P L D 1968 Karachi 673 (PLP)

FARUQUI, J.‑This is a first appeal by the defendant No. 3 Sadruddin Ansari, Advocate, against the judgment passed by Mr. Hamza Khan M. Qureshi, First Assistant Judge, Hyderabad, in Suit No. 98/60, whereby he decreed the plaintiff's claim against the third defendant for Rs. 3,432 as damages plus Rs. 1,300 as the value of the vehicles which were lost to the plaintiff. The suit against the other three defendants was dismissed.

2. The material facts may briefly be stated : The plaintiff Haji Dost Ali claimed to be the owner of a tonga and a Victoria carriage which he had stored along with some accessories in a godown No. F/50‑133915‑A in the city of Hyderabad. This godown was an evacuee property and it was first sealed? by the order of the Rehabilitation authority and then allot ted to one Safdar Ali, a Head Clerk in the office of the Deputy Custodian, Hyderabad, by the A. R. C., Hyderabad, by his order dated 20th July 1954, Exh.

76. On 22nd July 1954 possession of these premises was given to the allotted. Safdar Ali after breaking open the lock by Razi Husain, an Inspector of the Custodian Department. Inside the godown were found the two vehicle's and a few inconsequential accessories. These articles were then stored in an evacuee premises known as Shah Chemical Building which was in occupation of the defendant No. 3 Sadruddin Ansari, who vigyas at that time employed as a surveyor in the office of be Deputy Custodian. The Mashirnama of these proceedings is" Exh. 55 Six or seven days after this Haji 'Dost Ali made a claim to the movable properties and followed it up by‑an application; under section 18 of the Administration of Evacuee Property. Ordinance XV of 1949. This claim was investigated by the Assistant Custodian and rejected. Haji Dost Ali then filed an appeal which was allowed by the Additional Custodian by his order dated 18‑8‑58, by which he held that Dost Ali had purchased these articles from one Mst. Molibai in the year 1946 and directed the return of these things to him. It is the case of the plaintiff that in spite of the demand for the return of these articles and a notice under section 80 the defendants failed to return the said articles to him which led to the filing of the suit. In, this suit Rs. 1,700 have been claimed as a price of the two vehicles‑and its accessories and damages at the rate of Rs. 8 per day from 22‑9‑58 to 24‑10‑59 when the suit was filed amounting to Rs: 3,

432. It may here be stated that the learned Assistant Judge had also allowed damages per day at the same rate until satisfaction. There were four defendants in the suit, the first being the Government of Pakistan, the second being the Deputy Custodian. Evacuee Property, Hyderabad, the third being Sadruddin Ansari and the fourth being the Municipality of Hyderabad.

3. The defence of the defendant No. 2 the Deputy Custodian, was that the said articles were taken in possession by one of the inspectors as 'unclaimed property at the time of handing over the possession of the godown to Safdar Ali. These articles were restored in the house of defendant No. 3 for safe custody as he was an employee of the Department at that time. After the plaintiff succeeded in his appeal before the Additional Custodian the articles, could not be restored to him, because after the transfer of defendant No. 3 his house was occupied by a police officer who threw the articles in the street that he had protested to the said officer; that in the meantime' the Municipal autho rities removed the articles from the street and kept them in their custody. On application by the plaintiff the Deputy Custodian had referred him to the defendant No. 4 but the victoria, which was offered to him, was not accepted by him. The defence of the defendant No. 3 was substantially the same and he further denied the allegation in the plaint that he had converted the property to his use at any time. Both these defendants also claimed the protection of section 53 of Act XII of 1957, which is equivalent to section 43 of Ordinance XV of 1949. The case of the defendant No.1 was also substantially the same. It was also asserted that the plaintiff was pot in lawful possession of the godown and, therefore, when the possession of it was being sir delivered to the allottee Safdar Ali, the Inspector had no alternative but to remove the articles and keep them in the house in Amil Colony. It was added that all this was done by the defendant No. 3 m good faith and in pursuance of his official duty. It was also stated that after the transfer of the defendant No. 3 from Hyderabad to Quetta the articles were thrown out by the police officer who had occupied the said premises and these were then taken away by the Municipality, the defendant No.

