P L D 1959 (W (PLP)

(c) That the suit has abated due to the death of defendant No. 2, Sahibzada Mirza Aitizazuddin Ahmed. (d) That the suit is barred by limitation. The suit is for the recovery of Rs. 10,000 as damages from the defendants and the estate of Mirza Aitzazuddin Ahmad who was defendant No. 2, and died after the institution of the suit. The plaintiff has alleged that he was posted as the Reception Officer at the Reception Office, Government of Pakistan, Karachi, in July 1947. The duties of the office were heavy and that in their discharge he incurred the displeasure of "some who could not be pleased, and whom nothing short of luxuries could gratify". He has further alleged that Mirza Aitizazuddin Ahmad, Inspector‑General, Pakistan Special Police Establishment, who was displeased (disaffected) with the plaintiff when he was the Superintendent of Police at Jullunder the home district of the plaintiff readily joined hands with those in influence and authority over him and wished to strike a blow at the plaintiff on the eve of the winding up of the Reception Organisation in the end of February 1948". As a result of this combination of opponents, investigations were made against the plaintiff on the basis of a First Information Report (No. 1 of 1948) and that the plaintiff `understood' that in those proceedings Mirza Aitizazuddin Ahmad was personally interested. The allegations of personal interest of Mirza Aitizazuddin Ahmad are not definite. The plaintiff has suggested in paragraph 3 of the plaint that his conclusion that Mirza Aitizazuddin Ahmad was personally interested in those proceedings is based on the plaintiff's own allegation that he "had nothing to do" with the office at Delhi and its working". During the investigations the house of the plaintiff was searched on 23rd February 1948, and "the fair name and reputation of the plaintiff were spoiled". The sub ordinates of Mirza Aitizazuddin Ahmad carried out "roaming enquiries" and "must have represented" to the Government that cases were pending against the plaintiff. As a result of their representations the plaintiff was not given any appointment for six months. A criminal case was registered against him in which Mr. Sher Hassan, Superintendent of Police, Pakistan Special Police Establishment, acted as the complainant. These acts are described by the plaintiff in paragraph 4 of the plaint as "want on and uncalled for" and "positively malicious and wholly illegal". He has attributed malice to all the defendants and described the acts done by Mirza Aitizazuddin Ahmad and Mr. Sher Hassan to be a result of their `vindictiveness'. On the allegations of loss suffered by him he brought this suit after giving a notice under section 80, C. P. C. to the Government of Pakistan and calling upon Mirza Aitizazuddin Ahmed and Mr. Sher Hassan to justify their actions. He impleaded the Government of Pakistan as defendant No. 1, Mirza Aitizazuddin Ahmad as defendant No. 2 and Mr. Sher Hassan as defendant No.

3. The reason for impleading them is given by him in paragraph 5 of the plaint as follows:

"The said Aitizazuddin Ahmad did not care to make a response due from him (to the notice given to him). Defendant No. 3 sent in a rigmarole sort of a letter in reply to the notice served on him. His reply is meagre and perfunctory. As such the obvious parties have been impleaded as co -defendants. The plaintiff holds them all liable, and leaves the question of apportionment of liability to be determined at the trial by this Honourable Court."

2. Written statements were submitted by the three defendants and after the death of defendant No. 2 his heirs were brought on record. They are defendants 2 (a) to 2 (d). On the pleadings of the original parties, 10 issues were framed but the pleas of fact raised by the defendants are not material at this stage because the defendants have applied for the rejection of the plaint on legal grounds only.

