1990 PLP 1261 (MLD)

(2) Whether the duty of the plaintiffs Advocate in Suit No. 1002 of 1978 ended when the same was decreed and his authority to act, receive documents and to sign receipt for the same ceased after the decree? (3) What is the effect of the plaintiff's Advocate in suit No. 1002 of 1978 having received the original documents from the defendant. (4) Whether the plaintiff did not receive the original documents from his Advocate in Suit No. 1002 of 1978, if so what is the effect? (5) What loss, if any, has the plaintiff suffered by reason of his not having received the original documents? (6) What is the effect of the order, dated 4-12-1983 passed by this Honourable Court in Suit No. 1002 of 1978? (7) Is the suit barred by limitation? (8) Reliefs?

9. I have heard the plaintiff who has appeared in person and argued the case himself and Mr. Makhdoom Ali Khan, learned counsel for the defendants. It is pertinent to point out here that I wanted to grant adjournment to the plaintiff as his Advocate Mr. M. M. Pirzada was not present in the Court but the plaintiff requested me to proceed with the matter and pass judgment in the case after hearing him and Mr. Makhdoom Ali Khan.

10. Mr. Makhdoom Ali Khan has raised the following contentions before me: (1) That Mr. Waheed Farooqui once having been appointed as an Advocate to represent the plaintiff in Suit No. 1002/78, was authorised to act on behalf of the plaintiff and his authority still continued by virtue of Order 3, Rule 4 clauses (2) & (3) of the C.P. Code; (2) That the suit which is based on the alleged negligence of the defendant to strictly act in pursuance of the directions of this Court is barred by limitation according to Article 36 of the Limitation Act; (3) That the damages allegedly suffered by the plaintiff were of such kind as were not foreseeable by a reasonable man and consequently, no damages can be awarded to the plaintiff; and (4) That the plaintiff has failed to prove the actual damages suffered by him and consequently, he is not entitled to a decree as claimed in the plaint.

11. In order to appreciate the first contention raised by Mr. Makhdoom Ali Khan it is necessary to reproduce Rule 4 of Order 3 C.P.C. which provides as follows: "

4. Appointment of pleader.--(1) No pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognized agent or by some other person duly authorised by or under a power-of -attorney to make such appointment. (2) Every such appointment shall be filed in Court and shall be deemed to be in force until determined with the leave of the Court by a writing signed by the client or the pleader, as the case may be, and filed in Court or until the client or the pleader dies, or until all proceedings in the suit are ended so far as regards the client. (3) For the purposes of sub-rule (2) an application for review of judgment, an application under section 144 or section 152 of this Code, any appeal from any decree or order in the suit and any application or act, for the purpose of obtaining copies of documents or return of documents produced or filed in the suit of or obtaining refund of monies paid into the Court in connection with the suit shall be deemed to be proceedings in the suit.

12. A perusal of the different clauses of Rule 4 shows that no pleader can act for any person in any Court unless he has been appointed for such purpose by such person by a document in writing signed by him or by his recognised agent etc. The document referred to in clause (1) ibid is commonly known in this country as "Vakalatnama". Clause (2) of Rule 4 shows that every such appointment shall be deemed to be in force until determined with the leave of the Court or by death of the client or the pleader or until all proceedings in the suit have ended so far as regards the client. Clause (3) it appears, has been inserted in Rule 4 by way of explanation and according to it, any application or act for the purpose of obtaining copies of documents or return of documents produced or filed in the suit, etc., shall be deemed to be proceedings in the suit. The contention of Mr. Makhdoom Ali Khan, which is based on the provisions' contained in clause (3) is that, even for obtaining copies of documents or return of documents produced or filed in the suit the appointment of the Advocate shall be deemed to continue and consequently, according to him, even if the original title deeds of the plaintiff's property were handed over by Mr. Pishori to Mr. Waheed Farooqi there was no negligence on the part of the former as the appointment of Mr. Waheed Farooqi as an Advocate to represent the plaintiff in the suit continued to be in force.

13. In my opinion, the question cannot be determined by reference to Rule 4 of Order

3. The authority of the pleader or the Advocate, according to clause (3) of rule 4, no doubt, may still continue to be in force for the purpose of certain proceedings before the Court even after the conclusion of the suit, but reference R by the counsel to Rule 4 appears to be completely misconceived. Rule 4 as is evident therefrom, only refers to proceedings before Court which admittedly had ended after disposal of suit No. 1002/78. The question requiring determination is as to the authority of the plaintiffs Advocate to receive title deeds of his property from the defendant, on the former's behalf after the proceedings in the suit have concluded. It may be pointed out in this respect that the contract between an advocate and his client is governed by the general rules of contract under the Contract Act. The question whether the authority of Mr. Waheed Farooqi to receive documents on behalf of the plaintiff still continued is a question of fact and can be determined only on the basis of evidence, but not in accordance with Order 3, Rule 4, C.P. Code. In this respect, the only evidence is that of the plaintiff who has throughout in his statement maintained that after conclusion of the suit the authority of Mr. Waheed Farooqi had ended. There being no other evidence in rebuttal, the issue is decided in favour of the plaintiff.

