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Civil Review Petition No. K‑3 of 1968, heard on 26th February, 1973.
(On review from the judgment and order of the Supreme Court in Civil Appeal No. K‑48 of 1963, dated 17th October 1967).
------O. XXVI and Civil Procedure Code (V of 1908), O. XLVII, r. 1 ----Review‑ Judgment of Supreme Court or High Court obtained by practising fraud upon Court‑Remedy lies by filing suit against defendants and not by asking for review of judgment‑Specific Relief Act (I of 1877), S. 42.
‑‑----O. VII, r. 11(a)‑Plaint, rejection of‑Plea of privilege available to defendants in defamation suit‑Plaint, held, rightly rejected as not disclosing a cause of action.
‑‑ O. XXVI and Civil Procedure Code (V of 1908), O. XLVII, r. 1--- Review‑That Court has fallen into error in deciding a particular question or that a new ground which could be urged but was not urged at original hearing‑No ground for review‑Review, not equated with appeal.
Petitioner in person.
Nemo for Respondents.
Date of hearing : 26th February 1973.
. This is a petition for the review of a judg ment of this Court in the case of Muhammad Moosa v. Muhammad and others (Civil Appeal No. K‑48 of 1963) which was announced on the 17th October, 1967.
The said appeal arose out of a suit for defamation filed by the present petitioner on the 6th February, 1953, in the then Chief Court of Sind against the defendants in an earlier suit filed on the 14th April, 1952, by the sister of the petitioner, for a declaration and a permanent injunction and against their lawyer, one Mr. Lakhani, in respect of certain allegations made against the petitioner in the correspondence exchanged between the lawyers of the two sides before the filing of the suit and in the written statement filed in the above‑mentioned suit alleging that the petitioner, who was the brother of the plaintiff in the said suit, was a person "interested in fomenting litigation and evolving false cases". He was also described in the correspondence as being "no better than a tout".
The petitioner was also acting, at the relevant time, as a clerk to one Mr. Fonseca, the lawyer representing the plaintiff in the injunction matter.
In the defamation suit, in a separate written statement filed by him, Mr. Lakhani took the plea that whatever he had done, was in his professional capacity as a lawyer for the defendants in the said suit and under their specific instructions. He was, therefore, entitled to claim privilege.
The other defendants filed a separate written statement and took the plea of justification.
An application was then filed under sub‑rule (a) of rule 11 of Order VII of the Code of Civil Procedure read with section 15 t thereof for the rejection of the plaint on the ground that it disclosed no cause of action. A learned Single Judge of the then Sind Chief Court accepted the petition and rejected the plaint. His order was upheld on appeal by a Division Bench. Leave was, however, granted by this Court to consider as to whether defamatory statements made either in pleadings or in notices preceding the litigation, in respect of third parties, could be covered by the privilege of counsel and parties.
The petitioner appeared in person at the hearing of the appeal in this Court, Mr. Khalid M. Ishaque appeared as amicus curiae, Mr. Lakhani was represented by Mr. Dorab Patel and Mr. Tufailali Abdur Rehman appeared on behalf of the High Court Bar Association.
This Court, after fully hearing the learned counsel and examining a number of decisions, both foreign and from the Indian sub‑continent, came to the conclusion that "an advocate is entitled to claim a qualified privilege for words spoken or written in his professional capacity and not an absolute privilege as found by the High Court". As to what will be covered by this "qualified privilege", it was stated;
"Privilege will apply to an Advocate with reference to what is written and published in response to a duty or right and that if anything is found in the thing published which is not reasonably appropriate to that duty or right then privilege could not be extended to that."
Applying this principle to the facts of the case, the Court further came to the conclusion that :‑----
"The impugned statements sought to allege a motive for the suit. It, therefore, cannot be said that they were not made with reference to the suit. It maybe that a better draftsman would have put them in different language but the mere fact that they were couched in a strong language would not deprive the lawyer of the benefit or the qualified privilege -----------Here the imputation was made jointly against Aminabai and her brother. The conduct charged against one could not be explained without introducing the part played by the other. In these circumstances, the defamatory statements will be privileged against both."
In this case, Cornelius, C. J., in a separate concurring judgment expres sed the following views :‑---
"The allegedly defamatory statements in the reply to the notice of such were not made in any irresponsible way, merely to malign the present appellant, but were made with relevance to a defence which could be taken, and was in fact, taken in reply to the plaint. Accordingly, the words must be held to be covered by the privilege of counsel and parties in litigation even on the view that the privilege is of a qualified nature and is not absolute."
The petitioner, who had been waiting in Court for the turn of his review petition, at the end of the day, when the Court was about to rise, intervened and said that as he was suffering from several diseases and was unable to speak standing and was also hard of hearing, he would not like to make any oral submissions but would submit written arguments without adding anything further. He was then permitted to put in his written arguments which run to a large number of pages and contain extensive quotations from many decisions.
