meaning of section 8 of the Act, the employee while exercising his right of option may choose to prefer a complaint either to the Ombudsman or to 'Inquiry Committee'. It is also a matter of record that the PIA has made compliance of the Section 3 of the 'Protection against Harassme nt of Women at the Workplace Act, 2010 by issuing circular No,12/2010 dated 30th April, 2010 but it should make it functional in the manner that the object of the Act is achieved which shall fail its purpose if 'Inquiry Committee', constituted under Section 3 of the Act, falls short in developing a trust in its employee. The option becomes material only where the first choice causes doubt in place of faith. The Act itself describes the complete mechanism for 'Inquiry Committee' to follow on receipt of complaint(s) which, being commandment of law (Act) is binding. Thus, the 'organization' should give more importance to constitution of such 'Inquiry Committee(s)' to its employees, particularly to women.
Copy of this order shall be sent to Chairman G.M. P.I.A. For compliance.