14. The second contention of Mr. Makhdoom Ali Khan is that the present case is governed by Article 36 of the Limitation Act which provides for a period of two years to file a suit for compensation for any malfeasance, misfeasance or non-feasance independent of contract and not specially provided for in the Limitation Act. The period of limitation, according to article 36, would start running from the time when the malfeasance, misfeasance or non-feasance takes place. Consequently, according to Mr. Makhdoom Ali Khan, the present suit which was filed on 10-6-1984 is time-barred as according to the evidence (Ex. 7/1) which has not been disputed, the documents of title of the plaintiffs property were delivered to Mr. Waheed Farooqi on 9-10-1980, which, according to Mr. Makhdoom Ali Khan, should be the starting point for computing the period of limitation. Reference has also been made by the learned counsel to Ex. 5/12 which is a letter admittedly sent by the plaintiff to the Manager of the defendant on 25-11-1980 which clearly indicates that at least on such date it was within the knowledge of the plaintiff that his documents of title had been wrongly delivered by the defendant's Advocate to Mr. Waheed Farooqi.

15. It may be pointed out that Article 36 refers to actions founded on torts or such wrongs as are distinguishable from breaches of contract. Torts are often considered to be of three kinds viz., non-feasance, that to say, omission of some act which man is by law bound to do; misfeasance, being the improper performance of some lawful act; malfeasance being commission of some act which is in itself unlawful.

16. The contention raised by Mr. Makhdoom Ali Khan has been resisted by the plaintiff as, according to him, Article 36 of the Limitation Act is not applicable in the present case as the action of the plaintiff is simply based on the failure on the part of the defendant to deliver the said documents of the plaintiff in pursuance of the orders of the Court. In other words, according to the plaintiff, the period of limitation in the present case would be covered by Article 120, which is the residuary Article and not by Article

36. In my opinion, it would be futile to enter into this controversy as section 24 of the Limitation Act provides: "

24. In the case of a suit for compensation for an act which does not give rise to a cause of action unless some specific injury actually results therefrom, the period of limitation shall be computed from the time when the injury results:"

17. It may be pointed out that where an act is actionable per se limitation will run from the time of the commission of the act itself and not from the time of the injury which may result therefrom subsequently, but where the resulting injury alone gives the cause of action and not the act from which such injury results, time runs from the date of the actual injury. In the present case the alleged injury has resulted from failure on the part of the defendant either to deposit the documents in Court or to deliver them personally to the plaintiff as per the Court's order dated 28-10-1980, but the act by itself was an innocent act and had the documents been delivered to the plaintiff by Mr. Waheed Farooqi after receiving the same from the defendant's Advocate, the present cause of action would not have accrued. The present cause of action accrued to the plaintiff, in fact, on account of the failure of Mr. Waheed Farooqi to deliver the documents, although the responsibility initially rested with the defendant to act in pursuance of the said order of the Court. Consequently, in my opinion, Article 36 is to be read subject to the provisions of section 24 of the Limitation Act and the period of limitation would be computed not from the date of the wrongful act but from the time when the injury actually resulted therefrom. The circumstances of the present case show that the alleged injury resulted when on 11th December, 1983 the plaintiffs' bankers allegedly declined to accede to his request for grant of loan for want of the original documents of title. Admittedly, if the period of limitation is to be reckoned from such date, the suit is within time. Consequently, in my opinion, the suit filed by the plaintiff was within time and the second contention of Mr. Makhdoom Ali Khan is also devoid of force.

18. The next contention of Mr. Makhdoom Ali Khan is that in order to sustain a cause for damages on account of the negligence of the defendant, the plaintiff must prove that (i) the defendant was negligent (ii) that some damage has resulted from the negligence and (iii) that the damage was of such a kind which was foreseeable by a reasonable man. Referring to the circumstances of the present case, the learned counsel has argued that the defendant was not negligent inasmuch as he handed over the documents of title to its own counsel which were delivered by him to plaintiff's counsel. However the documents got lost between the plaintiff and his counsel. The counsel has further argued that even if the plaintiff did not strictly act in pursuance of the order passed by this Court dated 28th October, 1980, but since the documents were delivered by Mr. Pishori to Mr. Waheed Farooqi who had earlier acted as Advocate for the plaintiff, it could not be foreseen by Mr. Pishori that Mr. Waheed Farooqi would fail to deliver the documents to the plaintiff. The argument was supported by the learned counsel with the following passage from Clerk & Lindsell on Torts (Fourteenth Edition), page 873, which says: "Foreseeability of some harm is necessary to determine the careless quality of the defendant's behaviour. The yardstick used is the conduct of a reasonable man, who would have regulated his actions so as to avoid causing any harm. But foreseeability of a particular kind of harm to a particular person affects, not the careless quality of the defendant's conduct, but actionability by that other person:" Reliance was also placed by Mr. Makhdoom Ali Khan on three English cases reported as Bolton v. Stone (1951) 1 A E R 1078, Overseas Tankship (U.K) Ltd. v. The Miller Steamship Co. Pty. Ltd., (1966) 2 A E R 709 and Overseas Tankship (U.K) Ltd. v. Morts Dock & Engineering Co., Ltd. A E R

