Order
Sheet
IN THE HIGH COURT OF SINDH, KARACHI
M.A.
No.101 of 2025
[ Faisal Awan v. Sabiha Khanum]
Appellant: Through Mr. S.M. Kamran, Advocate.
Date of Hearing & order: 26.08.2025
O R D E R
ARSHAD
HUSSAIN KHAN, J. The
Appellant, through the instant Miscellaneous Appeal, has challenged the order
dated 30.05.2025 passed by the learned Vth Additional Sessions Judge/MCTC,
Karachi-East in Suit No. 20 of 2025, whereby the suit for defamation was
dismissed in limine on the ground of maintainability, by invoking the
provisions of Order VII, Rule 11 of the Code of Civil Procedure, 1908.
2. Brief facts of the case are that the appellant, Faisal Awan
had earlier instituted Civil Suit No. 2130 of 2024 seeking declaration of a
benami transaction and permanent injunction in respect of properties left by
his deceased father, against defendant No.1, who is his real mother. In the
said proceedings, respondent/defendant No.1 filed a written statement wherein
she alleged that “the plaintiff is disobedient and never resided with her
after the death of his father.” According to the appellant, the said assertion
is false and has subjected him to emotional distress, unwarranted public
humiliation, and social hatred. On this basis, the appellant instituted Suit
No. 20 of 2025 under Section 3 of the Defamation Ordinance, 2002. The learned
trial court, however, dismissed the suit as not maintainable through the
impugned order, which is now under challenge in the present Miscellaneous
Appeal.
3. Learned counsel for the petitioner
contends that the impugned order is devoid of substance and lawful authority,
being the result of misreading and non-reading of the material available on
record. He submits that the observation of the learned Trial Court to the
effect that “the plaintiff has not even annexed a single proof that owing to
such statement he has been defamed” is contrary to the pleadings in the
plaint as well as the supporting material already on record. Counsel further
argues that the learned Trial Court proceeded in a haphazard manner and failed
to properly appreciate the real facts and circumstances of the case. He,
therefore, prays that the instant Miscellaneous Appeal be allowed in the terms
as prayed for
4. Heard learned counsel for the appellant
and perused the record carefully.
5. Before going into discussion, it would be
conducive to reproduce the relevant portions of the impugned order hereunder:
“In
view of above provisions and elements, in order to constitute defamation under
Defamation Ordinance 2002, allegations leveled against a plaintiff should be
false, baseless and unfounded; the wording used and allegations leveled against
a plaintiff should on the face of it be defamatory and derogatory in nature,
and such allegations should have been published in widely circulated newspaper
or spoken in large gathering and said publications made or wording used should
have been with malice without any reasonable excuse and justification. Perusal
of alleged defamatory statement highlighted supra shows that such statement is
mentioned in written statement filed in Civil Suit No.2130/2024 and plaintiff
has not even annexed a single proof that owing to such statement he has been
defamed, further I am of the considered view that such statement which the
plaintiff is terming to be defamatory is neither derogatory in nature nor
caused with malice or without any reasonable cause and justification rather
such statement is ones opinion with respect to her own son which was given by
the defendant in the written statement filed in reply of supra Civil Suit
No.2130/2024 wherein the plaintiff claiming that the defendant is Benami owner
of suit property mentioned therein. It is a matter of record that alleged
defamatory statement is made in written statement of Civil Suit No.2130/2024
and in this regard I am of the humble view that all pleadings delivered or
affidavit sworn in the course of judicial proceedings before a Court of
competent jurisdiction are privileged, hence it cannot be qualified as
defamatory statement. Another significant aspect is to be considered here that
article 19 of the Constitution of Islamic Republic of Pakistan 1973, provides
freedom of speech and such right being fundamental right cannot be curtailed
and this court is also not oblivious with the fact that article 14 of the same
constitution provides dignity of a man, subject to law, the privacy of home is
inviolable but in the context and in relation to both articles coupled with
section 3 of defamation Ordinance 2003, I am of the view that alleged
defamatory statement is not qualified to be a defamatory statement as false
statement or representation which injures the reputation of plaintiff, tends to
lower him in the estimation of others.
Duty
of the court is firstly to decide the maintainability of the suit as per law
and if the suit is not maintainable then the proceeding of the suit shall be
rest at infinitum as such like cases should be buried at its inception so that
no time would be consumed on fruitless litigation. Defamation Ordinance 2002,
although did not contain any provision regarding summary dismissal/rejection of
plaint, but section 10 of the Ordinance provided that C.P.C and
Qanoon-e-Shahadat Order, 1984 would mutatis mutandis apply to the proceedings
under the Defamation Ordinance 2002. I am of the considered view that this
Court by applying provisions of Order VII Rule 11 CPC at any time can reject
the plaint and said provisions could be invoked without waiting an application
from the defendant's side.
Hence
for the forgoing reasons the instant Suit for Defamation is not maintainable as
no cause of action has accrued to the plaintiff and I hereby dismiss the same
In-limine with no order as to cost.”
The aforesaid findings of the learned
Trial Court comprehensively address all aspects necessary for adjudicating a
case of defamation, including the present matter. I find no misreading or
non-reading of the material placed before it. Even otherwise, learned counsel
for the appellant has failed to point out any illegality, material
irregularity, or infirmity in the impugned order.
6. Perusal of the record reveals that
the learned Trial Court duly examined the material available on record and,
after hearing learned counsel for the appellant/plaintiff, dismissed the suit
under Order VII, Rule 11 CPC. The decision was rendered through a detailed,
well-reasoned, and speaking order, reflecting a judicious and careful
application of the relevant law.
7. It is also a well-settled principle of law that an incompetent suit should be laid to rest at the earliest possible stage, so as to avoid wastage of judicial time on proceedings that are bound to collapse, being not sanctioned by law. It may further be observed that in the adjudication of judicial controversies, a suit which, on the face of it is incompetent, not due to any formal, technical, or curable defect, but by reason of an express or implied embargo under the law, ought not to be allowed to unnecessarily encumber the legal proceedings[1].
8. In light of the foregoing, I am of
the considered view that the learned Trial Court rightly dismissed the suit of
the appellant/plaintiff as not maintainable. The alleged statement of the
defendant/respondent, incorporated in the written statement filed in Suit No.
2130/2024 for Declaration of Benami Transaction initiated by the appellant,
cannot be construed as defamatory or derogatory in nature. It does not fall
within the ambit of Section 3 of the Defamation Ordinance, 2002. Accordingly,
the instant Miscellaneous Appeal, being devoid of merit, is dismissed in
limine alongwith pending
applications.
JUDGE