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Petitioner: ABDUL MAJEED KHAN VS Respondent: TAWSEEN ABDUL HALEEMHonorable Justice Amir Hani Muslim,Hashmat Ali Habib
2012 P L C (C.S.) 574
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry, C.J., Khilji Arif Hussain and Amir Hani Muslim, JJ
ABDUL MAJEED KHAN
Versus
TAWSEEN ABDUL HALEEM and others
Civil Petition No.463 of 2011, decided on 19th September, 2011.
(On appeal against the judgment dated 9-2-2011 passed by the Lahore High Court, Lahore in R.F.A. No.312 of 2010)
Per Amir Hani Muslim, J, Iftikhar Muhammad Chaudhry, C.J. and Khilji Arif Hussain, agreeing---
(a) Civil Servants Act (LXXI of 1973)---
----S. 23-A---Suit for recovery of damages---Exercise of official authority---Mala fide acts---Rule of thumb---Applicability---Plaintiff was civil servant who suffered on account of official orders passed by defendant which were based on mala fide---Trial Court and High Court dismissed the suit filed by plaintiff---Validity---Orders passed by defendant were reversed by competent authority and those were found to be passed unauthorizedly---Plaintiff had brought on record a number of official documents through custodian of the record, which documents were neither objected to nor their contents were challenged by defendants before Trial Court at evidence stage---Plaintiff though had failed to quantify the damages claimed by him as required under the law, as such the same did not mean that plaintiff was not entitled to grant of general damages under the rule of thumb on the face of material brought on record by him during trial---Plaintiff was entitled to grant of general damages for mental agony which he had suffered on account of the conduct of defendant---Plaintiff pleaded specific instances to establish personal vengeance against defendant on account of which he claimed to have suffered losses and mental agony---Pleadings and evidence brought in support of claim of damages by plaintiff were sufficient to award general damages to plaintiff against defendant---Supreme Court set aside the judgments and decrees passed by Trial Court and High Court and partly decreed the suit in favour of plaintiff---Plaintiff was entitled for damages to the tune of Rs.100,000 with mark up at the rate of 10% till the date of recovery of the amount---Appeal was allowed.
Per Iftikhar Muhammad Chaudhry, C.J. agreeing with Amir Hani Muslim, J---
(b) Damages---
----'General damages' and 'special damages'---Distinction---Term 'general damages' refers to special character, condition or circumstances which accrue from immediate, direct and approximate result of wrong complained of---Similarly term 'special damages' is defined as actual but not necessary result of injury complained of---Special damages follow as a natural and approximate consequence in a particular case by reason of special circumstances or condition---In an action for personal injuries, general damages are governed by the rule of thumb whereas special damages are required to be specifically pleaded and proved---Special damages consist of out-of-pocket expenses and loss of earning incurred down to the date of trial and is generally capable of substantially exact calculation---General damages are those which law implies even if not specially pleaded, which includes compensation for pain and suffering and the like and if injuries suffered are such as to lead to continuing or permanent disability, compensation for loss of earning power in future---Basic principle, so far as loss of earnings and out-of-pocket expenses are concerned, is that injured person should be placed in the same financial position, so far as can be done by an award of money he would have, had the accident not happened.
British Transport Commission v. Gourley (1956) AC 185; Qazi Dost Muhammad v. Malik Dost Muhammad 1997 CLC 546; Islamic Republic of Pakistan v. Sh. Nawab Din 2003 CLC 991; Azizullah Sheikh v. Standard Chartered Bank Ltd. 2009 SCMR 276; Mrs. Alia Tareen v. Amanullah Khan PLD 2005 SC 99; C.K. Subramonia Iyar v. T. Kunhikuttan Nair AIR 1970 SC 376; Waldon v. War Office (1956) 1 WLR 51 and The Mediana's case 1900 AC 113 and Cooper v. Firth Brown Ltd. (1963) 2 All ER 31=(1963) I WLR 418 rel.
