P L D 2022 Balochistan 66
Before Muhammad Ejaz Swati and Rozi Khan Barrech, JJ
KAZIM ALI ---Appellant
Versus
ISHAQ ALI ---Respondent
R.F.A. No. 166 of 2019, decided on 22nd March, 2021.
(a) Defamation Ordinance (LVI of 2002) ---
----Ss. 3 & 8 ---Civil Procedure Code (V of 1908), O. VII, R. 11 & O.XXIII, R. 1---
Defamation ---Notice of action ---Rejection of plaint---Withdrawal of earlier suit ---
Limitation ---Scope ---Appellant assailed the rejection of his plaint in a suit filed by him for
defamati on and damages ---Respondent had filed an application for rejection of plaint under
O. VII, R. 11, C.P.C. stating therein that the plaintiff had filed a suit for damages and
defamation against him on similar grounds before the Court of Additional District J udge and
the same was simply withdrawn and that the appellant had also instituted a second suit in the Court of Civil Judge against him for damages and defamation on similar cause of action, in which plaint was rejected by the Court ---Validity ---Appellant had not mentioned such facts
in his plaint and it was clear that he had approached the Trial Court with unclean hands ---
Appellant having withdrawn the earlier suit unconditionally was precluded from re -agitating
the same cause of action before the Trial Co urt on the basis of same subject matter ---
Subsequent suit was barred under O. XXIII, R. 1(3) of C.P.C.---Suit was also barred by S.3, read with Ss. 8 & 12 of Defamation Ordinance, 2002 ---Appellant had given legal notice to
the respondent with a delay of ei ght years ---Trial Court had rightly rejected the plaint ---
Appeal was dismissed.
(b) Civil Procedure Code (V of 1908) ---
----O. VII, R. 11---Rejection of plaint--- Scope ---Only plaint and its accompaniments can be
examined for deciding the question of reject ion of plaint.
(c) Civil Procedure Code (V of 1908) ---
----O. VII, R. 11--- Rejection of plaint---Scope ---If from the statement of the plaintiff, the suit
appears to be barred by limitation, the plaint shall have to be rejected under O. VII, R. 11, C.P.C.
Raja Ali Shan v. Messrs Essem Hotel Limited and others 2007 SCMR 741 and
Pakistan Agricultural Storage and Services Corporation Ltd. v. Mian Abdul Latif and others PLD 2008 SC 371 rel.
(d) Civil Procedure Code (V of 1908) ---
----O. XXIII, R. 1 ---Withdrawal of suit or abandonment of part of claim ---Scope ---Order
XXIII, R. 1(3), C.P.C. provides that where the plaintiff as against all or any of the defendants
withdraws a suit or abandons a part of the claim without permission referred to in sub- rule
(2), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject -matter or such part of the claim.
Muhammad Yar (Deceased) through L.Rs. and others v. Muhammad Amin
(Deceased) through L. Rs. and others 2013 SCMR 464 and Azhar Hayat v. Karachi Port Trust
through Chairman and others 2016 SCMR 1916 rel.
(e) Defamation Ordinance (LVI of 2002) ---
----S. 8--- Notice of action ---Limitation ---Scope ---Plaintiff, within two months after
publication of defamatory matter having come to his notice or knowledge, shall give fourteen days' notice in writing of his intention to bring an action and in absence thereof no action lies.
(f) Defamation Ordinance (LVI of 2002) ---
----S. 3 ---Defamation ---Limitation ---Scope ---Defamation Ordinance, 2002, is a special law
which has prescribed limitation for filing suit for defamation and Limitation Act, 1908, does not apply to the actions brought under the Ordinance.
(g) Limitation Act (IX of 1908) ---
---S. 3---Dismissal of suit, etc., instituted after period of limitation ---Scope ---Provisions of S.
3 of Limitation Act, 1908, are mandatory in nature ---Every suit instituted after the period of
limitation shall, subject to the provisions of Ss.4 & 25 of the Limitation Act, 1908, be
dismissed although limitation has not been set up as a defence.
Iftikhar Raza (absent) for Appellant.
Syed Shamsul Huda (absent) for Respondent.
Date of hearing: 16t h March, 2021.
JUDGMENT
ROZI KHAN BARRECH, J .---This appeal under section 96, C.P.C. has been filed
by the appellant against the order and decree dated 23.10.2019 ("impugned order") passed by learned Additional Sessions Judge -VII Quetta ("trial court") wh ereby the suit filed by the
appellant was dismissed under Order VII, Rule 11, C.P.C.
2. Briefly stated the facts of the case are that the appellant filed a suit bearing
No.10/2019 before the trial court for defamation and damages against the respondent to the
tune of Rs.100,00,000/ - with the following prayer:
"a) The act of the defendant making defamatory publication against the plaintiff with malicious allegations in Daily "Express" News Paper on 16 November 2011 is illegal and unlawful which has defamed the excellent reputation of the plaintiff in the eyes of
general public.
b) Direct the defendant to pay to the plaintiff Rs.100,000,00/ - (Rupees Ten Million
Only) as quantum of damages in favour of the plaintiff.
c) The cost of the suit may also be awarded
d) Any other relief which this honorable court deems fit and proper in the circumstances of the case may also be awarded to the plaintiffs and against the defendant."
