1. NADEEM AZHAR SIDDIQI, J.--- The plaintiff has filed this suit for declaration, injunction and recovery of damages amounting to Rs,50,00,000 (Rupees fifty lacs). The facts of the case as stated in the plaint are that plaintiff is friend of one Syed Nadeem Qamar who established a sole proprietorship firm, namely, Hi-Tech Traders, Karachi, and since the plaintiff is specialized in the field of Aviation Defence Supplies he was requested by said Syed Nadeem Qamar to join his firm in the capacity of General Manager. The firm started his business, which flourished, due to which the services of the defendant were hired and he was appointed as Manager Technical. The plaintiff states that during the course of business whenever the firm needed the funds it were arranged by the defendant and were repaid to him. It was further stated in the plaint that in the month of December, 1995 the plaintiff detected certain discrepancies in the Books of Accounts amounting to lacs of rupees embezzled at the hands of the defendant which matter was brought to the knowledge of the proprietor of the firm, whereafter the attitude of the defendant towards the plaintiff became enimical and he even threatened the plaintiff for dire consequences, due to embezzlements the firm suffered losses. The plaintiff further states that the defendant started sending his criminal associates at the office of his father-in-law and ,defame the plaintiff, the defendant talked to one Khalid Nagra former M.D. (I.D.B.P.) due to which plaintiff suffered mental agony besides physical discomfort. The defendant along with his associates came to the house of plaintiff extended threats and claimed that he is in possession of such documents with the help of which can involve the plaintiff in false cases and demanded Rs,13,00,000 (Rupees thirteen lacs) from the father of the plaintiff. The plaintiff claims Rs,50,00,000 (Rupees fifty lacs) on account of damages caused to the plaintiff due to illegal acts of the defendant.
2. The defendant filed his written statement in which he has stated that plaint does not disclose a cause of action and the plaint is vexatious and meritless. On merit the defendant submit that Messrs Hi-Tech is not a proprietorship but a partnership on the basis of partnership-deed executed on 29-9-1994 between Furrukh Saeed Khan, his wife Mrs. Aliya Furrukh and Syed Nadeem Qamar.
3. The defendant accepted that he joined Hi-Tech as Manager Technical and was appointed on merit. The defendant states that during the period from 27-10-1994 to 1-11-1995 he provided funds to the plaintiff to overcome the financial problems of the firm and also enclosed the statement of accounts from November, 1995 till August, 1996. The defendant states that due to mutual trust and faith he never felt necessary to obtain receipt from the plaintiff and his partner. An amount of Rs,5,30,000 and US $12,000 was acknowledged by the plaintiff and his partner and had issued a receipt filed along with the written statement as Annexure "B". The defendant has denied that he has caused any harassm ent or defamation. He submits that he demanded the return of his amount from the plaintiff and not from his father and seeks the intervention of his cousin Khalid Nagra to amicably settle the dispute. The defendant further submits that his efforts to get back the loan amount cannot be termed as harassment.
4. On the basis of the pleadings of the parties following issues were framed/adopted on 19-10-1998:--
(l) Whether the suit of the plaintiff is not maintainable?
(2) Whether the firm Messrs Hi-Tech Traders Karachi is not a Sole Proprietorship Firm of Syed Nadeem Qamar?
(3) Whether the plaintiff was not the General. Manager of Messrs Hi-Tech Traders?
(4) Whether due to embezzlement at the hands of the defendant the company suffered heavy losses and the business of the Company was closed?
(5) Whether the defendant has committed such acts due to which the' plaintiff has been defamed and is entitled for damages?
(6) Whether the plaintiff is not entitled for the relief of permanent injunction against the defendant?
(7) Whether the defendant can claim anything from the plaintiff in respect of interest amount and/or any amount paid to the firm Messrs Hi-TechTraders, Karachi?
(8) What should the order be?
5. The plaintiff with the permission of, the Court filed affidavits-in evidence of self and his witnesses on 23-2-2004 and filed photocopies of documents from Exh.P./1 to Exh.P./13 (the originals were not produced and the documents were not properly exhibited). The defendant failed to cross-examine the plaintiff and his two witnesses, namely, Farrukh Saeed Khan and Usman Umar and right to cross-examination was closed on 18-5-2004 and the case was adjourned to 13-8-2004 for defendant's evidence. On 10-9-2004 the side of the defendant to lead evidence was also closed and the case was adjourned for final arguments.
