The plaintiff has filed this suit for damages for defamation amounting to Rs. 5 lacs. According to the plaint, he is the President and Managing Director of a group of Companies incorporated in Canada known as the Canbrit Group. This group enjoys a very high reputation and he has been its representative in Pakistan since 1960, and, on its behalf entered into negotiations for construction work with firms, companies, the Provincial and the Central Governments. In the events that happened, in or about April 1965, he obtained a sub-contract from the defendant, on behalf of the Canbrit Group, for carrying out soil investigations on the proposed Landhi/Dhabeji Transmission Line of the Karachi Electric Supply Corporation Ltd., Karachi, and the defendant was aware that he was acting as the Managing Director of the said Group when it placed this sub-contract. However on account of "personal squabbles" between the plaintiff and the officers of the defendant, who were actuated by malice, the defendant illegally terminated this sub-contract and on the 13th April 1965, published the following notice in the newspapers circulating in both wings of Pakistan: ---Public is hereby informed that our clients British Insulated Callender's Construction Company Limited, Karachi have terminated the contract awarded to Mr. H. R. H. Lind, said to be of the Canbrit Group, Canada, residing at 49-D, Block No. 6, P. E. C. H. Society, to carry out Soil Investiga--tions on proposed Landhi/Dhabeji Transmission line, with effect from 8th April 1965. The said Mr. H. R. H. Lind has no concern of whatsoever with our clients and any one dealing with him on behalf of our clients will do so at his own risk and account.--- The contents of this notice were false, malicious, defamatory and without justification, because the sub-contract in question had been awarded not to him but to the Canbrit Group which he represented because termination of the sub-contract was illegal and because the words "said to be of the Canbrit Group" in the aforesaid notice were false, malicious and defamatory. In addition to this Public notice the defendant had sent him a legal notice terminating the sub-contract on false grounds therefore he had replied to the said notice and demanded damages for defamation, and as the defendant did not comply with this demand, filed this suit.
2. In its written statement the defendant denied all the allegations in the plaint. It said that it had no knowledge of the alleged high reputation of the Canbrit Group or of the plaintiff's claim that he was its Chairman or Managing Director. It also stated that the plaintiff had falsely represented to it that the Canbrit Group was registered under the Companies Act in Pakistan and thereby induced it to enter into the said sub-contract. It further stated that it had been induced by the plaintiff to enter into this sub-contract because he had led it to believe that the Canbrit Group had all the equipment required for the soil investigation; therefore it had given him advances amounting to Rs.
10,000 between the 30th January and 15th Febru--ary 1965. But it found later that he was not able to carry out the contract within the stipulated period because of lack of equipment and material, and that he had in turn sub-contracted the work to another company without its approval. It also contended that the plaintiff had wrongly tried to pass of as a consultant whereas he was only a contractor, and that he had obtained credit for himself from the North Western Hotel, Karachi in the name of the defendant's customer namely, the Karachi Electric Supply Corporation Ltd. He had also got involved in Court cases for non-payment of debts. In these circumstances, it submitted that it was entitled to terminate its sub-contract with him and also to publish a notice of this termination in the newspapers. It admitted that it had sent him a legal notice and that it had also published the impugned notice in the newspapers. But it submitted that, in the circumstances outlined in its written statement, it was fully justified in publishing a notice in the newspapers for the protection of its own interest. It denied that the notice was false or malicious or defamatory, it also denied that the words "said to be of the Canbrit Group" were defamatory and pleaded that these words were inserted because it had dealings only with the plaintiff. In the result it denied liability for the plaintiff's claim and claimed compensatory costs under section 33-A of C. P. C.
3. On these pleadings several issues were framed, but learned counsel for the plaintiff admitted that the Canbrit Group was not registered in Pakistan under the Companies Act. In view of this admission I re-settled the issues, and counsel limited their arguments to the following issues: ---
(1) Whether the plaintiff is President, Managing Director and the majority share-holder of the Canbrit Group as stated in paragraph No. 1 of the plaint? If so, to what effect?
(2) Does the plaintiff enjoy wide reputation and high status as stated in paragraph No. 3 of the plaint? If so, to what effect?
(3) Are the contents of the Public Notice mentioned in paragraph No. 6 of the plaint malicious and without lawful justification? If so, to what effect?
(4) Is the defendant entitled to special cost under section 36-A and entitled to any relief? If so what?
