1. Through both the above captioned appeals, judgment and decree of the learned District Judge Mirpur dated 14-7-2003 has been challenged. As both the appeals pertain to one and the same case and judgment, therefore, these shall be disposed of through this single judgment. The relevant and necessary facts for the disposal of the instant appeals are that, appellant (Muhammad Reaz) brought a suit for recovery of Rs,37,00,000 (thirty seven lac), in the Court of learned District Judge, Mirpur. It was averred by him that Plot 'No,393, measuring one Kanal, situated in Sector D/3, West Part II, Mirpur, was allotted to Shahid Iqbal Advocate Mirpur in 1987. The allottee eposited the full price of plot and obtained a temporary allotment order. The plaintiff, purchased the said plot from the attorney of Shahid Iqbal in lieu of Rs,1,70,000. The defendants, after obtaining transfer fee of Rs,5255 from the plaintiff, transferred the said plot to him through order dated 28-8-1995. The plaintiff was Mangla Dam affectee, therefore, he purchased the plot for the construction of house. He asked the defendants to provide the facilities, as he wanted to construct the house; but they did not provide the required facilities. In case they would have provided the facilities then he would have completed his house. Due to irresponsible attitude of the defendants, the plaintiff could not construct his house. The plaintiff moved an application before defendant No,3, for permission to raise construction of boundary wall and possession of the plot, upon which, defendant No,3 reported that it is not possible to hand over the possession of the plot and raise the construction of boundary wall, as there is a dispute of this sector with WAPDA. Now it is impossible for the plaintiff to purchase alternative plot because the market value of plots has been increased and at present, market value of such a plot is not less than Rs,20,00,000 (twenty lacs). It was further averred by him that since 1995, price of material for the construction has also increased to double. In case the plaintiff would have allowed to raise construction in 1995, then the plaintiff would have completed his house in lieu of Rs,500,000 (five lac). But, due to increase in the prices, the house can now be completed in lieu of Rs,12,00,000 (twelve lac). The plaintiff suffered due to irresponsible attitude of the defendants and could not construct his house, thus, the plaintiff is entitled to Rs,20,00,000 (twenty lac) for the same like plot, Rs,12,00,000 (twelve lac) for the construction of house and Rs,500,000 (five lac) for mental torture. In this way, he is entitled to Rs,37,00,000 (thirty seven lac) from the defendants.
2. ' This suit was contested by the defendants. After trial of the suit, the learned 'District Judge decreed the suit to the tone of rs.10,00,000 (ten lac). Now this judgment and decree of the learned District Judge has been challenged by both the parties.
3. ' M/s. Ch. Jahandad and Haji Anwar, the learned counsel for the appellant, Muhammad Reaz, argued that it was proved by the appellant-plaintiff that plot was purchased by the plaintiff and it Was transferred to the plaintiff after obtaining transfer fee by the MDA. But, subsequently they did not hand over the possession of the plot to the plaintiff. So, the appellant-plaintiff could not raise construction of the house in the year 1995, and now, market value of the plot has increased and a such like plot can only be purchased after paying Rs,20,00,000 (twenty lac). The price of the material for construction has also increased. In this respect, the plaintiff has produced a report of PWD Department. He also appeared himself as a witness. The plaintiff has also claimed Rs,500,000 (five lac) for mental torture. They submitted that plaintiff appeared as a witness and this portion of his statement was not challenged during the course of cross-examination. Thus, it stands admitted. Moreover, the defendants have not produced any evidence in rebuttal, therefore, plaintiff is entitled to the decree to the tune of Rs,37,00,000 (thirty seven lac) and the lower Court has wrongly awarded decree to the tune of Rs,10,00,000 (ten lac), without any reasonable justification. While controverting the arguments of the learned counsel for the appellant, (Muhammad Reaz), the learned counsel for the respondents (MDA etc.), argued that plaintiff has failed to prove his case. When plaintiff purchased the plot, it was transferred to him and its possession was also delivered to him, but he himself did not raise the construction of the house, therefore, he could not attribute any fault to the defendants. The plaintiff has also failed to prove the market value of the plot. Thus, the lower Court has wrongly awarded the decree to the tune of Rs,10,00,000 (ten lac) without any reasonable justification. I have heard the learned counsel for the parties, perused the record and have given my anxious thoughts to the respective arguments of the learned counsel for the parties. The present suit is a suit for compensation and damages. Before dealing with the case, I would like to deal with the historical and general background, definition, nature and classification of law of damages and compensation.
