Reuters through Gibran Naiyyar, Bureau Chief Reuters, Pakistan. VS Learned Additional District & Session Judge-West, Islamabad etc

ORDER SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

JUDICIAL DEPARTMENT

I.C.A.No.148 of 2023 Reuters Versus Learned Additional District and Sessions Judge-VII, Islamabad-West and others S. No. of Date of Order with signature of Judge and that of parties or order/ order/ counsel where necessary. proceedings Proceedings

01.29.04.2024 Syed Hassan Ali Raza, Advocate for the appellant.

Through the instant intra Court appeal the appellant, Reuters, impugns judgment dated 16.03.2023 passed by the learned Judge-in- Chambers dismissing writ petition No.2612/2022 filed by the appellant against order dated 15.06.2022 passed by the Court of the learned Additional District and Sessions Judge, Islamabad. Through the said order dated 15.06.2022, the application under Order VII, Rule 11 of the Code of Civil Procedure, 1908 (“CPC”) filed by the appellant was dismissed. Through the said application, the appellant had sought the rejection of the plaint in the suit for damages filed by respondent No.2, Mir Shafeeq-ur-Rehman Mengal filed under the provisions of the Defamation Ordinance, 2002 (“the 2002 Ordinance”).

2.The primary ground on which the appellant had sought the rejection of the plaint was that a suit for defamation without a notice under Section 8 of the 2002 Ordinance was not maintainable; and that such notice is required to be issued within two months of the date of the publication of the defamatory material.

3.Learned counsel for the appellant submitted that the defamatory material was published on 07.08.2017; that the notice contemplated under Section 8 of the 2002 Ordinance was issued on 04.03.2020; that in the said notice, it was not mentioned as to when respondent No.2 gained knowledge of the defamatory material; that it was not until 19.08.2020 that the suit for damages was filed by respondent No.2 under the provisions of the 2002 Ordinance; that in the said suit, it has been pleaded that respondent No.2 gained knowledge of the defamatory material in March 2020; that the Court of the learned Additional District and Sessions Judge erred by holding that proceedings in the suit under the 2002 Ordinance can be converted into a suit for recovery of damages under the general law of tort; and that the order dated 15.06.2022 passed by the Court of the learned Additional District and Sessions Judge as well as the impugned judgment dated 16.03.2023 are not sustainable being contrary to the law laid in the judgment reported as Shumail Waheed Vs. Rabia Khan (2021 MLD 252). Learned counsel for the appellant prayed for the appeal to be allowed in terms of the relief sought therein.

4.I have heard the contentions of the learned counsel for the appellant and have perused the record with his able assistance.

5.In the suit for recovery of damages filed by respondent No.2 on 19.08.2020, it is clearly mentioned that the same was being filed before the Court of the District Judge Islamabad on account of the jurisdiction vested in the said Court by virtue of the provisions of the 2002 Ordinance. Indeed Section 8 of the 2002 Ordinance provides

that 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. The said provision makes it mandatory for a notice to be issued within two months after the publication of the defamatory matter has come to the notice or knowledge of the plaintiff before a suit can be instituted under the provisions of the 2002 Ordinance. A suit which is not preceded by such notice would not be maintainable as Section 8 of the said Ordinance has been couched in negative terms and therefore must be strictly adhered to.

6.In the case at hand, although a notice was issued by respondent No.2 to the appellant on 04.03.2020 which is almost three years after the publication of the defamatory material on 07.08.2017. Section 8 of the 2002 Ordinance requires such notice to be issued within two months after the publication of the defamatory matter has come to the notice or knowledge of the plaintiff and not two months from the date of the publication of the defamatory matter. The law does not require a party to mention the date on which he gained knowledge of the defamatory matter in the notice under Section 8 of the said Ordinance. In the suit instituted by respondent No.2, it has been pleaded that the said respondent came to know about the defamatory matter in March 2020. Whether this fact is correct or not is to be determined during the trial after the recording of evidence. However, since the suit was instituted by respondent No.2 by invoking the

provisions of the 2002 Ordinance, the Court of the learned Additional District and Sessions Judge could not render Section 8 of the said Ordinance meaningless by holding that “a Court can convert a suit into a general law of tort.”

7.Since a written statement has been filed by the appellant in which an objection as to non- compliance with the requirement of Section 8 of the 2002 Ordinance has been taken, it would be for the learned Court below to frame the issue in this regard as a preliminary issue since it goes to the route of the matter.

8.In view of the above, we do not find any merit in the instant appeal which is accordingly dismissed in limine.

(ARBAB MUHAMMAD TAHIR) (MIANGUL HASSAN AURANGZEB)

JUDGE JUDGE

Sultan