' SYED HASAN AZHAR RIZVI, J.---Brief facts of the case are that the plaintiff is a businessman dealing in gold ornaments/property business at Karachi and Hyderabad enjoy the good social status in his Memon Community and business circle of Hyderabad and Karachi and the society at large. The plaintiff's brother Muhammad Farooq along with two others are the co-owners of under construction building on Plots No,SR-6/3 and 4, New Chali, Karachi. There has been dispute between the said owners/landlords with Noorani Travellers, the partnership firm which claims the sub-tenancy rights in respect of a portion of tenements of the said building. The Rent Controller passed the ejectment order against the tenant, Tar Muhammad Haji Jamal, Noorani Travellers challenged the ejectment order on the plea that they are authorized sub-tenant under Tar Muhammad Haji Jamal. Ultimately the said case reached before the Hon'ble Supreme Court which remanded the FRA No, 669 of 1998 to this Court which in turn, transferred to the learned District Judge, Karachi-South which numbered it as FRA No,226 of 2001. The Additional District Judge dismissed the said FRA No,226 of 2001. Consequently the learned Rent Controller issued the writ of possession on the Execution Application No,37 of 1998 of the said owners/landlords including the plaintiffs brother 'Muhammad Farooq. The defendant who claimed to be the sub-attorney of Amir Ali claiming to be the attorney of Salim Nazar Ali of Noorani Travellers started pressurizing the plaintiffs brother and other co-owners to pay an amount of rupees five crore, for vacating the disputed premises. But the said owners/landlords refused to succumb the said coercive tactics of the defendants. Resultantly the said defendant threatened them to face. Lawful aftermath. In furtherance of his mala fide and unlawful object the defendant lodged a false F.I.R. No,69 of 2006 against the said landlords/owners including the plaintiff's brother under section 506, P.P.C. At Mithadar Police Station, in order to victimize them. Apprehending their arrest in the said F.I.R., the said owners/landlords obtained bail before arrest in Cr. Bail Application No, 201 of 2006. Thereafter by the orders dated 17-5-2006 passed by the XIIth Judicial Magistrate, Karachi-South wherein the learned Judicial Magistrate held that there is no sufficient evidence against the accused to submit final report against them, therefore, the report of disposal of the case in 'B' Class submitted by the prosecution was approved by the Judicial Magistrate. The defendant launched a malicious campaign of defamation against the said owners/landlords in the business circle as well as by publication in the widely circulated newspapers namely, the daily Jang, the daily Qaumi Akhbar, the daily Awam, the daily Express, the daily Roznama Pakistan and the daily Asian Union and others. The said defamation campaign caused a great damage to the reputation and financial loss in the business of said owners/landlords. In view of the defendant's said intensified acts of defamation, apart from his malicious criminal prosecution the said owners/landlords filed Civil Suit No,975 of 2007 against the defendant for damages of rupees ten crore and permanent injunction in this Court, which is pending. Having been infuriated the defendant conspired to take revenge against the plaintiff because Muhammad Farooq being the brother against whom the defendant filed Suit No,975 of 2007 and Execution Application No,37 of 1998 in R.C. 1631 of 1992 wherein writ of possession was issued against Noorani Travels.
1. In order to materialize his mala 'fide object, the defendant concocted a false case of firing at him by the plaintiff on or about 18-6-2007. In that case the defendant accused the plaintiff of having fired three bullet shots at the backside of his office with intention to kill the defendant. S.I. Altaf Hussain of Madadgar Police happened to arrive at the said place of incident and recorded the statement of the plaintiff which showed misunderstanding particularly when no bullet mark was found on the wall of the window glasses. As a result of such actual position both the plaintiff and defendant compromised the matter then and there.
2. Thereafter the defendant lodged F.I.R. No,168 of 2007 dated 7-7-2007 regarding the same incident against the complainant followed by the defendant's application under section 22-A, Cr.P.C. Before the Additional District and Sessions Judge, Karachi South, whereupon the learned Vth Additional District and Sessions Judge passed the order dated 6-7-2007. Since the plaintiff apprehended his arrest in the F.I.R. No, 168 of 2007 under section 324/34, P.P.C. The plaintiff obtained bail before arrest in Bail Application No,644 of 2007 from the Court of IInd Additional Sessions Judge, Karachi-South on 13-7-2007, which was confirmed on 24-7-2007. The Vith Civil Judge and Judicial Magistrate, Karachi-South approved the report of the Investigating Officer filed under section 173, Cr.P.C. And had declared the case of 'B' Class.