4. The case of the defendant No. 4 was that its officers had removed only an old victoria carriage which was lying on a road in the Amil Colony and this was stored in its Bullock Shed. It was claimed that the Municipality had the right to do so as this amounted to obstruction. It was denied that the tongs and the accessories had been removed by the said officers. It was added that the Municipality was always prepared to restore the victoria carriage to the plaintiff but the latter had declined to take it saying that this was not his.

4. On the pleadings several issues were framed but the material ones, upon which arguments were addressed before us at the Bar, are these:

(1) Whether the suit is barred under section 53 of the Admi nistration of Evacuee Property Act? (2) Are the defendants protected under law for the acts: dons and performed by them? (3) Did the defendant. No. 3 use the articles la suit for his personal use? (4) Have any of the defendants acted maliciously and is any‑one of them liable personally ? (5) Is the plaintiff entitled to any damages?". As against all these issues the learned Assistant fudge first recorded a consolidated finding which may be reproduced: "The defendant No. 3 acted maliciously and for his personal benefit and is, therefore; personally liable for the price of the articles and damages"

5. As against the first defendant, namely, the Government of Pakistan and the second defendant, namely, the Deputy Custodian; the learned Assistant Judge held that the suit against them was barred by section

53. However, as regard the defendant No. 3 he found that he had misappropriated the property after it was entrusted to him. It was observed that misappropriation of someone else's property cannot be termed as an act in the discharge of his official duty and that no duty was cast on the defendant to convert the plaintiff's property to his own use when it was admittedly entrusted to him for safe custody. Upon these findings a decree, as stated above, was passed against, the defendant No. 3 only. No specific finding was recorded in respect of the defendant No, 4 but the trial Judge evidently having taken the view that the Municipality was not liable also. dismissed the suit against it, The defendant No. 3 has come up in first appeal. No cross appeals have been filed against the other defendants by the plaintiff.

6. If the findings of the learned trial Judge as set out above with regard to the misappropriation and conversion of the property to his own use by the defendant No. 3 can be found to have been established, there can be no doubt that the decree against him at least to the extent of the value of the property must be upheld. But‑ having closely examined the documentary evidence and such oral evidence as there is on the record, we are unable to accept the findings of the trial judge. Let us first refer to the unimpeachable documentary evidence of which there is a great deal on record and we are constrained to observe that if the learned trial Judge had done so he would not have reached the conclusion which he has. Sadruddin Ansari, defendant No. 3, was admittedly at the material time a surveyor employed in the office of the Deputy Custodian at Hyderabad. Exh. 55, which is same as Exh. 75, clearly shows that the godown was opened not by Ansari but by a Rent Inspector of the Custodian Dep4Ftment, namely, Razi Husain, not that it would be made much difference if Ansari himself under the orders of his superiors done the same thing. The godown was allotted to Safdar Ali, another employee of the Custodian Department, by an allotment order issued by the Assistant Rehabilitation Commissioner. Safdar Ali was ordered to be put in possession of these premises. The plaintiff was not present or available at the time when this godown was broken open. According to himself he came to know of it 6 or 7 days after the incident. Inside the godown were 'found the two carriages and a few accessories. These were stored by the Rent inspector in an evacuee premises i.e., the Shah Chemical Building which was in occupation of Ansari. In the note made by Razi Husain it is stated that these goods were kept under the safe custody of Ansari. This position may be accepted though the endorsement made by Ansari himself reads as follows:‑‑