The plaintiff examined himself and a witness, whilst the defendant examined its local Manager and six witnesses. Both parties also produced documents in support of this contention. I shall now examine these issues:-
4. Issue No. I.-The plaintiff said in his evidence that the Canbrit Group consisted of three limited companies namely the Canbrit Corporation Limited, the Canbrit Consultant Ltd. And the Canbrit Construction Ltd. Which were all registered in Canada and that he, together with Mr. R: H. Lind and Mr. James Mullally Q. C., had formed these companies. He did not produce the Memorandum or Articles of Association of these companies to show that he was the Chairman or the Managing Director of these companies as contended by him, therefore Mr. Mehboob argued that his statement was not fit to be believed. However, he had examined J. P. Rego of the National and Grindlays Bank, Metropole Hotel Branch, Karachi, J. P. Rego said in his evidence that the Canbrit Consultants Ltd. Had an account with his Branch of the Bank since 1952, that this account had been operated by the plaintiff as its Managing Director, and that all cheques had been paid into an account in the name of Canbrit Consultants Ltd. He further said that in pursuance to an enquiry by the plaintiff to ascertain the position about this account from Canada, his bank had made enquiries from the Canadian Imperial Bank of Commerce whether the plaintiff was the Managing Director of Canbrit Consultants Ltd. And the Canadian Imperial Bank of Commerce had confirmed by cable that the plaintiff was the Managing Director of this Company (Vide Exh. 6). This witness was a: completely disinterested witness and Mr. Mahboob's only criticism of his evidence was that, according to the plaint, the plaintiff had represented the Canbrit Group since 1960 whilst according to P. W. J. P. Rago, Canbrit Consultants Ltd., had had an account with the National and Grindlays Bank, Karachi since 1952. The discrepancy is trivial and I hold that the plaintiff was the Managing Director of the Canbrit Consultants Ltd. And was associated with the Canbrit Group.
5. Issue No. 2. The plaintiff has not produced any evidence of his reputation or status, but this does not entitle defendants to defame him. However the failure of the plaintiff to give evidence on this issue will be relevant to the question of the quantum of damages.
6. Issue No. 3.-This is the real issue in this suit and Mr. Jatoi submitted that the circumstances leading to the defamatory publication in the newspapers were relevant to show that the defendant was actuated by malice. On the other hand, Mr. Mahboob denied that the notice was defamatory, but in the alternative he submitted that the defendant was protected because it enjoyed qualified privilege, therefore, according to him also, the circumstances leading to the publication of the notice in the newspapers were relevant to his defence. In view of the arguments advanced, it will be convenient first to examine the disputes between the parties, the reasons which led the defendants to terminate its sub-contract with the plaintiff and its reasons for publishing the same in the newspapers.
7. The plaintiff said in his evidence that he has obtained a contract, on behalf of the Canbrit Group, to work as a consultant to the defendants for soil investigation in respect of the transmission lines to be laid by the defendant for the Landhi/Dhabeji area. In support of this evidence, he produced a copy of his quotation prepared by him on behalf of the Canbrit Group to the defendant dated the 28th January 1965 (Exh. 8), the letter of intent of the defendant to the Canbrit Group dated the 30th January, 1965 signed by Mr. Gillitt (Exh. 9) and a copy of the defendant's order addressed to the Canbrit Group dated the 29th March 1965 (Exh. 13) also signed by Mr. Gillitt. He further said that this contract required soil drilling in order to obtain samples of the soil, which he had to analyze for the defendant, and that he had given the drilling cont--ract to the Swise Boring Company. He then said that he had learnt through some friends of the termination of this contract by the defendant through the notice in the Dawn which I have quoted in para. 1 and three days thereafter he received a notice from the defendant's Advocate terminating his contract. The plaintiff was cross- examined at length about his claim to represent the Canbrit Group and about the damages claimed by him. He also admitted in cross-examination that the companies of the Canbrit Group were not registered under the Pakistan Companies Act, and that he had entrusted the drilling operations to the Swise Boring Overseas Company with the knowledge of the defendant. No question was put to him that he could not have entrusted the drilling operations to that company under the terms of his agreement with the defendant, nor was he questioned on the allegation that he had induced Mr. Gillitt to enter into the agreement with him by falsely representing that he had drilling equipment. Finally, it is very material to observe that no question whatsoever was put to him in cross-examination about the period for completing the contract or about the allegation that due to interruption of work or other reasons he had failed to complete the contract within the time fixed for its performance.
8. Although the plaintiff's evidence shows clearly that his dealings were with Mr. Gillitt, the then Manager of the defendant, the defendant did not examine Mr. Gillitt on the flimsy plea that he had left the country at some unspecified date, but instead it examined its present Manager, D. W.
