1988 PLP 147 (CLC)

Muhammad Waris Khan for Respondent. Date of hearing: 2nd May, 1987. This is a revision petition by defendants Nos. 1 to 8/petitioners herein against the judgment and decree of District Judge, Mardan dated 23‑6‑1985 whereby their appeal against the judgment and decree of Senior Civil Judge, Mardan dated 30‑10‑1983 was dismissed.

2. Facts of the case, briefly stated, are that Fazal Akbar, respondent No.l herein, instituted the present suit for the recovery of Rs.10,000 or whatever amount was to be determined by the Court, as damages (tawan) against the defendants/ petitioners herein, for, they having resorted to vexatious litigation by filing suit No.353/1 against him in the Civil Court which was ultimately dismissed as withdrawn on 17‑7‑1979. He further prayed for issuance of order permanently restraining the defendants from interference with the amended warabandi sanctioned in his favour by defendants Nos.9 and 10/respondents Nos.2 and 3 herein. It was alleged in the plaint that the amended warabandi was sanctioned for Moga No.23242/R of Rajban Pir Saddo for irrigation of his land from Upper Canal Swat; that the defendants challenged the amended warabandi in suit No.353/1 in the Court of Civil Judge, Mardan and moved an application for temporary injunction restraining the respondent from implementing the warabandi. After issuance of interim order for maintenance of status quo finally the application was rejected and the interim order of status quo was withdrawn on 25‑3‑1979. Ultimately, that suit was withdrawn on 17‑7‑1979. It was alleged that the afore‑mentioned suit was frivolous, baseless and without any legal foundation and that the plaintiff was involved in unnecessary litigation; that even before the filing of the suit the defendants had moved frivolous application before the S.D.0, Irrigation (Defendant No.10) for setting aside the amended warabandi and on rejection of that application by defendant No.10, the order was challenged in appeal before the Executive Engineer (Defendant No.9) unsuccessfully; that in spite of amended warabandi having been properly sanctioned in his favour the defendants deprived him of his 45 minutes of irrigation through the aforementioned vexatious proceedings. The plaintiff, therefore, prayed for the recovery of the amount as damages as stated above. It was further prayed that the defendants be ordered not to interfere with the water right of the plaintiff, The defendants, in their joint written statements, denied the allegations of the plaintiff and raised several legal objections to the maintainability of the suit. They did not deny the fact that they challenged the amended warabandi before the relevant authorities and having filed civil suit and its dismissal as withdrawn. However, it was stated that since defendants Nos.9 and 10 assured them that their grievance would be looked into favourably if the suit is withdrawn and a review petition is moved before them, therefore, they withdrew the suit and approached the authorities through an application for amending the warabandi. It was further stated that‑they had every right to object to the amended warabandi, whereby they have been deprived of their water right, before the concerned authorities and thereafter in the civil Court that their grievance was genuine and the prosecution of their civil remedy was bonafide.

3. The learned Senior Civil Judge, in view of the pleadings of the parties framed as many as eight issues on which both of them led their evidence. He, while giving his finding on issues Nos.3 to 5, held that after the withdrawal of suit No.353/1 the amended warabandi remained intact in the field, that the plaintiff was not estopped from bringing the present suit and that the suit was proper in its present form. Issues Nos.l and 6 as regards the plaintiff's entitlement to the relief claimed and the effect of withdrawal of the earlier suit, were discussed together and it was held that the plaintiff was entitled to the decree prayed for and the withdrawal of the earlier suit based on compromise has no effect on the plaintiff's claim for damages in the present suit. Accordingly the plaintiff's suit was decreed as prayed for vide judgment and decree dated 30‑10‑1983. The defendants' appeal against the judgment and decree of the learned Senior Civil Judge was dismissed by the learned District Judge, Mardan on 23‑6‑1985. Hence this revision petition has been filed by the defendants/ petitioner.

4. It was contended by the learned counsel for the petitioners that the Courts below apart from having misread evidence of the parties failed to apply their mind to the basic questions which required determination in the case. The plaintiff‑respondent No.l was mainly aggrieved of his having been deprived of his water right, after the sanction of amended warabandi, by the defendants/ respondents Nos.2 and 3 by filing an application and appeal before defendants No.9 and 10 and thereafter by instituting a civil suit in the civil Court. Such being the case in order to succeed it was for the plaintiff to prove that the conduct of the defendants/ petitioners was malicious and vexatious and not bona fide. On the proof of such conduct the Court was to determine the quantum of damages which was to be based on the evidence on record. In order to find out whether any such evidence was led before the trial Court, I would like to refer to the evidence of the parties.