The suit was contested by the respondent being the defendant wherein they filed an
application under Order VII, Rule 11, C.P.C. for rejection of the plaint. The said application was contested by the appellant by means of filing rejoinder, whereby after hearing the arguments from both the parties, the application filed by the responde nt under Order VII,
Rule 11, C.P.C. was accepted vide impugned order dated 23.10.2019 passed by the trial court
and the suit filed by the appellant was dismissed. Where -after the instant appeal has been
filed.
3. On the last date of hearing, the learned co unsel for the appellant, was not in
attendance, therefore, having left with no other option we decided to proceed with the matter
and decide the same on the basis of available material.
4. In order to appreciate the grounds agitated by the appellant in the appeal and to
ascertain whether the plaint was liable to be rejected, the content of the averments, the assertions and allegations made therein were carefully examined by us.
5. It is well settled that for deciding the question of rejection of the plaint, only the
plaint and its accompaniments can be examined. The respondent, after receiving notice, did not file a written statement and filed an application under Order VII, Rule 11, CPC and took the ground that initially, the plaintiff had filed a suit for damages and defamation against the defendant on similar grounds before the court of Additional District Judge -I, Quetta and the
same was simply withdrawn on 16.05.2019. The appellant also instituted a second suit in the court of Civil Judge -IX Quetta again st the respondent for damages and defamation on similar
cause of action, which was also rejected by the learned Civil Judge -IX vide order dated
20.07.2019, and the present suit is the third one.
6. The above material facts have not been mentioned by the ap pellant in his plaint. In
view of this case's facts, it is clear that the appellant has not approached the trial court with clean hands, and he withheld and concealed material facts with regard to the filing of the previous suits filed against the responde nt.
7. From a perusal of the record, all three suits have been filed on the basis of defamatory
publications made in the daily newspaper. The earlier suit was withdrawn by the appellant on
16.05.2019. The order dated 16.05.2019 is reproduced herein below:
8. From a perusal of the order, it is clear that the permission to file a fresh suit had not
been asked for or allowed. Even in reply to the application filed under Order VII, Rule 11, C.P.C. the appellant has not claimed that he had asked for permission t o file a fresh suit and
which was not allowed but took the ground that the "plaintiff requested for withdrawal of the suit at the very initial stage of the proceedings. The previous suit was not decided on merit".
9. Record further reveals that the appellant did not withdraw the previous suit on the
ground of formal defect or likelihood of failure of the suit. From the order whereby the first suit was withdrawn, it is clear that the suit was withdrawn without making the request for permission of filing a fr esh suit. The second suit was filed by the appellant against the
defendant/respondent on account of defamation on the similar cause of action before the learned Civil Judge -IX Quetta, and the same was rejected vide order dated 20.07.2019, and
the appellant filed the present suit, which is the third one.
The controversy revolves around Order XXIII, Rule 1, C.P.C., which is reproduced
hereunder:
"ORDER XXIII -WITHDRAWAL AND ADJUSTMENT OF SUITS
I. Withdrawal of suit or abandonment of part of claim. ---(1) At any time after the
institution of a suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim.
(2) Where the Court is satisfied.
(a) that a suit must fail by reason of some formal defe ct, or
(b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject -matter of a suit or part of a claim, it may, on such terms as it
thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject- matter of
such suit or such part of a claim.
(3) Where the plaintiff withdraws from a suit, or abandons part of a claim, without the permission referred to in sub-rule (2), he shall be liable for such costs as the Court
may award and shall be precluded from instituting any fresh suit in respect of such subject -matter or such part of the claim."
Order XXIII, Rule 1(3) provides that where the plaintiff as agains t all or any of the
defendants withdraws a suit or abandons of part of the claim without permission referred to in sub- rule (2), he shall be liable for such costs as the court may award and shall be
precluded from instituting any fresh suit in respect of s uch subject -matter or such part of the
claim. The Hon'ble Supreme Court of Pakistan in a case titled as Muhammad Yar (Deceased) through L.Rs. and others v. Muhammad Amin (Deceased) through L.Rs. and others (2013 SCMR 464) after referring to Order XXIII, Ru le 1(3), C.P.C. has been pleased to observe as
under: --
"From the clear language of the above, it is vivid and manifest that the noted rule
mainly comprises of two parts; sub- rule (1) entitles the plaintiff of a case to withdraw
his suit and/or abandon hi s claim or a part thereof, against all or any one of the
defendants, at any stage of the proceeding and this is his absolute privilege and prerogative (Note: except in certain cases where a decree has been passed by the Court such as in the cases pertainin g to the partition of the immovable property etc.).
