Present: G.H. MALIK, J.
A. MAJID SAMA
versus
THE ASBESTOS CEMENT INDUSTRIES, LTD. and another

Suit No. 675 of 1976, decided on 5th October, 1995.

Sind Rented Premises Ordinance (XVII of 1979)–
—-Suit for recovery of damages-Plaintiff died during pendency of suit, hence cause of action has not survived the death of plaintiff and the suit has abated-Suit dismissed. [P. 1092]A

1990 CLC 404, PLD 1961 Kar. 88, PLD 1967 KaR. 755 ref.
Mr. AzharAli Siddiqi, Advocate for Plaintiff. Mr. Ashiq Mi Abdullah, Advocate for Defendants.

Date of hearing: 5.10.1995.

JUDGMENT

The plaintiff has filed this suit for recovery of Rs. 51,000 by way of damages on account of alleged defamation. It is alleged that defendants Nos. 1 and 2 by writing letter dated 7th July, 1976 (Annexure-C to the plaint) and by sending a copy thereof to the then Minister of State for Labour and Man- power, Government of Pakistan defamed the plaintiff. A photocopy of that letter shows that in response to the plaintiffs application to be appointed a dealer of the defendants, which had been recommended by the Minister, the defendants wrote the letter in question to the plaintiff stating, inter alia, that the plaintiff had attempted to obtain dealership on fraudulent grounds. There is no indication on the photostat copy of the letter that a copy thereof was sent to the Minister; but the stand of the defendants is that the letter in question was not defamatory and that, in any case, the defendants were entitled to send a copy thereof to the Minister because the plaintiff had forwarded his application for dealership alongwith the recommendation from the Minister. It would, thus, appear that the defence of the defendants is that the contents of the letter in question were not defamatory and, that, in any case, it was privileged communication. Be that as it may, the plaintiff has died during the pendency of this suit and the question has arisen whether or not the cause of action his survived to his legal representatives.
Mr. Ashiq All Abdullah submits that cause of action has not survived to the legal representatives of the plaintiff. He relies on the following cases:-
(1) Sardar Muhammad All v. Pakistan PLD 1961 Kar. 88.
(2) Mercantile Cooperative Bank v. M/s Habib & Co. and others PLD 1967 Kar. 755.
(3) Government of Punjab v. Mst. Kamina and others 1990 CLC 404.
Mr. Azhar Ali Siddiqi had, on the previous dates of hearing, contended that it was held in the cases of Muhammad Akram v. Mst. Farman Bi PLD 1990 SC 28 and Syed Gayoor Hussain Shah v. Aziz A/am PLD 1990 Lah. 432 that the rights of property and the rights of reputation are placed on equal footing under the Islamic law; and that since the right of property survives on the death of the owner, the right of reputation also survives. On the 2nd May, 1995, after Mr. Siddiqi had made this submission the hearing was adjourned to enable him to address further argument. The case then came up on 8th May, 1995, but was adjourned for want of time. Today Mr. Azhar Ali Siddiqi is not present and Mr. Moen Azhar on behalf of Mr. Siddiqi has not addressed any further argument.
In the case of Sardar Muhammad Ali v. Pakistan, the suit had been filed by the plaintiffs, Sardar Muhammad Ali and his wife Sahibzadi Amir Begum for damages for mental shock, physical pain and humiliation of ladies of the plaintiffs’ family by the defendant. During the pendency of the suitplaintiff No. 2 Sahibzadi Amir Begum, died and the question was whether the cause of action survived to her heirs. It was held by A.S. Farooqui, J., that the pain, suffering and assault would have to be necessarily restricted to such claim as the original two plaintiffs could make on their own account and that it could not be urged that the father and the mother of the original plaintiffs could claim compensation for the alleged tort committed to their children. It was further held that after death of Sahibzadi Amir Begum her right of action in regard to tort relating to her detention, injury and humiliation must be held to have died with her on the principle of actio personalia mortiur cum persona.
In the case of Mercantile Cooperative Bank v. M/s. Habib & Co., A.S. Farooqui, J., again held that maxim actio personalis mortiur cum persona is part of law of Pakistan and is enforced upon the grounds of justice, equity and good conscience. There the plaintiff had filed a suit against sole proprietor of defendant-company claiming damages for acting negligently in performance of his duly as Auditor of the Company.
The cases cited by Mr. Azhar Ali Siddiqi do not support the proposition that the right to sue for damages for defamation survives the death of the person who has been defamed. In the case of Muhammad Akram v. Mst. Farman Bi the petitioner had sued the respondent for restitution of conjugal rights, alleging, falsely, as it was found, that she was his wife; and, upon the dismissal of that suit, the respondent had filed a suit against the petitioner for damages for malicious prosecution. It was held that such a suit was maintainable; that for the purpose of suing for damages for malicious prosecution, the distinction between ‘civil prosecution’ and ‘criminal prosecution’ was not well founded; and that the common law of England in this respect is no more an authority in this country. It was, in the context observed that right of good reputation has been given equal place with right to property in Islam. In the case of Ghayyur Hussain Shah v. Ghrib Mam, the respondent had lodged a false First Information Report against the appellant, and, consequently, the appellant sued the respondent for damages for malicious prosecution. The suit was decreed by the trial Court but the decree was reversed in first appeal; and the appellant, having filed the second appeal, died during the pendency thereof. The question, therefore, arose whether the suit as well as the appeal abated; and it was held that they did not Consequently, the appeal was accepted, the first appellate judgment was set aside and the judgment of the trial Court was restored. It was held, inter alia, that the rule that an act of the Court shall prejudice no one applied in the circumstances of the case as the situation would not have arisen but for the delay in the disposal of the appeal which had been filed as far back as 1966; and also because the first appellate Court had proceeded on wrong view of the law which resulted in the decree being set aside. The case is, thus, distinguishable on facts.
In the circumstances, it is clear that the cause of action has not survived the death of the plaintiff and the suit has abated. It is, therefore, dismissed accordingly.

(M.Y.F.K.) Suit dismissed.

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