5. Amanullah, Patwari Halqa, Pir Saddo (PW.1) when examined in court placed on file copy of 'Jadid Warabandi' in question sanctioned on 14‑5‑1959 which is Ex.PW. 1/1. According to it Fazal Akbar plaintiff had been allocated 4 hour irrigation right. However, he was unable to show the entitlement of the defendants before the amended warabandi. Mukhtiar Ahmad Khan, Moharrir of the Court of Senior Civil Judge (PW.2) deposed about the withdrawal of the earlier suit filed by the defendants, copy of the order is Ex.PW.2/1 on the file. Sher Mohammad, Vernacular Clerk, Irrigation Department (PW.3) produced the correct sketch Ex.PW.3/1 of the Moga in question and also placed on file list of the owners as Ex.PW.3/2. He deposed that in the new warabandi, copy Ex.PW.3/3 the plaintiff was given 4 hour water right commencing from 4.3/4 hour evening to 8.3/4 hour at night on Tuesday. He further deposed that according to the order of the S.D.O. Shamsul Qayum dated 21‑2‑1977 plaintiff has been allocated 45 minutes of excess water right. This order was unsuccessfully challenged by the defendants in appeal before the XEN and subsequently in a civil suit before the Civil Court. It was further stated that defendants Nos.l to 8 are still utilizing 45 minutes of disputed water right. In cross‑examination he admitted that prior to 21‑2‑1977 Fazal Akbar plaintiff had 4 hour turn of water right while Abdul Akbar (deceased) father of defendants Nos.l to 8 had 5 hour water right and that the disputed 45 minutes was deducted from Abdul Akbar deceased and allocated to the plaintiff through the amendment in new warabandi. He also admitted that defendant No.l has made an application for review of the amended warabandi in suit which is pending disposal before the competent authority. He further admitted that amended warabandi whereby the plaintiff has been given 45 minutes extra water right has not been put into operation in view of the status quo order issued by the Senior Civil Judge, Mardan in the suit filed by the defendants. He stated that so far parcha warabandi have not been issued to the irrigators and they have not been intimated their respective turn of water rights in the new‑amended warabandi. The Department still considered that the status quo order is in the field, although the suit in which status quo order was issued, stands dismissed as withdrawn. Plaintiff Fazal Akbar appeared as P.W.4 and reiterated the allegations made in the plaint. However, in cross‑examination he admitted that he was the owner of 47 kanals of land and after the purchase of 3 kanals of land he prayed for amended warabandi. He further admitted that previously in Jadid warabandi he had 4 hour of water right but in the amended jadid warabandi he has been given excess water right for 45 minutes. He showed his ignorance of the defendants entitlement in the water right and the fact of amendment in jadid warabandi on such right. He further admitted that 'purchajat abpashi' have not been issued and the new warabandi has been put into operation. This was the entire evidence led by the plaintiff in support of his plea. On the other hand, the case set up by the defendants in their written statements and the evidence prodcued in Court is that the new/ amended warabandi effected their water rights to extent of 45 minutes and to redress the wrong they applied to the relevant authorities and on rejection of their application unsuccessfully appealed against it. That in exercise of their civil right they resorted to civil litigation by filing a suit for declaring the new/amended warabandi and ineffective on their existing water rights. However, they withdrew that suit on the clear understanding given to them by the Irrigation Department that their grievance would be redressed if an application for review is moved before the relevant authorities. In cross‑examination the plaintiff himself admitted that since the new amended warabandi has not been put into operation, they were utilizing their water rights including the disputed 45 minutes, according to the new warabandi. Sher Mohammad, Record Keeper, Irrigation Department when re‑examined produced a photostat copy of the review application made by Ali Asghar defendant No.l pending for disposal.

6. Both the Courts below while decreeing the plaintiff's suit did not apply their mind to the factual and legal aspect of the case. Apparently, plaintiff has based his claim on malicious prosecution of civil proceedings, attributed to the defendants, by filing a civil suit against him regarding the water right allocated to him in amended jadid warabandi. Such being the case the burden of proof was on him to prove, firstly, that institution of the civil suit by the defendants was in fact malicious, their conduct was improper, unreasonable and mala fide and, secondly, that by the institution of the suit he sustained such loss which entitled him to the amount claimed as damages. Generally, no suit for damages is maintainable for malicious institution of civil suit for obvious reasons. One of such reasons is that on the defeat of a civil suit the law provides for compensation to the successful party by awarding costs/special costs to him. There are, however, cases of special nature in which suit for damages, independent of costs awarded in the suit, can be maintained but such special or exceptional circumstances must be strictly proved by the plaintiff before he succeeds in getting damages. Dealing with the question his Lordship in "Ah Fong v. Nam Keel' (AIR 1934 Rangoon 75) referring to "Har Kumar De v. Jagat Bandhu De (6)" (AIR 1927 Calcutta 247) held that a suit for damages for wrongfully obtaining a temporary injunction was maintainable. The test to be applied is whether the civil action complained of necessarily or naturally involved damage which could not be recompensed by an order for costs. If the action did necessarily or naturally involve such damage and was instituted falsely and maliciously the law provides a remedy. Keeping in view the test referred to above it was to be established that the suit filed by defendants Nos.l to 8 was frivolous, false and malicious. On consideration of the evidence referred to above it was required from the Courts below to have addressed themselves to the basic principles laid down by the superior Courts before awarding the damages. In suit No.353/1 dated 17‑7‑1979 the new/amended warabandi was challenged by the defendants on the ground that they have been deprived of 45 minutes of their water rights which has been illegally allocated to the plaintiff. It has been clearly established through the evidence on record that the plaintiff‑respondent No.l was allowed 45 minutes extra water right deducted from the petitioners herein for no cogent reason. Even the plaintiff‑respondent No.l did not justify his entitlement to the extra water rights. The defendants‑petitioners' conduct of they having first approached the S.D.O., Irrigation Department for their redress of the wrong done to them and subsequently challenging the order of rejection in appeal and on its failure filing of the civil suit cannot be termed as luxurious, malicious or frivolous as alleged by plaintiff‑respondent No.l.

7. For the reasons stated above, plaintiff‑respondent No.l having failed to prove that the conduct of defendants Nos.l to 8 petitioners herein was malicious and the proceedings were frivolous, his suit for damages was not maintainable and he was not entitled to the decree passed. In this view of the matter, I would accept this revision petition, set aside the judgments and decrees of both the Courts below and would dismiss the plaintiff‑respondent No.l's suit against the petitioner herein with costs throughout. S.Q. /559/P Petition accepted.