(c) Civil Servants Act (LXXI of 1973)---
----S. 23-A---Suit for damages---Damages---Special or general damages---Determination---Exercise of official authority---Mala fide acts---Plaintiff was civil servant who suffered on account of official orders passed by the defendant which were based on mala fide---Trial Court and High Court dismissed the suit filed by plaintiff---Validity---Plaintiff while appearing as his own witness did not try to explain the causes of damages except stating that due to acts of defendant, he had remained jobless for four years; suffered loss of lacs of Rupees; his father died due to mental torture; and he spent lacs of Rupees on litigation as well as on medical treatment of his wife; it was therefore, necessary to determine in the light of evidence available on record the expenses which plaintiff had actually and reasonably incurred for medical treatment and litigation---Plaintiff could recover as special damages under such head only the amounts so determined---Defendant objected to the manner in which damages were claimed by plaintiff, which were round sum on each head---Apparently damages were not based on any account; neither any breakup had been given nor any explanation was offered in that behalf---Plaintiff had failed to quantify special damages as such he was not entitled for the same---Plaintiff had suffered mentally due to illegal acts of defendant, which were ultimately set aside by competent forum---Plaintiff was entitled for general damages under the rule of thumb---Supreme Court partly decreed the suit in favour of plaintiff.
Per Khilji Arif Hussain, J. not agreeing with Amir Hani Muslim, J---
(d) Damages--
----Classification---'General damages' are such, as the law presumes to be natural and probable consequences of defendant's act---'Special damages' are such as the law does infer from wrongful act but those must, therefore, be specially claimed in pleadings and proved through evidence thereof at the trial---Besides broad classifications as general and special, damages may also be contemptuous damages; nominal damages; punitive or exemplary; compensatory; and prospective damages.
(e) Damages---
----General damages---Determining factors---General damages must be such which would compensate the injured---Loss arising out of injury to reputation of a person cannot be compensated in terms of money and other non-pecuniary losses may not be accurately calculated in terms of coins but for such reasons alone, courts do not decline to grant compensation and formulate certain parameters and devise principles for evaluation or assessment of such general damages---Ordinarily in such cases just, fair and reasonable compensation is assessed and awarded to victim---No yardstick or definite principle for assessing damages in such cases and it becomes difficult to assess a fair compensation---Court in its discretion may on facts of each case and considering how far society would deem it to be a fair sum, determine the amount to be awarded to a person who has suffered such damage---General damages are those, which law implies in very violation of legal rights---Such damages need not be proved by strict evidence as they arise by inference of law, even though no actual pecuniary loss has been or can be shown---Vital canon followed by judicial mind in such cases is that conscience of court should be satisfied that damages awarded would, if not completely, satisfactorily compensate the aggrieved party---Adequate care should be taken in such regard while dilating on quantum of awards and court should be vigilant to see that claim is not fanciful or remote, the award should never rise to be reflective of lavish generosity and must also obviously not dwindle down to be an indicator of abstemious parsimony, but court should give the aggrieved party what it considers in all circumstances a fair and reasonable compensation for his loss.
C.B. Singh v. Agra Cantonment AIR 1974 All. 147; West Pakistan Industrial Development Corporation Karachi (WPIDC) v. Aziz Qureshi 1973 SCMR 555 and Muhammad Hanif v. Muhammad Bashir 2004 YLR 173 rel.
(f) Tort--
----Law of torts---Applicability---Principles---Law of torts or civil wrongs in Pakistan is almost wholly the English Law, which is administered as rules of justice, equity and good conscience---Before applying any rule of English Law, court has to see whether it suits to the society and circumstances.
(g) Tort--
----Malicious prosecution---Remedy---Where a claimant has been subjected to a criminal prosecution, as a consequence of which he loses or risks losing his liberty and/or his reputation, a remedy in the court of tort of malicious prosecution lies---Institution of a civil action should exceptionally result in liability under tort, when claimant loses the suit, the defendant's reputation is restored and he recovers his cost spent on defending the action---For malicious proceedings in bankruptcy and winding up, which may wreck claimant's business, destroy confidence in his competence and integrity and in his company's goodwill, a remedy in tort lies.
(h) Malicious prosecution---
----Claim---Determining factors---To ground a claim for malicious prosecution plaintiff must prove that the law was set in motion against him on a criminal charge; that the prosecution was determined in his favour; that it was without reasonable and proper cause; and that it was malicious.
Gregory v. Portsmouth Council (2001) 1 All. ER 560; Cavaley v. Chief Constable (1989) All. ER 1025; Muhammad Amin v. Jogendra Kumar AIR 1947 PC 108; Imran Raza Zaidi v. Government of Punjab 1996 PLC (C.S.) 691; Muhammad Shafi v. Hamidan Bibi 1990 MLD 597; Abdul Rauf v. Abdul Hamid Khan PLD 1965 SC 671; Lucknow Development Authority v. M.K. Gupta AIR 1994 SC 787 and Yaqoob Shah v. XEN, PESCO (WAPDA) PLD 2002 SC 667 rel.
