1. MUHAMMAD NOOR MESKANZAI, CJ. --- This revision petition has been directed against the order dated 14.07.2009 and 26.5.2010 respectively passed by the Senior Civil Judge-III, Quetta and Additional District Judge-I, Quetta whereby the suit and appeal filed by the plaintiff/petitioner were dismissed.
2. Facts giving rise to this petition are that the petitioner Haji Muhammad Musa filed a suit for Damages against the respondents with the averments that he has already served legal notices to the defendants/respondents in the subject-matter through his counsel before filing of the suit. It was further averred that the defendants filed their written statements and out of pleadings of the parties; learned Trial Court framed as many as 6 issues. In support of its claim, the petitioner produced one PW in his defence and also got recorded his own statement by placing/exhibiting certain documents. In rebuttal, the defendants/respondents also produced three DWs and respondent/defendant No, 3 being attorney got recorded his statement on his behalf as well as for rest of the respondents. On conclusion of the trial, the learned Senior Civil Judge it Quetta dismissed the suit vide impugned judgment dated 14.7.2009. Being aggrieved and dissatisfied with the same, the petitioner preferred an appeal -before the District Judge, Quetta which was transferred to the file of Additional District Judge-I, Quetta which too met with same fate vide impugned order dated 26.5.2010. Hence, the instant revision petition.
3. Since the respondents have been proceeded against ex parte, therefore, ex parte arguments were heard.
4. Learned counsel for the petitioner contended that the suit was filed under the Defamation Ordinance, 2002. He stated that the perusal of plaint reveals that it was filed before the District Judge-1, Quetta which Court alone is competent to take 'cognizance of the matter under Section 13 of the Defamation Ordinance, therefore, the transfer of the case by the District Judge to the file of Senior Civil Judge-III, Quetta was illegal. The Senior Civil Judge illegally took the cognizance of the matter. . Therefore, the proceedings initiated by the Trial Court were coram non judice, ab initio void. He contended that the Appellate Court also failed to take into account this legal proposition, with the result, the judgment passed by the Appellate Court is also illegal. He submitted that even the parties cannot confer jurisdiction with consent upon a Court which inherently lacks jurisdiction, so in such state of affairs both the judgments and decrees passed by Trial Court as well as appellate forum are bound to be set at naught on this score alone. He maintained that the evidence produced by the parties were recorded by a Court which was not competent to proceed with the matter, therefore, findings rendered by the lower forums on all the issues at the strength of such evidence are of no avail. According to learned counsel the matter needs to be remanded to the Court of District Judge for proceedings afresh.
5. I have considered the contentions but unable to subscribe to the learned counsel for multiple reasons, firstly because the petitioner himself opted to file a regular suit for damages before the District Judge, under the provision of CPC. The District Judge as per the Civil Courts Ordinance 1962, enjoys original civil jurisdiction in matters valuing more then Rs, 10,00,000/-. A bare perusal of the plaint reveals that a regular suit was filed before the District Judge under the ordinary/civil jurisdiction and not under the Defamation Ordinance, 2002. Secondly, Section 9 of the CPC empowers the Court to entertain proceeding of civil nature. Civil Courts have got jurisdiction to take cognizance of all the suits of civil nature unless the cognizance is expressly or impliedly barred. In the instant matter bar is claimed at the strength of Defamation Ordinance 2002. No doubt, the Defamation Ordinance provides a remedy for special damages but it is a remedy in addition to the one available under general law. This is neither express nor implied bar because the Defamation Ordinance does not impose any bar on the jurisdiction of brdinary Civil Courts or contains any repealing or ouster clause. In absence of repealing or ouster clause and placing of specific bar over the general jurisdiction of Civil Court the proceedings so initiated before the Court cannot be declared coram non judice. Reliance is placed on case-law titled as Zafar Ali v.
6. Additional District Judge (2017 CLC 45), wherein following observations have been made:-- "3. Undoubtedly, Section 13 of the Defamation Ordinance, 2002 prescribes the remedy to enforce the right thereunder before the District Court, but a close recital of the said Ordinance would reveal that the same does not contain any repealing or ouster clause regarding the jurisdiction of Civil Court to entertain such a suit under the general law i,e, Section 9 of the Civil Procedure Code, 1908. The door of Civil Court being the Court of ultimate jurisdiction can be knocked at in respect of all the civil matters, unless its jurisdiction is expressly or impliedly barred by the statute regarding any specific matter. Since the right against defamation was already recognized and actionable under general law even prior to the promulgation of the Ordinance ibid, hence without a clause ousting the general jurisdiction of the Civil Court, any person aggrieved by an act of defamation can avail of such remedies and he may either pursue his case by filing a regular suit before the Civil Court under Section 9 of the Civil Procedure Code, 1908 or by making a complaint under the provisions of the Ordinance ibid before the District Court as any of the avenue is not closed for such an aggrieved person."
