SAFDAR SALEEM SHAHID, J. The appellant/defendant has challenged the validity of judgment and decree dated 05.05.2018 passed by learned Addl. District Judge Sargodha, whereby, the suit of the respondent/plaintiff under defamation Ordinance 2002 for recovery of Rs.1,00,00,000/- was partly decreed in his favour and against the defendant/appellant and respondent/plaintiff was held entitled to recover Rs.50-lacs without markup as defamation, damages and compensation.
2. Brief of the case narrated by the plaintiff in the plaint is that plaintiff's qualification is FA and he belongs to landlord family having land measuring 90 kanal in chak No.130 SB Tehsil Sillanwali District Sargodha, that plaintiff has good reputation in the vicinity/area and family, that defendant oftenly misbehaved with plaintiff by using notorious language in the public thoroughfare and other places in front of people of the vicinity and that defendant tried to defame the plaintiff, that on 15.08.2013 at 2.30 pm in presence of Allah Ditta, defendant Rana Imran All used infamous language by abusing him, that on 16.08.2013 at 10.30 am plaintiff again gave abuses to him in presence of Abdul Ghaffar and Mahmood Anwar, that on 14.10.2013 at 11 am in presence of Irshad Ahmed and Mukhtar Ahmed and again on 22.10.2013 at 12 pm at bus stop diesel agency of village chak No.130 SB in presence of Abdul Ghaffar and Mahmood Anwar gave notorious abuses to the plaintiff, that defendant has used false, un-founded, baseless and dishonest allegations against plaintiff, due to which his repute in the society has been damaged and he also suffered with mental torture, so in this way, plaintiff is entitled to recover Rs.1 crore on the basis of defamation from the defendant; that despite repeated demands of the plaintiff, defendant refused to pay the mentioned above amount, hence this suit.
3. The appellant/defendant contested the suit by filing his written statement.
4. Out of the divergent pleadings of the parties, following issues were framed on 20.06.2014 ISSUES,
1. Whether the plaintiff is entitled to a decree for recovery of Rs. One crore with mark up from the defendant on the ground of damages and defamation? OPP
2. Whether this court lacks jurisdiction to adjudicate upon the present suit? OPD
3. Whether the plaint is liable to be rejected being barred by law? OPD
4. Whether the plaintiff has no cause of action to institute the present suit ?OPD
5. Whether the plaintiff has not come to the court with clean hands; if so its effect? OPD
6. Whether the suit is false and vexatious and defendant is entitled to recover compensatory costs from the plaintiff?OPD
7. Relief.
5. After appraising evidence, the learned trial court partly decreed the suit in favour of the respondent/plaintiff and against the defendant/appellant only to the extent of Rs.50-lacs without markup as defamation, damages and compensation whereas rest of the claim of plaintiff-respondent was declined vide judgment and decree dated 05.05.2018. Being aggrieved by the said judgment and decree the appellant/defendant filed instant appeal.
6. Arguments heard. Record perused.
7. A perusal of record reveals that the respondent/plaintiff filed the suit for damages under defamation Ordinance 2002 with the claim that the defendant/appellant misbehaved with the plaintiff/respondent by using notorious language in the public thoroughfare and other places in front of people of the vicinity, due to which his repute in the society has been damaged and he also suffered with mental torture. 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 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.
(2) Defamation is of two forms, namely:--
(i) 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 he 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, specifying the defamatory matter complained of.
8. For the purpose of damages party would be bound to prove factum and quantum of damages sustained by it by producing cogent evidence. The suits for damages cannot be decreed without proof and every averment in the plaint has to be separately and individually, proved by evidence, on each point. General, vague and scanty evidence cannot be relied upon. The damages suffered and the quantity of the amount claimed item-wise has to be proved by cogent evidence. Mere assertion in the plaint and replication in evidence is of no avail to the party.
A look at the above provisions of special law would make it 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-I but 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.