(i) Civil Servants Act (LXXI of 1973)---
----S. 23-A---Damages---Protection---Principle---Act of mala fide---Effect---Protection provided under S.23-A of Civil Servants Act, 1973, to an officer is only for the acts done 'bonafidely' but not for an act which is not bona fide---Malicious acts are not protected under said provision of law---Any order passed malafidey in colourable exercise of power cannot be termed as an act done in exercise of power conferred by Act or Rules but in fact it is an act of abuse of power to which no protection can be extended.
(j) Civil Servants Act (LXXI of 1973)---
----S. 23-A---Damages---Misuse of authority---Imposing markup/ interest on damages---Various orders passed by defendant against plaintiff were result of personal vendetta and without any basis, just to humiliate and torture him---Plaintiff claimed for general damages aggrieved on account of mental torture, damage to service career and legal expenses incurred by him---Supreme Court found the plaintiff entitled to damages with markup/interest---In absence of any statutory provisions, custom and usage, the defendant could not be burdened with the interest/markup from the date of filing of the suit.
Messrs A.Z. Company v. Messrs S. Maula Bakhsh Muhammad Bashir PLD 1965 SC 505; Pakistan v. Waliullah Sufyan PLD 1965 SC 310; Messrs Ralli Brothers Ltd. v. Firm Messrs Bhagwan Das Parmeshri Dass AIR 1945 Lah. 35; Jaggo Bai v. Hari Har Prasad AIR 1947 Privy Council 173=PLD 1947 PC 407 and A. Ismailjee and Sons Ltd. v. Pakistan PLD 1986 SC 499 rel.
Petitioner in person.
Hashmat Ali Habib, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents Nos. 1 and 3.
Nemo for Respondent No.2.
Date of hearing: 15th July, 2011.
JUDGMENT
AMIR HANI MUSLIM, J.---Through this petition, the petitioner impugns the judgment of the learned Lahore High Court by which it has denied damages claimed by the petitioner in a suit against the respondents.
2. The relevant facts as they appear from the record are that the petitioner filed a suit for recovery of damages to the tune of Rs.5.00 million against the respondents before the Civil Judge, First-class, Mianwali.
3. The facts as has been pleaded in the plaint are that the petitioner applied for L.P.R. on 13-5-2002, but later on, withdrew the same on 22-5-2002. On account of mala fide on the part of respondent No.1, the L.P.R was allowed with effect from 2-12-2002 and on appeal, the competent authority allowed the same and the petitioner was reinstated in service. It was further pleaded that again retirement order was issued by the respondent No.3 at the instance of respondent No.1 on the basis of personal enmity. As a result of which, the petitioner challenged the said order before the learned Federal Service Tribunal and the petitioner was reinstated in service by the learned Tribunal.
4. The petitioner has pleaded in the suit that he has suffered huge losses during the period when his L.R.R. was unauthorizedly allowed and further that on account of unlawful order of reinstatement issued at the instance of respondent No.1, which order was set aside by the Federal Service Tribunal. The petitioner in the plaint has claimed the damages in the following terms:-
i. Damages to the service career, mental Rs.4,550,000 torture, death of my father, health damage to my wife.
ii. Illegal act of the then Administrator Rs.2,00,000 defendant No.1 on LPR allowances are also ceased (sic)
iii. Lodging of 1st appeal in FST, Rs.50,000 Islamabad, travelling and staying charging Court fee, Counsel fee
iv. Lodging of 2nd appeal in FST, Rs.1,00,000 Islamabad, travelling and staying charging Court fee, Counsel charges.
v. Lodging of 3rd appeal in FST, Rs.1,00,000 Islamabad, travelling and staying charging Court fee, Counsel charges.
5. The written statement was filed by the respondents disputing the claim of the petitioner and on the basis of the pleadings, the trial Court framed following issues:--
(I) Whether the plaintiff has no cause of action to file the suit? OPD
(2) Whether the suit is not maintainable in its present form? OPD.
(3) Whether the plaint has not been verified in accordance with legal requirements? OPD
(4) Whether the suit is bad due to misjoinder of the parties.
(5) Whether this court lacks jurisdiction to try the suit? OPD.