Nasiruddin Hassan. D. W. Nasiruddin Hassan claimed to know about the negotiations with the plaintiff because he was the Assistant to Mr. Gillitt. But in his cross-examination he admitted that he did not know all that transpired between Mr. Gillitt and the plaintiff, and that he had no say in the making of the contract. Despite this, he said n evidence that the defendant's contract was with the plaintiff and not with the Canbrit Group, that the plaintiff had to complete his contract within 8 weeks and that as his work was very slow the defendant was compelled to terminate it. In this connection he relied on the defendant's letter of intent dated the 30th January 1965 (Exh. 9) signed by Mr. Gillitt, and said that this was the contract between the parties and that under it the plaintiff had to complete the work entrusted to him within 8 weeks, which would mean that the plaintiff had to complete the contract by the end of March 1965. But the plaintiff was not cross-examined at all about the period in which lie had to complete the contract and the letter (Exh. 9) does not specify the period for the performance of the contract. It only states that the work should commence by 5th February 1965 and that a final order would be forwarded on 8th February 1965. This would imply that the work was to commence when the formal contract was issued. But, Exh. 13, which is a copy of this formal contract, shows that the formal order was issued on 29th March 1965. This makes it very difficult to believe D. W. Nasiruddin Hassan's statement that the contract had to be completed by the end of March 1965. In order to overcome this difficulty, D. W. Nasiruddin Hassan, who was a clever witness, said that, although a letter of intent was normally followed by a formal order, in the instant case, the work was so urgent that this formality was dispensed with, and the letter of intent (Exh. 9) was the order. But as this letter of intent (Exh. 9) itself states that a formal contract \,.,as to be issued D. W. Nasiruddin's statement is false. Turning now to the copy of the formal order (Exh. 13) produced by the plaintiff it lays down the period for completing "field works" whatever that may mean, but not the time for the completion of the contract. As the defendant did not admit this copy (Exh. 13) 1 have compared the signature on it with the admitted signatures of Mr. Gillitt on Exhs. 9 and 10 and I have no doubt that Exh. 13 was signed by Mr. Gillitt. It is therefore admissible in evidence. In view of the absence of any provision in Exh. 9 and in Exh. 13 about the time for completion of the contract, I am not able to believe D. W. Nasiruddin's statement that the plaintiff had to complete the contract within 8 weeks or by the end of March 1965 or that he was not able to perform it within the agreed period.
9. The defendant's second ground for terminating its sub--contract, which is stated in its notice (Exh. 16) was that the plaintiff had misused it for personal gains. The notice (Exh. 16) did not give any particulars of this allegation, but according to D. W. Nasiruddin Hasan, the plaintiff had obtained credit from a restaurant known as Agha's Tavern in Karachi by saying that his bills would be paid by the defendant and by the defendant's customer, the Karachi Electric Supply Corporation. According to Mr. Mahboob, this evidence was supported by that of D. W. Hakim, Manager of Agha's Tavern. D. W. Hakim said in his evidence that the plaintiff had obtained credit from his hotel by saying that his bills would be paid by the defendant. He further said : "on enquiries I found that the plaintiff had also represented himself as connected with the defendant to the Karachi Electric Supply Corporation. I produce copy of a letter addressed to the Chief Engineer, Karachi Electric Supply Corporation regarding Mr. Lind (Exh. 30)". I am not able to understand why this witness went round making enquiries from the Karachi Electric Supply Corporation about what the plaintiff had told that Corporation about his connections with the defendant. In any case, D. W.
S3rkar Hussain, as officer of the Karachi Electric Supply Corporation, produced the file: of his Corporation and dented that any letter had been received-- by the Karachi Electric Supply Corporation from Agha's Tavern as alleged by D. W. Hakim. This means that the copy of the letter to the Karachi Electric Supply Corporation (Exh. 30) = produced by D. W. Hakim was a fabrication and that reliance cannot be placed on D. W. Hakim's evidence. It is also, significant that the plaintiff was not cross-examined on the allegation that he had obtained credit from Agha's Tavern in the defendant's name nor was this plea advanced in the written statement. In the circumstances this allegation is not fit even to be considered. As to the other allegation of D. W. Nasiruddin Hassan that the plaintiff had obtained credit in the Karachi Electric Supply Corporation's name, the plaintiff has denied this in his cross-examination, therefore the burden of proving it was on the defendant, the more so as, according to --Mr. Mahboob, the defendant's case for qualified privilege was based on this allegation. But D. W. Sarkar Hussain, who appeared on behalf of the Karachi Electric Supply Corporation, had no knowledge whatever of this allegation. The only-- evidence in support of this allegation is that of D. W. Nasiruddin --Hassan who said in his evidence that he had received a..
Telephone call from Mr. Haider, the Karachi Electric Supply. Corporation's Project Engineer complaining about the plaintiff:--As the defendant did not examine Mr. Haider, D. W. Nasiruddin: Hassan's statement is not even admissible in evidence. But --I would also like to observe here that I have not been impressed-- by D. W. Nasiruddin's evidence, therefore, as the defendant, did not examine Mr. Haider about his alleged telephone call with D. W. Nasiruddin Hassan, I am not able to believe D. W.Nasiruddin's statement about the alleged telephone call and I hold that he has given false evidence.
10. Mr. Mehboob next argued that the defendant was --justified in terminating its sub-contract with the plaintiff because he had obtained it by falsely representing that he was in possession of drilling equipment. The plaintiff has denied this, allegation, and the only evidence in support of this allegation is the statement of D. W. Nasiruddin Hassan that "the plaintiff had told Mr. Gillitt that he was both qualified and equipped. For the job." As the letter of intent (Exh.9) and the copy of the formal order (Exh. 13) do not contain any stipulation in, this respect and as the defendant did not examine Mr. Gillitt, I accept the plaintiff's evidence. Mr. Mehboob then argued that the plaintiff committed breach of contract in entrusting --the drilling operations to the Swise Boring Company.
