This is a suit for damages amounting to Rs,2,00,00,000 filed by the Plaintiff Muhammad Farooq Marfani against the Defendants.
2. Brief facts for the disposal of the suit, as per contents of the plaint, are that the defendants are related inter se. Defendants Nos.1 to 6 are directly or indirectly owners of Messrs Tawakal Group of Industries and defendants Nos.7 and 8 are working with them. Defendants were charged under sections 406/409/420/468/471/109 P.P.0 by Allied Bank of Pakistan for defaulting in refunding the loan amount. Defendants Nos.1, 3, 4 and 5 approached the plaintiff requesting him to furnish surety for defendant No,3 in the sum of Rs,84,00,000 in Case No,73 of 1998 and Bail Application No,126 of 1998 (State v. Muhammad Yousuf Tawakal and others) in the Special Court (Offences in Banks)
Sindh at Karachi with the promise and verbal undertaking and specific assurance that as soon as defendant No,3 is released, the bail bond will be substituted. Defendant No,3 was released on furnishing surety by the plaintiff, however the promise of substituting the surety and releasing the plaintiff of his responsibility was not fulfilled. According to the plaintiff, as the defendants were playing hide and seek with the plaintiff, he was compelled to file application on 14-10-2000 for discharge of surety and return of surety documents.
On this, defendants Nos.1, 3, 4 and 5 again approached the plaintiff with an undertaking and specific assurance that in another one month's time surety furnished by the plaintiff will be substituted by fresh surety and even defendant No, 1 indemnified the plaintiff to pay damages if the defendants fail to comply with their undertaking. In the circumstances, the plaintiff withdrew his abovesaid application. However, instead of furnishing fresh surety as promised, the defendants in furtherance of common intention managed disappearance of defendant No,3 with the result a penalty of Rs,8,00,000 was imposed on the plaintiff. It is further pleaded that due to illegal act of the defendants, the plaintiff suffered mental and physical agony and his reputation and good name was damaged and lowered in the estimation of others. The plaintiff served legal notice on 22-10-2001 on the defendants to tender unconditional apology and to pay token damages of Rs,2,00,00,000. However, failing to get positive response, the plaintiff filed the present suit.
3. After institution of the suit, summons were issued to the defendants. Defendant No,1 was served in the Central Prison Karachi while remaining defendants were served through publication.
Defendants Nos.2,4,5,7 and 8 put their appearance, however, defendants Nos.3 and 6 did not appear, as such suit was ordered to proceed ex parte against them vide order dated 27-5-2002.
Written statement was filed on behalf of defendant No, 8 while defendants Nos.l, 2, 4, 5 and 7 did not file written statement, as such they were debarred from filing the same vide diary of the Additional Registrar (O.S.) dated 13-12-2002.
4. In his written statement defendant No, 8 stated that he was performing duties of peon and office boy with defendants Nos.1 to 6. As his salary was not increased he resigned from service in the end of 2002. According to him he has no concern with the allegations levelled by the plaintiff against other defendants.
5. Vide order dated 25-8-2003 following issues proposed by the plaintiff were adopted:-
(1) Whether the defendants Nos. 1 to 8 are directly or indirectly owners of Messrs Tawakal Group of Industries and were engaged in the high profile business.
(2) Whether the defendants Nos. 1, 3, 4, and 5 approached the plaintiffs being relatives begging him to furnish surety in the sum of the Rs,84,00,000 (Rupees eighty-four Lacs) ordered by the Special Court (Offences in Banks) Sindh at Karachi in Case No,73 of 1998 and Bail Application No, 126 of 1998 (State v. Muhammad Yousuf Tawakal and others).
(3) Whether the plaintiff therefore out of benevolence and humanitarian grounds stood, the defendant No,3 was therefore, released on bail, but the promise of substituting the surety was not complied with. If so what is the effect?
(4) Whether the defendant No,3 absconded with the collusion of the other defendants thereby causing the plaintiff mental and physical agony inasmuch as become a laughing stock causing loss to the reputation and good name of the plaintiff all over lowering the good name and reputation of the plaintiff in the estimation of others. If so what is the effect?
(5) Whether the defendant No,8 is the Office Boy-cum-Peon in the Office of the defendant No,1?
(6) What should the decree be?
6. By consent of the parties Mr. Khalid Farooqui Advocate was appointed as Commissioner for recording evidence vide order dated 6-10-2003 who filed his report on 11-12-2003. However, vide order dated 12-1-2004 it was observed that despite the defendants Nos.1 to 7 having not filed written statement/declared ex parte, had a right to lead evidence, hence notice was ordered to be issued to them. Order sheet dated 19-1-2004 shows that notice was not returned served or unserved. Vide order dated 15-3-2004 the Commissioner's report was taken on record and the matter was ordered to be fixed for final arguments.
7. The plaintiff in support of his case examined himself. He produced his affidavit in evidence as Exh.P, application for discharge and return of surety as Exh.P-1 and order of the Special Banking Court dated 12-7-2001 as Exh.P-2. His side was closed on 25-10-2003.
8. Defendant No,8 examined himself and produced his affidavit in evidence as Exh. "D" and closed his side on 6-12-2003.
9. I have heard Mr. Muhammad Amin Lakhani Advocate for the plaintiff and Mr. Aftab Ahmed G.
Nabi, Advocate appearing on behalf of defendant No,8. None appeared on behalf of defendants Nos.1 to 7.
