2006 PLP 24 (YLR)

MAULVI ANWARUL HAQ, J.

On 20-6-1989 the respondents filed a suit against the petitioner for recovery of Rs.11,

000. In the plaint, it was stated that the petitioner filed a false malicious civil suit against them on 13-5-1989. They were summoned. They put in appearance, appointed a counsel and filed a written statement and a written reply. On 10-6-1989 the petitioner withdrew the suit. According to the respondents, the plaint was wholly false and they were made to incur expenses in the matter. The petitioner was served but he did not put in appearance. He was proceeded against ex parte. Evidence was recorded. The learned trial Court proceeded to dismiss the suit vide judgment and decree dated 6-11-1989. The reason recorded was that since the suit was not contested on merits and was withdrawn, the damages cannot be granted. The respondent filed a first appeal. This time the petitioner did put in appearance and contested the appeal. The learned A.D.J., Layyah, allowed the appeal on 1-7-1991 and decreed the suit in the matter of Rs.8,000.

2. Learned counsel for the petitioner contends with reference to the case of Mohamed Amin v. Jogendra Kumar Bannerjee and others (AIR 1947 PC 108) that no damages can be awarded for a malicious civil action. He also questions the quantum of damages. Learned counsel for the respondents supports the impugned judgment and decree of the learned A.D.J.

3. I have gone through the copies of the records. Exh.P.1 is the copy of the plaint filed by the petitioner on 13-5-1989. He averred that he is in possession of the suit-land under a tender from TDA and the respondents have nothing to do with the same but they are illegally trying to dispossess. He sought a permanent injunction restraining them from interfering with his possession. Exh.P.2 is the copy of the written statement filed in Court on 9-6-1989 by the respondents through a learned counsel. It was stated that the suit is false. The petitioner is not in possession of the suit-land in any capacity whatsoever. The suit-land is partly owned by the Forest Department and partly by Allah Bakhsh and others being cultivated by Amir Muhammad, etc. Exh.P.3 is the copy of proceedings dated 10-6-1989. The statement of learned counsel for the petitioner was recorded who withdrew the suit. The suit was accordingly dismissed as withdrawn.

4. The learned A.D.J. has very correctly taken stock of the situation reflected in the said circumstances established on record. In view of the clear stance of the respondents that the suit is absolutely false, which was not pressed any further and was withdrawn. The evidence has been led of the expenses incurred by the respondents in the matter. The award of Rs.8,000 is just and proper.

5. Now so far as the said contention of the learned counsel for the petitioner is concerned, in the case of Muhammad Akram v. Mst. Farman Bi (PLD 1980 SC 28), their Lordships rejected a similar argument and incidentally based on the same judgment of the Privy Council, it was observed with reference sections 35, 35-A and 95, C.P.C. that unless a case is fully covered by section 95(2), C.P.C., even the award of costs under sections 35 and 35-A, C.P.C. instead of barring a suit for damages supports the right for such an action. It was further held that there being no bar under any law upon a suit of instant nature and further such a bar cannot even be enacted by Legislature, the Courts in Pakistan have no jurisdiction to import an implied bar from another jurisprudence (reference is to the rule of common law expressed in the said judgment of the Privy Council). The suit for damages on account of malicious civil action was accordingly held to be competent. The civil revision is without any force and is accordingly dismissed with costs throughout. H.B.T./A-563/L Revision dismissed.