But neither the letter of intent (Exh. 9) nor the copy of the formal order (Exh. 13) prevented the plaintiff from entrusting the drilling operations to anybody else. Additionally, although--- the defendant had its own representative at the drilling operations it never raised any objection at that time to the-- fact that the plaintiff had entrusted the drilling operations to the Swise Boring Company. Learned counsel's arguments are there--fore without merit.
11. Finally, as the plaintiff admitted in evidence that the Canbrit Group was rot registered in Pakistan under the Companies Act, 1913, Mr. Mehboob argued that the defendant was entitled to terminate its sub-contract because of the failure of the Canbrit Group to obtain registration under the said section. But the argument is inconsistent with the defendant's plea, and the evidence of D. W.
Nasiruddin that the sub-contract was placed with the plaintiff personally and not with the plaintiff on behalf of the Canbrit Group. If, as claimed by D. W. Nasiruddin in his evidence, the sub-contract was placed with the plaintiff personally, then the question of the registration of the Companies of the Canbrit Group under section 277 of the Companies Act is irrelevant. I shall therefore consider whether the sub-contract was made with the plaintiff as claimed by D. W. Nasiruddin.
12. Apart from the plaintiff's own evidence that the sub--contract was placed with the Canbrit Group, as I have already observed, the defendant's letter of intent dated the 30th January 1965 (Exh. 9), its letter dated the 13th February 1965 (Exh. 10) and the signed copy of its formal order (Exh.
13) which have all been signed by the defendant's then Manager, Mr. Gillitt, are addressed to the Canbrit Group and not to the plaintiff personally. Similarly, the copy of the plaintiff's quotation dated the 28th January 1965 (Exh. 8) and of his progress report to the defendant dated the 22nd March 1965 (Exh. 23) are signed as the Canbrit Group. As this correspondence took place before the dispute between the parties began there is absolutely no reason to doubt its authenticity. Similarly, the plaintiff's correspondence with the Swise Boring Overseas Company (Exh. 27) to Exh. 27/7 is also between that Company and the Canbrit Group. This lends further support to the plaintiff's claim that the contract was between the defendant and the Canbrit Group. Finally, a letter written by the defendant's Head Office to its Karachi office on 5th April 1965 (Exh. 38) states as follows :- "You have already dealt with the point that the Canbrit Group were not appointed as our Consultants but as Contractors. When you decided to place this work with the Canbrit Group you informed me . . . . . . . . . . . . ."
The reference to the Canbrit Group and not to the plaintiff in the correspondence exchanged between the defendant's own offices establishes beyond any doubt that D. W. Nasiruddin gave false evidence when he said that the sub-contract was placed not with the Canbrit Group but with the plaintiff personally. The sub-contract was placed with the Canbrit Group, therefore I have to consider the effect of the failure of these Companies to register themselves in Pakistan under section 277 of the Companies Act. Under section 277 every company incorporated outside Pakistan has to register itself with the Registrar of Joint Stock Companies and to supply to the Registrar the information prescribed under the section, and the section imposes a fine on any foreign company which fails to comply with any of the requirements of section 277. The section does not contain any provision which would have the effect of invalidating or rendering illegal any contract by a foreign company which has failed to comply with the provisions of this section, therefore I am not able to accept Mr. Mehboob's argu--ment that the defendant was entitled to terminate its sub contract with the Canbrit Group merely because these companies had not complied with the requirements of section 277.
13, No other argument was advanced in support of the plea that the defendant was entitled to terminate its sub-contract with the plaintiff. In the circumstances discussed, not only has the defendant failed to show that it was entitled to terminate the sub-contract, but some of the reasons given by it for this termination are absolutely false. However, assuming for the sake of argument that it was entitled to terminate the sub--contract, the obvious question which arises for consideration is whether it was entitled to announce this termination in the newspapers. Mr. Mehhoob was conscious of the fact that such publicity was not likely to enhance the plaintiff's reputation, therefore he argued that the defendant was justified in publishing its notice in the newspapers because the plaintiff's whereabouts were untraceable, so that there was no other means of informing him about the termination of the sub-contract. In support of this plea he referred me to the evidence of several witnesses examined by him, namely, J. R. Alexander, Muhammad Akram, Haji Amin Sattar and the defendant's local Manager, Nasiruddin Hassan and I shall briefly consider their evidence.
