1. NADEEM AZHAR SIDDIQI, J.---The plaintiff has filed this suit for recovery of Rs,60,60,000 as compensation for malicious prosecution.
2. In short the facts of the case as pleaded in the plaint are that on 15-1-2005 the defendant has filed a constitutional petition bearing No,D-46 of 2005, in this Court against the plaintiff and four others.
3. It was stated that in the petition the defendant used filthy and indecent adjective and words and maliciously developed a concocted story against the plaintiff. In paragraph No,8 of the said petition the defendant stated that the plaintiff is fraudulent and cannot be allowed to enjoy ill- gotten gains. It was further stated in the plaint that the defendant levelled other baseless, malicious and scandalous allegation against the plaintiff.
4. The plaintiff has filed his counter-affidavit in the said petition, which was came-up for hearing on 18-10-2005 and was dismissed with the observation that for the forgoing we are unable to find any illegality in the appointment of the respondent No,5 (the plaintiff) as District Officer (Education) and would accordingly dismiss petition. It was further stated in the plaint that from the orders of the Court it is evident that the defendant without any cogent material in order to humilitate and torture the plaintiff filed malicious, baseless and misconceived petition which met with its ultimate fate. It was further stated in the plaint that on account of the defendant's wilful, illegal and wrongful action the plaintiff suffered defamation, mental torture, agony, financial losses, etc. And is legally entitled to be compensated by the defendant in terms of damages and the proceedings instituted by the defendant in this Court were not only malicious, but without any reasonable and probable cause. In the plaint the plaintiff has further stated that he is an honest and dutiful public functionary having impeachable service career and inconsequence of wilful, deliberate and wrongful action on the part of the defendant the plaintiff suffered mental torture, physical injury and financial losses. The plaintiff has claimed the following amount on account of compensation:- - S.No. Nature of Damage Compensation
1. Fee of the counsel engaged by plaintiff to defend himself in the petition.Rs.50,000
2. Loss of reputation and goodwill Rs.30,00,000
3. Mental torture and humiliation Rs.30,00,000
4. Miscellaneous expenses incurred during pendency of petition.Rs.10,000 Total Rs.60,60,000 The plaintiff before filing the suit has served a Legal Notice, dated 21-1-2006 asking an amount of Rs,60,60,000 from the defendant, which was replied by the defendant who reiterated baseless and unfounded allegations levelled in the petition. The plaintiff has prayed for the following relief:-
(a) awarding a sum of Rs,60,60,000 to plaintiff payable by the defendant as compensation for damages for malicious prosecution of the plaintiff by the defendant as hereinabove mentioned;
(b) allowing mark-up on the aforesaid amount at the rate of 14% per annum from the date of the institution of the suit till its realization;
(c) granting any other/better relief which is deemed appropriate and fit in the circumstances of the case by this Court; and
(d) awarding costs of the suit to the plaintiff.
5. The summons of this suit were duly served upon the defendant and the same was also published in Daily Jang Karachi, dated 24-8-2007. The service against the defendant was held-good on 24- 8-2007, but no written-statement has been filed. The matter was placed before the Court on 24-9- 2007 for passing ex parte order.
6. Since no written-statement has been filed the defendant was declared ex parte vide order, dated 24-9-2007. The plaintiff has filed his affidavit-in-evidence on 24-10-2007 and thereafter, the matter was fixed for final disposal and the arguments of the learned counsel for plaintiff were heard.
7. Learned counsel for the plaintiff submits that the defendant has filed a constitutional petition in which false and defamatory allegations have been levelled against the plaintiff which caused mental torture, loss of reputation and financial losses to the plaintiff and he is entitled to claim compensation from the plaintiff on account of malicious prosecution. He further submits that the said constitutional petition was dismissed and from its dismissal it is evident that the false and defamatory allegations were levelled against the plaintiff. He then submits that the defendant is in habit of filing baseless and frivolous cases against the honest officers, therefore, he is liable to compensate the plaintiff. He then submits that the defendant has not filed his written-statement and the contents of the plaint and affidavit-in-evidence, which are on oath, have gone unrebutted and unchallenged, as such, the plaintiff is entitled to decree the suit as prayed.
8. I have heard the learned counsel for plaintiff and perused the record of this case very carefully.
9. The plaintiff has produced certified copy of the Constitutional Petition No,D-46 of 2005 along with its affidavit in which he has been cited as respondent No,5. The plaintiff has also filed certified copy of his counter-affidavit, which was filed by him in the above said petition along with certified copy of the order, dated 18-10-2005.