And where the plaintiff has exercised his noted privilege he shall be precluded from instituting a fresh suit on the basis of the same cause of action qua the same subject matter and against the same defendant (s) and this bar is absolute and conclusive, which is so visible from the mandate of sub -rule (3)"
The same principle has also been reiterated in the judgment reported as Azhar Hayat
v. Karachi Port Trust through Chairman and others (2016 SCMR 1916) in the following
terms:--
"6. We shall first deal with the legal objections taken by the learned counsel for the respondents. The petitioner had filed C.P. No.D -2602/2014 which was "not pressed"
on 19th August, 2014 and then filed the suit on 26th August 2014 (which was
converted into a petition wherein the earlier petition filed by the petitioner was
mentioned in paragraph 13 by stating that, "the same has been withdrawn by the
Plaintiff as fresh cause of action has accrued to the Plaintiff." The respondents had objected to the subsequent filing of the suit -petition as the requisite permission had
not been obtained from the court when it was not pressed and dismissed. The impugned order took notice of this fact, but the learned judges did not non- suit the
petitioner on this ground evident though he could have been because sub- rule (3) of
Rule 1 of Order XXIII of the Code stipulates that where the plaintiff withdraws from
a suit without being given permission to institute a fresh suit in respect of the same
subject -matter or such part of claim he would be precluded from doing so."
By following the dictum laid down by the Hon'ble Supreme Court of Pakistan in the
afore -referred judgments, we are of the view that having withdrawn the earlier suit
unconditional ly, the appellant is now precluded from re -agitating the same cause of action
before the trial court on the basis of the same subject matter. The subsequent suit filed by him is barred under Order XXIII, Rule 1(3), C.P.C.
10. The suit is also barred by sec tion 3, read with sections 8 and 12 of the Defamation
Ordinance, 2002. It is also a pre -requisite to initiate an action under the ibid Ordinance that
the plaintiff shall, within two months after the publication of defamatory matter has come to his notice o r knowledge, shall give fourteen days notice in writing of his action to bring an
action of his intention and in the absence thereof, no action lies. In view of the above clear cut provisions of the ibid Ordinance, if the appellant's suit is allowed to proceed further, it would be a glaring violation of the relevant provisions of the Ordinance. According to his plaint, the appellant filed the suit for damages and defamation on account of defamatory publications and malicious allegations in the daily newspaper 16th November 2011 allegedly made by the defendant/ respondent. On the other hand, the legal notice was given to the
defendant/ respondent on 21st May 2019 with a delay of eight years.
11. Admittedly, a period of limitation for filing of suit for damages on account of
defamation has been prescribed in Section 12 of the Defamation Ordinance 2002, which is
six months after the publication of the defamatory material/matter. Defamation Ordinance 2002 is a special law which has prescribed limitation for filing suit for defamation and Limitation Act does not apply in the present case. In the present case, the suit for damages on
account of the publication of defamatory material and malicious prosecution was filed
against the respondent on 16th November 2019, and the appellant claimed defamation on the
basis of the said publication of daily newspaper Express dated 16th November 2011, whereas
the present suit was filed on 22.06.2019, hence the suit filed by the appellant was hopelessly barred by time.
12. The provis ions of Section 3 of the Limitation Act are mandatory in nature that every
suit instituted after the period of limitation shall subject to the provisions of Sections 4 and 25 of the Limitation Act, be dismissed although limitation has not been set up as a defense. If
from the statement of the plaintiff, the suit appears to be barred by limitation, the plaint shall have to be also rejected under Order VII, Rule 11, C.P.C. In Raja Ali Shan v. Messrs Essem Hotel Limited and others 2007 SCMR 741, the Hon'ble Su preme Court was pleased to hold
that it is the duty of the Court to reject the plaint if, on a perusal thereof, it appears that the
Suit is incompetent; and, the Court is not only empowered but also under an obligation to
reject the plaint, even without an y application from a party, if the same is hit any of the
clauses mentioned under
Rule 11 of Order VII, C.P.C. In Pakistan Agricultural Storage and Services Corporation
Ltd. v. Mian Abdul Latif and others PLD 2008 Supreme Court 371, it was held by the Hon'ble Supreme Court that the object of Rule 11 of Order VII, C.P.C. is primarily to save the parties from rigors of frivolous litigation at the very inception of the proceedings, and if
the Court on the basis of averments made in the plaint and documents available, comes to the
conclusion that even if all the allegations made in the plaint are proved, the plaintiff would not be entitled to the relief claimed, the Court would be justified in rejecting the plaint in the exercise of powers available under Ru le 11 of Order VII, C.P.C.
In view of the above discussion, after evaluating the record, we have arrived to the
conclusion that the impugned judgment of the trial court has rightly been passed, and the court has correctly exercised jurisdiction vested in it under the law. No illegality or
irregularity has been pointed out. Therefore, this appeal merits no consideration and stands dismissed accordingly.
SA/79/Bal. Appeal dismisseThis 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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