14. In January 1965 the plaintiff had been a tenant of a building owned by Ralli Brothers Ltd. And J. R.
Alexander said in his evidence that the plaintiff was ejected by an order of a Rent Controller, Karachi because be had failed to pay the rent of the flat occupied by him to Ralli Brothers Ltd. But the Rent Controller's order (Exh. 26/1) is dated the 2nd February 1965, whilst the notice in the newspapers was published in April 1965, this means that the plaintiff had left the fiat owned by Ralli Brothers Ltd. Long before the period in dispute, and the evidence of Mr. Alexander is completely irrelevant to Mr. Mehboob's argument. Mr. Muhammad Akram was employed in the Swise Boring Overseas Ltd. To which the plaintiff had entrusted the drilling operations of his contract. This witness said "We had some difficulties in tracing the plaintiff on the address given by him." But the plaintiff was not cross-examined on this allegation. Further Mr. Akram produced correspondence between his company and the plaintiff (Exhs. 27/1 to 27/6) and there is nothing in the correspondence to support his statement that Swise Boring Overseas Company was note; able to communicate with the plaintiff at his address, therefore I am not able to accept Mr. Akram's evidence. As to Haji Amin Sattar he had advanced a loan to the plaintiff and, although he had obtained a decree against him, he had not been able to recover the entire decretal amount. He said in evidence that he had searched for the plaintiff in the P. E. C. H. S. Area, Karachi but he was not able to trace his whereabouts. I have to state with regret that having watched the demeanour of this witness I found him to be a dishonest witness. Additionally, as the defendant's case is that the plaintiff was untraceable in early April 1965 it had to produce evidence to show that he was untraceable at this period. But Haji Amin Sattar has not specified when he made his unsuccessful attempts to trace the plaintiff's whereabouts, therefore even if his evidence is accepted, it is totally vague and it fails to support the defendant's case. Finally, there is the evidence of the defendant's local Manager. According to D. W. Nasirud--din Hassan, the plaintiff' was some sort of vagrant who had no fixed address so that he used to come and collect his mail from Mr. Gillitt, the defendant's then Manager at Karachi. It is significant that the defendant did not examine Mr. Gillitt about this allegation.
15. However, in reference to the reason why the defendant announced the termination of this sub- contract in the newspapers D. W. Nasiruddin Hassan stated as follows "When we had terminated the sub-contract we had written a letter to the plaintiff through our Advocate (Exh. 16). . . . . . We had also published a notice in the newspapers that we have terminated our sub-contract with him. The delivery of the letter to Mr. Lind was being delayed for lack of sufficient address, therefore we considered it in our interest to publish a notice in the newspapers. This notice was published through an Advocate Mr. Z. U. Ahmed."
If this explanation is true, I have no doubt that it would justify the defendant's announcement in the newspapers of the termina--petition of its sub-contract with the plaintiff: However, the explanation is belied by the notice of its Advocate (Exh. 16). In explaining the reasons why the defendant was publishing a notice in the newspapers, the defendant's Advocate has said in his notice (Exh. 16) as follows ---Our clients being left with no option other than to terminate the contract and informed you verbally on telephone the said cancellation and the same is now hereby confirmed in writing through us. For your convenience and information we may add that we have also put a public notice in the daily newspaper Dawn, Karachi we agree to the aforesaid termination.--- Thus, contrary to D. W. Nasiruddin's statement in his evidence,, the plaintiff had been informed on the telephone of the termina--petition of the sub-contract. This means that the defendant knew the plaintiff's telephone number and therefore his address,, and further arrangements for publishing a notice in the newspapers had been made before the defendant's Advocate had sent his notice. Additionally, this notice Exh. 16 was sent. By registered post to the plaintiff at his P. E. C. H.
S. Address, and is dated 10th April 1965 and the reply of the plaintiff's Advocate Exh. 17 is dated the 17th April 1965. It is obvious from the date of the plaintiff's Advocate's reply Exh. 17 that the notice of the defendant's Advocate was delivered to the plaintiff' at his address without any delay or difficulty. Thus the evidence on the record completely falsifies D. W. Nasiruddin's evidence that a notice was published in the newspapers because delivery of the legal notice Exh. 16 "was being delayed for lack of sufficient address" and I have to observe here with regret that D. W. Nasiruddin's explanation of the reasons why the defendant rushed to the newspapers was not only false but it was intended to humiliate the plaintiff.
16: Having examined the background of the dispute between the parties it will now be convenient to consider Mr. Jatoi's argument that the defendant's notice in the Dawn about the plaintiff was defamatory. This notice stated that the defendant had terminated its contract with the plaintiff and warned the public that any person dealing with the plaintiff would do so at his own risk and account. Further, it referred to the plaintiff by the words "said to be of the Canbrit Group, Canada".