(6) Whether the suit is liable to be dismissed in view of preliminary objection Nos.6, 7 of written statement? OPD
(7) Whether the plaintiff has not come in the court with clean hands? OPD
(8) Whether the plaintiff is estopped by his words and conduct to file the suit? OPD.
(9) Whether the plaintiff has filed frivolous suit and vexatious and defendants are entitled for special costs? OPD.
(10) Whether plaintiff suffered mental torture by the act of the defendants and he also suffered loss of reputation, loss of business, health and he is entitled for the compensation of Rs.50,000? OPD
6. After the evidence, the trial Court, by its judgment dismissed the suit of the petitioner with compensatory costs of Rs.25,000. The petitioner preferred R.F.A. before the learned Lahore High Court, which by its impugned judgment has maintained the judgment of the trial Court.
7. It is contended by the petitioner that both the judgments of the learned courts were erroneous as they have failed to appreciate the evidence brought on record by the petitioner. According to him, he has suffered the injury and mental agony on account of unauthorized acts of the respondent No.1. He has submitted that he has proved the claim of damages before the trial Court and the courts below have wrongly dismissed his suit overlooking the evidence brought on record.
8. On the other hand, the learned counsel for the respondents Nos.1 & 3 supported the impugned judgment of the High Court.
9. We have heard the petitioner in person, the learned counsel for the respondents and have also perused the available record. The petitioner has brought on record sufficient evidence which reflects the conduct of respondent No.1. The orders passed by the respondent No.1 were reversed by the competent authorities and they were found to be passed unauthorizedly. The petitioner has brought on record a number of official documents through custodian of the record, which documents were neither objected to nor their contents were challenged by the respondents before the trial Court at evidence stage. It is, however, correct that the petitioner has failed to quantify the damages claimed by him as required under the law. This does not mean that the petitioner was not entitled to the grant of general damages under the rule of thumb on the face of the material brought on record by him during trial.
10. We have gone through the documentary evidence brought on record with the assistance of the parties and we are of the view that the petitioner was entitled to the grant of general damages for the mental agony which he has suffered on account of the conduct of the respondents. The petitioner has pleaded specific instances to establish personal vengeance against the respondent No.1, on account of which he claimed to have suffered losses and mental agony. We may observe that the pleadings and the evidence brought in support of the claim of damages by the petitioner were sufficient to award general damages to the petitioner against the respondent No 1.
11. For the aforesaid reasons, we accordingly convert this petition into appeal and partly allow the same setting aside the impugned judgment as well as the judgment of the trial Court, award damages to the petitioner to the tune of Rs.1,00,000 with mark up at the rate of 10% from the date of filing of the suit, till the recovery of the entire amount against the respondent No.1 for his unwarranted actions which resulted the petitioner to suffer mental agony and the injury as pleaded by him in the suit. This amount shall be paid by the respondent No.1 from his own pocket.
(Sd.) Amir Hani Muslim, J
I agree and have also added my separate Note.
(Sd.) Iftikhar Muhammad Chaudhry, C.J.
I have recorded my own reasons. (Sd.) Khilji Arif Hussain, J
IFTIKHAR MUHAMMAD CHAUDHRY, CJ.-- I have had the benefit of perusing the judgment rendered by my learned brother. I am in full agreement with his conclusion; however, I would like to add a few lines in this regard.
2. In the instant case the petitioner has claimed damages on the basis of loss caused to his service career; mental torture; death of his father; health damage to his wife; and expenses for the litigation, which were allegedly caused due to the mala fide acts on the part of respondent No. 1 .
