2023 C L C 1273
[Balochistan]
Before Zaheer- ud-Din Kakar and Sardar Ahmed Haleemi, JJ
Syed SHAKEEL AHMED ----Appellant
Versus
RAJ KUMAR----Respondent
R.F.A. No.19 of 2020, decided on 2nd January, 2023.
Civil Procedure Code (V of 1908) ---
----O.VII, R.11 & O.XIV, R.2---Defamation ---Recovery of damages ---Rejecting of plaint---
Preliminary issue ---Plaintiff was a government official who assailed defamatory statement
made by defendant against him ---Trial Court after hearing parties on legal issues, dismissed
the suit---Validity ---Where an issue of law and facts had arisen in plaint of the suit and Trial
Court believed that case or part thereof on the issue of law only, Trial Court under the
provision of O.XIV, R.2, C.P.C., could decide the issue related to (a) jurisdiction of the court or (b) a bar to the suit created by any law for the time being in force ---To invoke provisions
of O.VII, R.11(d), C.P.C., no evidence could be looked into and conclusion that the suit was barred under the law must be drawn from averments made in the plaint ---Allegation of
defamation was a mixed question of law and facts ---Such issue could not be tried as a
preliminary issue in other words, such issues could be those where no evidence was required and on the basis of plain reading of plaint of suit, it appeared that jurisdiction of Court was barred, then the Court could decide such issue of law at the first stance ---High Court set
aside judgment and decree passed by Trial Court and remanded the suit to Trial Court for decision afresh on merits ---Appeal was allowed accordingly.
Sugandhi v. P Rajkumar AIR 2020 (10) SCC 706 rel.
Abdul Khair Achakzai and Asmat Khan Tareen for Appellant.
Mehta Rajesh Nath Kohli and Jalila Haider for Respondent.
Date of hearing: 6th December, 2022.
JUDGMENT
SARDAR AHMED HALEEMI, J. ----This appeal is directed against the order and
decree dated 14th September 2020 (hereinafter the "impugned order and decree") passed by the learned Additional District Judge -V, Quetta (hereinafter the "trial Court"), whereby the
suit filed by the appellant was dismissed.
2. The brief facts of the instant appeal are that the appellant (plaintiff) filed a suit for
recovery of Rs. 10,000,000/ - (Rupees Ten Million only) as damages against the respondent
(defendant) with the averments that the appellant is serving as Inspector of Evacuee Trust
Property Quetta and has in his credit 35 years unblemished service record; further as per the order of the Hon'ble Supreme Court of Pakistan dated 8th January 2019 passed in C.P. Nos.
62 and 63 of 2017, implementation of minority rights, judgment in SMC No.1 of 2014 PLD
2014 SC 699, commission of the minority rights was established under the one -man
commission headed by Dr. Shoaib Suddle, who held a meeting on 30th October, 2019 in
Sikandar Jamali Auditorium, Civil Secretariat, Quetta in order to implement minority rights; that the respondent participated in the said meeting as head of Hindu Panchayat, Ariya Samaj Mandir, Masjid Road, Quetta, however, during the course of meeting, the respondent malafidely pointed out before the head of the said meeting and other participants belonged to other minorities that the appellant had occupied a school situated at Chaman Phattak, Quetta and selling it at Rs. 8,000,000/ -; consequent thereto, the head of the meeting directed the
Administrator Evacuee Trust Property (ETP), Quetta to consult respondent and submit report thereof to the Commissioner; that as per the directives contained in the minutes of the meeting, the respondent was summoned by the Deputy Administrator ETP, Quetta through an official letter dated 12th November, 2019 with direction to appear before him on 18th November, 2019 regarding his complaint leveled before the head of the meeting, but despite of that, respondent did not appear before the Deputy Administrator, ETP, Quetta, consequently another letter dated 20th November, 2019 communicated to Mr. Noushad Younas, AIG/Legal (Focal person) for Inspector General of Police Balochistan, Quetta, wherein it was clearly mentioned that respondent had failed to attend the office of Deputy Administrator to prove the allegation raised and leveled before the head of the meeting against the official of ETP, Quetta (the appellant), as such due to such allegation, not only the appellant has been greatly injured in his 35 years unblemished service but his reputation
has also been brought into public odium, as such he suffered much mental torture, pain and humiliation.
