' This judgment shall decide R.S.A. No.9 of 1997 and Civil Revision No.378 of 1997 as these proceed against the same judgment passed by a learned Additional District Judge, Lahore.
2. On 29-5-1980 the respondent No.1 filed a suit against the appellant and respondent No.2. In the plaint it was stated the respondent and his wife are assessees in respect of the property mentioned in para.1 of the plaint. A dispute arose in the matter of assessment of the property owned by wife of respondent No.1 and the relief was not granted by the appellant and he filed a civil suit against the appellant, respondent No.2 and Provincial Government seeking a declaration that the demand for payment of Rs.40,130,25 in respect of the said property is illegal. An injunction was also sought restraining the appellant from enhancing the assessment without hearing him and from realizing the property tax in respect of the entire building. This suit was entrusted to a learned Civil Judge who Issued notices on 10-5-1980 in the application for grant of temporary injunction. The date fixed was 13-5-1980. In order to get the service of notice effected respondent No.1 accompanied Process Server to the office of the appellant on 11-5-1980 and reached there at 10 a.m. The notice and accompanying copy of the plaint etc. Were presented before the appellant who examined the same and lost his temper expressing displeasure against respondent No. 1 .
Process Server was told to hand over the notice to the clerk while respondent No.1 was detained in his room. The appellant then called respondent No.2 and other staff and ordered them to arrest respondent No.1 for failure to pay arrear of property tax amounting to Rs.76,000. Respondent No.1 was not allowed to leave the office and was illegally confined and detained by respondent No.2 with the assistance of subordinates of the appellant. Then the appellant told respondent No.2 to prepare and submit a report for issuance of warrants for arrest of respondent No.
1. The report was prepared by respondent No.2 on dictation of the appellant and the appellant directed that warrants of arrest be issued. Then the warrants of arrest was prepared and the appellant passed orders for detention of respondent No.1 in the Revenue lock-up and respondent No.1 was accordingly forwarded to the said lock-up under arrest. Respondent No.1 kept on raising hue and cry telling the appellant that the arrest is illegal and has been effected without complying the provisions of the law. Ultimately he then offered to pay the amount of Rs.35,832.50 which amount was mentioned in the warrant of arrest but no heed was paid. He was not allowed to use telephone to arrange the payment. He was brought before the Tehsildar, Lahore at about 10-45 a.m. On 11-5-1980. The Teshilar permitted respondent No.1 to contact one Mr. Majeed Nazami, a relative, who brought the amount and same was tendered for payment at about 11-30 a.m. The Tehsildar directed that the payment be made to the appellant. The payment was taken to the appellant at 12 noon who refused to accept the payment and insisted that unless and until Rs.76,000 are deposited he will not order for release. It was with some difficulty that the appellant was persuaded to accept the payment and it was at 1-30 p.m. That he issued release order. After his release he got the file examined by his Advocates M/s. Ch. Muhammad Hussain and Muhammad Naeem Sheikh on 17-5-1980. It was found that certain objections raised by respondent No.1 had not been considered and decided and change of ownership was effected on 30-3-1980 by the appellant illegally. This fact was not conveyed to respondent No.1 or the new owners. No order of assessm ent was made after change of the ownership. No demand was made in accordance with the change effected in the ownership by the appellant. No statutory notice was issued to respondent No.1 and the mandatory provisions of the Land Revenue Act, 1967 as also the Immovable Property Tax Act, 1958, were not complied with. The said detention of respondent No.1 by the appellant was accordingly termed as illegal void and mala fide. It was further stated that respondent No.1 at the relevant time was holding a post in Grade-19. Earlier then that he had been practising as an Advocate of this Court for several years. He belongs to a respectable family and appellant made him to suffer humiliation. He prayed for grant of damages in the sum of Rs.1,00,0000. The appellant and respondent No.2 filed a joint written statement and made averments that enhancement in tax was made as a result of addition and alteration in the property and this was done after observing all legal formalities.The factum of filing of the suit, was admitted by stating that the written statement and reply was filed. Now the plea taken by the appellant was that warrant of arrest was issued on 10-5-1980 to recover arrear of property tax to the tune of Rs.35,832.50 and this was done