1. ' NADEEM AZHAR SIDDIQI, J.---The plaintiff has filed this suit claiming damages of Rs.40,00,000 from the defendant on account of fraudulent transaction of sale of Plot No.90, Street No.4. Phase VII Extension, measuring 100 Sq. Yds_ situated at Pakistan Defence Officers Housing Authority, Karachi.
2. The plaintiff claims that he paid Rs.3,00,000 to the defendant through cheque on account of advance payment/token money and the same was encashed in the account of defendant. It was further stated in the plaint that on enquiry it transpired that the property does not exist and if it does exist the defendant has no authority to offer the same for sale. The plaintiff claims damages on account of mental agony, tension, torture and loss of business opportunity.
3. ' The summonses were served upon the defendant on 13-10-2004, the summons was also sent to the defendant through courier and registered post A/D and finally by way of publication of summons in daily DAWN Karachi, dated 8-12-2006 and Property Times Karachi, 4th Volume, 26th Issue, dated 10-12-2006 to 16-12-2006 as well as pasting. After service Mr. Saathi M. Ishaque, Advocate, filed power on behalf of defendant on 15-12-2006 and also obtained time to file written- statement on 14-2-2007 but no written-statement has been filed and the defendant was declared ex parte on 9-4-2007.
4. The plaintiff has filed his affidavit-in-ex parte proof on 9-6-2007. In the affidavit the plaintiff states that he agreed to purchase. Plot No.90, from the defendant against sale consideration of Rs.24,75,000 and paid Rs.3,00,000 as advance. The transaction was not materialized as the plot was not in existence and if it does exist the defendant has no authority to offer the same for sale as the defendant was not the owner.
5. The plaintiff claims damages of Rs.40,00,000 on account of fraud committed by the defendant and on account of mental agony, tension, torture and loss of business opportunity.
6. The defendant has not filed written-statement and the contention of the plaintiff gone unrebutted.
7. Annexures 'B' and 'C' to the plaint are sufficient to prove that a sum of Rs.3,00,000 was paid to the defendant on account of advance payment of sale of Plot No.90. The transaction was not materialized due to fraudulent conduct of the defendant and the plaintiff is entitled to claim refund of the advance payment made to defendant. There is also no rebuttal that the plaintiff suffered mental agony and loss of business opportunity as in case the transaction was materialized the plaintiff may be benefited due to sudden rise in the cost of plots. Certainly, the plaintiff was deprived from the gain which he may earned by reselling the plot. The plaintiff has not given any calculation how he suffered loss of forty lac. He has also not mentioned the cost of plot which he expected from the resale of plot. The damages can be granted' by the Court keeping in view the circumstances and D merits of each case while granting damages the Court has to satisfy itself that the damages awarded if not completely satisfactory compensate the plaintiff The plaintiff has not claimed special damages and case is confined to general damages. There is no hard and fast rule for grant of E general damages and there is also no yardstick to measure the damages caused o a person and then to determine the compensation. The principle laid down in various judgments with regard to award of damages is that the amount assessed must not appear to be punitive in nature or exemplary.
8. In view of the above discussion, the suit of the plaintiff is decreed in the sum of Rs.3,00,000 (Rupees three lac only) on account of refund of advance payment and Rs.10,00,000 on account of damages making a total of Rs.13,00,000 (Rupees thirteen lac only) with markup @ 10% from the date of the suit till the realization of decretal amount along with cost of the proceedings.
9. ' The office to prepare decree in the above terms.