According to Mr. Jatoi, the public announcement of the termination of the contract together with the words "said to be of the Canbrit Group" amounted to an innuendo that the plaintiff was a person who could not be trusted in his business and was an imposter who had falsely tried to pass of as a representative of the Canbrit Group. The argument had force, therefore I invited Mr. Mehboob to explain why the plaintiff used the words "said to be of the Canbrit Group". Mr. Mebboob argued that these were inserted because, according to the defen--dant, the plaintiff did not belong to the Canbrit Group. The argument is without merit. If the plaintiff did not belong to the Canbrit Group, then these were not required for the protection of the interest of the defendant, whether real or imaginary, and it means that they were inserted only to injure the plaintiff's reputation. On the ocher hand, if the defendant knew that the plaintiff belonged to the Canbrit Group, then these words were false to its knowledge. Having examined the evidence, I have no doubt that the defendant knew that the plaintiff belonged to the Canbrit Group. These words were) false to its knowledge and had been deliberately inserted in the public notice in order to discredit the plaintiff by creating the impression that he had falsely tried to pass of as the representative of an organization to which he did not belong, I have no doubt that the use of these words, together with the public announcement of the termination of the sub-contract, I would have the effect of inducing people who read this notice to think that it would not be safe to enter into contracts with the plaintiff because he was a man who was not to be; trusted and had falsely claimed to represent the Canbrit Group. In the result, the notice was injurious to the plaintiff's reputation and was intended to injure his reputation, therefore it was, defamatory.
17. As the defendant thus made a deliberate and false attack on the plaintiff's reputation in a newspaper with a wide circulation, the only defence available to it is that of qualified privilege. Mr. Mehboob argued that the notice was published by the defendant in a bona fide attempt to protect its interest, therefore it enjoyed qualified privilege. But according to the defendant, the plaintiff was its agent. As there was thus no question of vicarious liability it is difficult to understand what interest it sought to protect by a notice in the newspapers. Mr. Mehboob was aware of this difficulty, but the only argument advanced by him was that the defendant had to protect its interests by a public notice because the plaintiff had obtained credit in its name from Agha's Tavern. As 1 have considered this allegation and found it to be absolutely false. I am not able to accept Mr. Mehboob's argument that the defendant's notice in the newspapers was protected by qualified privilege.
18. However, assuming for the sake of argument that this notice was published on a privileged occasion Mr. Jatoi argued that the plaintiff had proved the defendant's malice, therefore it could not escape liability for defamation, whilst according to Mr. Mehboob, as the plaintiff had failed to prove express malice the defendant was not liable for damages. As I have heard arguments on the question of malice, I shall now consider this aspect of the case. In Adam v. Ward (1917 A C 309), Lord Dunedin has observed in reference to the question of qualified privilege and malice as follows :- ---In other words, it stands thus. Malice, which is of the essence of libel, is presumed from defamatory words. Privilege destroys that presumption. But the place of the implied malice which is gone may be taken by express malice which may be proved. It may be proved either extrinsically or intrinsically of the document, and such words in the document are apt as------..Evidence. Thus Buckley, L. J. States as to the whole matter. There are two questions. The first whether the occasion was a privileged occasion, and if it was, then, secondly, whether there was any evidence of malice'.--- I am in respectful agreement with these observations and I shall examine whether the plaintiff has proved express malice as distinct from implied malice.
19. Whilst discussing the dispute between the parties and tire defendant's reasons for publishing tire termination of its Sub-contract with the plaintiff in the newspapers, I have observed that the defendant had made false allegations against the plaintiff. Thus, for instance, according to D. W.
Nasiruddin, the defendant was compelled to announce the termination of its sub-contract with him in the newspapers because he was a man without any fixed abode. I have examined this allegation and found it to be absolutely false similarly the defendant's allegation that the plaintiff took credit from a hotel known as Agha's Tavern in the name of the defendant and in the name of the Karachi Electric Supply Corporation is also false, and Mr. Jatoi has rightly argued that these false allegations are evidence of express malice. Further assuming for the sake of argument that the defendant genuinely believed that it had to make a public announcement of the termination of its contract with the plaintiff in order to protect its interest, the insertion of the words "said to be of the Canbrit Group" were both irrelevant and unnecessary for the protection of its interests, genuine or imaginary. These words were also false to its know. Ledge, therefore it seems to me that by themselves they are sufficient to prove actual and express malice on the part of the defendant. I am fortified in my opinion by a judgment of the Court of Appeal in Clark v. Molyneu (3 Q B D 237) in which at page 247 Brett, L. J. Observed as follows :- ---Malice does not mean malice in lave, a term in pleading, but actual malice, that which is popularly called malice. If a man is proved to have stated that which he knew to be false, no one need inquire further. Everybody assumes thenceforth that he was malicious, that he did do a wrong thing, for some wrong motive. So if it be proved that out of anger, or for some other motive, the defendant has stated as true that which he does not know to be true, and he has stated it whether it is true or not, recklessly, by reason of his anger or other motive, the jury may infer that he used the --occasion, not for the reason which justifies it, but for the: gratification of his anger or other indirect motive.--- I follow with respect these observations, and in the circumstances discussed I hold that even if the defendant's notice in the `Dawn' was published on a privileged occasion, the plaintiff has' proved express malice on the part of the defendant. I decide, this issue in the plaintiff's favour, he is entitled to damages.