"Deposited in Shah Chemical Building. (Sd.) Sadruddin Ansari." This took place on 22nd July 1954 and the Mashirnama also bears the endorsement of Safdar Ali that he had been in possession of the' godown. What happened thereafter is also a matter of record. On 14th May 1956 Ansari was peremptorily transferred to Quetta and was directed "to proceed to Quetta immediately and report for duty to the Assistant Custodian." It is in evidence and it has not been disputed that Ansari in consequence of this order did proceed to Quetta. The premises where the goods were stored had been allotted to a police officer who took possession of it. Ali Akbar, D. S. P.. Border Police, wrote on 24-5‑56 to the Deputy custodian (Exh: 6) telling him that the two vehicles supposed 'to be under his (Deputy Custodian's) charge and which were lying in the premises known as Shah Chemical Stores had been ' removed by him and kept outside along the wall of the same house and the Deputy Custodian was asked to take its possession. The Deputy Custodian replied promptly the same day (Exh. 67). He said with reference to the letter of the police officer that the vehicles in question were evacuee property and which had been stored in the said evacuee premises and these should not have been thrown out by him. He further stated categorically that he regretted‑ that be had no place to keep the said vehicles in safety and till this was possible the police officer could not be absolved of his responsibility: A copy of this letter was sent by the Deputy Custodian to the Deputy Commissioner and D. R. C., Hyderabad for ‑information and he was requested that some godown may be allotted immediately to keep the said movable property. This letter of the Deputy Custodian was replied to after a reminder by the said D. S. P. on 1‑5‑56 (Exh. 69). He said that the vehicles were still being looked after by him though they had been kept outside in front of the house. He then, made certain suggestions with regard to the removal of the articles to some school, but it appears that for want of space these vehicles continued to lie on the road outside the house occupied by the D. S. P. 4lnsari returned to Hyderabad fn November 1956 having resigned from his service and in course of time he enrolled himself as an advocate. On or about the 21st January 1957 Ausari wrote to the Deputy Cus todian (Exh. 77) informing him that the two vehicles which had been‑ put outside the house by the police officer on the footpath in front of the house had been removed by the Municipal autho rities 'yesterday'. He added that the tonga was still lying on the backside of the house while the victoria was not traceable. He, therefore, requested the Deputy Custodian to take necessary steps in the matter. The Deputy Custodian made an endorsement on 21‑1‑57 directing the head clerk to ask the Chief Officer to restore the evacuee property. This letter was duly received by the Chief Officer and he replied on 29‑1‑57 (Exh. 70) stating that the victoria and the tonga were lying on the footpath and since they were causing obstruction and inconvenience to the public, the tonga had been removed to the adjacent street and the victoria had been removed to the bullock shed of the municipality on 21‑1‑

57. It may be noted that while all this was going on the appeal of Dost Ali before the Additional Custodian was still pending and this was allowed only on 18‑8‑

58. It was then that Dost Ali made a claim on the Deputy Custodian and he was directed to‑ get his property from the Municipality. He was taken to the Municipality by the Rent Inspector, but when a victoria was shown to him, evidently it was in such a bad state, that he refused to recognise it as his vehicle and declined to take it. The report of the Inspector, Exh. 71, shows that with regard to the few accessories, which were still lying in the house which had been occupied at one time by Ansari, he had asked Dost Ali to go with him and take it, but the latter had told him that be would fix sometime for doing so but he did not turn up.

7. From what has been said it is trot possible to see how a finding with regard to the conversion of the property to his own use by Ansari or its misappropriation can be said to have been established. On the contrary it is abundantly clear that Ansari had accepted the storing of the goods in the premises which were occupied by him because these premises were evacuee‑property and the' storing was being done under the order of the Deputy Custodian. This house was then allotted to a police officer and thereafter Ansari was transferred to. Quetta. From the dates given above it will be clear that these goods were still lying in the evacuee premises and it was only in May 1956 that they had been put out by the police officer on the road. Ansari was no longer in Hyderabad having been transferred to Quetta. But it is not that the Deputy Custodian was not aware of the presence of these things in the said premises. He was informed by the police officer that he had put out those things on the footpath. The Deputy Custodian was unable to find any storing place in spite of his request for allotment of a godown which he had made to the Deputy Commissioner. The said articles were no longer in the Custody of Ansari and even when he returned to Hyderabad after his resignation and noticed in January 1957 that the vehicles which were lying on the road had been removed, he promptly informed the Deputy Custodian about it. There is not one word even in the evidence of Dost Ali that Ansari bad converted the vehicles to his own use. For one thing, he could riot have done so unless he had bought two horses to ply the vehicles. It may be added that .the keeping of the articles which had been treated as evacuee property in the premises occupied by Ansari, which premises were evacuee property, was an act in pursuance of his official duty under the law and in this respect he would be fully protected under section .53 of Act XII of 1957 which is equivalent to section 43 of Ordinance XV of 1949. Section 53 may, be reproduced:‑

"