3. It is next averred that in such circumstances, the respondent was served with a legal
notice dated 22nd November 2019 for payment of damages of Rs.10 Million, which was not replied to by the respondent, hence the suit.
4. The suit was contested by the respondent by filing a written statement.
5. Out of the pleadings of the parties, the following issues were framed:
i. Whether the suit is maintainable under Rule 29 Sub -Rule 1 of Balochistan
Government Servants Conduct Rules, 1979, and under Order XXVII, Rule 1 of C.P.C?
ii. Whether the suit is maintainable having no cause of action against the defendant
under Order 7 Rule 11 Civil Procedure Code?
iii. Whether defendant with malafide intention and ulterior motives leveled allegation against the plaintiff that the plaintiff had occupied school situated at Chaman Pathak, Quetta and illegally and unlawfully sold out it in consideration of Rs.90, 00, 000/ -
(Eighty Lacs) for personal gain?
iv. Whether after allegation against the plaintiff the defendant did not appear before
competent authority to prove his allegation against the plaintiff?
v. Whether the defendant with malafide intention, dishonestly leveled false allegation against the plaintiff, which injured the reputation of the plaintiff and lowered him in the estimation in front of his colleagues and peers?
vi. Whether the Plaintiff is entitled for the relief claimed for?
vii. Relief?
6. The trial Court after hearing the learned counsel for the parties upon legal issues
dismissed the suit vide impugned order and decree, hence this Regular First Appeal.
7. Learned counsel for the appellant contended that under section 9 of the Civil
Procedure Code, every suit is maintainable if not barred by special law; that neither the Balochistan Government Service Conduct Rule, 1979 nor Order XXVII, Rule 1, C.P.C. are applicable in the instant case, as such the impugned order and decree under the law is not maintainable; that the matter pertains factual controversy was to be decided on merits, but contrary to that same was dismissed in a summary manner and without applying judicial mind; that the trial Court without recording evidence decided the issues, which is against the provisions of Order XX, Rule 5, C.P.C.
8. Conversely, the learned counsel for the respondent while supporting the impugned
order and decree contended that under the Government Servants Rules, the suit cannot be instituted without permission from the Department; that the Constitution of Pakistan also guarantees the right of a citizen, protects the property attached to Charitable, religious or Educational Trust or Institutions of minorities and every person has right to express his/her
fundamental concerns without any fear and intimidation; that the respondent also enjoys the privilege/immunity as information was furnished with good faith before a Commission, which absolves him from defamatory/damages suit.
9. After taking into consideration the arguments of learned counsel for the parties and
having perused the record, it revealed that the impugned order and decree suffer from grave and serious irregularities and informalities. Admittedly, the appellant is serving as inspector of Evacuee Trust Property Board(E.T.P.B), Quetta as a regular officer and ETPB is a Statutory Board of Government of Pakistan and to its employees being Federal Servant, Government Servant (Conduct) Rules. 1964 is applicable. For facilitation, the relevant provisions of Rule 27(1) Government Servant (Conduct) Rules, 1964 and Section 8 of Ordinance, 2002 are much relevant, which read as follows:
Rule 27: Vindication by Government servants of their public acts or character: -
A Government servant may not, without the previous sanction of the Government, have recourse to any court or the press for the vindication of his public acts or character from defamatory attacks. In granting sanction, the Government will ordinarily bear the cost of the proceedings and in other cases leave the Government servant to institute them at his own expense. In the latter case, if he obtains a decision
in his favor, the Government may reimburse him to the extent of the whole or any part
of the cost.
Section 8 of the Ordinance, 2002
"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. "
10. Bare reading of the aforementioned relevant provisions manifests that those are not
mandatory and non- compliance will not bar the institution of the defamatory suit.