7. After promulgation of Defamation Ordinance suit for damages can be filed under Defamation Ordinance also and now two remedies are simultaneously available to an aggrieved person seeking damages, either the aggrieved person may file a regular suit for damages before the Civil Court under the law of Torts or claim special damages under the Defamation Ordinance, 2002. A bare perusal of the suit filed by the plaintiff reveals that for all intent and purposes it is a regular suit under the law of Torts and cognizable by a District Judge in its original civil jurisdiction, therefore, no question of non-maintainability of the suit arises. Reliance is placed on case titled Zulfiqar All Cheema v. Farhan Arshad Mir, reported in PLD 2015 SC 134 wherein the Hon'ble apex Court has observed as under-- Before proceeding further, by adverting to Section 11 ibid, it is clear that the Ordinance in no way prejudices or prevents a criminal action which an aggrieved party could initiate under criminal law. It may also be pertinent to mention here that from the reading of the Ordinance as a whole it does not again preclude a person from initialing an action for damages under the general law of the land i.e, under the law of Torts by filing a suit for damages under C.P.C. The definition of the Court envisages it to be District Court, which otherwise has original civil jurisdiction; Section 10 makes the Civil Procedure Code and Qanun-e-Shahadat Order, 1984 applicable mutatis mutandis, thus for all intents and purposes the proceedings before the Court primarily are of the civil nature. Per the law (Ordinance 2002) in fact composite civil remedies have been provided which are clearly mentioned in the Section and need no elaboration. Though the Section is composite, at the same time it can be split and segregated into two parts: the first is relatable to tendering of apology and statutory damages which the Court can allow, the extent whereof (damages) shall be determined by the Court within the ambit of the section. For this no Court-fee is payable. The second part however starting with the expression "and in addition thereto, any special damage incurred that is proved by the plaintiff to the satisfaction of the Court", is an added right of the party. giving him a choice and option to claim special damages for the special forum or to resort to civil suit. Undoubtedly this remedy available to the person approaching the "Court" is in the nature of a civil suit and the claim shall attract the payment of ad valorem Court- fee under Section 7(1) of the Court-fees Act. In light of the above, these appeals have no merits and are accordingly dismissed."
8. Thirdly, the petitioner neither before the Trial Court nor before the Appellate Court nor for that matter before this Court in the memo. of revision petition raised the ground of jurisdiction. I am conscious of the proposition that parties cannot confer jurisdiction to a Court or forum that inherently lacks jurisdiction to entertain such sort of proceedings, however, if a legal remedy is available and one avails the remedy provided under the said .law, after loosing the bathe he/she cannot take U-turn and raise objection over the jurisdiction after submitting to it. The petitioner submitted to the general jurisdiction of the Civil Court, therefore cognizance of the matter taken by the District Judge in its original civil jurisdiction cannot be declared coram non judicc nor the proceedings so initiated by the lower forum can be declared null and void. Fourthly, the impugned order/judgment dated 14.07.2009 reveals that this case was remanded to the Court of Senior Civil Judge by this Court and the operative portion whereof is reproduced herein under:-- "Subsequently by the order Hon'able high Court the instant case was transferred to this Court of trial.
9. Later on, vide order dated 15.06.2009 issues were amended, the issue No, 2 was deleted, and the following additional issues were framed: 2A Whether the defendant No, 3 on the instigation of defendants No, 1 and 2 had treated and tortured the daughter of plaintiff namely Mst. Nazaneen Pawar, if so?
10. 2B Whether on account of mal-treatment and ill behaviour of defendant with Mst. Nazaneen the plaintiff suffered physical agony and metal torture and become ill?
11. 2C Whether the plaintiff sustained Rs, 5 Crore 50 lakh loss?
12. In the given circumstances of the case, it can safely be concluded that the plaintiff resorted to the jurisdiction of the Civil Court by filing a regular suit under the law of Torts and now at this belated stage, he cannot take a somersault by raising objection on the jurisdiction of the Trial Court.
13. Last but not the least petitioner produced one PW who did not support the claim of petitioner. In fact, it is a case of no evidence, therefore, the lower forums had no other option but to dismiss the suit for want of proof. Furthermore, the concurrent findings of fact have been rendered by the two Courts of competent jurisdiction; therefore, the findings are not open to any exception , in absence of mis-reading or non-reading of evidence by the lower forums. Thus, for the foregoing reasons, I find no substance in the petition which is dismissed with no order as to cost.