IRFAN SAADAT KHAN, J.---The plaintiffs have filed this suit against the defendant for permanent injunction and damages with the following prayers:-- "(1) A perpetual injunction be granted against the defendant restraining him not to harass any of the plaintiffs and their children.
(2) A decree against the defendant for Rs,3,000,000 (Rupees Three million only).
(3) Any other relief which this honorable court may deem fit and proper in the interest of justice and for the protection of legal rights of the plaintiffs.
(4) Cost of the suit."
2. Brief facts of the case, as gleaned from the plaint, are that the plaintiffs are related inter se and are residing in a flat in a project known as Iqra Complex, situated at Gulshan-e-Iqbal, Karachi. The defendant is also stated to be residing in the same Complex and is a neighbour of the plaintiffs.
The defendant became obsessed with the plaintiff No,4, who is daughter of plaintiff No,1 and wife of plaintiff No,3 and wanted to marry her. The defendant, who is also stated to be a person having a family comprising a wife and four children, used to call the plaintiff No,4 a number of times. It is also alleged that on 23 May 2008, the defendant went to the house of the plaintiffs and called the plaintiff No,4 and extended threats to the plaintiffs and asked the plaintiff No,3 to divorce his wife - the plaintiff No,4. The defendant is also stated to have extended threats through SMS. Since the acts of the defendant were allegedly causing harassment, mental torture, anguish and mental agony to the plaintiffs and were also alleged to be illegal, unlawful, against the norms and humanity, therefore, the plaintiffs have filed this suit with the above prayeRs,
3. Notices were issued to the defendant on whose behalf M/s. Rizwan. H. Nadeem and Shakeel Ahmed, advocates filed Vakalatnama. An application under Order VII, rule 11, C.P.C., was filed on behalf of the defendant, which is pending till date. For some time the counsel for the defendant were appearing in Court but subsequently they discontinued appearing and the defendant was also absent on many dates of hearing. Finally, the defendant was debarred from filing written statement and the case was fixed for final disposal. Vide order dated 23-2-2010, the plaintiffs were directed to file exparte proof.
4. I have heard Mr. S. Aamir Ali, advocate for the plaintiffs and have perused the record. None was present for the defendant.
5. From the perusal of the record it transpires that vide order dated 18-5-2009 the dispute between the parties was also referred to Karachi Centre for Dispute Resolution ("KCDR") but KCDR reported, vide its statement dated 19-8-2009, that the dispute between the parties cannot be resolved through mediation.
6. The learned counsel for the plaintiffs submitted that the defendant was causing harassment and mental torture to the plaintiffs and was bent upon to marry the plaintiff No,4, who was already the legally wedded wife of the plaintiff No,3. The learned counsel submitted that the defendant was consistently calling upon the plaintiff No,4 to get divorce from the plaintiff No,3 and to marry him. It is also submitted, that the defendant was advancing threats to all the plaintiffs of dire consequences.
7. It. Is also worth mentioning that vide order dated 4-3-2009 Town Police Officer, Saddar Town, was appointed Inquiry Officer (I.0.) to hold inquiry into the various F.I.Rs, filed by the parties against each other. In the said order it was specifically mentioned that "The TPO may also examine the issue of flat, which in fact is the bone of contention between the parties." The said TPO submitted his un- dated report, which is available on record, perusal whereof reveals interesting and startling facts.
As per the said TPO, "at initial stage Naveed Jahangir (Defendant) made friendship with Nazia Faisal (Plaintiff No,4), later on the same was converted into "intimate" relationship." It is also mentioned in the said report that "during the relationship the transaction of money and Flat was made amicably between both parties and no complaint was made." As per the I.O., the defendant wanted to marry the plaintiff No,4 but difference arose between the parties once this fact came in the knowledge of the husband of the plaintiff No,4, namely, Faisal, the plaintiff No,3 herein.
According to the report of the TPO, all the cases filed by the parties against each other were false.
In the end the TPO stated that the parties were not prepared to settle the issue of Flat outside the Court. Thus, the learned single Judge, while passing order dated 4-3-2009, very rightly observed that "the bone of contention between the parties is the issue of flat".
8. The learned counsel for the plaintiffs, during the course of arguments, stated that the defendant has killed the plaintiff No,4 and is now an absconder. It seems that it is for this reason that the defendant is not attending the Court.