3. The plaintiff in view of the aforementioned facts and circumstances has suffered the damages in being defamed and subjected to acute mental torture for minimum sum of Rs,30 million at the hands of the defendant and has therefore filed the instant suit against the defendant with the following prayer:- "it is, therefore, prayed that this Hon'ble Court may be pleased to pass decree against the defendant in favour of the plaintiff as under:--
(a) Rs,30 million as damages against the defendant with mark up 20% per annum from the date of suit.
(b) Cost of the suit.
(c) Any other relief or reliefs which this Hon'ble Court may deem fit and proper in the circumstances of the case."
4. Summons was repeatedly issued through courier services, Registered A.D. Post and by bailiff on various dates to the defendant. Finally the plaintiff filed application for substituted service under Order V, Rule 20, C.P.C. Which was granted and publication of summons was made in daily Nawa-i- Waqt dated 25-12-2009 as well as through other modes i,e, by registered A.D. Post, Courier Service, by way of pasting on the outer door of the last known address of the defendant as well as on the Court notice Board. On 19-1-2010 the service upon the defendant was held good. On 15-3-2010 the defendant was declared ex, parte.
5. The plaintiff filed affidavit-in-ex parte proof on 24-5-2010 and he was examined before this Court on 27-5-2010 and has produced the following documents:-- ' Certified copy of F.I.R. No,69 of 2006 along with True Translation of the F.I.R. As Exh.P.W.5/1/2. Copy of order dated 10-4-2006 in Cr. Bail A. No,199 of 2006 as Exh.P.W.5/1/3. Certified copy of order dated 10- 4-2006 in Cr.Bail A. No,196 of 2006 as Exh.P.W.5/1/4. Certified copy of Order dated 17-5-2006 in Case No, NIL passed by XIIth Judicial Magistrate. Karachi-South, as Exh.P.W.5/1/5. Copy of newspaper cutting dated 28-3-2006 as Exh.P.W.5/1/6. Copy of newspaper cutting dated 19-3-2006 as Exh.P.W.5/1/7. Copy of newspaper cutting dated 22-3-2006 as Exh.P.W.5/1/8. Copy of newspaper cutting dated 18-3-2006 as Exh.P.W.5/1/9. Copy of newspaper cutting dated 18-3-2006 as Exh.P.W.5/1/10. Copy of newspaper cutting dated 24-3-2006 as Exh. P. W.5/1/11. Newspaper cutting dated 25-3-2006 as Exh.P.W.5/1/12. Copy of newspaper cutting dated 22-3-2006 as Exh.P.W.5/1/13.
Copy of newspaper cutting dated 21-3-2006 as Exh.P.W.5/1/14. Copy of Newspaper cutting dated 18-3-2006 as Exh.P.W.5/1/15. Copy of newspaper cutting dated 18-3-2006 as Exh.P.W.5/1/16. Copy of newspaper cutting dated 14-3-2006 as Exh.P.W.5/1/17. Copy of newspaper cutting dated 8-3-2006 as Exh.P.W.5/1/18. Copy of newspaper cutting dated 7-3-2006 as Exh.P.W.5/1/19. Copy of newspaper cutting dated 7-3-2006 as Exh.P.W.5/1/20. Copy of newspaper cutting dated 7-3-2006 as Exh.P.W.5/1/21. Copy of newspaper cutting dated 7-3-2006 as Exh.P.W.5/1/22. Copy of newspaper cutting dated 7-3-2006 as Exh.P.W.5/1/23. Copy of newspaper cutting dated 7-3-2006 as Exh.P.W.5/1/24. Copy of newspaper cutting dated 7-3-2006 as Exh.P.W.5/1/25. Copy of newspaper cutting dated 6-3-2006 as Exh.P.W.5/1/26 . Copy of newspaper cutting dated 6-3-2006 as Exh.P.W.5/1/27. Copy of newspaper cutting 7-3-2006 as Exh. P.W.5/1/28. Copy of newspaper cutting dated 6-3-2006 as Exh. P.W.5/1/29. Copy of newspaper cutting dated 17-3-2006 as Exh.P.W.5/1/30.
