ZAFAR ALI vs ADDITIONAL DISTRICT JUDGE, PAKPATTAN and another

' CH. MUHAMMAD MASOOD JAHANGIR, J.--- A short question is involved in this writ petition whether a suit for recovery of amount as damages on account of malicious prosecution is maintainable before the court of ultimate jurisdiction under Section 9 of the Civil Procedure Code, 1908 or the same can be adjudicated upon before the District Court under Section 13 of the Defamation Ordinance, 2002.

2. Precise facts of the case are that a suit for recovery of Rs,10,00,000/- as damages was instituted on 27.09.2004 by the petitioner on account of malicious prosecution against the respondent before the Civil Court. The respondent initially filed contested written statement, but after an elapse of 3- 1/4 years made an application under Order VII, rules 10/11 of the Code of Civil Procedure, 1908 for rejection or return of the plaint, which was declined by the civil court through order dated 20.4.2010.

However, in Civil Revision, the order passed by the civil court was reversed and the plaint of the suit instituted by the petitioner was rejected through the impugned judgment, which is under question in the instant writ petition.

2.(sic) Arguments heard and record scanned.

3. Undoubtedly, Section 13 of the Defamation Ordinance, 2002 prescribes the remedy to enforce the right thereunder before the District Court, but a close recital of the said Ordinance would reveal that the same does not contain any repealing or ouster clause regarding the jurisdiction of civil court to entertain such a suit under the general law i.e, Section 9 of the Civil Procedure Code, 1908.

The door of Civil Court being the court of ultimate jurisdiction can be knocked at in respect of all the civil matters, unless its jurisdiction is expressly or impliedly barred by the statute regarding any specific matter. Since the right against defamation .Was already recognized and actionable under I general law even prior to the promulgation of the Ordinance ibid, hence without a clause ousting the general jurisdiction of the civil court, any person aggrieved by an act of defamation can avail of such remedies and he may either pursue his case by filing a regular suit before the civil court under section 9 of the Civil Procedure Code, 1908 or by making a complaint under the provisions of the Ordinance ibid before the District court as any of the avenue is not closed for such an aggrieved person.

4. In the present case, the Petitioner filed a regular suit for recovery of damages on account of defamation under section 9 of the Civil Procedure Code, 1908 and did not avail of the remedy as provided by the Ordinance ibid, therefore, the observation of the learned lower appellate court through the impugned judgment that Civil Court lacked jurisdiction to adjudicate upon the suit is, without any mandate of law.

' The apex Court has already clinched the said proposition authoritatively in the judgment reported as Ch. Zulfiqar All Cheema v. Farhan Arshad Mir PLD 2015 SC 134 and observed that the reading of the Ordinance as a whole did not preclude a person from initiating an action for damages under the law of Torts by filing a suit for damages under Civil Procedure Code, 1908. The verdict of the apex court under Article 189 of the Constitution of Islamic Republic of Pakistan, 1973 is binding on every organ of the State including the subordinate judiciary.

5. In view of the above discussion, I have no hesitation to observe that the impugned judgment dated 28.09.2010 has been passed while exercising the jurisdiction in an illegal and arbitrary manner, which being ultra vires, coram non judice and void is not sustainable. Consequently while allowing this Constitutional Petition the impugned judgment is set aside and the suit instituted by the petitioner will be deemed to be pending before the learned trial court, who will decide the same on merits. The parties are directed to appear before the learned District Judge, Pakpattan on 24.10.2016, who will entrust the suit file to a court of competent jurisdiction for further proceedings.