Damages  Civil Petition No.2580 of 2020 Supreme Court

Newspaper Daily Sama leveling certain derogatory allegations.

the petitioner's et al. under Section 3(2) of “the Ordinance”

claiming damages of Rs.1,50,00,000/- 

Damages  Civil Petition No.2580 of 2020 Supreme Court

Note: Not all words are exact but concept/meaning are the same.

IN THE SUPREME COURT OF PAKISTAN

(Appellate Jurisdiction)

PRESENT:

MR. JUSTICE UMAR ATA BANDIAL

MR. JUSTICE SAJJAD ALI SHAH

MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI

Civil Petition No.2580 of 2020.           

(Against the judgment dated 15.9.2020 gone by

the Islamabad supreme court in FAO No. 113 of 2016)

Munawar Ahmed Chief Editor Daily

Sama and another.

Petitioner(s)

Versus

Muhammad Ashraf et al.

Respondent(s)

For the Petitioner(s) : Mr. Bashir Khan, ASC.

For the Respondent-1 : Mr. Afzal Malik, ASC

Date of Hearing : 05.01.2021

ORDER

Sajjad Ali Shah, J.- The petitioners being the Chief

Editor and therefore the Editor of Daily Sama respectively, seek leave of this

 Court file appeal against judgment of Islamabad high court affirmed a decree directing them to pay a sum of Rupees fifteen

million to the respondent as damages under the Defamation

Ordinance, 2002 (hereinafter mentioned as “the Ordinance”).

2. Briefly, the petitioners published a item within the

newspaper Daily Sama leveling certain derogatory allegations.

the petitioners et al. under Section 3(2) of “the Ordinance”

claiming damages of Rs.1,50,00,000/- so as to vindicate his

CP-2580/2020 2

honour and esteem. The detail of the damages allegedly suffered by

the respondent was provided within the plaint to the subsequent effect:-

1.tortuous act of defamation. = 5 million.

2. Injury to the career, reputation,

credit, to every of the defendant. = 5 million.

3. Loss to reputation, prestige and

esteem. = 5 million.

Total: = 15 million”.

3. It appears that the petitioners after having been served,

despite several opportunities, did not file their defence by way of

written statements, consequently, their right to file the defence was closed.

decreed as prayed for. The petitioners rather than challenging the same file

Order IX Rule 13 of CPC seeking setting aside of the ex parte

judgment and decree which application, after hearing, was

dismissed on 5.10.2016. The petitioners thereafter filed an appeal

against the said order before the Islamabad supreme court which was

dismissed through the impugned judgment.

4. Learned advocate of petitione argued that proper opportunity was provided to the petitioners to file their

defence and further a number of the defendants weren't even served

despite they were proceeded ex parte. Per counsel, even the High

Court didn't pay any heed to the submissions that adjudication

on merits is that the ultimate goal of the administration of justice.

5. On the opposite hand, the learned counsel for the

respondent contends that petitioners were duly served. They

CP-2580/2020 3

engaged their attorney who filed power of attorney on their behalf

and despite grant of sufficient time, the petitioners did not file

their defence leaving no option for the court but to proceed ex

parte against them. Per counsel, even the decree was never

challenged because the petitioners after almost 10 months of the passing

of decree, filed an application under Order IX Rule 13 CPC which of

course had to be dismissed on merits also as being barred by

time. it had been lastly contended that the impugned judgment meets all

standards of justice and, therefore, needs no interference.

6. we've heard the learned counsel for the respective

parties and have perused the record. The petitioners couldn't

make out any case for interference within the impugned judgment on

account of being ex parte because the record reflects that they miserably

failed to avail all the opportunities which were provided to them for

filing of their defence and, therefore, the Courts below were justified

in striking off their defence and to proceed ex parte in accordance

with law. However, what has attracted our attention is that the

Courts below, during a mechanical fashion and without applying their

judicial mind to assess the quantum of damages in accordance

with the evidence brought on record by the plaintiff and therefore the

principles settled by this Court, proceeded to decree the suit as

prayed for. Consequently, we've asked the learned ASC for the

respondent to point out from the evidence that the respondent has

suffered any bodily injury that he has claimed damages within the

sum of Rs.5 million and likewise to further show from the record as

to what injury to his career was caused by such defamatory

statement that again an extra sum of Rs.5 million has been

CP-2580/2020 4

claimed. The learned counsel for the respondent wasn't ready to

demonstrate from the record that the plaintiff has adduced any

evidence to prove special damages allegedly sustained on account

of “bodily injury” or “injury to his career”.

7. Special damages are defined because the actual but not

necessarily the results of the injury complained of. While awarding

special damages, it's to be kept in mind that the person claiming

special damages has got to prove each item of loss with regard to the

evidence brought on record. this might also include out-of-pocket

expenses and loss of earnings incurred right down to the date of trial,

and is usually capable of substantially exact calculation.

Reference is formed to the cases of Malik Gul Muhammad Awan v.

Federation of Pakistan (2013 SCMR 507) and Abdul Majeed Khan v.

