Tariq Iftikhar Ahmad, J.--Through present appeal, the appellant-plaintiff has assailed the vires of order dated 04.01.2010 handed down by the learned trial Court whereby application filed by respondent-Defendant No. 8 under Order VII Rule 10 of the Code of Civil Procedure, 1908 (Hereinafter called The Code) was accepted resulting in return of plaint to the appellant-plaintiff.
2. The appellant filed a suit for recovery of Rs. 500 'Million as damages against defamation/libel committed by (Respondents No. 2 to 9) at the instance of Respondent No. 1 (Nighat Nasir Sheikh).
According to the contention of the appellant the defamatory material was published against her with mala fide intentnion which caused damage to her reputation at National and International level and she also suffered mental agony and torture.,
3. It is evident from the record that Respondent No. 1 remained ex-parte before the learned trial Court whereas Respondents No. 2 to 5 & 8 filed written statements. The learned trial Court formulated necessary issues through order dated 13.10.2009 and thereafter the application under Order VII Rule 10 of The Code filed by Respondent No. 8, as mentioned above, was accepted by the learned trial Court through impugned order dated 04.01.2010.
4. Learned counsel for the appellant contends that The Defamation Ordinance, 2002. (No. LVI of 2002) was promulgated w.e.f. 01.10.2002 does not contain any repealing clause regarding ouster of jurisdiction of Civil Courts about civil suits for claim of damages for defamation, thus; it was option of the aggrieved person to avail remedy by filing such suit under Section 9 of The Code or under the Ordinance. Further contends that the learned trial Court misconstrued the case law in "Raees Ghulam Sarwar through Attorney u. Mansoor Sadiq Zaidi and 4 others" (PLD 2008 Karachi 458) and erroneously relied upon the judgment of learned Peshawar High Court in "Shafaqat-ur-Rehman u.
Daud-ur-Rehman and 11 others"(PLD 2006 Pesawar 206) while rendering impugned order. Learned counsel while placing reliance on "Surjan and others u. Lajja Ram, Vendee and another, Vendor"
(AIR (30) 1943 Lahore 48) contends that jurisdiction of Civil Courts cannot be taken away except by express provision or by necessary implication. Learned counsel concludes while making request that the impugned order may be set aside and the case be remanded to be tried and decided on merits by the learned trial Court being Court of competent jurisdiction.
5. On the other hand, learned counsel for Respondent No. 2 states that it is generally acknowledged procedure/law that special law prevails over the general law and after promulgation of The Ordinance w.e.f. 01.10.2002, the jurisdiction of Civil Courts stood automatically ousted. He seeks help from the dictum laid down in "Pakistan Herald Publications (Put) Ltd. and 2 others u. Karachi Building Control Authority through Controller of Buildings" (2012 CLD 453) and "Khadim Hussain and 12 others u. Gul Hassan Tiwano and 3 others" (2013 CLD 981).
6.We have given careful consideration to the arguments addressed by learned counsel for the parties and gone through the available record.
7. It has been noticed that the application which was decided by the learned trial Court through impugned order was filed by Respondent No. 8. However, on 24.02.2016, before this Court it was stated by learned counsel for Respondents No. 8 and 9 that they had reached an understanding with the appellant and the appellant would delete their names from the array of respondents subject to condition that Respondents No. 8 & 9 will publish apology in the newspaper. Accordingly, names of Respondents No. 8 & 9 were deleted from the array of respondents subject to publishing of apology on their part in the newspaper i.e. daily "Na.wa-i-Waqt".
8. We have considered this aspect. That through order dated 24.02.2016 the names of Respondents No. 8 and 9 have been deleted from the array of respondents and upon publication of apology in the newspaper. However, since to our wisdom and understanding, question of law is involved, it needs to be attended to by this Court, so, we decided to proceed further.
9. Appraisal of contents of application under Order VII Rule 10 of The Code that after promulgation of Defamation Ordinance, 2002, under Section 13 of The Ordinance empowered the District Court to exercise jurisdiction to try the cases under the Ordinance. It is considered appropriate to reproduce Section 13 of The Ordinance for ready reference: "13. Trial of Cases.--The District Court shall have the jurisdiction to try the cases under this ordinance".
A careful perusal of the Ordinance reveals that neither there is any repealing clause nor ouster of jurisdiction of the Civil Courts to try the suit filed before it being the Courts of ultimate jurisdiction.
To this extent, we are comfortable to say that there is neither any ouster nor repealing clause in the Ordinance respecting jurisdiction of Civil Courts to try a civil action, if instituted, claiming damages on account of defamation committed by the opposite party.
10The plain reading of this provision of law manifestly shows that the jurisdiction under Section 13 of The Ordinance is with the District Courts. If a case is filed under Section 9 of The Code is to be dealt with the by the Civil Courts which is reproduced hereunder: "Courts to try all civil suits unless barred.--The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred".
11. Now we have also considered to have a look and expressed ourselves on effectiveness of Section 9 of The Code reproduced hereinabove. It is general principle that if in respect of same disputes/litigation general law and special law are, in the field, the special law shall prevail subject to condition that the special law contained provisions of ouster of jurisdiction of Civil Courts whereas it is not the situation in the present case. We are of the view that it was intention of the legislation to keep special law as well as general law in the field giving option to the aggrieved persons either to opt for their redressel against defamatory action before Court of general jurisdiction i.e. Civil Courts or in the special law.
12. The jurisdiction of Civil Court is covering all kinds of civil litigation on the strength and force of Section 9 of The Code. In this respect reliance can be placed on the dictum laid down by the Apex Court in "Muhammad Akram v. Mst. Farman Bi" (PLD 1990 SC 28).
It has also been held in "Sudan and others" (supra) that jurisdiction of the Civil Courts cannot be taken away except by express provision or by necessary implication. Under Section 9 of The Code the Courts have jurisdiction to entertain all suits of a civil nature except those the cognizance of which is expressly or impliedly barred.
In relation to this, reference can also be made to a judgment of learned Sindh High Court in "Races Ghulam Sarwar through Attorney" (supra) and at page 466 as under: "Since the right against defamation was already recognized and actionable under general law even prior to the advent of the 2002 Ordinance and the later though providing a procedural remedy without a clause ousting the general jurisdiction of the Civil Courts, 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."
13. We have considered it expedient to express that reputation of a person is very important civil right guaranteed under Article 4 of The Constitution of the Islamic Republic of Pakistan, 1973.
We are convinced that the option is with the aggrieved person either to go to file civil suit or to avail of the remedy provided under the special law (Ordinance, 2002). The appellant availed 1st option with the learned Civil Court which was not found favour and had been turned down by the learned trial Court while misinterpreting the afore-mentioned provision of law vide order dated 04.01.2010 which, in the circumstances is not sustainable.
14. In this view of the matter, this Court is of the view that the learned trial Court has erred in law while returning the plaint vide the order impugned.
15. Resultantly, while allowing instant appeal impugned order dated 04.01.2010 is set aside and the matter is remanded to the learned trial Court for decision afresh strictly in accordance with law on merits.
16. The costs shall follow the event.