20. Issue No. 4.-In view of my finding on the previous issue, this issue is decided against the defendant.
21. Issue No. 5.-The only question which now remains for consideration is that of the assessment of damages. Although the natural and probable effect of the defamatory notice of the defendant was to make it difficult for the plaintiff to obtain contracts, except for his statement that he could not find employment for a long time he has not produced any independent evidence in this respect.
Therefore Mr. Jatoi very fairly conceded that the claim for damages as pleaded was fantastic and he said that he only pressed the claim for general damages. In reference to the damages for general loss of reputation, in his commentary on the Law of Torts (5th Edition),. Ramaswamy Iyer has observed at page 313 as follows :- ---The assessm ent of such damages is really arbitrary and not amenable to any legal standard of measurement.--- I have quoted this passage because both the learned counsel appeared to share this view of the learned author and said that as there was no case-law of our Courts on the question of[' assessm ent of general damages for defamation I should fix such damages as I consider proper. I have therefore tried to examine the case-law myself, and I find that generally the Courts of sub- continent have awarded damages for defamation on a much lower scale than the Courts in England, and whilst I cannot find any case on all fours with the instant case, I have found, some assistance from a judgment of the Madras High Court in, L. A. Subramanialyer v. R. H. Hitchcock (AIR 1925 Mad. 950). The plaintiff in that case was a police officer and the defendants had circulated pamphlets criticizing his conduct as a police officer. The plaintiff tiled a suit for defamation and as he was not adversely affected in his service by the alleged defamation he appears to have confined his claim to damages for general loss of reputation only. The defendants contested the suit on the ground that the pamphlets amounted to fair comment on a matter of public interest, namely, the discharge of their duties by the Police. But the Court held that the language of the criticism was offensive, therefore it awarded Rs. 6,000 as damages and in an appeal filed against this judgment, the Madras High Court refused to interfere with the assessment of damages. The sum of Rs. 6,000 was thus found to be a reasonable assessment of damages for loss of reputation and the similarity between the judgment cited and the instant case is that the plaintiff also only claims general damages. But the plaintiff before me is a consultant, practicing independently, who depends for his livelihood on his reputation and he was defamed through a national newspaper.
His evidence that after the defamation he had earned 1,500 dollars a month for one year only from the Colombo Plan Organization stands unrebutted. This means that he could get high remuneration for his services and that his employment was likely to be intermittent. But these precisely are circum. Stances in which defamation is likely to be very injurious to the plaintiff.
Bearing in mind the difference between the judgment cited and the instant case, it seems to me that the plaintiff is entitled to about Rs. 10,000 as general damages, unless the defendant can show that there is evidence for mitigation of damages.
22. The defendant in a defamation suit is always entitled to give evidence of the plaintiff's bad reputation in order to mitigate damages. But as he cannot be allowed to take advantage of the suit against him further to defame the plaintiff, the question which arises for consideration is whether, the defendant is thus entitled to give evidence of particular acts of misconduct by the plaintiff, which tend to show his character and disposition, a, he has been done in the instant case, or whether evidence should be confined to evidence of general bad reputation only. If evidence of facts of misconduct is permitted, it will not only prolong cases indefinitely but it will enable the unscrupulous defendant to take advantage of the case further to defame and humiliate the plaintiff through the medium of the Courts. On the other hand, as damages are awarded for loss of reputation, it seems reasonable to limit the evidence to the plaintiff's bad' reputation only. The question is of considerable importance,) and as I have not been to find any authority of our Courts I have examined the English Case-law which I shall now consider.
23. In Scott v. Sampson ((1882) 8 Q B D 491) after reviewing the entire case-law on the question whether particular acts of misconduct were admissible, Cave, J. Observed as follows :- ---Both principle and authority seem equally against its admission . . . . . It would give rise to interminable issues which would have put a very remote bearing on the question in dispute, which is to what extent the reputation which he (the plaintiff) actually possesses has been damaged by the defamatory matter complained of. Among all the cases which have been reviewed there is not one which can be cited in support of the admissibility of this evidence.--- Nearly fifty years later this question was again considered by the Court of Appeal in Hobbs v. .Nottingham Journal Limited ((1929) 2 K B 1). Scrutton, L. J. Stated at page 17 as follows :- "The defendant may mitigate damages by giving evidence to prove that the plaintiff is a man of bad general reputation, and the plaintiff may rebut it by coming prepared with friends who nave known him to prove that his reputation has been good."
Then in reference to the reasons for excluding the evidence of acts of misconduct by the plaintiff Scrutton, L. J. Observed at page 18 as follows "It would give rise to in terminable issues which would have but a very remote bearing on the question in dispute, which is to what extent the reputation which he actually possesses has been damaged by the defamatory matter complained of."