404. In the first case, during a cricket match a batsman hit a ball which struck and injured the respondent who was standing on a highway adjoining the ground. The respondent claimed damages for negligence from the appellant as occupier of the ground. It was held: "For an act to be negligent there must be, not only a reasonable possibility of its happening, but also of injury being caused thereby; on the facts, the risk of injury to a person on the highway resulting from the hitting of a ball out of the ground was so small that the probability of such an injury would not be anticipated by a reasonable man; and, therefore, the appellants were not liable to the respondents:" In the second case cited by Mr. Makhdoom Ali Khan, two of the respondents' vessels were undergoing repairs at Sheerlegs Wharf, Morts Bay in Sydney Harbour. On the same day the vessel Wagon Mound on charter by demise to the appellant, yeas taking in bunkering oil from Caltex Wharf when, due to the carelessness of the appellant's engineer a large quantity of furnace oil overflowed on the surface of the water and drifted to Sheerlegs Wharf, where it subsequently caught fire causing extensive damage to the respondents' vessels. In an action by the respondents for damages based on nuisance and on negligence, the trial judge found that the officers of the Wagon Mound would regard furnace oil as being very difficult to ignite on water, but their experience would have been that this had very rarely happened, and that they would have regarded it as a "possibility but one which would become an actuality only in very exceptional circumstances:" He thus found that the damage to the respondents' vessel was not reasonably foreseeable by those for whose acts the appellant was responsible, and he gave judgment, in regard to the issue of negligence, against the respondents. In the third case also in somewhat similar circumstances it was held that: "The test of liability for the damage done by fire was the foreseeability of the injury by fire and, as a reasonable man would not on the facts of this case, have foreseen such injury, the appellants were hot liable in negligence for the damage, although their servant's carelessness was the direct cause of the damage."

19. As far as the cases referred to by Mr. Makhdoom Ali Khan are concerned, in my view, all of them are distinguishable. In the present case no evidence has been produced by the defendant to rebut the plaintiff's contention that the documents of title of his property were not delivered to him either by the defendants or by Mr. Waheed Farooqi to whom the documents were allegedly handed over by Mr. Pishori. Mr. Pishori as an advocate, did not act with due care and caution as a man of ordinary prudence would, under similar circumstances in case of his own thing or goods by handing over the plaintiff's documents to Mr. Waheed Farooqi when the proceedings had already ended. No doubt, even Mr. Waheed Farooqi should not have accepted the documents from Mr. Pishori, if his authority as an agent of the plaintiff had also ceased, but that does not absolve the defendants of their responsibility. The defendants were liable to take care of the plaintiff's documents in the same manner as a bailee. The responsibility of the defendants was akin to that of a pledgee. 1n A I R 1952 Nag. 8 it was held that a pledge is liable to the same incidents of bailment such as the duty to take requisite care and return the goods pledged when the debt is paid off. A similar duty was cast upon the defendants to return the plaintiffs documents of title to him after the conclusion of the case. As the authority of an advocate to act on behalf of his client generally ceases after the conclusion of the case, it cannot be said that the consequences were not foreseeable. The contention of Mr. Makhdoom Ali Khan, therefore, cannot be accepted.

