(1) Unit 147/A (i) Loss of cloth valuing Rs,479175 (ii) Union Fund Rs,17461 (iii) Cash Amount Rs,22,000 (iv) Committee Amount Rs,33,000 Rs,33,000 (v) Loss to Building Rs,21,625 (2)Unit 147/B JUDGMENT ' SYED HAMID ALI SHAH, J.---The appellants, through this first appeal, have challenged the judgment and decree dated 16-10-2000, passed by learned Civil Judge, Faisalabad whereby the claim of the respondent for damages was partly decreed against the appellants, to the extent of Rs,5,00,000 (rupees five lacs only).
2. Factual background of the instant appeal is that shop No,147 Arshad Cloth Market, Faisalabad, was allotted to Manzoor Hussain, the predecessor-in-interest of respondents Nos.1 to 3. The shop was subdivided into three portions, where the respondents ran their cloth business separately. The appellants' shop No,P.115 is adjacent to the shop of respondents. The respondents have averred in the plaint that appellants were carrying reconstruction and repair in their shop. They were using the welding equipment for the removal of the affixed iron of the shade at about 9-00 p.m. On 4-6- 1994, when fire broke into the respondents' shop. Furniture, fitting and stock of cloth lying in the shop was gutted due to negligent use of welding equipment. The respondents claimed damages in respect of each unit in the shop separately, as follows:--
(i) Loss of cloth valuing Rs,22,75,250 (ii) Miscellaneous Rs,90,000 (3)Unit 147/C (i) Loss to shop valuing Rs,50,122 (ii) Loss to shop Cetc. Of respondent No,4Rs,4,55,234
3. The respondents initiated the proceedings under section 436, P.P.C. As well, with regard to the said incident.
4. The appellants contested the suit, filed written statement and controverted the averments made in the plaint. The appellants denied their involvement in the incident of fire and alleged that cause of fire was short-circuiting of electricity due to windy weather. The defendants also pleaded that object behind filing the suit was strained relationship between the parties. It appears that statement of Haji Nazir Ali (the plaintiff who appeared as P.W.4) that respondent's shop was rented through Nazir Ali and the parties on point of time quarreled on this issue.
5. Learned trial Court, out of divergent pleas of the parties framed following issues:-- ISSUES "(1) Whether the plaintiffs have got no cause of action to bring this suit? OPD
(2) Whether cloths, furniture and other articles of the plaintiffs were burnt due to negligence of the defendants? OPP
(3) Whether plaintiffs are entitled to recover damages from the defendants, if so, to what extent?
OPP
(4) Relief."
6. The parties led their evidence. The plaintiffs/respondents produced 3 witnesses, and Nazir Ali plaintiff, himself appeared as P.W.4 and produced decision dated 13-6-1994 of the Sessions Judge, Faisalabad, as Exh.P.1 with the copy of F.I.R. The defendants/appellants himself appeared as D.W.2 and produced one Haji Muhammad Shafi as D.W. I.
7. Learned counsel for the appellants contends that the learned trial Court has given undue weightage to the decision of punchayat. The decision was not produced in evidence and its photocopy was only available on record. It was never made the rule of Court. Statement of Haji Muhammad Shafi, D.W.1 (who was appointed by mutual consent of the parties as Head of Punchait) was referred, who deposed that punchayat terminated without reaching any conclusion or decision. It was submitted that the so-called decision of Punchayat has been procured by respondents, fraudulently and illegally. He argued further that respondents have failed to adduce any evidence in proof of the damages, which they claim. No receipt or other document has been produced in evidence to prove the quantity and price of stock lying in shop, at the time when fire broke out. There is no proof as to the worth and quantity of cloth, which escaped fire and the one which was gutted in fire. The learned counsel has referred to "Sufi M. Ishaque v. Metropolitan Corporation" (PLD 1996 SC 737) and AIR 1926 Mad 1021 to contend that damages can only be awarded if proved. The learned counsel concluded that the respondents pleaded negligence on the part of appellants but plaintiffs have failed to prove the same and in this respect referred to 1936 I.C. (Vol.-3) 2000.
8. Learned counsel appearing on behalf of respondents Nos.1 to 3 supported the impugned judgment, laying emphasis on decision dated 13-6-1994 (Exh.P.1) by Sessions Judge, Faisalabad, wherein it has been mentioned that appellants had joined the proceedings before local punchayat, where they (appellants) admitted to compensate the complainant (respondents).