3. Learned counsel for the defendants did not press his objection to the validity of notice given under section 80, C. P. C. Counsel for the parties confined their arguments to We other objections which have been reproduced in the beginning of this Order. My decision on the questions discussed before me is as follows (a) The basis of the suit being malicious acts, the plaintiff's claim rests on allegations of torts committed by Government officers. Counsel for the parties relied on Muhammadi Steamship Company Ltd. v. Federation of Pakistan (P L 1) 1959 Kar. 232) in support of their conflicting stands. Counsel for the defendants argued on the basis of that judgment that the State was not liable for the tortious acts of its servants and counsel for the plaintiff contended that the acts alleged in the plaint fell in the third exception mentioned in that judgment and that therefore the State was liable to pay damages. The third exception is as follows:‑ "Where it is proved that such acts were expressly authorised by the State or that the State profited by them." He pointed out that in paragraph 5 of the written statement, the Government has pleaded as follows:‑ "The Government of Pakistan due to the serious nature of the complaints against the plaintiff and some other officials had to take notice of the same, and after verifying the allegations against them, directed defendant‑2 to investigate the charges against the plaintiff and the other officials. In pursuance of the directions of the Government of Pakistan, defendant‑2 in the discharge of his official duty and in good faith issued instructions to defendant‑3 and other police officers attached to the Special Police Establishment to make preliminary enquiry and submit the report." Counsel argued that these pleas established that the acts to which the plaintiff objected were authorised by the State and that as such the Government was liable to pay damages. This contention is not correct because authorisation of the acts done by the officers has been admitted by the Government to the extent only that owing to complaints received by the State the officers were directed to investigate the charges made in the complaints. The investigation was to take place in accordance with law. If the orders were carried out then; according to the plea of the Government, the initiative was taken not on account of ill‑will of Mirza Aitizazuddin Ahmad and Assistants but, on the contrary, they merely carried out the directions of the Government. No illegalities presumed to have been committed during the per formance of the duties have been pointed out in the plaint. If any illegality in carrying out the directions then obviously the State did not authorise its commission. The exception on which, counsel has relied refers to tortious acts authorised by the State, and not to legal duties directed to be performed. As the pleadings stand the plaintiff regards the commencement of the investigations themselves to be an act of malice and therefore the pleas of the State on which counsel has relied, far from supporting his contention, go to negative the very allegation of the existence of malice in the commencement of the investigation. I am not at present considering whether there was ill‑will between the plaintiff and Mirza Aitizazuddin Ahmad, because that is a question of fact, but wish to point out that the pleas quoted above on which counsel has relied do not bring the suit of the plaintiff within t; a exception pleaded on his behalf. The conclusion, therefore, is that the present suit for damages is not maintainable against the Government. (b) Mirza Aitizazuddin and Mr. Sher Hassan were members of the Special Police Establishment which is governed by the Pakistan Special Police Establishment Ordinance, 1948. Under subsection (2) of section 2 of the Ordinance, the members of the Establishment have throughout the Provinces of Pakistan "all the powers, duties, privileges and liabilities which the police officers of a Province have in connection with the investigation of offences". The privileges which the Police Officers of a Province enjoy are mentioned in subsection (1) of section 80 of the Bombay District Police Act, 1890. That subsection is as follows:‑ "No Commissioner, Magistrate or police‑officer shall be liable to any penalty or to payment of damages on account of any act done in good faith in pursuance or intended pursuance of any duty imposed or any authority conferred on him by any provision of this Act or of any rule, order or direction lawfully made or given thereunder". Counsel for the plaintiff contended that the Special Police Establishment did not enjoy any privileges whatsoever because subsection (2) of section 2 of the Pakistan Special Police Establishment Ordinance, 1949 merely referred to the privileges enjoyed by the police officers of a Province but was silent on what those privileges were. He did not contend that the Bombay District Police Act, 1890, was not applicable to the Police Officer of a Province. His contention therefore is obviously untenable and the suit must be held to be barred by section 80 (1) of the Bombay District Police Act, 1890, against Mirza Aitizazuddin and Mr. Sher Hassan. (c) After the death of Mirza Aitizazuddin Ahmad his heirs have been brought on record. The allegations contained in the plaint against the deceased were merely that his acts were tortious. If so, his liability was personal. The claim of the plaintiff against him is for unliquidated damages which was not perfected by a c judgment in his lifetime. .The claim of the plaintiff, therefore, neither created any liability on the estate of the deceased nor could that personal liability be considered to have devolved on his heirs. In fact the right of the plaintiff to sue Mirza Aitizazuddin Ahmad did not survive after his death. As pointed out in Haridas Ramdas v. Ramdas Mathuradas (I L R, 13 Bom. 679). "There can be no doubt that actions for wrongful arrest, for false imprisonment and for malicious prosecution are personal actions. `It is a maxim of the common law that a personal action does not survive on the death, either of the person who did, or of the person who sustained the wrong, and, in the absence of statutory provisions to the contrary, it still prevails unless the estate is affected by the tort'." The estate of the deceased was not affected by the alleged tortious acts. Counsel for the plaintiff relied on section 306 of the Succession Act in support of his contention that the right to sue survived the death of Mirza Aitizazuddin Ahmad. The section is as follows: "

306. All demands whatsoever and all rights to prosecute or defend any action or special proceeding existing in favour of or against a person at the time of his decease, survive to and against his executors or administrators; except causes of action for defamation, assault, as defined in the Indian Penal Code, or other personal injuries not causing the death of the party; and except also cases where, after the death of the party, the relief sought could not be enjoyed or granting it would be nugatory." This section does not help the plaintiff for the simple reason that, as pointed out in Official Liquidators, Mufassil Bank v. Jugal Kishore and others (I L R 1939 All. 6) and as impliedly held by three Judges in Krishna Behari Sen v. The Corporation of Calcutta (I L R 31 Cal. 993 at 999), the section applies to executors and administrators and not to heirs representing the estate of the deceased. The suit has, therefore, abated owing to the death of Mirza Aitizazuddin. (d) Lastly, the suit was barred by time, in terms of subsection (3) of section 80 of the Bombay District Police Act, 1890 against Mirza Aitizazuddin, the original defendant No. 2, and is barred by time against Mr. Sher Hassan, defendant No.

3. The subsection is as follows:‑ "(3) In any case of an alleged offence by a Magistrate, police‑officer or other person, or of a wrong alleged to have been done by such Magistrate, police‑officer or other person, by any act done under colour or in excess of any such duty or authority as aforesaid, or wherein it shall appear to the Court that the offence or wrong if committed or done was of the, character aforesaid, the prosecution or suit shall not be enter tained, or shall be dismissed, if instituted more than six months after the date of the act complained of." Under this provision the time limit is six months after the date of the act complained of and the present suit was instituted long after that limit of time. The main act by which the plaintiff is aggrieved was the search of his house. Issues No. 6 and 7 show that search of his house was the only ground of his grievance. It took place on 23‑2‑1948 and the suit was instituted on 9‑12‑1949.

4. In view of the above findings the suit is dismissed with costs. K. M. A. Suit dismissed.