IN   THE   HIGH   COURT   OF   SINDH   AT  KARACHI

Suit No. 1154 of 2006

 

Plaintiff:-                        Mr. Tayyab Iqbal,

 

through Mr. Muhammad Arif Sheikh,

Advocate for the plaintiff.

 

Defendant:-                    Muhammad Irfan Iqbal,

 

None present for the defendant.

 

 

Date of hearing       07.05.2010

Date of Judgment   02.06.2010

 

J U D G M E N T

 

SYED HASAN AZHAR RIZVI, J          The present suit has been filed by the plaintiff against the defendant for declaration, perpetual injunction and damages. Brief facts of the case are that the plaintiff is a businessman residing in Karachi. According to the plaintiff he had never involved in any offence or criminal activities nor any FIR had been lodged against him in any Police Station. The defendant is a businessman, engaged in supplying dyes and chemicals to the various dyeing factories including M/s. Nooritex Dyehouse on credit basis. Mr. Aslam Iqbal is the brother of the plaintiff is running M/s. Nooritex Dyhouse, situated at D-21, Block-18, Federal "B" Area, Karachi and maintaining separate account of that factory. The plaintiff had no concern with the management and transaction of M/s. Nooritex Dyehouse. There was a dispute regarding payment of credit amount between the defendant and Mr. Aslam Iqbal of M/s. Nooritex Dyehouse. Mr. Aslam Iqbal issued Cheque No.4713908 dated 4.7.2003 for Rs.309,340/- from his A/C. No.01003209 maintained at Prime Commercial Bank Limited, North Nazimabad Branch, Karachi in favour of the defendant. The aforesaid cheques were uncashed when presented by the defendant. Consequently, the defendant lodged FIR No.244/2005 under Section 489-F PPC at Gulberg Police Station, Karachi. In that FIR the defendant implicated the plaintiff falsely as co-accused with malafide intention and ulterior motives. The plaintiff filed bail before arrest application No.535/2005, which was granted on 10th October, 2005 and was confirmed on 29.11.2005 by the Vth Additional District Judge, Karachi-Central. The Investigation Officer conducted inquiry in the matter and submitted Charge Sheet No.121/2005 dated 2nd November, 2005 and shown in that Charge Sheet that the plaintiff "Not sent up to trial on account of Bail before Arrest from the Court." The plaintiff filed an application under Section 249-A Cr.P.C. for his acquittal on the ground that neither the cheques in question were issued by the plaintiff nor the same were from his account or even the plaintiff was the signatory of the said cheque. Inspite of lodging the FIR and falsely nominating the plaintiff in the FIR the defendant with ulterior motives not only extended undue demands but also started a campaign of harassment and humiliation through notorious and bandits of the area against the plaintiff. The defendant submitted false applications to various authorities by using influence either continuously issuing threats of dire consequences or calling at various offices and even to the old aged father of the plaintiff who was seriously ill. The defendant had also circulated defamatory material damaging the reputation of the plaintiff to public/government authorities or trade bodies or any other forum causing loss to the plaintiff. The plaintiff had also caused mental torture, harassment, disrespect and financial loss to the plaintiff by using his influence unlawfully. The defendant unlawfully nominated the plaintiff in the FIR No.244/2005 and Cr. Case No.475 of 2005, the plaintiff contested the case and was acquitted by the Xth Judicial Magistrate, Karachi-Central vide order dated 25.7.2006. Thus the plaintiff has received mental torture nervous shock, injuries and serious damage to the reputation and prestige of the plaintiff. After the acquittal of the plaintiff from the criminal case registered at the complaint of the defendant the plaintiff has filed the present suit against the defendant and following relief(s) have been sought by the plaintiff:-

 

a)                 "For declaration that the defendant without any material evidence and assigning any role to the plaintiff falsely implicated him with ulterior motives and malafide intention in the commission of crime registered vide FIR No.244/2005 under Section 489-F PPC at Gulberg Police Station, Karachi and the honourable Court of Xth Civil Judge and Judicial Magistrate Central, Karachi vide order dated 25.7.2005 has appropriately acquitted the plaintiff under Section 249-A of Criminal Procedure Code.

 

b)                 Grant permanent injunction prohibiting the Defendant from circulating which is defamatory of the plaintiff and from approaching or submitting to any public/ government authority or trade body or any other forum with such representation containing defamatory allegations against the plaintiff or from interfering with the lawful business of the plaintiff in any manner whatsoever.

 

c)                  Award a sum of Rs.10 million in damages against the defendant for defamation of the plaintiff for sullying his good name and hurting his reputation.

 

d)                 Award a sum of Rs.15 million to the plaintiff against the defendant for pain, mental anguish and torture caused by his misconduct.