Copy of newspaper cutting dated 14-3-2006 as Ex. P.W.5/31. Certified copy of plaint in Suit No,975 of 2007 as Exh.P.W.5/1/32. Photocopy of F.I.R. No,168 of 2007 as Exh.P.W.5/1/33. Certified copy of order dated 13-7-2007 in Pre-Arrest Bail No,644 of 2007 granted by find Additional Sessions Judge, Karachi-South as Exh.P.W.5/1/34. Certified copy of order dated 24-7-2007 in Bail Application No, 644 of 2007 as Exh.P.W.5/1/35. Photocopy of order dated 18-9-2007 in F.I.R. No,168 of 2007 as Exh.P.W.5/1/36.
6. Mr. K.B. Bhutto, learned counsel for the plaintiff argued the matter and has relied upon the judgment reported in (2003 YLR 136) Ameeruddin v. Fazalur Rahim Khan decided by My lord Mr. Justice Khilji Arif Hussain as he then was, it is held that the plaintiff found to have been prosecuted by the defendant maliciously and the loss arising out of injury to reputation of a person cannot be compensated in terms of money and other non-pecuniary losses may not be accurately calculated in terms of coins but for this reason alone the Court do not decline to grant compensation and still the Court have formulated certain parameters and devised principles for evaluation of assessm ent of such general damages. Ordinarily in such cases just, fair and reasonable compensation is assessed and awarded to the victim. From the preponderance of authorities on this issue of quantification, it emerges that there is no yardstick or definite principle for assessing damages in such cases and it becomes difficult to assess a fair compensation. In these circumstances, it is the discretion of the Court who may, on facts of each case and considering how far society would deem to be a fair sum, determine the amount to be awarded to a person who has suffered such a damage. The, general damages are those, which the law will imply in every violation of a legal right. They need not be proved by strict evidence as they arise by inference of law, even though no actual pecuniary loss has been or can be shown. The vital canon followed by the judicial mind in such cases is that the conscience of the Court should be satisfied that the damages awarded would, if not completely, satisfactorily compensate the aggrieved party, however, adequate care should be taken in this regard while dilating on the quantum of award and the Courts should be vigilant to see that the claim is not fanciful or remote; the award should never arise to be reflective of lavish generosity and must also obviously not dwindle down to be an indicator of abstemic parsimony but the courts should give the aggrieved party what is considered in all the circumstances a fair and reasonable compensation for his loss:--
(i) In PLD 1996 SC page 737 it is held that if the plaintiff in an action for damages may recover compensation for mental torture, nervous shock and injuries of like nature arising out of breach of duty or a wrongful negligent act of defendant and in such an action of physical presence of the plaintiff at the time of incident is not necessary. The damages for mental torture, nervous shock etc. Fall in the category of general damages for which no standard or method of proof can be laid down with precision. The claims of such nature are difficult to estimate. The Courts, therefore, in assessing such damages employ a guess work which can only meet the test of a reasonable assessm ent by a man of ordinary prudence. The suit for damages can only be decreed when averred in plaint on each score separately and proves by evidence on each point. General, vague and scanty evidence on such points cannot be relied upon. Damages suffered and quantity of amount claimed under each head is to be proved by cogent evidence from assertion of inflated amounts without corroboration of evidence would be no avail for the plaintiff.
(ii) In 2003 SCMR 1699 it is held that when a person claims special damages then it is incumbent upon him to show as to and under which head of account and how such damages have been sustained in presence of such proof, special damages cannot be allowed. General damages is lost or injury sustained or caused as the direct or proximate consequence are wrongful act not capable of exact assessm ent in terms of money such loss of damages under the law are presumed an employed like loss of goodwill, reputation and mental torture.
(iii) In PLD 1970 Karachi page 757 Mr. Justice Dorab Patel as he then was, has held that plaintiff remaining in police custody for more than a week in such circumstances, held, entitled to exemplary and substantial damages both on account of injury to reputation and deprivation.
' I have examined the record of the present suit and perused unrebutted and unchallenged evidence of the plaintiff. The averments on Oath of the plaintiff have gone unchallenged, unconterverted and unrebutted. Despite of service of summons/notices upon the defendants, the defendants avoided and neglected to appear before this Court and to contest the present suit. The plaintiff in his prayer clause has claimed Rs,30 million as damages against the defendant with mark up 20 % per annum from the date of suit. Keeping in view the dictum laid down by the Hon'able Supreme Court of Pakistan in PLD 1996 SC 737, 2003 YLR 136 and 2003 SCMR page 1699, I hereby awarding Rs,50,000 against the defendant and in favour of the plaintiff as general damages for causing mental torture and loss of reputation. The present suit is hereby decreed in the aforesaid terms in favour of the plaintiff against the defendant.