10. From the perusal of the said petition it reveals that certain allegations were levelled against the plaintiff. In para. 5 of the petition it has been stated that the plaintiff has politically trespassed to the post of S.D.E.O., suppressing his original cadre as Statistical Officer taking undue advantage of his assignment as a Section Officer manipulating with the rules and occupied important administrative post of D.O.E., Secondary & Higher Secondary (Male), Karachi. It was further alleged in the plaint that the plaintiff due to his influence in Education Department managed his elevation from B-17 to the post of S.D.E.O. And upgraded the post of B-18. In the Ground No,8 of the petition the defendant alleged that the plaintiff is fraud and cannot be allowed to enjoy ill-gotten gains.
11. The plaintiff has also produced photocopy of the notice, dated 21-1-2006, which was addressed to the defendant, asking him to pay a sum of Rs,60,60,000 on account of compensation. The defendant has replied the said notice vide letter, dated 23-2-2006 and in the concluding paras. Of reply the defendant had stated as under:- "According, total sums of my submissions, are quiet---apparent that your client's involvement in obtaining such order in question, are nothing, but ill-gotten gains as aforesaid, for which, he is responsible and accountable to in obtaining orders by playing fraud, being outcome of his nefarious act of his designs, sought to be set at naught, which is yet pending consideration in the competent Court of law.
12. In this respect, I would there be in by a right, to request you, to recall each and every adverse allegation against me as un-called for, pre-mature, recklessly by made and, to get apologize me, for which kindly ask your client, to note it."
13. From the perusal of contents of the plaint and its annexure following points/issues require consideration:--
(1) Whether filing of a false and malicious constitutional petition can be treated as malicious prosecution?
(2) Whether the defendant has caused mental torture, loss of reputation and financial losses to the plaintiff by levelling false allegations against him?
(3) Whether the plaintiff is entitled to the compensation as prayed in the suit? If yes to what extent?
14. POINT/ISSUE NO.1.
15. The suit has been filed against the defendant on account of filing of constitutional petition by the defendant against the plaintiff in which certain allegations were levelled against the plaintiff which could not find reasonable and the petition was dismissed. Basically the plaintiff has claimed compensation against the defendant on account of levelling false allegation in a civil action. The question for consideration is whether the filing of petition can be termed as malicious prosecution and the contents of petition are defamatory in nature tend to lower the reputation of the plaintiff in the estimation of others create hatred, contempt and ridicule the plaintiff. Defamation is communication to third party of false statement about the person to injure his reputation and to cause personal harms to him. Filing of suit for compensation on account of civil action is permissible, if in the case of special nature in which suit for damages, independent of cost awarded in the suit, can be maintained. In the reported case of Ali Asghar v. Fazal Akbar 1988 CLC 147 a learned Single Bench of the Peshawar High Court relying upon the two judgments from Indian jurisdiction has held as under:-- ................................................. The test to be applied is whether the civil action complained of necessarily or naturally involved damage, which could not be recompensed by an order for costs. If the action did necessarily or naturally involve such damage and was instituted falsely and maliciously the law provides a remedy.
16. The filing of suit for damages on account of false civil action has been examined by the Honourable Supreme Court of Pakistan in the reported case of Muhammad Akram v. Mst. Farman Bi PLD 1990 Supreme Court 28 and has held as under:- "We having carefully perused the reasoning of the learned Judge in the High Court, agree with him that the distinction in our country, between, criminal 'prosecutionand the 'Civil prosecutionfor purpose of denying the right to institute the latter for damages in torts, is not at all well founded.
17. The Privy Council judgment showing itself a conflict of trend for some time in the judgments in a country where "the action for damages for malicious prosecution is part of the common law of England" is no more an authority for us under our own constitutional and legal set up. Even otherwise we do not agree with the learned counsel that the denial of right to sue for damages in such-like cases, was universally accepted as 'good law. The contrary view, with respect, is more logical and is much convincing. The learned Judge has correctly analyzed the case-law in this behalf."
18. From the above observations of Honourable Supreme Court it is evident that a suit for damages on account of false and malicious civil action can be maintained. However, in the same judgment the Honourable Supreme Court has laid down a test, which has to be satisfied by the plaintiff. The elements of the tests laid down by the plaintiff are as under:--
(i) that the plaintiff was prosecuted by the defendant:
(ii) that the prosecution ended in plaintiff's favour;
(iii) that the defendant acted without reasonable and probable cause;
(iv) that the defendant was actuated by malice;
(v) that the proceedings had interfered with plaintiff's liberty and had also affected her reputation; and finally
(vi) that the plaintiff had suffered damage."