Finally in Speidel v. Plato Films Ltd. ((1960) 2 All E R 521) in delivering the judgment of Court of Appeal Devlin, L. J. Stated at page 525 as follows :- ---There is no doubt that a defendant in a libel action may in mitigation of damages give evidence that the plaintiff bears a bad character. The word `character' is not here used in the sense of a man's quality or disposition, but in the sense of the reputation which he rears. The action for libel is an action for loss of reputation. On the issue of damages what has to be investigated is not whether the plaintiff is in truth a good or a bad man, but whether he is reputed to be a good or a bad man. If a man's reputation is already so bad that it cannot be made worse, the man who defames him will in fact have done him no further damage ; and it is nothing to the point to say that his previous reputation was unjustly bestowed on him. What is relevant is what sort of reputation the plaintiff has in fact, not whether he ought to have it or not. Further the inquiry must be limited to general reputation. If under the guise of inves--tigating what sort of reputation a man bears, one were to investigate whether he was thought or said to have committed specific acts, the inquiry would soon degenerate into an inquiry about what a man had actually done in his past life as ascertained by rumor and not by fact.--- These observations are based on consideration of justice and fair play which are as applicable to our Courts as to English Courts. I follow them with respect and I shall consider the defendant's evidence for mitigation of damages in the light of these observations.
24. As I have found the evidence of D. Ws. Nasiruddin and Hakim to be false I shall not consider their evidence at all. The only other evidence in mitigation of damages is that of D. Ws. Alexander, Haji Amin Sattar and Abdul Hamid. The evidence of all these witnesses relates to specified acts of misconduct alleged against the plaintiff therefore, in view of the principle laid down in the observations quoted, all this evidence is inadmissible and is not relevant to the defendant's plea for mitigation of damages. However as learned counsel attached much importance to it, I shall briefly examine it again. D. W. Alexander has proved that the plaintiff was ejected from a flat occupied by him on account of non--payment of rent in February 1965. As there is no evidence to show the plaintiff failed to pay rent, having the means so to do, this evidence establishes only that the plaintiff was in financial difficulties. But the defendant is not entitled to defame him merely because of his poverty. Additionally it is not even alleged that the plaintiff's failure to pay rent was known to the public. Therefore it does not require any knowledge of law to appreciate that this evidence was irrelevant and could only have the effect of embarrassing the plaintiff. Haji Amin Sattar has proved that he had obtained a decree against the plaintiff and that he had not been able to realize the full decretal amount. But the plaintiff was cross-examined only on the allegation that Haji Amin Sattar had filed a suit against him and not on the allegation that he had not paid the entire decretal amount. Further even though Haji Amin Sattar was an obliging witness he was not asked to state when he bad obtained his decree against the plaintiff. There is therefore no evidence to show that the plaintiff's failure to pay the decretal amount occurred before the defendant published its defamatory notice. As evidence of the plaintiff's conduct after his defamation by the defendant is not relevant to a plea ford mitigation of damages, Haji Amin Sattar's evidence does not help the defendant's case. At the highest, it only proves the financial difficulties of the plaintiff, but as the law gives the same protection to the poor and the humble as to the rich and the powerful, I am not able to understand now this evidence has any relevance to the case. As to Abdul Hamid's evidence, it admittedly relates to the plaintiff's failure to pay his bills at a hotel in Karachi in 1967 nearly two years after the defamation, which must have aggravated his financial difficulties. If such evidence were allowed, it would enable the defendant to reduce his damages by taking advantage of his own wrong in defaming the plaintiff: Such evidence is patently irrelevant and the fact that the defendant went to such length to rake out the details of the plaintiff's personal life appears to me to be very strong evidence of its _ spite against him. As pointed out by Mathew, J. In Scott v. Sampson, unless the Courts can check the defendant from resorting to such methods, "the result would be that a Court of law would be less dreaded by the worst libelers than by their victims, for few men would face a trial at the risk of having to encounter charges which the malicious ingenuity of the defendant might render it almost impossible to meet".
26. 1 have been disturbed by this aspect of the case and having given anxious to it, I have, with regret, come to the conclusion that the defendant has deliberately taken advantage of the qualified privilege of judicial proceedings to defame and humiliate the plaintiff: It would be unfortunate if a defendant were allowed to get off with such tactics, and it seems to me that these are circumstances in aggravation of damages. I am fortified in my opinion by the observations of Lord Esher M. R. In Freed v. Graham (24 Q B D 54). At page 55 Lord Esher M. R. Has observed ---The jury in assessing damages are entitled to look at the whole conduct of the defendant from the time the libel was published down to the time they give their verdict. They may consider what his conduct has been before action, after action, and in Court during the trial.--- I am in respectful agreement with these observations which lay down a principle very necessary for the proper administration of justice. The defendant's conduct has made him liable for aggravated damages and in the circumstances discussed a sum of Rs. 13,000 (rupees thirteen thousand only) would be fair.
27. In the result, the-suit is decreed in the sum of Rs. 13,000 (rupees thirteen thousand only) with costs and interest from the date of the decree till the date of the payment of the decretal, amount.