53. Protection of petition taken fn good faith.‑No suit; prosecution or other, legal proceedings shall lie against the Central or Provincial Government; or against the Custodian or Rehabilitation Authority, or any person authorised by either of them, in respect of anything done or in good faith intended to be done in pursuance of this Act or of any rule or orders made thereunder, or for any damage caused or. likely to be caused by any such thing as aforesaid." . From what we have said we are clearly of the opinion that there was no negligence on the part of Ansari but, even if there had been any negligence the protection under the said section would still be absolute. All that is required is that the Custodian tar Rehabilitation Authority or any of his officers should do the thing in good faith which may be intended to be done in pursuance of the Act. The term 'good faith' as used in this Act, which is a Central Act, must be understood in. the sense as defined by the General Clauses Act, 1897. Subsection (22) of section 3 of the said Act reads:‑. "'3(2.2).‑A thing shall be deemed to be done in good faith where it is in fact done honestly, whether it is done negligently tar not." It is well‑established that if from .the proved facts it can be inferred that the public official acted honestly even though he might have acted negligently it must be held that he acted in in good faith within the meaning of the word as used in any Central Statutes. This definition of good faith may not be applicable to other statutes. Indeed, in the Penal Code ‑it has been defined by section 52 thus‑

"Nothing is said to be done or believed in good faith which is done or believed without due care and attention." But this definition does not apply to the term as used in section 53 of Act XII of 1957. It has always been recognised that the definition of 'good faith' in the General Clauses Act is more liberal than in the Indian Penal Code or for that matter in the Limitation Act. It has also been held that this definition does not expressly apply in terms when used in the Contract Act or the Transfer of Property Act, because these Acts were passed before 1897 when the General Clauses Act came to be enacted. Be that as it may there can be no doubt that for the purposes of the interpretation of the terms 'good faith' as used in section 53, the definition of the General Clauses Act must apply. There is nothing to show that the defendant No. 3 had acted dishonestly or from any malicious motive. He would,, therefore, be completely protected by section

53. On this finding this appeal must be allowed and the decree of the Assistant Judge must be set aside. We may add that even if negligence had been established and it could properly be the basis of an action the defendant No. 3 would not be liable: In the first place, there was no negligence in fact. In the second place, so long as Ansari was in occupation of the house the movable property in question continued to remain evacuee property. It had been so found by the Assistant Custodian. Ansari, therefore, owed no duty to the plaintiff to take care. The duty that he owed was to the Deputy Custodian. On his transfer that duty came to an end. Even after this the property was still there and the Deputy Custodian was apprised of it. On both the grounds therefore the appeal of Ansari mutt succeed.

8. There is no appeal against the dismissal of the suit against the defendants Nos.1, 2 and,

4. But we would like to observe that as far as the defendant No. 2 is concerned, on the basis of what we have said and in view of the interpretation of the term 'good faith' he would be protected by the said section

53. With regard to the first defendant, viz. the Government of Pakistan, it may be observed that the vicarious liability of the Government in regard to its servants could only lie if the Government had derived any benefit from the wrongful act of its servants or had ratified any wrongful 8 act. Indeed, having held that the defendants Nos. 2 and 3 were protected by section 53 it would be idle to contemplate any liability of the employer, namely, the first defendant. With regard to the fourth defendant, it may be said that there was no duty cast on them to keep the goods. Under the Municipal Boroughs Act they were entitled to remove an obstruction from the road or the footpath. They admit to have removed the victoria. We are not satisfied that they had misappropriated it. The more reasonable view would be that the victoria, which was offered to the plaintiff, was the same which they had removed from the road and in all probability the plaintiff declined to own it or take its delivery because he found it in a dilapidated condition due to lapse of so such time. As for the tongs, the documentary evidence is that the Municipality had put it aside on an adjacent by lane. They might have taken it to their shed but the question remains whether they can be held liable for damages for negligence. That liability would only arise if they had a duty to preserve and keep the articles. It is well‑settled that actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff had suffered injury to his person or property: The Municipality did not owe any such duty to the plaintiff.

9. In view of our conclusion we allow the appeal and set aside the decree passed by the Court below. Costa throughout shall be borne as incurred. A. E. Appeal allowed.