Tawseen Abdul Haleem (2012 PLC(CS) 574 SC).

8. on the submission that it had been an ex-parte decree and

therefore it had to be decreed as prayed. The contention is completely

misconceived because it has been repeatedly held by this Court that even

in case where the defendants are declared ex parte, though the

discretionary power must be exercised judicially. In cases where

the defendants are declared ex parte, Courts aren't alleged to

claim in toto, but are saddled with the duty to look at the

worth/credence of every piece/item of plaintiff’s claim before

accepting or rejecting it. However, within the instant case the Courts

have miserably did not examine that the respondent has totally

CP-2580/2020 5

failed to adduce any evidence, either oral or documentary, in

any set back to his career, therefore, the hefty special damages

granted without application of judicial mind couldn't be

sustained.

9. actual damages normally pertain to mental torture

and agony sustained through derogatory/defamatory statements.

Since there's no yardstick to measure such damages in monetary

inconvenience, the Courts apply a rule of thumb by exercising its

inherent jurisdiction for granting actual damages on a case to case

basis.

10. within the instant case, the respondent, by producing unrebutted documentary also as oral evidence has fully proved that

the publication released by the petitioners was defamatory and on

account of such defamatory publication, the respondent suffered

mental torture and inconvenience. However, it had been not justified for

the Courts to pass a decree for the quantity which the plaintiff

desired. it's important to notice that when it's determined that a

compensation on account of such defamatory statement, then the

other important and harder question which arises is to

weigh the quantum of damages for such loss caused to him by

such wrongful act. The burden in such situation, like altogether cases,

suffering. But again since such suffering couldn't be converted or

gauged in monetary terms and, therefore, the Court has got to apply

CP-2580/2020 6

rule of thumb. the opposite aspect which must be kept in mind by

the Courts while awarding actual damages on account of mental

torture/nervous shock is that damages for such suffering are

sufferer, therefore such damage shouldn't be exemplary or

punitive because the sufferer shouldn't be allowed to form profit of his

reputation.

11. The Court has not given its finding on any of the aspect

involved within the instant case nor adopted any criteria to measure the

damages claimed. In such situation, the Court has did not

judicially exercise its discretion while passing the ex parte decree

and has granted the damages during a mechanical fashion without

examining the legality or worth of the respondent’s claim, therefore,

notwithstanding the very fact that we discover Respondent entitled to an ex

parte decree but are of the considered view that such decree could

not be sustained, as passed without application of mind and being

violative of the essential principles of exercising judicial powers. After

we had examined this aspect, counsel for the respondent

interjected and submitted that since it's been established that

the petitioners had published defamatory statement which a minimum of

has defamed the respondent in terms of “the Ordinance”, therefore,

instead of remanding the case to the court to work out the

damages by applying settled principles of law, the minimum

amount of actual damages as provided under Section 9 of “the

Ordinance” be awarded with the direction to the petitioner to

publish an apology as provided under the law. Section 9 of “the

Ordinance” reads as follows:-

CP-2580/2020 7

“9. Remedies.– Where defamation shall be proved to possess

occurred, the Court may pass order directing the defendant to

tender an apology, if acceptable to the plaintiff, and publish

the same in similar manner and with an equivalent prominence as

the defamatory statement made and pay reasonable

compensatory damages as actual damages with a minimum

of Rs.50,000/- (Rupees fifty thousands) [and additionally

thereto, any special damage incurred that's proved by the

plaintiff to the satisfaction of the Court[:]

[Provided that just in case of the originator the minimum

compensatory damages as actual damages shall be three

hundred thousand rupees.]”

12. there's no dispute that the respondent has undeniably

proved that the defamation has occurred but the Court has not

independently applied its discretion though by way of rule of thumb

to ascertain actual damages and for this purpose, we intended to

remand the matter but when the respondent is prepared to simply accept the

minimum bar of actual damages as provided under the law then

no useful the purpose would be served by remanding the case,

therefore, in our opinion the proposal of the learned ASC for the

respondent is extremely fair.

13. The respondent has proved that the petitioners being

originators had published a piece of writing which in fact was

defamatory and has caused inconvenience and mental

torture/agony to the respondent and, therefore, the respondent

under the law is entitled not only to minimum damages within the sum

of Rs.300,000/- but also an apology within a similar manner and

with an equivalent prominence because the defamatory statement was

published in terms of Section 9 of the Ordinance. In the

circumstances, rather than remanding the matter, we modify the

CP-2580/2020 8

decree and award monetary compensation of Rs.300,000/- only to

the Respondent which shall be recovered jointly and severally from

the Petitioners. This petition is converted into appeal and is allowed

partially within the above terms. These are the explanations of our short

order of even date which reads as follows:-

“For reasons to be recorded later, this petition is

converted into appeal and partly allowed. The

impugned judgments are modified to the extent that

the actual damages awarded to the

respondent are reduced to Rs.300,000/- (three lac)

and publication of apology under Section 9 of the

Defamation Ordinance, 2002”.

Judge

Judge

Judge

Islamabad

05.01.2021

A.Rehman

Approved For Reporting