4. The right to recover compensation is a primary right conferred by the law of nature. This fundamental right is of a universal nature. It is based on the natural reasons and natural justice.
5. Justinian in his institutes says "Natural Law (Jura Naturalia)" which is observed equally, in all Nations established by divine providence remains forever settled and immutable.
6. Blackstone in his commentary in book second Chapter 29, page 438, says that the basic right for the satisfaction from the injury was given by the law of nature and the right to receive satisfaction is based on the sanctity of individual right, which humanity has always been, from its infancy, jealously protecting from being wantonly violated. This natural right is essential for the growth of well-being of society and during the successive stages of civilizations, various means were devised for enforcing the same. The right to receive compensation is a natural right. It is regulated by a number of maxims which are condensed for the good sense of Nations.
7. Harbert Brown says that the authority of the maxims rests entirely upon the general receptions and usages and the only method of proving that this maxim or that maxim is a rule of common law, is by "showing that it has been always the custom to observe it.
8. Broom says that it would indeed be highly interesting to trace from a remote period though successive stages, the gradual development of these principles to observe their primitive and more obvious meanings and to show how they have been applied "by the living oracles" of the law to meet the increasing exigency of society and those complicated facts which are the result of commerce, civilization and reinforcement. Human society has gone through a period by no means short of strife and tribulations. It must have recognized that primitive law of retaliation is not calculated to promote for its tranquility and advancement. The basic and elementary principle is evolved out of this idea, therefore, has been embodied in the elementary maxim "ubi jus ibi remedium" which means that where there is a right, there is a remedy. In simple words, it can be said that there is no wrong without a remedy. If a man has a right, he must have sources and means to vindicate and enforce it. The maxim "lex semper dabat remedium" means that law will always provide remedy.
9. Every violation or infringement of a right confers a right on the injured party to recover compensation. This right is called by the Jurist Salmond as a sanctioning right which is of two kinds, i,e,:--
(i) The right to receive pecuniary penalty;
(ii) The right to exact and receive the damages or other pecuniary compensation. The British and Indian Laws are unfamiliar with the former kind. The later form of right is most important and relief with this form of right is remedial in its nature. Awarding of compensation to injured party against the wrong-doer is punished by giving penal redress to the injured or simple compensation is given. In either case, the law simply awards compensation to the sufferer. This compensation is awarded in the shape of damages which is awarded according to certain rules which are known as measures of damages.
10. Damages are defined as pecuniary compensation recoverable by the process of law by a person who has sustained an injury through the certain act or omission of another. Lex stone in his commentary defined damages as "spices of property i,e, acquired and lost by suit and judgment at law". The injured party has unquestionably a vague and indeterminate right to some damages.
11. The damages may also be defined as disadvantage suffered by a person as a result of the act or default of another. The basic object of the damages is to compensate the plaintiff for the loss sustained by him. Its main object is to compensate the plaintiff' for all the loss he has suffered so far again as money can do it.
12. It is to be noted that while considering the topic of damages, two questions arise for determination:--
(i) The question of liability i,e, whether damages are due at all or in other words whether the person against whom the complaint was lodged is liable or not for the damages;
(ii) The question as to quantum of damages; The basic object of the damages is to compensate the plaintiff for all the loss suffered due to the fault of other party. There are two kinds of damages:-
(1) General and
(2) Special. General damages pertain to non-pecuniary losses which could not be calculated in the terms of money. Such non-pecuniary losses are thus:--
(a) in respect of pain suffering and shock suffered by the plaintiff by the assault;
(b) losses of amenities of life such as the plaintiff suffers by reducing enjoyments of life due to the damages caused by the assault which may apart from any material or pecuniary losses of attendant upon the loss of amenities;
(c) loss of expectation of life;
(d) inconvenience and discomfort; and
(e) exemplary damages whether the conduct of the defendant has been so outrageous or scandalous for which more punitive damages are required.
13. On the other hand, special damages are such damages which could be computed in the terms of money, Halsbury calls "special damages" which could be laid and proved in the terms of figure.
14. While on the other hand, the general damages are defined as which could not be computed in the terms of money. The Court while awarding the compensation has to consider various kinds of damages. An injured person can recover the damages in respect of various heads. For example, reasonable expenses incurred for medical treatment, nursing, medical appliances and other incidental expenses. The injured person is, however, entitled to damages for loss of earning where he has lost his earning capacity due to the injury. He is also entitled to the general damages in respect of pain and suffering which he has undergone till the date of trial and which he is likely to undergo thereafter. The damages could also be awarded in respect of the happiness which a person might expect to have enjoyed in the years of life or which he has been deprived under the head of "loss of expectations of life".
