' JAWWAD S. KHAWAJA, J. Muhammad Nawaz petitioner/defendant is the father of Mst. Nazran Bibi respondent/ plaintiff. He impugns the appellate decree dated 28-10-2005, whereby the decree of the learned trial Court dated 14-5-2005 was set aside and a suit filed by the respondent for recovery of Rs,25,000 has been decreed.
2. The case of the respondent/plaintiff was that the petitioner had executed an agreement (Exh.P.1) dated 8-3-2001 in her favour. It is recited in this agreement that the petitioner was intending to file a suit against one Muhammad Amin to assail exchange Mutation No, 6513 dated 26-10-1994. It was then stipulated that the respondent would pursue the case against Muhammad Amin on behalf of the petitioner and would bear expenses in connection with the same. The respondent's suit was filed for recovering a sum of Rs,25,000 on the basis of the aforesaid agreement (Exh.P.1).
3. The defence, setup by the petitioner, was that he had executed a power of attorney in favour of the respondent to authorize her to pursue the matter against Muhammad Amin but had not executed any agreement. According to the petitioner, the respondent had obtained his thumb impression on Exh.P.1 on the pretext that the document was meant for the purpose of a power of attorney.
4. Issues were framed by the learned trial Court on which both parties led evidence. The learned trial Court dismissed the suit. However, on appeal, the suit has been decreed in favour of the respondent. Hence, this revision petition.
5. The learned appellate Court has held that the petitioner had, in fact, executed the agreement (Exh.P.1) as he had admitted his thumb impression thereon. Learned counsel contends that mere admission of thumb impression, in the circumstances noted above, was not sufficient for the purpose of proving execution, particularly in view of the fact that the petitioner is illiterate and had explained the reason for affixing his thumb impression.
6. Secondly, it was argued by learned counsel for the petitioner that the respondent appeared as P.W.1 in support of her own case. She acknowledged that the power of attorney in her favour remained operative for a period of four months only. Moreover, she could not prove any expenditure incurred by her in pursuing the abovementioned suit filed against Muhammad Amin.
7. It is submitted that in the foregoing circumstances, there was no justification for decreeing the suit of the respondent. The learned appellate Court appears to have misdirected itself by awarding damages on account of mental torture and etc. There is no valid, legal or contractual basis to justify this award. Furthermore, considering that there is no evidence of any expense having been incurred by the respondent, she was not entitled to recover any amount from the petitioner. At this juncture, it is also relevant to note that no court-fee was paid on the suit filed against Muhammad Amin. The suit itself was filed by the petitioner Muhammad Nawaz himself and not by the respondent as his attorney.
8. The learned appellate Court has also misread the record inasmuch as it has concluded that the respondent pursued the case against Muhammad Amin for a period of more than one year. The respondent appearing as P.W.1, admitted, as noted above, that the power of attorney remained effective only for four months. In these circumstances, there is no basis for the conclusion arrived at by the learned appellate Court that the respondent pursued the case of the petitioner against Muhammad Amin for over one year. Even if she had pursued the case, this alone was not sufficient for the purpose of awarding a money decree in her favour without proof of expenditure incurred by her.
9. Learned counsel for the respondent was unable to controvert the above submissions. He was repeatedly asked to show from the record, proof of expenses which may have been incurred by the respondent pursuant to the agreement (Exh.P.l). He was unable to do so. Here I may add that the total claim of the respondent was itemized as under:- "Fee paid to counsel:- Rs,5,000 Miscellaneous expenses:-Rs,5,000 ' Travelling, etc. Rs . 5,000 ' Mental torture:- Rs,10,000"
10. The respondent did not produce any reliable evidence to substantiate the above. She appeared as her own witness, but her testimony is hard to believe, firstly, because she, by her own admission, remained the attorney of the petitioner for only four months. The earlier suit to challenge the exchange mutation was filed by the petitioner himself and not through the respondent as his attorney. In these circumstances, it is not possible to believe, in the absence of strong proof to the contrary, that a sum of Rs,15,000 was spent by the respondent in pursuing the earlier suit. The mere testimony of the respondent as her own witness is certainly not sufficient for proving this claim. As to the claim of Rs,10,000 in respect of mental torture, it is to be noted that the respondent could only claim expenses under Exh.P.1. Her claim was based on contract and not on tort. The sum of Rs,10,000, therefore, could not be allowed in any event.
11. Unfortunately, the learned appellate Court has not taken note of the above circumstances. The impugned appellate decree, therefore, is not legally sustainable and is set aside. As a consequence, the decree of the learned trial Court dated 14-5-2005 stands restored. 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.