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High Court Appeal No.76 of 2013, decided on 7th November, 2014.

----S. 8---Civil Procedure Code (V of 1908), S. 11 & O. VII, R. 11---Law Reforms Ordinance (XII of 1972), S. 3---High Court appeal---Suit for defamation---Rejection of suit---New plea before Appellate Court---Res judicata, principle of---Applicability---Defendant filed application under O. VII, R.11, C.P.C. for rejection of plaint but Single Judge of High Court dismissed the application---Appellant raised fresh plea before Division Bench of High Court (in High Court appeal) to support application under O. VII, R. 11, C.P.C.---Validity---Application of defendant under O. VII, R. 11, C.P.C. was rejected on his failure to demonstrate that plaintiff had failed to disclose any cause of action and the law did not bar repeating of fresh application on different ground---Plea that suit was barred by law was not agitated before the Trial Court, such plea could not be examined by the Appellate Court, which would not only amount to usurpation of power of Trial Court but would also deprive plaintiff of an appellate forum---No fresh plea could be raised before Appellate Court which was not taken before Trial Court in case of rejection of application under O. VII, R. 11, C.P.C.---Division Bench of High Court declined to interfere in order passed by Single Judge---High Court appeal was dismissed in circumstances. Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore, Division, Lahore and others PLD 1971 SC 61; Messrs Overseas Pakistanis Foundation v. Income Tax Appellate Tribunal AJ&K PLD 2001 SC(AJ&K) 37; Messrs Shoaib Bilal Corporation v. The Commissioner of Income Tax, Faisalabad and another 1993 PTD 332 and Raees Ghulam Sarwar v. Mansoor Sadiq Zaidi and others PLD 2008 Kar. 458 ref. Abu Bakar Khalil for Appellant. Zaheer-ul-Hassan Minhas for Respondent. Dates of hearing: 11th August and 29th October, 2014.

Through this appeal Order dated 24-4-2013 in Suit No. 1400 of 2012 has been impugned whereby the appellant"s application under Order VII, Rule 11, C.P.C. seeking rejection of plaint was dismissed. Briefly, the appellant allegedly on 18-9-2012 had written a letter to the superior of the respondent containing libelous and scandalous allegations with intent to cause harm to the reputation of the respondent in the eyes of his superiors which led the respondent to file suit claiming a sum of Rs.50.000 (M) as damages on account of causing mental torture, destroying good reputation etc. The appellant moved an application under Order VII, Rule 11, C.P.C. on the sole ground that the suit was without any cause of action. The learned Judge on the Original Side of this Court after hearing the application through impugned order dismissed the same. Counsel for the appellant had tried to argue before us that the suit admittedly is based on libelous allegations allegedly contained in letter dated 18-9-2012 addressed by the appellant to the superiors of the respondent, therefore, the suit could have only be filed under the provision of Defamation Ordinance, 2002 which is bad on account of non-issuance of notice as required under section 8 which provides "No action lies unless the plaintiff has, within two months from the publication of 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". In support of his contention reliance has been placed on the cases of Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore, Division, Lahore and others (PLD 1971 Supreme Court 61), Messrs Overseas Pakistanis Foundation v. Income Tax Appellate Tribunal AJ&K (PLD 2001 Supreme Court (AJ&K) 37) and Messrs Shoaib Bilal Corporation v. The Commissioner of Income Tax, Faisalabad and another (1993 PTD 332). On the other hand counsel for the respondent contends that the application under Order VII, Rule 11, C.P.C. was filed only on the ground that the suit was without any cause of action and no plea regarding the non-issuance of notice or the application of Section 8 of the Defamation Ordinance was pleaded. Per counsel the remedy under Defamation Ordinance and the general law under section 9, C.P.C. are concurrent and since the respondent has filed suit under the general jurisdiction of this Court under section 9, C.P.C., therefore, Section 8 of the Defamation Ordinance, 2002 has no application. It was therefore, pleaded that the appeal is misconceived and therefore, be dismissed. In support of his contention counsel has placed reliance on an order of this Court in the case of Raees Ghulam Sarwar v. Mansoor Sadiq Zaidi and others (PLD 2008 Karachi 458). We have heard the learned counsel for the respective parties, perused the record and the case-law cited at bar. It appears that the appellant and respondents are very close relatives and the respondent on 10-10-2012 filed a suit against the appellant seeking recovery of damages in the sum of Rs.50.000 (M) on the ground that there was a private dispute between the respondent"s father and appellant"s husband who are real brothers on ancestral property and under the instinct of jealousy, the appellant launched an onslaught to the respondent and his family by making various frivolous applications to various forums and that the respondent being an officer in a disciplined force was since a soft target, therefore, the appellant maliciously and with intent to cause harm to the respondent addressed a letter dated 18-9-2012 to the Chief of Naval Staff, Commander Karachi and Commander Pakistan Fleet, leveling absolute false allegations which were not compatible with the status of the respondent as the letters being highly libelous and have inflicted actionable legal injury to the mental peace, good reputation of the respondent amongst his superiors, therefore, the damages. The appellant beside filing written statement, on 22-10-2012 filed an application under Order VII, Rule 11, C.P.C. seeking rejection of the plaint on the ground, that the plaint has been filed without any cause of action and that the suit has been filed by the respondent in imaginative manner without determining that in what capacity the respondent has claimed the damages and what are the routes of the claim of the respondent and that no lis stands on the basis of the baseless plea. Perusal of the application without any discussion leads us to conclude that same was totally frivolous and was rightly dismissed, as the plaint very clearly disclosed the cause of action and since the counsel could not point out any flaw in the order impugned therefore, without adverting to the order impugned has contended that since legal point can be raised before the appellate forum without being raised before the Court below therefore, the plaint be rejected on account of non-issuance of notice under section 8 of the Defamation Ordinance, 2002. However, counsel has totally failed to address as to whether the Defamation Ordinance, 2002 exclude the remedy available before the Court of general jurisdiction or that it provides that even the remedy provided under the general law could not be availed unless notice under section 8 is issued or that a new point can be raised in appeal in case where an application under Order VII, Rule 11, C.P.C. is rejected. First of all we would like to examine the competency of the instant appeal and in case the appeal is found competent then we would decide the other points so raised. Admittedly counsel for the appellant was not able to point out any flaw in the order impugned, and the entire appeal is based on the point which was not raised before the trial Court. No doubt a new legal plea which does not require investigation into the facts can be raised for the first time before the Appellate Court only in those cases where a final order or decree has been passed by the Court adjudicating the rights of the parties on a particular issue and consequently the rule of res judicata has enforced its application. However, in our opinion no new legal plea can be allowed to be agitated before the Appellate Court in cases where the Rule of Res judicata has not come into force. In the instant case application of the appellant under Order VII, Rule 11, C.P.C. was rejected on his failure to demonstrate that the respondent/plaintiff has failed to disclose any cause of action and the law does not bar repeating of fresh application on different ground. Admittedly the plea that the suit was barred by law was not agitated. In the circumstances, examining a plea by the Appellate Court which was not urged before the trial Court would not only amount to usurpation of the power of the trial Court but would also deprive the plaintiff of an appellate forum. We, in the circumstances, are of the view that no fresh plea can be raised before the Appellate Court which was not taken before the trial Court in case of rejection of an application under Order VII, Rule 11, C.P.C. and dismiss the appeal being incompetent. MH/N-3/Sindh Intra Court appeal dismissed.

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