Learned counsel has argued that in view of aforementioned admission by appellants, the suit has rightly been decreed. He further argued that the appellate Court even in the absence of cross objections, can enhance the quantum of damages. He has referred to "Province of Punjab v. Col. Abdul Majeed" (1997 SCM R 1692) to submit that scope of appellate jurisdiction is very vast and this Court has inherent powers to make such orders as may be necessary for the ends of justice. The learned counsel sought enhancement in the claim of damages, without filing cross-objections while placing reliance on case 1997 SCM R 1692 (supra). It has also been submitted that the witnesses of the respondents have stated that fire broke out due to appellants' negligence therefore, in view of the corroborative statements of the witnesses of the respondents, the trial Court has rightly decided the Issues Nos.2 and 3 in favour of plaintiffs/respondents. The following case-law was referred in support of contentions of the respondents:--
(1) Iqbal Umar v. Muhammad Azizullah Qureshi and 2 others (PLD 1976 Karachi 560).
(2) Richard Benjamin Wheeler Haines v. Ismail and others (PLD 1970 Karachi 628).
(3) Ghulam Muhammad and others v. Muhammad Ashraf and others (PLD 1981 SC (AJ&K) 118).
9. Heard learned counsel of the parties and perused the record.
10. The findings recorded by the trial Court on Issue No,2 are open to serious questions, as wrong inferences have been drawn by the trial Court. The learned trial Court while deciding. This issue mainly relied upon the order of Sessions Judge, Faisalabad dated 13-6-1994, passed in bail application, wherein the Court allowed the plaintiffs to move for cancellation of bail, if the appellants do not abide by the terms of punchayat's decision, where the appellant participated in proceedings. The other reasons for deciding this issue, in favour of plaintiff, was the statement of Barkat Ali (P.W.1). No conclusion can be drawn on the basis of the statement of P.W. 1 as he has not been shown present at the spot, at the time of fire. He admitted in cross-examination that plaintiffs' shop is not visible from his shop although he, in the same breath, stated that the plaintiffs shop can be seen from the place where he normally sits. It is practically not possible to see from a distance to brick falling in another shop and flames entering in the shop, especially when the scene is hindered by person doing the welding job. He was unable to mention the names of two persons about whom he stated that their shops were open at the time of incident. His presence in the market when the whole market is closed does not appear to be justified. None among the other witnesses was present at the time when fire broke out.
11. The appellant in his examination in chief categorically stated that repair/construction work used to be in progress from 8 a.m. To 6 p.m. No one from the market reported to the fire brigade about incident of fire, including Barkat Ali P.W.1. Local Police while passing by the market saw fire and reported it to fire brigade. There is no direct proof that respondents shop caught fire due to negligence of appellants. The conclusion drawn on issue No,2, by the learned trial Court is not well founded.
12. Issue No,3 was framed regarding the entitlement of the plaintiff to claim the damages and the extent of damages. It is settled law that the suit for damages can only be decreed when averred in the plaint on each score separately and proved by the evidence on each point. General, vague and scanty evidence in this regard cannot be relied upon. The damages suffered and the quantity of the amount claimed under each head is to be proved by cogent evidence. Mere assertion of inflated amounts without any corroboration of evidence is of no avail to the plaintiffs. Reference in this respect can be made to the following case-law:--
(1) Muhammad Ishaque v. The Metropolitan Corporation, Lahore (PLD 1996 SC 737).
(2) Raja Fakhar Abbas and others v. Karachi Metropolitan Corporation (1988 CLC 1547).
(3) M. Younas & Co. v. Hajiani Mariam Bai and others (PLD 1963 WP Karachi 791).
13. The learned trial Court was mindful of the fact that no material was produced regarding the purchase of cloth: either from Textile Mills or through brokers, and that there was no proof of the burnt furniture, that is why the learned trial Court declined to award the other damages. The plaintiffs were awarded the damages to the tune of Rs,5,00,000 (Rupees five lacs only) on the basis of un-attested copy of award. The award by arbitrator cannot be made the basis of the decree as it was not produced in evidence and its photocopy was placed on record only. The value of the award was more than Rs,100 and as such it was subject to compulsory registration. Section 49 of the Registration Act, 1908 provides that such document, unless it is registered, does not create any right. The award, otherwise that in accordance with the provisions of law,, is invalid and an invalid award does not bind even the consenting parties. The statement of D.W.1 who admittedly was appointed as head of Punchayat cannot be ignored.
14. The witnesses of the plaintiffs/respondents failed to depose the quantum of damages, which the respondents have suffered. They have neither quantify the loss, nor stated in conformity with the loss sustained by the plaintiffs, as asserted in the plaint. The loss stated to be suffered under each head as stated in para. 9 of the plaint finds no mention even in the statement of the plaintiff, who appeared as P.W.4. The plaintiffs failed to prove with absolute certainty the negligence of the appellants as well as the claim of damages.
15. The upshot of the above discussion is that the respondents failed to prove that the fire broke out due to the negligence of the appellants as well as the damages sustained. Therefore, the appeal is accepted, findings of the learned trial Court are hereby reversed, judgment and decree dated 16- 10-2000 is set aside and the suit of the plaintiffs is dismissed without any order as to costs.