9. The first prayer in the plaint is with regard to perpetual injunction restraining the defendant not to harass the plaintiffs and their children. Perpetual injunctions are granted under section 54 of the Specific Relief Act and refusal thereof is dealt with in section 56 of the said Act. Section 54 of the said Act reads as under:-- "54. Perpetual injunctions when granted---Subject to the other provisions contained in, or referred to by, this Chapter, a perpetual injunction may be granted to prevent the breach of an obligation existing in favour of the applicant whether expressly or by implication.
' When such obligation arises from contract, the Court shall be guided by the rules and provisions contained in Chapter II of this Act.
' When the defendant invades or threatens to invade the plaintiff's right to or enjoyment of property, the Court may grant a perpetual injunction in the following cases (namely):
(a) where the defendant is trustee of the property for the plaintiff;
(b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;
(c) where the invasion is such that pecuniary compensation would not afford adequate relief;
(d) where it is probable that pecuniary compensation cannot be got for the invasion;
(e) where the injunction is necessary to prevent a multiplicity of judicial proceedings.
10. Clause (i) of section 56 of the Act states that an injunction cannot be granted when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust.
11. Thus, if the plaintiffs were feeling any threat to their lives they would have been better advised to approach appropriate forum as in a civil suit only civil matters can be dealt with. During the course of arguments, learned counsel for the plaintiffs stated that the defendant had already killed plaintiff No,4 and is absconding. In such matters the civil courts have no role to play. In a suit an injunction perpetual or temporary, can be granted only in respect of civil matteRs,
12. So far as prayer No,2 is concerned, the plaintiffs seek a sum of Rs,3,000,000 as damages. In this regard para 15 of the plaint reads as under:-- "15. That the defendant is harassing and giving mental torture to the plaintiffs who cannot even live in their home with peace and mental satisfaction liable to pay the plaintiffs a sum of Rs,3,000,000 (Rupees Three Million Only) as damages."
13. In the case of Nazir Ahmed and another v. Haji Nazir Ali and 3 others reported as 2006 M LD 907 it has been held that 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 is placed in this respect on 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 (1998 CLC 1547).
(3) M. Younas & Co. v. Hajiani Mariam Bai and others (PLD 1963 WP Karachi 791).
14. In the present case, the suit was ordered to proceed ex parte against the defendant, however, neither it is stated that the suit is for malicious prosecution nor any break-up of losses has been given. Even the learned counsel during the course of his arguments did not utter a single word on this point. It is a trite law that conscience of the Court should be satisfied that the damages awarded, if not completely, satisfactorily compensate the aggrieved party.
15. It may also be noted that the plaintiffs did not approach this Court with clean hands as it is a settled proposition of law that he who seeks equity must come with clean hands. While in the plaint they have time and again stated that the "defendant became obsessed with plaintiff No,1 daughter i.e. Plaintiff No,4" but it was only through the inquiry conducted by TPO, Saddar, which is available on record, that it transpired that the defendant and the plaintiff No,4 were having illegitimate relationship with each other. It has further been mentioned in the said report that though the defendant and his wife were ready to settle the matter but the plaintiffs Nos.3 and 4 were not ready to settle the matter. Along with the contempt application (CMA No,11995 of 2008) the plaintiffs have themselves annexed Annexure 6 which shows that according to plaintiff No,4 herself, the defendant gave his fire arm license to her which she handed over to an I/O. This fact also finds mentions in the Final Report under section 173, Cr.P.C., attached with CA filed by the defendant to CMA No,809 of 2008. In the same report under section 173, Cr.P.C. It is also mentioned that the defendant and plaintiff No,4 also went on Pakistan Tour for 25 days together. All this shows that the plaintiff No,4 and the defendant were having close intimacy with each other and it was well within the knowledge of the other plaintiffs. The plaintiffs who have asked for injunction and decree of Rs,3 million as damages must be able to satisfy that their own acts and dealings in the matter were fair and honest and free from any taint or fraud or illegality and that they have acted in a fair and equitable manner.
16. In view of the above, as the plaintiffs have failed to make out a case for perpetual injunction as well as for the grant of damages, I, therefore, dismiss this suit with no order as to costs along with the listed applications.