6. I have heard the learned counsel for the parties and perused the record of the case. My findings on the issues involved are as under:-- Issue No,
1. This issue has been framed from the pleadings of the defendant. Neither the defendant has cross-examined the plaintiff nor led his evidence in rebuttal. The defendant in his arguments has submitted that suit is not maintainable as the prayer clause "C" is in the nature of negative declaration and relied upon the case of Abdur Rehman Mobashir and 3 others v. Syed Amir Ali Shah Bukhari and 4 others PLD 1978 Lah.
113. In the prayer clause other prayers are also there and in case one prayer is not admissible the suit as a whole cannot be dismissed but the prayer which is not permissible can be declined. Prayer clause "A" is an independent clause and subject to its proof the same can be granted independent of the declaration. There is also nothing on record to show that why the suit is not maintainable. I, therefore, hold that the suit is maintainable.
7. Issue No,2. The burden to prove this issue also lies upon the defendant. The plaintiff has clearly stated that Hi-Tech is a proprietorship concern and produced photocopies of the documents to show that Hi-Tech is a proprietorship concern. The defendant neither cross-examined the plaintiff nor produced any evidence to rebut the contentions of the plaintiff. The photocopies of the documents not disputed clearly established that Hi-Tech is a proprietorship of Nadeem Qamar. issue No,3. The defendant has denied that the plaintiff was the General Manager of Hi-Tech but states that he was partner. Though in his written statement the defendant claims that plaintiff is a partner in view of partnership deed executed on 29-9-1994 but the Partnership deed was not produced. Learned counsel for the plaintiff submits that since no evidence was produced by the defendant the written statement cannot be considered and the same has to be ignored and relied upon the following judgments:--
(1) Messrs Shalimar Ltd. Karachi v. Raisuddin Siddiqui and 3 others 1979 CLC 338; (2) Messrs Society Oil Dealers, Karachi v. District Judge, Karachi and another 2003 MLD 2005; (3) Saeedur Rehman and others v. Assistant Commissioner/ Collector Acquisition, Swabi 2004 CLC 378 (4) State Life Insurance Corporation v. Mamoor Khan 1993 CLC 790.
8. In all the above judgments it was held that a party who has filed written statement and denies to appear in the witness-box, the contents of such written statement are ought to be ignored. The written statement filed by the party who failed to appear in the witness-box is of no value. Since the claim of the plaintiff that he is General Manager has gone unrebutted I hold that the plaintiff was the General Manager of Hi-Tech Traders.
9. Issue No,
4. The burden to prove this issue is upon the plaintiff. There is nothing on record except the words of the plaintiff that due to embezzlements at the hands of the defendant the company suffered heavy losses and the business was closed. The plaintiff can produce evidence in the shape of documents to show the embezzlement and the closure of the business. The pleadings and the evidence are silent with regard to action instituted against the defendant for causing embezzlement. The burden to C prove this issue is upon the plaintiff who fails to prove the same hence this issue is decided in negative. No doubt the defendant has not produced any evidence but the matter is to be decided on the strength of the case of the plaintiff and not on the basis of weakness of other side. Since no documentary evidence was produced I decide this issue in negative.
10. Issue No,5. The burden to prove this issue is upon the plaintiff who in his pleadings as well as in his affidavit-in-evidence claimed that the defendant by his illegal acts had defamed him and also caused mental agony and physical discomfort. It was further stated by the plaintiff that due to illegal acts of the defendant and his criminal associates, the peaceful life of the plaintiff and his family has been disturbed to a great extent and he was defamed in the eyes of his elders and relatives in particular and public and in his business circle in general and claims Rs,50,00,000 as damages. The defendant though filed written statement but neither cross-examined the plaintiff and his witnesses nor produced his evidence in rebuttal. The written statement filed by the defendant is of no use and in view of the above reported judgments, I ignore the written statement filed by the defendant. The witness of the plaintiff Usman Umer who 'is father-in-law of plaintiff in para.3 of his affidavit-in-evidence confirms that associates of defendant came to his office and stated that plaintiff owe some amount to the defendant and the ,defendant also talked to the witness on phone and told him that plaintiff has taken loan from him and is not repaying the same.