9. From the plaint, it reveals that although in the body of the plaint, the plaintiff/respondent took stance that on different occasions the defendant/appellant gave notorious abuses to plaintiff and also used false unfounded, baseless and dishonest allegation in presence of witnesses and his employee namely Allah Ditta who was cited as witness in the plaint but admittedly he was not produced before the learned trial court , in this way, best evidence has been withheld by the respondent/plaintiff, thus, an adverse inference under illustration (g) to Article 129 of the Qanun-e-Shahadat Order, 1984 could easily be drawn that in case he was produced he would not have supported plaintiff's version. The respondent/plaintiff filed the suit for damages under defamation Ordinance 2002 with the claim that the defendant/appellant misbehaved with the plaintiff/respondent by using notorious language on different occasions but the plaint does not disclose that such defamatory and derogatory remarks were uttered in a public meeting/assembly. Perusal of statements of Irshad Ahmed (P.W-4) and Mukhtar Ahmed (P.W-5) reveals that on 14.10.2013 at about 11:00 A.M(noon) they were present at the mines for the purpose of irrigation, meanwhile the defendant/appellant came over there and used defamatory and derogatory remarks against the plaintiff/respondent in presence of his employee namely Allah Ditta but said material witness was not produced before the learned trial court and the witnesses also did not state that the defendant gave notorious abuses to plaintiff in a public meeting/assembly and names of respectable of the locality in whose presence the defendant used filthy language against the plaintiff and defamed him were not disclosed by the witnesses. Although the witnesses of the plaintiff stated that he (plaintiff) belongs to landlord family and has good repute in the vicinity but the witnesses did not state about their own character/status in the locality. In the plaint the plaintiff also mentioned his character assassination allegedly caused by the defendant/respondent in the thoroughfare and other places in front of people/respectables of the vicinity but the plaintiff has not mentioned the names of respectable of the locality and other famous personalities of the area who were allegedly present on different places at the time of occurrence. There is nothing on record that due to alleged act of the defendant/appellant, the people of the locality and other renowned personalities observed social boycott of the plaintiff due to which his repute in the society has been damaged and he also suffered with mental torture. The main ingredient constituting defamation is publication of defamatory statement in widely circulated newspaper or spoken in a large gathering which is not available in the instant case, therefore such necessary requirements are missing, hence, case does not fall under defamation Ordinance, 2002. From the evidence available on file prima facie it reveals that only general and vague statement has been made in the body of the plaint and the P.Ws in their statements have also admitted that civil litigation pertaining to land in dispute was pending between the parties which prima facie supports the version of the defendant taken by him in the written statement.
10. Record reveals that although the defendant/appellant was proceeded against ex-parte vide order dated 22.10.2016 passed by learned trial court yet defendant/appellant contested the suit by filing his written statement. In the written statement the defendant took stance that legal notice was not sent by the plaintiff within two months of the knowledge of allegations, as required by section 8 of the Ordinance hence the suit was not maintainable. Perusal of plaint reveals that in paragraph Nos. (1) & (ii) of the plaint, the plaintiff himself stated that alleged allegations came into his knowledge on 15.08.2013 & 16.08.2013 whereas according to plaint legal notice was sent to the defendant on 04.12.2013. Plaintiff should have served notice upon the defendant within two months of the knowledge of allegations. In the written statement, the defendant categorically stated that he did not utter notorious language and derogatory remarks against the plaintiff/respondent, rather in fact the defendant purchased the land from Mst. Majeedan Bibi who allegedly belongs to plaintiff's family and in this regard civil litigation was pending and on account of this grudge, relatives of the plaintiff lodged a criminal case against the appellant/defendant and thereafter filed the instant suit on the basis of false accusation. In the given circumstances, apprehension of the appellant/defendant may not be without substance.
11. Keeping in view the evidence available on record, learned trial court has not legally thrashed out material available on record and passed the impugned judgment without apprising any cogent and confidence inspiring evidence and findings of learned appellate court in this regard are not based on sound footings and same are hereby reversed.
12. For what has been discussed above, instant appeal is accepted and judgment and decree dated 05.05.2018 passed by learned trial court is set aside. No order as to costs.