10. It was contended by the learned counsel for the plaintiff that as defendants Nos. 1 to 7 have not filed any written statement thereby rebutting the averments made in the plaint and thereafter have put appearance in the witness box to refute the allegations made through evidence adduced by the plaintiff, the suit is liable to be decreed against them. He relied upon the provisions of Order VIII rule 10 C.P.0 and the decision reported as Abdul Ghafoor and others v. M.B.R. And others (1989 M LD 4585).
11. Before proceeding further, it would be advantageous to reproduce hereunder provisions of Order VIII, rule 10, C.P.C.:- "Procedure when party fails to present written statement called for by Court.---Where any party from whom a written statement is so required fails to present the same within the time fixed by the Court, the Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit."
From the perusal of the above-quoted provisions of law, it is clear that it is the discretion of the Court to pronounce judgment against the defendant in the case he fails to file any written statement as the legislature has used the word "may" and not "shall". In the case reported as East & West Steamship Co. v. Queensland Insurance Co. (PLD 1963 SC 663) the Honourable Supreme Court held: "There can be no doubt of the duty of the Court to ensure, even when proceeding ex parte, that its decision is in accordance with the facts, which should be ascertained with as much care as is possible in the absence of any contesting party." It hardly needs to be emphasized that a plaintiff can succeed on the strength of his own case and not upon the weakness of the opponent's case. If any authority is needed in this respect, reference can be made to PLD 1958 Privy Council 161. In this view of the matter, I would now deal with the issues settled in the case and proceed to examine the facts available on the record and the law attracted to such facts.
ISSUE NO.4: In fact, this is the most important and material issue for resolving the controversy between the parties. In order to decide as to what type of damages and on what account are claimed by the plaintiff, it will be advantageous to go through the main prayer made by the plaintiff which reads as under:- "(a) The defendants are equally and severally liable to pay the plaintiff a sum of Rs,2,00,00,000 (Rupees Two Crore only) as Token Damages for the irreparable loss and damages caused to the reputation and good name of the plaintiff among his friends, relatives and business associates due to the mala fides of the defendants inflicted upon the plaintiff due to their irresponsible, deliberate and intentional inducement to the plaintiff to furnish surety in favour of defendant No,3, whereas it was the defendants common intention that the defendant No,3 after being released on bail will eventually disappear."
From the wordings of above-quoted prayer it appears that the plaintiff's claim relate to the act of "defamation" allegedly committed by the defendants. The necessary ingredients constituting a defamation can be summarized as under:-
(a) the allegations levelled against the plaintiff should be false, baseless and unfounded;
(b) the wordings used and the allegations levelled, on the face of it, should have been defamatory and derogatory in nature;
(c) such allegations should have been published in widely circulated newspapers or spoken in a large gathering;
(d) the said publications made or wordings used should have been with malice without any reasonable excuse and justification;
(e) the allegations should have been directly attributed to the plaintiff by specifically mentioning his name;
13. Testing the facts of the present case on the touchstone of the abovesaid ingredients, it seems that none of the ingredients is available in the present case as neither in the plaint nor in the evidence adduced by the plaintiff; (i) it is the case of the plaintiff that the defendants have levelled certain false, baseless and unfounded allegations against the plaintiff, (ii) when there is no allegation alleged to have been levelled, no question of its being defamatory and derogatory in nature arises, (iii) it is also not the plaintiff's case that the defendants either published in widely circulated newspapers or stated in a large gathering that plaintiff is in any way involved in the criminal charges levelled against the defendants, about his standing surety for defendant No,3 and then disappearance of defendant No,3, (iv) when admittedly no publicity has been made, no question of its being made with malice arises and lastly (v) plaintiff has not pleaded that any of the defendants has specifically named the plaintiff to be involved in the criminal charges attributed against the defendants or in the disappearance of defendant No,3 after he was released on bail. In the circumstances the plaintiff has not been able to substantiate his case for grant of damages on account of his reputation having been damaged in the general public by the defendants.
However, there seems to be no dispute about the fact that the plaintiff stood surety for defendant No,3 in the sum of Rs,84,00,000 and after his disappearance a penalty amounting to Rs,8,00,000 was imposed upon the plaintiff which he duly paid vide challan dated 10th January, 2002, photocopy whereof has been produced alongwith a statement in compliance with the order of this Court dated 27-5-2004. In the circumstances, in the absence of any rebuttal of the said fact and also substantial material having been produced to prove this fact, the plaintiff is entitled to the recovery of the said amount Rs,8,00,000. In para. 5 of the affidavit in evidence the plaintiff specifically stated that defendants Nos.1, 3, 4 and 5 approached and persuaded him to furnish surety for defendant No,3. Again in para. 6 of the affidavit in evidence the plaintiff deposed that defendants Nos. 1, 3, 4 and 5 gave undertaking and specific assurance to replace the surety furnished by the plaintiff with another surety and get the plaintiff discharged from the responsibility. In the circumstances, only defendants Nos.1, 3, 4 and 5 are severally and jointly liable to make payment of the said amount of Rs,8,00,000 to the plaintiff. Issue No,4 is answered accordingly.
ISSUES NOS.1, 2, 3 AND 5: In view of the finding on issue No,4, these issues are rendered inconsequential and hardly need to be discussed.
ISSUE NO.6: The upshot of the above discussion is that the suit is decreed in the sum of Rs,8,00,000 (Rupees Eight Lacs only) against defendants E Nos. I, 3, 4 and 5 severally and jointly. Keeping in view the facts of the case and the conduct of defendants Nos.1, 3, 4 and 5, they are also liable to pay the costs of the suit to the plaintiff. .