15. It was held by the Balochistan High Court in a case titled "Haji Salman Ali v. The Province of Balochistan and others" PLD 1994 Quetta 13, that according to law of Tort, compensation by way of damages, is generally categorized as special and general damages.
16. As the special damages are concerned, these are required to be proved item-wise to the extent of the damages sustained by the claimant and the second kind of category pertains to the general damages as measured by applying "rule of thumb" and the Court has discretion to calculate the damages according to the circumstances of the case. General damages are normally awarded where the plaintiff has suffered mental torture, agony etc. I would like to reproduce the relevant portion of the aforesaid report PLD 1994 Quetta 13 (relevant page 18) which reads as under:-- "According to the law of Tort, compensation by way of damages is generally categorized as Special and General Damages. As far as former category is concerned it requires to be proved item-wise to the extent of the damages allegedly sustained by the claimant and later category of damages is measured by applying the "rule of thumb" and the Court seized with the matter has discretion to calculate the damages in view of the given circumstances of the case. It is to be noted that General damages are claimed normally in the matters where, on account of injurious acts of the defendants, plaintiff has suffered agony, mental torture, defamation. Etc. Since in the case in hand, appellant is claiming the damages on account of specific losses allegedly sustained by him, due to the cancellation of the contract .Work by the Department, therefore, it was a legal obligation upon him to prove each item separately." In the instant case, now the question emerges whether the special or general damages-have been claimed in the suit by the plaintiff?
17. The plaintiff has claimed that he purchased the plot from Shahid Iqbal in lieu of Rs,1,70,000 and he purchased it for the construction of his house. But, defendants did not provide him the facilities, therefore, he could not construct his house due to irresponsible attitude of the defendants.
18. Subsequently he was told that there is some dispute between WAPDA and MDA, therefore, possession of the plot could not be handed over to him and now if he wants to purchase the same like plot then the value of the plot is not less than Rs,20,00,000 (twenty lac), Moreover, it was also averred by him that due to the increase of the prices of the material, he has to spend Rs,12,00,000 (twelve lac) for the construction of the house instead of Rs,500,000 (five lac). Hence he has claimed Rs,12,00,000 (twelve lac). He has also claimed Rs,500,000 (five lac) for mental torture.
19. As far as the suit of the plaintiff to the extent of value of the plot and increase of the rates of the material for the construction is concerned, to this extent, the suit of the plaintiff is for special damages. While, the portion of the suit, regarding the mental torture, comes within the ambit of general damages.
20. The contemplate perusal of the record shows that it is an admitted fact that the plot in question was purchased by the plaintiff from Shahid Iqbal after which, it was transferred to him by the Estate Officer of MDA. Had there been any dispute, regarding the plot in question with WAPDA, then the Estate Officer MDA would have not transferred the same to the plaintiff. He would have declined from transferring the plot on the plea that there was some dispute with WAPDA and then plaintiff would have not purchased the said plot, but when the plot has been transferred by Estate Officer MDA after obtaining transfer fee, then it was enjoined upon him to hand over possession of the plot to the plaintiff and also allow him to raise construction of the house. When plaintiff applied for possession of the plot on 12-7-2000, then it was stated by the Estate Officer that there was some dispute regarding this Sector with WAPDA, therefore, no demarcation of the plot could be conducted. Thus, it is crystal clear that on 12-12-2000, the Estate Officer reported that he was unable to hand over possession of the plot because there was some dispute between WAPDA and MDA. This order of the Estate Officer runs counter to the order dated 28-8-1995 that possession has been handed over to the plaintiff.
21. Muhammad Ramzan, head clerk Estate Department MDA, appeared before the Court as a witness and during the course of cross-examination, he stated that it was correct that in the letter (Exh.PB), it was stated that there is dispute of this sector with WAPDA. So its possession could not be given to any person. Thus in this way, it was admitted by sole witness of the defendants that possession could not be handed over to the plaintiff, as there was a dispute of this Sector with WAPDA.
22. As stated in the earlier part of this judgment, that if there was any dispute between MDA and WAPDA, then how MDA allotted this plot and subsequently transferred the same in favour of the plaintiff.