His written arguments indicate that his main contention is that his own advocate, Mr. Fonseca had practised a fraud upon him by inserting Para graph 8 in the plaint of the defamation suit in collusion with his brother Advocate, Mr. Lakhani, who was one of the defendants in the suit. Had this Paragraph 8 not been there in the plaint, the application under rule 11 of Order VII would not have been maintainable and the High Court would not have rejected his plaint. This Court also would not have taken the view that it did, namely, that the petitioner "was very much in the litigation and not outside the litigation" if this Paragraph had not been there. The said paragraph reads as follows :‑--
"That the plaintiff's sister is an illiterate pardahnasheen woman and the plaintiff who is living with her has been helping her to protect her interests, thus preventing the defendants from having their own way."
According to the petitioner, therefore, all these judgments have been obtained by fraud and, therefore, they should be reviewed.
Most of the citations given by him in his written arguments relate to questions of fraud and collusion and the admissibility of judgments and other documents. None of these decisions are relevant for the purposes of a review. If the judgments of this Court or of a High Court have been obtained by practising a fraud upon the Court, even then the remedy lies by filing a suit against the defendants and not by asking for the review, of the judgment.
So far as the Courts are concerned, they proceeded upon the averments in the pleadings which have been verified by the petitioner himself and, therefore, he cannot now resile from those averments.
If he thinks that the paragraph in the plaint was put in against his, instructions, or by practising a fraud upon him then he should sue Mr. Fonseca. In the first place, he should have struck them out at the time of verifying and signing the plaint. He could have also applied for the amend ment of the plaint. Nothing of this kind was done nor was it alleged in the Court below or in this Court at the time of the hearing of the appeal that such a fraud had been practised. It cannot, therefore, now be said that he was not aware of the existence of the said paragraph 8 in the plaint nor can he be allowed to raise this now as a ground for review.
His next contention is that in a defamation suit, Rule 11 of Order VII o the C.P.C. has no application. Sub‑rule (a) of Rule 11 of Order VII, C.P.C. clearly says that a plaint may be rejected where "it does not disclose a cause of action". In the present case, if the plea of privilege, as held by this Court, was available, then the plaint did not disclose a cause of action either against Mr. Lakhani or the other defendants and, therefore, the application was fully competent and the plaint was rightly rejected.
Next, the petitioner has contended that because in an earlier case between the same parties, namely, Muhammad Moosa v. Aminabai and others (Civil Appeal No. K‑32 of 1963), which was decided on the 23rd February, 1965, this Court had expunged certain remarks made in the inspection note by a learned Single Judge of the then Sind Chief Court on the 19th August, 1954, in another suit, being Suit No. 456 of 1954, on the ground that those observations were not necessary for the purposes of the disposal of the said suit, this Court should also, in the present case, have held that the impugned observations made by Mr. Lakhani and the other defendants were not necessary for the purposes of the suit for permanent injunction and, therefore, they were not entitled even to qualified privilege as held by this Court. There is no analogy between the two. Those observations, which were expunged, were observations made by a Court against a person who was neither a party nor a witness in the said suit and were found to be not necessary for the disposal of the proceedings before the Court. In the present case, as has been pointed out very clearly in the judgment of this Court, it cannot be said that the impugned remarks were made without any relevance to the defence which had been taken in the pleading.
The last contention raised is that since he was a stranger to the suit for mandatory injunction, the remarks made against him were wholly uncalled for. I am unable to agree that this principle has any application in the circumstances of this case. As has been pointed out in the judgment of this Court, which is sought to be reviewed, the observations were, by no means, irrelevant. It is even now being conceded by the petitioner himself that they arose out of his own pleadings, namely, paragraph 8 of his plaint, in which it had been averred that he was looking after the interests of his sister and was, therefore, "very much in the litigation".
None of the contentions raised can furnish any ground for the review of a judgment of a Court. A review is not a re‑hearing of a case. It is only available in certain special circumstances, namely, where some relevant evidence has been discovered which could not, in spite of due diligence, have been known to the party or been produced at the time of hearing or the Court has overlooked some material questions of fact or of law which would have a bearing on the decision or there is otherwise some apparent mistake or error on the face of the record. The ground that the Court has fallen into error in deciding on a particular question, or that a new ground which could have been urged was not urged at the original bearing, is not a ground for review, for, a review is not an appeal and cannot be allowed to be treated as an appeal.
In the present case, none of the grounds raised by the petitioner are relevant for the purposes of a review. It appears to me that he is really seeking to have the whole case re‑opened and re‑heard as if it is an appeal from the judgment of this Court. No such appeal lies. I am, therefore, unable to accede to the request of the petitioner to review the judgment of this Court.
This petition also suffers from another defect, namely, that the petition is not accompanied by any certificate of a Senior Advocate of this Court. But since I have dealt with the petition on merits, I do not wish to reject the petition on this ground alone.
This petition is dismissed as being wholly misconceived.
Petition dismissed.
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