2013 PLP 507 (SCMR)

TASSADUQ HUSSAIN JILLANI, ACJ.

Facts giving rise to the instant petition briefly stated are that petitioner had a business by the name of Awan Packaging, Manufacturing Packing Material and Corrugated Solid Board Cartons in Karachi. On account of financial losses, he closed down his business. Since he was registered with the Sales Tax Department, he applied for de-registration vide letter No.3695 and thereby asked for grant of exemption certificate. For requisite verification the Sale Tax Department visited his premises and found some material loaded on his Suzuki pickup and he was about to leave. The departmental official stopped him and demanded the relevant documents in respect of the material loaded on Suzuki pickup. It was alleged by the petitioner that those officials maltreated him, demanded illegal gratification, took him to department's headquarter, kept him the whole night and released him the next morning on 30-8-1995. The Suzuki pickup and other items loaded on the said vehicle were confiscated by the department. Legal proceedings were initiated against him. He challenged the action taken before the Appellate Tribunal which allowed the appeal on 17-6-1996 and directed the department to release the material forthwith but the same was released after a considerable time in a rather deteriorated condition. Aggrieved of the above, petitioner filed a civil suit for recovery of Rs.81.82 Million as damages against the department on account of mental agony and torture allegedly suffered by him. The learned Single Judge of the High Court of Sindh, Karachi decreed the suit and awarded a cost of Rs.100,000 to be paid within thirty days. This was challenged in appeal by the petitioner before a Division Bench which partly allowed the appeal and increased the damages awarded to Rs.10,00,000 with markup at bank rate from the day of default till it is realized.

2. Petitioner has argued the case in person. He submitted that the learned Division Bench has not awarded damages commensurate with the humiliation, mental torture and agony suffered by him; that there are documents to prove the extent of damages suffered by petitioner on that account which he could not produce before the trial Court and has placed on record photocopies of those documents.

3. Having heard petitioner at some length and having gone through the impugned judgment, we note that it has concurrently been held that prior to the incident wherein petitioner was arrested and the pickup on which certain items had been loaded was taken into possession, petitioner had to close down his business on account of financial losses and he had applied for de-registration from the Sale Tax Department and thereby claimed exemption from payment of tax. On petitioner's own showing it was closure on account of losses. In the body of the petition, he has contended that it was on account of the law and order situation that he had to close down his business. Whether it was on account of the financia1 losses being suffered that he had to close down business or on account of law and order situation, the fact remains that the said closure of business was not connected with the incident which led to petitioner's arrest and humiliation leading to filing of the suit and claim for damages. So far as the conduct of respondent-officials with reference to the incident in question is concerned, the same was found to be untenable and there are concurrent findings that those functionaries had taken the law in their hands with motives other than bona fides. However, awarding of damages is discretionary and the said discretion has to be exercised in the light of the evidence led qua the extent of damages suffered by a party. Petitioner claimed damages to the tune of Rs.81.82 Million but it has concurrently been found that petitioner failed to substantiate the claim to the said extent by cogent evidence. In these circumstances, a duty is cast on the court. In Sufi Muhammad Ishaque v. The Metropolitan Corporation, Lahore through Mayor (PLD 1996 SC 737), it was held as under:-- "Once it is determined that a person who suffers mental shock and injury is entitled to compensation on the principles stated above, the difficult question arises what should be the amount of damages for such loss caused by wrongful act of a party. There can be no yardstick or definite principle for assessing damages in such cases. The damages are meant to compensate a party who suffers an injury. It may be bodily injury loss of reputation, business and also mental shock and suffering. So far nervous shock is concerned, it depends upon the evidence produced to prove the nature, extent and magnitude of such suffering, but even on that basis usually it becomes difficult to assess a fair compensation and in those circumstances it is the discretion of the Judge who may, on facts of the case and considering how far the society would deem it to be a fair sum, determines the amount to be awarded to a person who has suffered such a damage. The conscience of the Court should be satisfied that the damages awarded would, if not completely, satisfactorily compensate the aggrieved party."

4. It is by now a well established principle that the person claiming special damages has to prove each item of loss with reference to the evidence brought on record and for general damages as claimed by the petitioner relating to mental torture, agony, defamation and financial loss, those are to be assessed following the Rule of Thumb and the said exercise falls in the discretionary jurisdiction of the court which has to decide it in the facts and circumstances of each case. The courts below having appreciated the evidence led have already determined the damages to which petitioner could be entitled. In order to show that the amount of damages determined by the learned Division Bench vide the impugned judgment is not commensurate with the extent of shock and injury suffered by the petitioner, he has placed on record photocopies of certain documents which were never tendered in evidence during trial or appeal. These documents at this belated stage are of no avail to him. At no stage, the petitioner filed application for additional evidence either. The concurrent findings of fact, in the afore-referred circumstances, have not been found by us to be against the record and the law declared. The petition lacking in merit is accordingly dismissed and leave refused. MWA/G-2/SC Petition dismissed.