2003 PLP 3301 (YLR)

Nemo for Defendants. Date of hearing: 10th September 2003. This suit has been filed by the plaintiff, Haji Nasrullah Afghani against the defendants for recovery of damages in the sum of Rs. 100 million.

2. Brief facts as narrated in the plaint are that the plaintiff is a businessman of repute and is mainly engaged in the profession of building projects for profit. The plaintiff constructed a project comprising over approximately 5 acres of land. As regards the getting of the said land of 5 acres by the plaintiff, it is stated that Anjuman Talimul Islam was granted lease for 5 acres of land and thereafter lease of 10 acres of land was also granted to it for the purpose of education by establishing an Islamic Mission College in Deh Orangi. Subsequently the said 15 acres of land was encroached upon by certain persons during the period of Martial Law. It is averred that on the intervention of and making efforts by the plaintiffs, 5 acres of land out of 15 acres was got vacated from the encroachers. In lieu of his efforts which resulted in the vacation of land by the encroachers, the plaintiff was given possession of 5 acres of land through the Government agencies for the purposes of constructing the project comprising shops. It is the grievance of the plaintiffs that the defendants created obstructions in the way of constructing the said project by moving false and frivolous applications to different authorities. The defendants also filed Civil Petition No. 1542 of 1998 stating therein that the said land was meant for amenity purposes and the plaintiffs had illegally grabbed the same. The defendants prayed for a direction for production of the original record of the above said 15 acres of land and declaration that Anjuman Talimul Islam was not entitled to sell the plot to the plaintiffs and sought orders for cancellation of the allotment and restraining the plaintiffs from constructing the project. It is stated that in consequence of the said petition, stay order was passed with the result, the construction was stopped in the midway of the project thereby heavy loss was caused to the plaintiff due to such interruption. The said petition was finally dismissed on the ground that the defendants Nos. 1 to 7 who were the petitioners in the said petition were found not to be the aggrieved parties. The defendants thereafter filed a civil petition for Leave to Appeal bearing No.541 of 1999 in the Supreme Court wherein a restraint order was passed against the plaintiff from raising further construction of the project whereby again fiscal loss was caused to the plaintiff. Eventually the said petition for leave to appeal was withdrawn by some of the petitioners/defendants on the ground that co petitioners were not coming forward to help them. It is the case of the plaintiff that filing of these cases amount to malicious prosecution with the object of causing fiscal loss to the plaintiff and damaging their reputation, hence they filed the instant suit for a decree of Rs.100 million as damages against the defendants.

3. The defendants were served by way of substituted service, but none of them except defendant No.3 appeared. Resultantly all the defendants except defendant No.3 were ordered to proceed ex parte vide order dated 21‑3‑2002. Since no written statement was filed by defendant No.3, he was debarred from filing the same vide dairy dated 17‑3‑2002 of the Additional Registrar.

4. On 3‑2‑2003 at the request of the learned counsel for the plaintiff time was granted to enable him to produce the plaintiff before the Court for recording his statement. On 21‑2‑2003 attorney of the plaintiff namely Muhammad Daud was examined as plaintiff's witness and the plaintiff's side was closed.

5. In his evidence the said witness of the plaintiff produced his affidavit in ex parte proof as, Exh.P.1 in which he reiterated the contents of the plaint. He also produced power of attorney executed by the plaintiff in his favour as Exh.P.2.

6. I have heard the arguments advanced by Mr. Afaq Ali, learned counsel appearing for the plaintiff and considered the evidence. None appeared on behalf of the defendants.

7. In an action for malicious prosecution plaintiff must prove: (i) That he was prosecuted by the defendant; (ii) that the proceedings complained of terminated in favour of the plaintiff if from their nature they were capable of so terminating; (iii) that the prosecution was instituted against him without any reasonable or probable cause; (iv) that the prosecution was instituted with a malicious intention that is, not with I the mere intention of carrying the law into effect, but with an intention which was wrongful in point of fact; (v) that he has suffered damage to his reputation or to the safety of person, or to the security of his property.

8. It seems that the plaintiff although has stated the background of the case in detail and has referred to various documents including the cases filed by him and the defendants and the orders passed thereon but not a single document has been filed by him alongwith the plaint. Not only this, even in his affidavit in ex parte proof the attorney of the plaintiff namely Haji Muhammad Daud has not produced in evidence any document to substantiate the allegations leveled against the defendants in the pleadings.

9. It is well‑settled that even in the ex parte proceedings the plaintiff is required to prove his case by adducing evidence. In 1970 SCMR 130 it was held by the Honourable Supreme Court that ex parte decree passed merely on the ground that defendants were absent, without any evidence having been recorded, has no value in law. Article 2(1)(c) of the Qanun‑e‑Shahadat defines the word "evidence" and contemplates that "evidence" means and includes such statements of witnesses which are produced in a Court in relation to a case tried by such Court and also documents which are produced in the Court. From this definition it is clear that that plaintiff in order to prove his case must adduce oral evidence as well as documentary. For taking this view, I am fortified by the judgment pronounced by the Honourable Supreme Court reported in PLD 1994 SC

501. In the instant case the plaintiff has not produced a single document either original or photostat copy to prove the averments made in the plaint. It hardly needs to be emphasized that a plaintiff can succeed on the strength of his own case and not upon the weakness of the opponent's case. If any authority is needed in this respect, reference can be made to PLD 1958 Privy Council

161. In the circumstances, I am of the view that the plaintiff has miserably failed to prove his case against the defendants. In view of above, I have no option but to dismiss the suit of the plaintiff. Order accordingly. M.B.A./N‑147/K Suit dismissed.