11. Perusal of the contents of the plaint of the suit reflects that the allegation of
defamation cannot be decided on the abstract principle of law that emerged from the facts mentioned in the plaint of the suit and the alleged allegation can be decided after adducing evidence of the parties as the same is a pure question of fact which cannot be decided as a preliminary issue.
12. Mere reading of Order XIV, Rule 2, C.P.C., depicts that where an issue of law and
facts arises in the plaint of the suit and the court believes that the case or part thereof on the issue of law only, it may decide the issue related to (a) jurisdiction of the court or (b) a bar to
the suit created by any law for the time being enforced. It has been observed that to invoke
Order VII, Rule 11(d), C.P.C., no evidence can be looked into and the conclusion that the suit is barred under the law must be drawn from the averments made in the plaint.
13. At the outset, it may be noted that the suit has been filed by the appellant in the court
in its original jurisdiction, therefore, the trial court was required to have adhered to the specific provisions contained in the C.P.C., while deciding the suit. Order XIV, Rule 2, C.P.C., does not confirm any jurisdiction upon the court to decide the suit of defamation as a preliminary issue, the same being not a pure question of law. To make the position clear, it is appropriate to refer to the relevant provision contained in the C.P.C. Order VII, Rule 11, C.P.C., reads as follow: -
Rejection of plaint:- The plaint shall be rejected in the following cases:-
a) Where it does not disclose a cause of action;
b) Where the relief claimed is undervalued and the plaintiff on being required by the court to correct the valuation within a time to be fixed by the court fails to do;
c) Where the relief claimed is properly valued but plaint written upon paper is insufficiently stamped and the plaintiff, on being required by the court to supply the requisite stamp - paper within a time to be fixed by the court failed to do so;
d) Where the suit appears from the statement in the plaint to be barred by any law.
Order XIV, Rule 2, C.P.C. demonstrates as follows:
2. Issue of law and of fact:
Where issues both of law and fact arise in the same suit, and the court is of the
opinion that the case or any part thereof, may be disposed of only issue of law only, it shall try those issues first, and for that purpose, may, if it thinks fit to postpone the settlement of the issues of fact until after the issue of law has been determined.
14. From the above provisions of law, it is absolutely clear that for invoking Order VII,
Rule 11(d), C.P.C., and to reject a plaint on the ground that the suit is specifically barred by any law, only the contents of the plaint have to be taken into consideration and the stance taken by the defense must not be considered.
15. It is a cardinal principle of law that if the procedural violation does not seriously
cause prejudice on the other side, the court must avoid procedural and technical violations for doing substantial justice. The basic purpose of the legislation is to dig out the truth, which is the basic foundation of justice and the court is required to take appropriate steps to thresh out the underlying truth in every dispute. Reliance in this regard is placed on the case of Sugandhi v. P Rajkumar AIR 2020 (10) SCC 706, wherein, it held as under: -
"It is often said that procedure is the handmaid of justice. Procedural and technical hurdles shall not be allowed to come in the way of the court while doing substantial justice. If the procedural violation does not seriously cause prejudice to the adversary party, court must lean towards doing substantial justice rather than relying upon procedural and technical violations. We should not forget the fact that litigation is nothing but a journey towards truth which is the foundation of justice and the court is required to take appropriate steps to thresh out the underlying truth in every dispute."
16. As the allegation of defamation is a mixed question of law and facts, such an issue
cannot be tried as a preliminary issue, in other words, the preliminary issues can be those where no evidence is required and on the basis of the plain reading of the plaint of the suit, it appears that jurisdiction of the court is barred, then the court can decide the issue of law at the first stance.
For the above reasons, the Regular First Appeal is partly allowed. The impugned
Order dated 14th September 2020 passed by the learned Additional District Judge -V, Quetta
is hereby set aside and the trial Court is directed to provide opportunities to the parties for adducing their evidence and thereafter decide the matter on merits by following the law.
MH/26/Bal. Case remanded.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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