11. The witness further stated that he was very much shocked after hearing such news as he never expected such character from his son-in-law. The other witness, namely, Kamal Saeed Khan, father of the plaintiff, states in para.7 of his affidavit-in-evidence as under:-- "On the one hand he tried his level best to damage our reputation and prestige in the eyes of in- laws of my son and on the other hand he also damaged the reputation of my son and our family in the in-laws family of my daughter, which very seriously effected our respect before our close relatives the aforesaid actions of the defendant tantamount to a very serious defamation of mine as well as of my family, due to which we all suffered mental agony, besides physical discomfort."
12. The witness in para. 9 of the affidavit-in-evidence further states as under:-- "Due to the aforesaid illegal acts of the defendant and his criminal associates, the peaceful life of my son and our family has been disturbed to a great extent, as we have been defamed in the eyes of our relatives in particular and public in general, besides this my son's reputation in his business circle has suffered which is unrepairable:"
13. All the evidence discussed above gone unrebutted and unchallenged and there is no other option but to accept the same as true. In a case of damages burden to prove that allegations or defamatory statements were true was on the defendant. Since there is no rebuttal it is presumed that the allegations levelled by the defendant against the plaintiff are false. The allegations are defamatory, if it exposes the plaintiff to hatred contempt, and ridicule or tends to injure him in his profession, trade and person known by him The plaintiff has not examined any person connected with his profession or trade and so also not examined any witness to prove that he was defamed in the eyes of the public. In absence of any evidence in this regard only words of the plaintiff are not sufficient to award damages of Rs,50,00,000 (Rupees fifty lacs). From the evidence available on record it can be said that defendant has caused defamation, mental agony and physical discomfort to the plaintiff. Now the question is that what will be the quantum of damages for which the plaintiff is entitled under the circumstances of the case. The plaintiff has not claimed any special damages and case is confined to general or non-pecuniary damages. There is no hard and fast rule for grant of general damages and there is also no yardstick to measure the damages caused to a person and then to determine the compensation. This is the crucial point in this case.
14. The principle laid down in various judgments with regard to award of damages is that the amount though assessed must not appear to be punitive in nature or exemplary. The plaintiff in his pleadings and evidence also failed to demonstrate how he is entitled to heavy damages. The claim of the defendant is that he is demanding a loan of a sizable amount advanced to the plaintiff and his partner. The defendant further claims that his efforts to get back the loan amount from the plaintiff cannot be termed as E harassment. The defendant further states that he committed no illegal act by demanding the loan amount from the plaintiff. The defendant failed to prove his claim that he is innocently and in good faith demanding his amount from the plaintiff and has not defamed him. The defendant has to prove that allegations levelled by him are true by cogent evidence inspiring confidence. In American Life Insurance v. M.S. Khawaja PLD 1960 (W.P.)
15. Kar. 568 it has been held that falsity will be presumed regards the words used till it is prove that they are not false. In this case the plaintiff has proved that the defendant levelled allegations against him but the defendant failed to prove that he has not defamed the plaintiff by demanding his own amount of loan.
16. This is a case of slander. The slander is defined in the case of Sir Edward Senlson, K.B.E. and Secretary to the Government of Pakistan, Ministry of Law v. The Judges of the High Court of West Pakistan, Lahore and others PLD 1961 SC 237, which reads as under:-- "Slander is defamation by words or in some transitory or fugitive form. It is actionable where the matter is calculated to F disparage the plaintiff in regard to his office, profession, etc. without proof of special damage."
17. The principle for assessm ent of general damages in a case of libel also applies to the case of Slander and the damages have to be assessed keeping in view the circumstances of the case.
18. Regarding the determination of quantum in a case of frivolous litigation it was held in Mrs. Zahra Zaidi v. M. Anwar Khan Ghauri 2004 CLC 223 which reads as under:-- "No yardstick existed to measure or assess actual quantum of damages in respect of mental torture sustained by plaintiff while facing agonies of a frivolous litigation against her---In order to prove the expenditure incurred on such litigation, a party could place on record details of such expenditure, but in the present case no specific evidence was available on that point---Even if plaintiff failed to prove actual quantum of damages, her suit was not to be dismissed on that ground as Court itself was competent in circumstances to ascertain quantum of damages."