by the appellant as AC-I Grade under section 82 Land Revenue Act, 1967. It was further stated that notice in term of section 81 of the said Act, 1967 was duly served upon respondent No.l. Respondent No.2 arrested respondent No.1 on 11-5-1980 when he visited the office. After the arrest respondent No.1 was produced before the appellant. It was then stated that it was a chance that respondent No.1 happend to be present in the office of the appellant when respondent No.2 was on his way to the office of the respondent No.1 for execution of the said warrants. According to the .Appellant he gave a chance to respondent No.1 to pay the amount but he failed to do so and he sent him to the Revenue lock-up. It was then stated the requisite notices under the said Immovable Property Tax Act, 1958 were served upon one Tariq Nazir on 18-3-1980 before raising of the demand. Issues were framed. Evidence of the parties was recorded. Vide judgment and decree, dated 23-12-1986 the learned trial Court decreed the suit as prayed for. Now it was observed that only the appellant is liable in the matter and as against respondent No.2, the suit was dismissed on the ground that he only acted under the orders of the appellant. A first appeal was filed by the appellant which was heard by a learned Additional District Judge, Lahore. The learned Additional District Judge upheld the findings of ' the learned trial Court on all issues. However, he reduced the amount to Rs.50,000 vide judgment and decree, dated 1-10- 1996.
2-A. Against the said judgment and decree, dated 1-10-1996 of the learned Additional District Judge, Lahore, the appellant has filed R.S.A. No.9 of 1997 praying that the suit be dismissed while the respondent No.1 has filed Civil Revision No. 378 of 1997 (converted into Regular Second Appeal) praying that the decree of the learned trial Court be restored.
3. Mr. Ijaz Feroze, learned counsel for the appellant contends that both the learned Courts below have misread the evidence on record. According to him his client is public functionary and had acted within the domain of law in exercise of powers as such bona fide and could not have been penalized by the learned Courts below. Mr. Nazir Ahmad Butt, learned counsel for respondent No.1, on the other hand contends that the appellant had acted maliciously and learned Additional District Judge has erred in law in granting relief by reducing amount of damages.
4. I have gone through the record with the assistance of the learned counsel for the parties. I have already reproduced the contents of the respective pleadings of the Raz-ties above. Now it will be seen that the written statement is absolutely silent qua the plea noted in the plaint that respondent No.1 visited the office of the appellant on 11-5-1980 for getting the service of notice in the said suit effected. On the other hand, it will further be noted that it has been admitted in the written statement that the arrest was effected in the office of the appellant. Now P. W.1 is Inayat Ullah Process Server. He has proved his report Exh.P.1/A upon the notice issued by the learned Civil Court to the appellant for 13-5-1980. He has stated that he went to the office of the appellant at 10 a.m. He was delivered the notice and copy of the plaint and after reading the same he told respondent No.1 that a sum of Rs.70,80,000 on account of tax is due from him and unless he pays the same he will arrest him. The appellant then told his staff to prepare the warrants of arrest. Respondent No.1 requested the appellant to use his telephone but he was not allowed to do so. Respondent No.1 remained sitting in the office of the appellant. The witness asked the appellant as to what he should do and he was told that he should go to office and get the service completed.
Consequently he delivered the notice to Diary Clerk. Thereafter respondent No.1 was made to sit in a Jeep by an Inspector and taken away. In his cross-examination he admitted that the notice was obtained by respondent No.1 "Dasti" and was brought to him and was not marked to him by "Nazar".
To my mind, nothing turns on this admission as fact remains that there is no denial that the said Process Server took the notice to the office and got the service effected. P.W.4 is Muhammad Naeem Sheikh, Advocate. P.W.5 is Ch. Muhammad Hussain - Advocate. These gentlemen have stated that under the instructions from respondent No.1, they had examined the file in the office of the appellant. They had noted down the report of the Excise Sub-Inspector, dated 11-5-1980. This report was produced as Exh.P.4/1. P.W.5 was confronted with the original records and he admitted that in the said record that the date is entered as 10-5-1980 but insisted that in the file examined by the witnesses it was 11-5-1980. Mr. Majeed Nizami, Editor Nawa-i-Waqat was examined as Court witness. He stated that he knows respondent No.1 who was Director in the Telephone Department.