19. Malicious prosecution has been defined by a learned Single Bench of this Court in the reported case of Ameeruddin v. Fazalur Rahim Khan 2003 YLR 136 as under:-..
20. "Malicious prosecution is a tort, the liability of which consists in improperly instituting unsuccessful criminal proceedings for an imprOper purpose and without reasonable and probable cause."
21. The plaintiff has fully satisfied the test laid down by the Honourable Supreme Court and there is no denial of the fact that the plaintiff was prosecuted which ended in his favour and that the defendant has acted without reasonable and probable cause and was actuated with malice and finally due to false allegation the reputation of the plaintiff was affected and the plaintiff also suffered damages.
22. In view of the discussion hereinabove, I answer this point/issue that filing of a false and malicious constitutional petition can be termed as malicious prosecution POINT/ISSUE No,2.
23. The defendant has levelled allegations against the plaintiff, which were not accepted by the Court and the petition was dismissed with the observation that "for the foregoing reasons we are unable to find any illegality in the appointment of respondent No,5 (plaintiff) as District Officer (Education) and would, accordingly, dismissed the petition." In that petition the superior officers of the plaintiff were also made parties and the copies of the petition containing false and malicious allegations were also sent to them. The settled law is that if the matter is defamatory the falsity of its is presumed until it is proved to be true. A matter will be deemed to be defamatory if it exposes the plaintiff to hatred. Ridicule or tends to injure him in his profession or trade. The allegations in the petition are serious in nature and the defendant has alleged to the extent that the plaintiff was thrown out from the post of S.D.E.O., and getting undue advantage of his influence in Education Department, managed his elevation from B-17 to the post of S.D.E.O. An upgrade post of B-18 and it was also alleged by the defendant that the plaintiff is fraud and he cannot be allowed to enjoy ill- gotten gains. The burden to prove that allegation or defamatory statements were true is on the defendant. The defendant has neither filed any written-statement nor rebutted the affidavit in ex parte proof filed by the plaintiff. The statement on oath of the plaintiff has gone unchallenged and remained unrebutted. There is no denial of the fact that the allegations in the petition are defamatory in nature and has been levelled to lower the reputation of the plaintiff in the estimation of other and can be treated as malicious. The defendant has failed to prove that the allegations made by him against the plaintiff in the petition were true. It is an admitted position that the plaintiff is a respectable officer and is enjoying good reputation and the false and malicious prosecution have affected his reputation in his profession and trade.
24. In the light of above mentioned, I hold that the false and malicious allegations have caused loss of reputation mental torture and financial losses to the plaintiff.
25. POINT/ISSUE No,3.
26. The plaintiff has claimed an amount of Rs,60,60,000 on various accounts. The damages claimed in the suit are in the nature of general damages or non-pecuniary damages. There is no hard and fast rule to grant general damages and there is also no yardstick to measure the same. The rule for award of general damage is that in the case of defamation the conscience of the Court should be satisfied that the damages awarded would if not completely, satisfactorily compensate the aggrieved party and that the amount so assessed must be compensatory in nature and not to appear punitive or exemplary. In the reported case of Muhammad Sharif v. Nawab Din PLD 1957 W.P.
27. Lah. 283 a Learned Single Bench was held as under:-- If we are to assess damages only if the exact amount Is proved, no damages can ever be decreed.
28. Damages have so many times to be awarded by the rule of thumb but the fact that the exact amount is not determinable can be no reason for dismissal of a suit.
29. The other judgment with regard to the 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 was reported as Sufi Muhammad Ishaque v. The Metropolitan Corporation Lahore 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 injury. It may be bodily injury loss of reputation, business and also mental shock and suffering There is no denial of the fact that due to filing of false and malicious constitutional petition the plaintiff has suffered the damages as claimed by him in the plaint. In absence of any rebuttal the claim of the plaintiff has to be accepted.
30. In view of the above, I hold that the plaintiff is entitled to the compensation on account of damages suffered by him due to filing of false and malicious constitutional petition.
31. Regarding the question of damages, the Court is itself competent to ascertain the question of damages keeping in view the circumstances of the case as held in the reported case of Pakistan Industrial Development Corporation v. Aziz Qureshi PLD 1965 (W.P) Karachi 202.
32. After considering the material available on record, I have reached to the conclusion that ends of justice would meet, if the suit of the plaintiff is decreed in the sum of Rs,15,00,000 as damages to be paid to the plaintiff by the defendant. The plaintiff is also entitled to simple interest at the rate of 10% from the date of decree till the realization of decretal amount.
33. Office is directed to prepare the decree in the above terms.