2012 PLP 1234 (MLD)

IBAD-UR-REHMAN LODHI, J.

This is an appeal from the judgment and decree dated 13-10-2010 passed by the learned Civil Judge at Lahore in Civil Suit No.179/1/2004. The respondents/plaintiffs had to file their suit asking for a decree of an amount of Rs.4,56,00,000 on account of damages and compensation with the background of a long standing litigation which ended into their favour when Civil Review Petition No.27 of 2003 was dismissed by the Hon'ble Supreme Court of Pakistan on 12-5-2006 and a decree in a suit for specific performance passed by the learned trial court on 5-7-1984 was upheld.

2. The plaintiffs/respondents on the basis of a breakup of damages as has been given in detail in para 17 of the plaint have measured their damages on account of losses of reputation, mental torture, Jhar Bandobast, physical loss by cutting of trees and selling of soil and theft of Tube Well, loss of business, miscellaneous expenses and fee of advocates for the said litigations coming in totality to Rs.4,56,00,000.

3. The suit was contested on factual as well as legal plane including bar of limitation however vide impugned judgment and decree the suit to the extent of recovery of Rs.56,00,000 was decreed whereas with regard to remaining suit amount of Rs.4,00,00,000 the same was dismissed.

4. Only the defendant in the suit challenged the partial decree to the extent of Rs.56,00,000 whereas plaintiffs/respondents herein opted not to challenge the same and seems to be satisfied with what was decreed in their favour.

5. The learned counsel for parties while arguing on appeal mainly stressed upon the findings of the learned trial court on issues Nos.1, 3 and 6 and for that reason we would be giving findings to such issues only. Even otherwise the issues mentioned above are the relevant issues for adjudication.

6. The objection with regard to the limitation was specifically taken by the defendant and issue No.3 was framed by the learned trial court which was answered against the defendant by the learned trial court by treating the suit filed on 4-11-2004 as within time on account of dismissal of Civil Review Petition No.27 of 2003 by the Hon'ble Supreme of Pakistan on 12-5-2006.

7. The learned trial court has erred in deciding issue No.3 and by giving benefit of a subsequent event occurred later in time to that of stated point of time of which according to the plaintiffs the cause of action accrued in their favour. Para 22 of the plaint would be relevant in order to determine the question as to whether the suit was filed within limitation or not. The plaintiffs in said para of the plaint have mentioned that for the first time cause of action accrued in their favour when they demanded the suit amount from the defendant. Here the plaintiffs even in the pleadings failed to give any exact date or at least point of time as to when for the first time that demand was made. According to the version of the plaintiffs, secondly the cause of action accrued when a legal notice was issued by the plaintiff which was not responded to by the defendant. In the plaint no date of issuance of legal notice has been provided nor during the course of recording of evidence such notice was attempted to be brought on record in evidence and even there is no mention as to what was the mode of issuance of that notice. In view of Article 22 of Limitation Act, 1908, for filing a suit for compensation for any injury to a person, the limitation provided is one year from the date when injury is committed. The plaint is silent as to when the injury was committed for which the plaintiffs filed the suit for compensation and therefore the findings of the learned trial court on issue No.3 are erroneous and cannot be sustained, the suit is therefore held to be filed beyond limitation.

8. By referring the power of attorney on the strength of which Nazir Hussain one of the plaintiffs in his personal capacity and also as attorney on behalf of remaining plaintiffs, the learned counsel for appellant has attempted to persuade us that the suit was filed by an incompetent person and that the findings of the learned trial court on such issue which was decided against the defendant was erroneous one. The copy of the general power of attorney is available on record and with the assistance of both the learned counsel for parties we have gone through the same and are of the view that in view of the following powers specifically assigned to the attorney to the following effect:-- by the principals, the person who filed the suit in capacity of the attorney of plaintiffs Nos.2 to 4 was competent to file the same and thus the findings of the learned trial court on such issue is maintained.

9. Now we come to the main issue which is issue No.1 on the basis of findings of which the plaintiffs were held entitled to recovery of Rs.56,00,000 on account of damages. While giving findings on such issue, the learned trial court has granted the decree to the extent of Rs.56,00,000 on account of the following heads:- (i) Mental Torture Rs.25,00,000 (ii) Jhar Bandobast Rs.16,00,000 (iii) Miscellaneous Expenses Rs.5,00,000 (iv) Fee of Advocates Rs.10,00,000 No doubt in the plaint in para No.17 a breakup to the claimed amount was provided but when the plaintiff No.1 appeared in the witness box as P.W.1, he has failed to provide the details of his claimed losses and it is also manifest that no supporting evidence in order to substantiate the claim of the plaintiffs was produced. The remaining two witnesses P.W.2 and P.W.3 have mainly deposed to what was not in their direct and personal knowledge. The pleadings cannot attain the status of evidence and a fact pleaded by a party must have been proved by unimpeachable evidence. In the case in hand the plaintiffs have miserably failed to establish their such claims for which a decree has been granted in their favour. Mere saying of the plaintiffs or a witness would not be enough to put a stamp of a solid proof upon such version. In the present case, the learned trial court fell in error while granting the imaginary losses stated to have been suffered by the plaintiff e.g. towards mental torture as against the claimed amount of Rs.1,00,00,

000. The learned trial court granted a decree to the extent of Rs.25,00,

000. Neither the plaintiffs in their evidence satisfied the stated losses to the extent of Rs.1,00,00,000 nor the learned trial court has given any plausible reasons to grant an amount of Rs.25,00,000 on this account and all has been done on imaginations.

10. Similarly, towards Jhar Bandobast, the required evidence was not brought and rather was not proved according to law. An amount of Rs.5,00,000 has been granted on miscellaneous expenses and for that also the plaintiffs have failed to bring on record any breakup of the amount and amount of Rs.10,00,000 has been granted by way of the impugned decree to the plaintiff against the amount of fee stated to have been paid by the plaintiffs to the Advocates. No evidence in this regard is available on record. Even otherwise according to the High Court Rules and Orders a certificate of the counsel conducting the case must have been filed before the start of arguments and at no stage of earlier litigation any such required certificate was made part of the record, in absence of which nothing can be granted towards that claim.

11. We have noticed that in the earlier round of litigation which has been made basis of the present suit this Court while allowing R.S.A. No.35 of 1993 on 8-10-2001 and the Hon'ble Supreme Court of Pakistan while dismissing Civil Appeal No.2028 of 2001 on 28-10-2002 awarded costs to the plaintiffs and even at those both stages the plaintiffs were not held entitled to any special compensatory cost.

12. It is also a fact to be noted that plaintiffs have not challenged the dismissal of their plaint qua Rs.4,00,00,000 and seems to be satisfied with what was decreed in their favour. The conduct in forgoing the major portion of their claim shows that in their own estimation their claim was not sound and reasonable.

13. For what has been discussed above, the findings of learned trial court on issue No.1 are thus reversed.

14. As a result the appeal is allowed and judgment and decree dated 13-10-2010 is hereby set aside. Resultantly the suit of the plaintiffs is dismissed without any order as to costs. M.H./A-78/L Appeal allowed.