20. The next question which now requires to be determined is whether under the circumstances of the case, any damages can be awarded to the plaintiff or in other words, what loss the plaintiff has suffered? Reference would be necessary to the evidence adduced by the plaintiff in this respect. The plaintiff has stated that: "Thereafter, I tried to utilise such copies for obtaining loan to complete the house on the plot in question but my bankers, National Bank of Pakistan, refused such request per letter dated 11-12-1983 (Ex. 5/7). I then attempted to give the house on rent and produce one letter in such context dated 25-8-1985 (Ex. 5/8). One such advertisement for obtaining a similar house on rent in the same locality is produced as Ex. 5/9. Both the last mentioned documents indicate the approximate rent to be Rs. 15,000 per month. I produce an offer of Sun Enterprises dated 15-2-1989, which also I cannot honour because I did not have any money to put the house in shape and the money I could not get unless I had the title documents with me. Offer of Sun Enterprises is Ex. 5/10. I also produce the certificate of Adviser Enterprise, an Estate Agent, dated 14-2-1989, which assures a rental of Rs. 15,000 per month but puts costs of renovation and repairs at Rs. 1,50,000 (Ex. 5/11), as the costs in the meantime have escalated. It is in this context and on these premises that I have filed the above suit for the reliefs sought which I pray be decreed:" 21. it is pertinent to point out that although the plaintiff has claimed damages at the rate of Rs. 3,000 per mouth for the mental torture undergone by him but no evidence has been produced by the plaintiff in this respect. The onus which was on the plaintiff to establish the alleged mental torture suffered by him, therefore, has not been discharged by him. Consequently, no damages can be awarded to the plaintiff on this ground. Damages have also been claimed by the plaintiff on account of loss allegedly suffered by him at the rate of Rs. 15,000 per month as is evident from the plaintiffs statement just reproduced. No doubt, the plaintiff has claimed that he was offered Rs. 15,000 per month as rent for his house but the house could not be let out by him for want of repairs and renovation which it required and the National Bank of Pakistan to which a request has been made by the plaintiff for grant of a loan also declined to grant loan for want of original documents of title. In this respect the plaintiff has relied upon the letter of the Bank dated 11th December, 1983 (EX-5/7) informing him that the original documents of title were necessary for the purpose of grant of loan by it. He has also relied upon a letter, dated 25-8-1985 written by Arshad Homes (Exh. 5/8) showing that the house had been inspected by its representative and the same after renovation could fetch rent at the rate of Rs. 15,000 per month. Another letter written by Syed Mahboob Hussain partner of Sun Enterprises dated 15th February, 1989 was produced as Exh. 5/10 which is also more or less to the same effect. The plaintiff has also produced a certificate from Adviser Enterprise (Exh. 5/11) showing that an amount of Rs. 1,50,000 would be required for renovation and repairs to the house, and thereafter it should bring Rs. 15,000 per month as rent. However, only one witness Syed Mahboob Hussain, partner of Sun Enterprises was examined by the plaintiff in this behalf. The evidence of this witness is of no avail to the plaintiff as the witness has only confirmed what was stated by him in Exh. 5/10. But Exh. 5/10 was written by the witness to the plaintiff on 15-2-1989 as is plainly evident therefrom. Even if it is accepted that the plaintiffs bungalow could be let out on rent of Rs. 15,000 per month in February, 1989 that does not mean that it could fetch the same rent in 1984 when the plaintiff's suit was filed. It is, however, pertinent to point out that the plaintiff has calculated damages from 28-10-1980. It is also pertinent to point out that the letters received by the plaintiff from Arshad Homes and Adviser Enterprise, Exhs. 5/8 and 5/11 respectively, showing that plaintiffs bungalow would fetch Rs. 15,000 per month after renovation, were also written to him in August 1985 and February, 1989 respectively. However such letters cannot be considered as evidence in the case as no witness has been examined by the plaintiff in support thereof. The plaintiff has even failed to examine the Manager of National Bank of Pakistan who allegedly wrote the letter (Exh. 5/7) to him.

22. This evidence, in my opinion, therefore, fails to establish if any loss was suffered by the plaintiff, or if at all there was any, what was the actual loss suffered by him. The plaintiffs contention that he was unable to obtain loan from the bank for want of the original title documents of his property has also not been sufficiently established, as pointed out above. The plaintiff had also to establish that from 28-10-1980 there was a tenant willing to pay him rent at the rate of Rs. 15,000 for the house after renovation of the same, but there is no such evidence on the record. On his own showing, the plaintiff received two offers of rent at the rate of Rs. 15,000 in 1985 and 1989, respectively, but this evidence can be of a little avail to him as pointed out earlier. No doubt, the plaintiff has placed reliance on an advertisement appearing in newspaper "Dawn" dated 11-10-1980 which shows that bungalows comprising three or four bedrooms in K.D.A. Scheme No. 1 were wanted for foreigners and the rent offered for the same was in the vicinity of Rs. 15,000 per month, but that can hardly establish that the plaintiffs bungalow even after renovation could suit all the requirements of such foreigners and would have been rented out by them. Consequently, there is no evidence produced before the Court to show the actual loss suffered by the plaintiff. In absence of such proof damages cannot be awarded to the plaintiff. No other issue has been raised.

23. Consequently, issues Nos. 2, 3, 4, 5 and 7 are answered as above. Issues No. 1 and 6 have not been pressed by the parties and hence no findings are required to be given thereon.

24. In the result, the suit is dismissed with costs. AA./N-262/K Suit dismissed.