 

e)                 Cost of the suit.

 

f)                    Any other(s) and further(s) relief(s), which this honourable Court may deem fit and proper under the circumstances of the case, may also be passed."

 

2.         After admission of the suit summons/notices have been issued to the defendant which were duly served upon the defendant on 18.12.2006 Mr.Raza Hashmi, Advocate undertook to file power on behalf of the defendant before this Court. On 16.1.2007 the Vakalatnama of M/s I.A. Hashmi & Co. Advocates was filed on behalf of the defendant in the present suit. On 17.12.2007 the office reported that no written statement has been filed by the defendant since 7.11.2006 and none appeared on 17.12.2007 when the matter was fixed in Court, this Court declared the defendant exparte. On 9.1.2008 the defendant's counsel filed application bearing CMA No.209/2008 under Order 9 Rule 7 R/W Section 151 CPC to recall/set aside the exparte order dated 17.12.2007 and further sought time for filing written statement. On 20th October, 2008 the matter was fixed before this Court. This Court allowed the injunction application of the plaintiff bearing CMA No.1154/2006 for restraining the defendant from defaming the plaintiff. The defendant had failed to get the notice issued of application bearing CMA N.209/2008 despite of several chances were given to the defendant and had failed to deposit the cost for number of times, therefore, the application hearing of CMA No.209/2008 filed by the defendant was truck of on 8.5.2009 under Rule 128 SCCR (OS). The matter was then fixed for final disposal, On 29.9.2009 the plaintiff filed affidavit-in-exparte proof and the plaintiff was examined on 2.4.2010 before this Court. On 7.5.2010 Learned counsel for the plaintiff argued the matter and submitted that the plaintiff was falsely implicated as co-accused in FIR No.244 of 2005 lodged by the defendant. The FIR was registered on 5.10.2005 against the plaintiff on the report of the defendant. After about two years on 25.7.2007 the plaintiff was acquitted by Xth Judicial Magistrate Karachi-Central. Learned counsel for the plaintiff urged that the defendant unlawfully nominated the plaintiff in the FIR which resulted mental torture, nervous shock, injuries and has caused serious damage to the reputation of the plaintiff and also caused financial loss to the plaintiff. The learned counsel for the plaintiff cited PLD 1996 SC 737, wherein it is held that if the plaintiff in an action for damages may recover compensation for mental torture, nervous shock and injuries of like nature arising out of breach of duty or a wrongful negligent act of defendant and in such an action of physical presence of the plaintiff at the time of incident is not necessary. The damages for mental torture, nervous shock etc. fall in the category of general damages for which no standard or method of proof can be laid down with precision. The claim of such nature are difficult to estimate. The Courts, therefore, in assessing such damages employ a guess work which can only meet the test of a reasonable assessment by a man of ordinary prudence. The Court in that case awarded Rs.50,000/- for mental shock and suffering.

 3.        I have perused the record of the present case, the plaintiff has filed the present suit for declaration, perpetual injunction and damages against the defendant. The defendant avoided to contest the present suit and has been declared exparte on 17.12.2007. It has been held in 1996 PLD SC page 737 and 2006 MLD page 907 that suit for damages can only be decreed when averred in plaint on each score separately and proved by evidence on each point. General, vague and scanty evidence on such points cannot be relied upon. Damages suffered and quantity of amount claimed under each head is to be proved by cogent evidence from assertion of inflated amounts without corroboration of evidence would be no avail for the plaintiff. In 2003 CLC page-1699 it is held that when a person claim special damages then it is incumbent upon him to show as to and under which head of account and how such damages have been sustained in presence of such proof, special damages cannot be allowed. General damages is lost or injury sustained or caused as the direct or proximate consequence are wrongful act not capable of exact assessment in terms of money such loss or damages under the law are presumed an employed like loss of goodwill, reputation and mental torture.

4.         In view of the facts, circumstances and legal position stated above, the claim of the plaintiff is uncontroverted, unchallenged and not denied by the defendant, therefore, I decree prayer clause (a) and (b) of the plaint. With regard to the award of damages, since the plaintiff's counsel has himself relied upon PLD 1996 SC page 737 wherein the Hon'ble Supreme Court of Pakistan has held that the claim of general damages which has no standard or method of proof are out of estimate and the Court awarded Rs.50,000/- for mental shock and suffering. Keeping in view the dictum laid down by the Hon'ble Supreme Court of Pakistan in PLD 1996 SC page 737 and considering the inflation, I thereby awarded Rs.200,000/- as damages for mental shock and suffering received to the plaintiff at the hands of the defendant alongwith the cost of the suit.

JUDGE