Through the instant writ petition the petitioner, Muhammad Shabbir Khan Abbasi, impugns the consolidated order dated 14.03.2023 passed by learned Additional District Judge, Islamabad-West whereby his three applications in the suit instituted by respondent No.1, Islamabad Diagnostic Centre (Pvt.) Limited ("I.D.C.") were dismissed with costs of Rs.25,000/-.
2. The facts essential for the disposal of the instant petition are that on 19.12.2020 respondent No.1, instituted a suit for defamation, damages and permanent injunction against the petitioner and respondents No.2 and 3. In the said suit, it was inter alia pleaded that the petitioner availed the services of I.D.C. for Covid-19 laboratory test and was dissatisfied with the result of the said test for which he was re-tested free of cost. Afterwards respondents No.2 and 3 who are media persons published the petitioner's interview which was defamatory and became the cause of action for the suit. The petitioner contested the said suit by inter alia pleading that I.D.C.'s suit is counter-blast to the petitioner's suit for damages which he instituted against I.D.C. for its negligence in performing the Covid-19 test. The petitioner is also said to have filed an application under Order VII, Rule 11 of the Code of Civil Procedure, 1908 ("C.P.C.") in I.D.C.'s suit.
3. The learned trial Court framed issues in the said suit filed by I.D.C. and it was at the stage of recording of evidence when the petitioner filed following three applications:-
(i) Application under Order I, Rule 10 C.P.C. for deleting the petitioner's name from array of parties;
(ii) Application for discarding the evidence of I.D.C.'s witnesses on the ground that their affidavits- in evidence were not attested by an Oath Commissioner. The affidavits were on plain paper and PW-06's statement for submission of his affidavit-in-evidence was recorded through video link; and
(iii) Application for recording of cross-examination of all witnesses on the same day.
4. I.D.C. filed contesting replies in all the said three applications. Eventually vide impugned order dated 14.03.2023, the learned trial Court dismissed the petitioner's three applications with costs of Rs.25,000/-. Hence the instant petition.
5. Learned counsel for the petitioner, after narrating the facts leading to the filing of instant petition, submitted that under Section 139 of C.P.C. an affidavit is required to be attested by an Oath Commissioner; that the affidavits submitted by the witnesses (PW-1 to PW-06) in I.D.C.'s suit were not attested by an Oath Commissioner; that under Section 26 (11) C.P.C. a local commission appointed for recording of evidence is required to submit complete written, audio and video record of proceedings; that the local commission recorded evidence of one of the plaintiff's witnesses i.e. Rizwan Uppal through video link but video record of the said proceedings has not been placed on the Court's file; that an act of defamation is committed by publication of defamatory statement; that the purported defamatory material was not published by the petitioner and I.D.C. had cause of action against him; that since I.D.C. has no cause of action against the petitioner, he is not a necessary party in I.D.C.'s suit; that the petitioner in this backdrop filed application under Order I, Rule 10 C.P.C. for deletion of his name from the array of defendants; that the learned trial Court without giving proper consideration to the petitioner's said application dismissed the same; and that the impugned order has been passed on the basis of surmises and conjectures. Learned counsel for the petitioner requested for the writ petition to be allowed in terms of the relief sought therein.
6. I have heard the contentions of the learned counsel for the petitioner and have perused the record with his able assistance.
7. The record shows that in I.D.C.'s suit the alleged defamatory speech has been attributed to the petitioner. The petitioner's stance is that since he did not publish the said speech he cannot be arrayed as a defendant in the suit. It is my view that this is against the law and facts of the case and the petitioner's presence before the Court for a just decision of the case was necessary. I say so because it was admittedly the petitioner's interview, the publication whereof had been considered defamatory by I.D.C. and gave origin to I.D.C.'s stated cause of action to institute the suit. The learned trial Court in this regard has appreciated the law correctly.
8. The learned trial Court vide the impugned order dated 14.03.2023 also dismissed the petitioner's other application for conducting cross-examination on all of respondent No.1's witnesses on the same day. Now, there are six witnesses of respondent No.1 and it is for the learned trial Court to manage its roster and determine the manner in which it can expeditiously record the evidence.
This Court cannot second guess the exercise of discretion in this regard by the learned trial Court.
Similarly, whether or not and to what extent the learned trial Court allowed the recording of witnesses' examination through video link is not something which this Court would be interfering within its Constitutional jurisdiction.
9. The order dated 14.03.2023 is even otherwise interlocutory in nature. Since an issue on the maintainability of suit has been framed, the petitioner would be at liberty to plead his case and substantiate his claim through the evidence during the trial and the learned trial Court would pass a final order after taking his submissions into account. If the petitioner feels aggrieved of the final judgment he may exercise his right of appeal provided under C.P.C.
10. Additionally, pursuant to Section 15 of the Code of Civil Procedure (Amendment) Act, 2020, Section 115 of C.P.C. stands substituted in a manner that an order which is not appealable is no more revisable. The said substituted section reads as following:- "115. Revision.- Any party aggrieved by an order under section 104, passed by the Court of District Judge or Additional District Judge in an appeal against an interlocutory order passed by a Civil Judge or Senior Civil Judge, as the case may be, may within thirty days of the said order may file a revision to the High Court on an obvious misapprehension of law or in respect of a defect in jurisdiction."
11. The said statutory amendment does not allow a revision petition against a non-appealable interlocutory order. The said statutory bar cannot be circumvented by challenging such an interlocutory order in the Constitutional jurisdiction of the High Court. A party aggrieved by such an interlocutory order has to wait until a civil court passes a final order and then to challenge it in an appeal. This is because an interlocutory order merges into the final verdict. The purpose behind barring a revision against an interlocutory order is to avoid delays in disposal of the cases.
Reference in this regard may be made to the case of Syed Saghir Ahmad Naqvi Vs. Province of Sindh (1996 SCMR 1165), wherein it has been held as follows:- "The statute excluding a right of appeal from the interim order cannot be passed by bringing under attack such interim orders in Constitutional jurisdiction. The party affected has to wait till it matures into a final order and then to attack it in the proper exclusive forum created for the purpose of examining such orders."
Similarly in the case of Ms. Afshan Ahmed Vs. Habib Bank Limited (2002 CLD 137), it was held as follows:- "It is a settled principle of law that when a statute does not provide an appeal against an interlocutory order then the same cannot be challenged by way of a Constitutional Petition as allowing such an order to be impugned by way of a Constitutional Petition would amount to negating the provisions of the statute which does not provide for an appeal against an interlocutory order. According to the principles of interpretation of statute the Court would not act in a manner by which the object of a statute is defeated and the same is rendered nugatory."
12. The exceptional circumstances which could justify invoking the jurisdiction of the High Court under Article 199 of the Constitution would be when the order or action assailed was palpably without jurisdiction, malafide, void or coram non judice. The impugned order is neither without jurisdiction, nor malafide, void or coram non judice so as to warrant interference in the Constitutional jurisdiction of this Court under Article 199 of the Constitution.
13. Since I do not find the pre-requisites for interference in the Constitutional jurisdiction of this Court with the impugned order dated 14.03.2023 to be satisfied in the case at hand, the instant writ petition is dismissed in limine.