IN THE HIGH COURT OF SINDH AT KARACHI

IN THE HIGH COURT OF SINDH AT KARACHI

H.C.A. NO. 44 OF 2010.

Present:

Mr. Justice Muhammad Athar Saeed, and

Mr. Justice Irfan Saadat Khan.

Appellant Saeed Qureshi through Mr. Mehmood Habibullah, advocate.

Respondent No.1 through Mr. Tassawar Ali Hashmi, advocate.

Nemo for other respondents.

Dates of hearing: 25.2.2011.

J U D G M E N T

Irfan Saadat Khan, J:- This High Court Appeal has been filed by the appellant against the Judgment and Decree dated 11.1.2010 passed by the learned Single Judge against the appellant/defendant No.3 to pay compensation of Rs.250,000/- as damages/compensation to the respondent No.1/plaintiff

2. Briefly stated, the facts of the case are that the respondent No.1/plaintiff claims herself to be the owner of Plot No.17-B, Street No.10, Gulshan-e-Faisal Cooperative Housing Society, Bath Island, Karachi (hereinafter “the plot”) and was in possession of all the title documents thereof including sub-lease deed, rectification deed, allotment letter, possession letter, certificate of demarcation and challan. The respondent No.1, vide her letter dated 14.2.2004, requested the respondent No.4, Gulshan-e-Faisal Cooperative Housing Society Limited (hereinafter “the Society”) for clearance of the dues as the respondent No.1 intended to make some construction on the plot. However, to the utter surprise of respondent No.1, she was informed that the appellant had submitted a copy of lease deed and general power of attorney for mutation of the said plot in the name of respondent No.3. When the respondent No.1 examined the documents filed by the appellant with respondent No.4 for the purpose of mutation of the plot in the name of respondent No.2, it transpired that the said documents were fake and forged. The respondent No.1 immediately informed the respondent No.4 and also reported the matter to the concerned SHO and FIR No.KYC-280/2004 was registered against the appellant and respondents No.2 and 3 for committing fraud and forgery against her. The respondent No.1 also filed a suit for declaration, permanent injunction, cancellation of documents and damages against the respondents No.2 to 5. The matter then proceeded before the learned Single Judge who, after hearing the parties at some length, found the appellant and respondents No.2 and 3 guilty of filing forged and fabricated documents before respondent No.4, decreed the suit and apart from canceling the forged and fabricated documents filed by the appellant before the respondent No.4 by the appellant also ordered defendant No.1 in the suit to pay damages amounting to Rs.1,500,000/-, Defendant No.3 to pay damages of Rs.1,000,000/- and the appellant to pay Rs.250,000/- as damages to the plaintiff/respondent No.1. It is against this judgment and decree that the appellant has filed the present appeal which only calls into question the imposition of damages and not the cancellation of documents. It is also pertinent to point out that no appeal has been filed against the above decree and judgment by the defendants No.1 & 2.

3. Mr. Mehmood Habibullah, learned counsel for the appellant submitted that the learned Single Judge has passed the impugned Judgment and Decree in violation of Order XX, rule 1, CPC and, therefore, the impugned Judgment and decree is liable to be set aside. While elaborating his view point, the learned counsel further submitted that the learned Single Judge has not considered the written arguments filed by him and he has been condemned unheard. He further submitted that in the plaint it has nowhere been mentioned as to what amount of compensation has been claimed from the appellant as in the prayer clause (v) of the plaint a vague claim has been made praying for a decree in the sum of Rs.5,000,000 against the defendants No.1, 2 and 3 without quantifying as to how much compensation for the alleged damages was being claimed against the present appellant. The learned counsel further submitted that the learned Single Judge was not justified in allowing compensation of Rs.250,000 against the appellant without there being a proper quantification. The learned counsel further submitted that the respondent No.1/plaintiff has also failed to file any proof before the learned Single Judge in support of his claim of the mental torture and agony suffered by her and the learned Single Judge was thus not justified in awarding the said amount in this regard. He further prayed that the impugned Judgment passed by the learned Single Judge is vague and is not specific, therefore, the same may be set aside by dispensing the present appellant from paying the said amount.