He is brother-in-law of Major General Ehsan-ul-Haq Dar and Brig. Dr. Anwarul Haq Dar. His younger brother Dr. Ikram Dar, is a Professor Engineering University. The witness then narrated that on 11-5- 1980 he was sitting in office of Nawa-i-Waqat when he received telephone call from respondent No.1 at about 11 a.m. He told him that he is calling from the office of Tehsildar in the District Courts and he should bring along with Rs.36,000 in cash as he has been arrested for nonpayment of the property tax. The witness then collected Rs.36,000 and proceeded to office of Tehsildar where he found the respondent No.1 present. Tehsildar told him that he cannot receive the amount and the amount is to be delivered to the appellant and only then respondent No.1 can be released. He allowed the witness to see respondent No.1 who was locked up in the lock-up. He then stated that although not known to him the appellant and he used to regularly take morning walk in the Jinnah Garden. He greeted him well and told him about the purposes of his visit. He told him that he has come to deposit Rs.36,000. The appellant told him that demand is Rs.76,000. After some hackle the appellant received the amount. When the -amount had been deposited Robkar was issued. These proceedings took about one and half hours and Robkar was presented before the Tehsildar.
According to this witness respondent No.1 had suffered a loss of reputation.P.W.6 is respondent No.1 himself who made statement in accordance with the contents of his plaint.
5. Now the appellant never entered the witness box. Instead he put respondent No.2 as D.W.1, who stated that it was on 10-5-1980 that the warrant Exh.D.4 was prepared which was executed by him.
On 11-5-1980 at about 8-15 a.m. When he accompanied by his staff was boarding his Jeep they saw respondent No.1 getting down from his car. He went to him and arrested him under warrant Exh.D.5 and produced him before the appellant at 8-30 a.m. The appellant told him to arrange the payment of Rs.35,832.05 and was offered to use telephone but he refused to make the payment. He was accordingly sent to the lock up. At 1-00 p.m. Mr. Majeed Nizami paid the tax and the appellant was ordered to be released. He admitted that copy of the notice under section 81 of Land Revenue Act, 1967, is not available in the record. He stated that Anwar Sheikh Constable effected the service upon Tariq Nazir son of respondent No.l. He admitted that the said constable is present in the office.
When confronted he stated that he does not know as to why respondent No.1 had come to office.
The witness conceded that he had not come to surrender himself for arrest. He expresses ignorance that on 11-5-1980 respondent No.1 had come to the office to get effected the service of a notice in a civil suit. He was confronted with Exh.P.9 and stated that it is correct copy of the warrant but does not contain any date. He was then confronted with Exh.P.12 and writing marked A and and further admitted that date 11-5-1980 is entered. He was then confronted with Exh.P.14 and admitted that the Department has admitted that warrant was prepared on 11-5-1980. He then stated that warrant does not contain any date and this is a clerical error.
6. Having thus examined the records, I do find that findings recorded by the learned Courts below that version of the respondent No.1 is correct are in accord with the evidence on record. There, is no evidence that the provisions of Land Revenue Act, 1997, in the matter of arrest were complied with.
It stands proved on record that the warrant was prepared on a day when respondent No.1 had gone to the office to effect service of notice and he was arrested on the same day. Similarly in the matter of the said demand on the basis of which warrants were issued, compliance of .Provisions of Immovable Property Tax Act, 1958, is not proved by the defendants in the case. There is no reason whatsoever forthcoming on record as to why the appellant against whom said specific allegations were made in the plaint and then reiterated in the course of evidence did not enter the witness-box to deny or challenge the same.
7. So far as question of quantum of damages is concerned. I do agree with the learned Additional District Judge that in the circumstances of the case rule of thumb was applicable and learned Additional District Judge cannot be said to have committed an error of law by reducing the amount by applying the said rule.
8. For the reasons stated above, R.S.A. No.9 of 1997 as well as Civil Revision No.378 of 1997 (now R.S.A.) are dismissed. However, the costs in the mater of R.S.A. No. 9 of 1997 are to be borne by the appellant (Nadeem Mahmood Khan) throughout.
' Record be remitted back immediately. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.