19. In another judgment relating to assessment of damages in a case of Libel reported as Altaf Gauhar v. Wajid Shamsul Hasan and another PLD 1981 Kar. 515 it was held as under:-- General damages---Assessm ent---Grant of General damages-- Inherent in proceedings against publication of defamatory and libellous statement---No rule of law being laid down regarding assessm ent of general damages in defamation cases, damages for defamation, held, compensatory in nature and amount assessed not to appear punitive or exemplary."
20. In another judgment relating to assessment of damages arising out of an accident on account of mental torture and nervous shock reported as Abdul Qadir v. S.K. Abbas Hussain and 2 others PLD 1997 Kar. 566 it was held as under:-- "---Fair compensation would be difficult to assess in such cases---Court would have discretion to determine on basis of evidence, fair sum to be awarded to affected person---Conscience of Court must be satisfied that damages awarded would, if not completely, at least satisfactorily compensate aggrieved party---Person who suffered mental torture and nervous shock was thus, entitled to recover damages."
21. The other judgment with regard to assessment of damages for mental torture, nervous shock and injuries of like nature arising out of breach of duties or a wrongful negligent act of defendant reported as Sufi Muhammad Ishaque v. The Metropolitan Corporation Lahore through Mayor PLD 1996 SC 737 it was held as under:-- "There can be no yardstick or definite principle for assessing damages in such cases. The damages are meant to compensate a party who suffers an injure. It may be bodily injury loss of reputation, business and also mental shock and suffering.'
22. In all the above judgments it was held that usually, it is difficult to assess fair compensation and in those circumstances it is the discretion of the Judge who may on the facts of the case determine the amount to be awarded to a person who suffered such a damage. The other factor is that conscience of the Court should be satisfied that the damages awarded, would if not completely, satisfactorily compensate the aggrieved party.
23. From the evidence available on record it can be said that defendant has caused defamation, mental agony and physical discomfort to the plaintiff and defamed the plaintiff in his business circle.
24. Article 14 of the Constitution of Islamic Republic of Pakistan, 1973 provides that dignity of man is inviolable. It is legitimate right of plaintiff to defend his good name and the defendant has no right to defame him. The defendant has the right to recover his amount from the plaintiff but has no right to defame him. By damaging the good name of the plaintiff the defendant exposes himself to the consequences. In this case the plaintiff at least prove that the defendant has defamed him in the L family and in his business circle.
25. In view of above discussion I hold that the defendant has defamed the plaintiff and is liable to compensate him and the plaintiff is entitled to general damages.
26. Issue No,6. In view of my findings on Issue No,5 the plaintiff is entitled to the relief of permanent injunction to the extent that the defendant has no right to damage the reputation of the plaintiff in public in general and in the circle of plaintiff's friends and relatives in particular. Regarding the relief that defendant may be restrained from claiming anything in the shape and kind cannot be granted and the defendant has every right to recover legal dues if he can prove the same before a competent legal forum.
27. Issue No,7. The plaintiff claims that the defendant is demanding loan amount and interest from him. The defendant also claims that he is claiming the loan amount from the plaintiff. The defendant also filed Annexure "B" with the written statement to show that amount was paid to the plaintiff and Nadeem Qamar. During arguments the learned counsel for the defendant has stated that the defendant has filed Suit No,67 of 1999 for recovery of loan amount which suit was filed in this Court but now transferred to District Court, Karachi-South, and stated that any finding on the issue will prejudice his case. The defendant has to prove that he has advanced any amount to the plaintiff and is entitled to recover the same from the plaintiff. Any finding on this issue will certainly prejudice the case of defendant. Furthermore, it appears that this issue was framed from the pleadings of the plaintiff keeping in view prayer clause "C" of the plaint. A negative declaration was sought. For seeking declaration the plaintiff has to disclosed his legal character and that the defendant is denying that legal character. Since the matter is pending before another Court I refrain myself from giving any finding on this issue. This issue will be decided in pending proceeding.
28. Issue No,8. In view of my findings on Issue No,5 I conclude that ends of justice would meet if the suit of the plaintiff be decreed in the sum of Rs,5,00,000 (Rupees five lacy) as general damages to be paid by the defendant to the plaintiff. The defendant is also restrained from visiting the house of the plaintiff and from defaming him in the public as well as with in his family Suit is decreed accordingly. Decree to be prepared.