4. Mr. Tasawar Ali Hashmi, learned counsel for the respondent No.1, candidly conceded at the very outset that though the amount was not quantified but submitted that the learned Single Judge has passed a erudite and exhaustive order by clearly mentioning that a case of forgery and fraud has been made out against the appellant hence the learned Single Judge was justified in awarding the said amount to the plaintiff/respondent No.1. He further submitted that though in the prayer clause no specific amount pertaining to the appellant was made and a lump sum amount of Rs.50 lac was claimed against the appellant and respondents No.2 and 3 for their collusive, fraudulent act but by merely claiming a lump sum amount as damages against the defendants would not disentitle the plaintiff/respondent No.1 from claiming the said amount as admittedly some forged and fake documents have been filed by the appellant in collusion with respondents No.2 and 3. In support of his contentions, the learned counsel relied on the following case law:

i. Abdul Wahab Abbasi vs. Gul Muhammad Hajano (2008 CLD 1230),

ii. Sufi Muhammd Ishaq vs. The Metropolitan Corporation, Lahore (PLD 1996 SC 737), and

iii. Muhammad Sharif vs. Nawab Din (PLD 1957 WP (Lahore) 283).

5. We have heard the learned counsel for the parties and have perused the record and the case law relied upon by the learned counsel for the respondent No.1.

6. It is an admitted position that the appellant, in connivance with respondents No.2 and 3, submitted fake and forged documents before the respondent No.4 for illegal mutation of the plot in the name of the appellant for which criminal proceedings are also pending against them. However, there is no cavil to the proposition that in such cases where compensation for damages is being sought, the same has to be quantified as well as some nexus has to be established between the claim and the person against whom such amount is being claimed. Whereas on perusal of the record it clearly depicts that in the prayer clause only a vague and scanty claim has been made against the appellant without quantifying as to how much damages in terms of money is being claimed against the appellant. It is also clear that in the prayer clause no specific claim has been made against the appellant by quantifying with cogent proof as to how much damage in terms of money was being claimed against the appellant.

7. It is thus clear from the record that though the learned Single Judge has made the appellant liable to pay a sum of Rs.250,000 to the respondent No.1 but no basis has been given as to how this amount has been quantified. Though it is a trite law that exact amount of damage cannot be determined but the person making a claim against any other person has to substantiate his claim with cogent material in respect of the amount claimed as damages against the said person. No vague and unreasonable amount could be claimed but the amount so claimed should be reasonable, which depends upon the facts of each case and no universal rule or rule of thumb could be applied in this regard. The Hon’ble Apex Court in the above referred decision of Sufi Muhammad Ishaq has clearly held that “Any person claiming any damages has to prove it through evidence. The evidence in this regard is general, vague and scanty. We, therefore, do not propose to disturb the findings on these items.”

8. We, therefore, looking to the facts of the present case, are of the opinion that as in the present case no ascertainable sum viz-a-viz quantified amount has been claimed against the present appellant and the claim being vague, unspecific and scanty against the appellant, damages/compensation awarded by the learned Single Judge against the appellant could not be sustained. Thus the order passed by the learned Single Judge is modified/set aside to the extent of damages/compensation awarded by the learned Single Judge against the appellant.

9. Above are the reasons for our short order passed in Court after hearing the learned counsel on 25.02.2011 by which we have modified/set aside the impugned judgment passed by the learned Single Judge only to the extent of observation as mentioned below:

“defendant No.3 is liable to pay a sum of Rs.2,50,000/- as damages/ compensation to the plaintiff for colluding with defendant No.1 and No.2 and submitting application for mutation/transfer on the basis of forged documents with the intent to fraudulently depriving the plaintiff from her property.”

Judge

Karachi, the ______________, 2011.