3. At this stage, it is to be noted that there are two types of damages namely; 'special damages' and 'general damages'. The term 'general damages' refers to the special character, condition or circumstances which accrue from the immediate, direct and approximate result of the wrong complained of. Similarly, the term `special damages' is defined as the actual but not necessarily the result of injury complained of. It follows as a natural and approximate consequence in a particular case, by reason of special circumstances or condition. It is settled that in an action for personal injuries, the general damages are governed by the rule of thumb whereas the special damages are required to be specifically pleaded and proved. In the case of British Transport Commission v. Gourley [(1956) AC 185] it has been held that special damages have to be specially pleaded and proved. This consists of out-of pocket expenses and loss of earnings incurred down to the date of trial, and is generally capable of substantially exact calculation. The general damages are those which the law implies even if not specially pleaded. This includes compensation for pain and suffering and the like, and, if the injuries suffered are such as to lead to continuing or permanent disability, compensation for loss of earning power in the future. The basic principle so far as loss of earnings and out-of-pocket expenses are concerned is that the injured person should be placed in the same financial position, so far as can be done by an award of money, as he would have been had the accident not happened. The same principle has been referred to in the case of Qazi Dost Muhammad v. Malik Dost Muhammad (1997 CLC 546), in the following terms:--
"It is a settled principle of law that in respect of special damages it is the duty of an aggrieved person to prove each item of the loss, on the basis of evidence and as far as general damages are concerned, relating to mental torture, defamation etc. those are to be measured, following the 'Rule of Thumb', according to which, discretion rests with the Court to calculate such compensation keeping in view the attending circumstances of the case... As far as inconvenience is concerned, this item can be considered while assessing the general damages."
In the case of Islamic Republic of Pakistan v. Sh. Nawab Din 2003 CLC 991 the principles for ascertaining the quantum of general and special damages have been discussed in the following words:--
"13. ..Principle for ascertaining the quantum of general and special damages is laid down in the leading case of Hadly v. Baxendale (1854) 9 Exch. 341 which clearly provides the distinction between the two. The provisions of section 73 of the Contract Act, 1872 are not much different for purpose of practical application. Claim for damages was rejected as being too remote in the case of Banco de Portugal v. Waterlow and Sons Ltd. (1932) A.C. 452 and again in the case of Commell Lairds and Co. v. Managanese Bronze and Brass Co. (1993) 2 KB 141. General damages naturally arising according to the usual course of things from the breach of contract are recoverable in the ordinary circumstances. Special damages are awarded in cases, as may reasonably, be supposed to have been in contemplation of both parties at the time of contract. The law does not record consequential damages arising of delay in respect of money as one in the case of Graham v. Campbell. (1877) 7 Ch. D. 494 and Urquhart Lindsay and Co. v. Eastern Bank Ltd. (1992) 1 K.B. 318. Same view has been taken by honourable Supreme Court of Pakistan in the case of Syed Ahmad Saeed Kirmani v. Messrs Muslim Commercial Bank Ltd. 1993 SCMR 441."
While relying upon the above said judgment, this Court in the case of Azizullah Sheikh v. Standard Chartered Bank Ltd. (2009 SCMR 276) has held as under:-
"6. The petitioners did not produce any evidence to show that in fact they suffered any loss due to breach of contract. Solitary statement of petitioner No.1 is not sufficient to decree the colossal suit amount, as P.W.2 did not state anything about the damages. Besides the reasons advanced by the learned High Court (single Bench and Division Bench) for declining the total claim of the petitioners, we may add here that the petitioners through production of evidence comprehensively failed to prove that due to breach of contract they are in fact entitled to damages and to what extent, which are sine qua non for the grant of damages under section 73 of the Contract Act. Thus we are clear in our mind that the petitioners could not prove that they suffered any loss. They also failed to prove, through production of evidence on record, that they were entitled for decree of the total amount claimed in the suit."
In the case of Mrs. Alia Tareen v. Amanullah Khan (PLD 2005 SC 99), it has been held that in a suit for damages, the wrong done to the plaintiff must be proved to be the immediate, direct and proximate result of the act or acts attributed to the defendants.
4. It is an admitted fact that human life is invaluable. Any effort at assessing its loss in terms of money is an exercise nearing an impossibility. Although there can be no compensation of mental tension and agony in monetary terms, as money cannot renew a shattered human frame, but still the law has provided that on account of damages, monetary compensation can be awarded, and so the Court must do the best it can in the light of the facts of each case, on the basis of settled principles of law. In the case of C.K. Subramonia Iyar v. T. Kunhikuttan Nair (AIR 1970 SC 376), the Indian Supreme Court has observed as under:--
"There can be no exact uniform rule for measuring the value of the human life and the measure of damages cannot be arrived at by precise mathematical calculations but the amount recoverable depends on the particular facts and circumstances of each case. The life expectancy of the deceased or of the beneficiaries whichever is shorter is an important factor. Since the elements which go to make up the value of the life of the deceased to the designated beneficiaries are necessarily personal to each case, in the very nature of things, there can be no exact or uniform rule for measuring the value of human life. In assessing damages, the Court must exclude all considerations of matter which rest in speculation or fancy…
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