23. The plaintiff himself appeared as a witness and deposed that he wanted to raise construction of the house on the plot in dispute, but there was no facility of water supply, electricity and permission for construction was also not given to him by the MDA. So, he could not construct the house. He further deposed that he moved an application (Exh.PB) upon which the Estate Officer MDA refused to hand over the possession of plot in question on the ground that there was some dispute between MDA and WAPDA. So he could not raise construction of the house and, at present, the market value of the plot is more than Rs,20,00,000 (twenty lac). Now if he purchases such-like plot, then he will have to pay Rs,20,00,000 (twenty lac). The cost of material for construction of the house has also increased. The house which could have been constructed in lieu of Rs,30,00,000 (thirty lac), now can be constructed in lieu of Rs,42,00,000 (forty-two lac). Therefore, the plaintiff is also entitled to Rs,12,00,000 (twelve lac). Furthermore, he suffered from mental torture, therefore, he is also entitled to Rs,500,000 (five lac). Thus he is entitled to:--
(1) the price of the plot Rs,20,00,000 (twenty lac);
(2) Due to increase of rates of the material for- construction Rs,1200,000 (twelve lac), and
(3) for mental torture, Rs,500,000. It has clearly been claimed by the plaintiff in his statement, but during the course of cross- examination, this portion of his statement was not challenged. It is well-settled principle of law that a portion of statement, not challenged during the course of cross-examination, shall be deemed to have been admitted by the other party. Thus, it stands admitted by the defendants that plaintiff was entitled to Rs,37,00,000 (thirty seven lac).
24. It would also not be out of place to mention here that defendants produced only Muhammad Ramzan as a witness. He also did not negate the version of the plaintiff. He nowhere deposed that plaintiff was not entitled to Rs,37,00,000 (thirty seven lac). He did not utter a single word about the price of the plot, about enhancement of rates of material of construction or about five lacs for mental torture. Rather no evidence in rebuttal was produced by the defendants. It was admitted by him that letter Exh.PB was written by the department that possession of the disputed plot could not be handed over to him because there was a dispute of this Sector with WAPDA. Thus, it also stands admitted by the defendants that there was a dispute of this Sector with WAPDA, therefore, possession could not be handed over to the plaintiff.
25. It is well-settled principle of law that in order to succeed in a .Claim for damages, detail of losses suffered by a party must be given and established with clarity. This view finds support from 1999 Cr.C.1915.
26. In the instant case, detail of the losses suffered by the plaintiff has been given as stated in the earlier part of this judgment and it also stands established, because, the portion of the statement of the plaintiff, regarding detail of losses was not challenged during the course of cross- examination, as stated in the earlier part of this judgment. Moreover, no evidence in counter was produced by the defendants.
27. It is well-established principle of law that in a civil case, the onus of proof did not remain fixed on one party but the moment some evidence is led by one party, then it shifts upon the other party who, if fails to rebut the same, then it will be presumed that it has been admitted by such party.
28. This view finds support from PLD 1980 Lah.
146. The relevant observation is at page 151 of the report which is as under:-- "The defendant-appellants further produced some oral evidence in support of their plea. On the other hand, the respondent has not produced even a scintilla of evidence in rebuttal and also did not cross-examine the P.Ws. On this point. The onus of an issue in a civil case is ,not permanently fixed but is constantly shifting, the moment some evidence is placed on record, this shifts the onus on the other side who would filik4,,f,he is unable to rebut."
29. It flabbergasts me that if at all, there was some dispute between the MDA and WAPDA, then how they created the plot and allotted the same to Shahid Iqbal and Shahid Iqbal sold the said plot to the plaintiff. The MDA also transferred the said plot to the plaintiff. Due to this act of the defendants, the plaintiff suffered mental torture. Moreover, he could not raise construction of his house and now if he purchases such-like plot, then he has to pay Rs,20,00,000 (twenty lac). The price of the material has also increased. The plaintiff has proved his case. The lower Court has wrongly awarded decree to the tune of Rs,10,00,000 (ten lac). No reasons have been given by the lower Court that why instead of Rs,37,00,000 (thirty seven lac), it has awarded the decree to the tune of Rs,10,00,000 (ten lac) in favour of the plaintiff.
30. The upshot of the above discussion is that appeal filed by Muhammad Reaz is accepted and suit filed by him is decreed to the extent of 8.37,00,000 (thirty seven lac). Consequently, the appeal filed by MDA and others, being without any substance, is hereby dismissed.