1. ' SYED ZAKIR HUSSAIN, J.--- This revision application has been preferred by the Government and the public officers against the order dated 27-7-2005 whereby their Appeal No,33 of 2002 filed against the judgment and decree in Suit No, 1588 of 1999 passed by the learned 1st Senior Civil Judge, Karachi (South), which was filed by the plaintiff, since deceased, whose legal heirs are now joined as respondents in this revision instead, with the result that the impugned findings of the court of first instances, stood affirmed for all practical purposes accordingly.
2. Brief facts of the case are that the deceased/plaintiff, advocate by profession, fell in mental sickness and was taken to the hospital, namely, Star C.J. Institute of Mental Health at Hyderabad, for treatment where he remained under treatment for two days with effect from 31-8-1986 to 1-9- 1986. The said plaintiff being aggrieved with such treatment and considering the same as confinement for ulterior motives and designs of the persons behind the scene in connivance with the official, respondents, preferred the civil suit for damages and other reliefs. The suit was contested and the learned Senior Civil Judge decided the same by judgment and decree referred to above whereby Rs,24,000/- were granted as damages in favour of the deceased/plaintiff to be paid by the defendants in that suit, who filed the appeal against the said finding, which met with the fate as stated above and the order of the appellate court is impugned in this revision.
3. ' As already mentioned above, the original plaintiff has expired during the pendency of the appeal and his legal heirs were brought on record and the said order was passed on an application of the applicants moved in the said appeal stressing that since the plaintiff of the said proceedings, stand expired and there remains no need to proceed with the case and the appeal is liable to be allowed and the judgment and decree given by the court of first instance, are open to be set aside by the appellate court. The court, rejected the said application of the applicants simply on the ground that no law in support of their such contention, was cited but simultaneously, when the court dismissed the appeal along with the application referred to above by the said order, fell in error in giving no finding on merits against the impugned judgment and decree in terms of section 96, C.P.C. And norms of the law and practice applicable in that regard appear to have stood sidelined. The matter has come up for hearing and disposal thereof before this court.
4. ' On 25-8-2010, none appeared for the respondents to pursue the same.
5. ' According to the learned counsel for we applicants, the respondents being legal heirs are brought on record and since then they never appeared to have taken any interest in the matter and hence it is reasonable to draw an inference that they never had any interest and would not come forward to pursue the same, too, for the said reason, and the matter if kept for their wait, any further for an indefinite time, would stand prolonged unnecessarily coupled with uncertainty or prosecution of the same on their part, which would be abuse of process of law and simultaneously become source of injustice to the applicants for the reason beyond their control.
6. ' I have heard the learned counsel, and perused the record, particularly, the impugned order; which carries no reasons to dismiss the appeal. The course to remand the matter for deciding the appeal afresh by setting aside of the impugned order although is open to the court but as per the learned counsel for the applicants, since the actual person, who was the initiator of the proceedings; and there appears no infringement of rights of the present respondents, who, being the legal heirs of the said deceased person, are formally involved, there is no need rather it would be an abuse of the process of law to send the matter back to the lower courts for deciding the matter afresh, and it would amount to dragging the government and the public officials who have apparently acted fairly in the matter of treatment of the said deceased person, and thereby committed no wrong, rendering them liable to any damages, into an unnecessary and fruitless round of litigation.
7. ' Learned counsel for the applicants states that there is no bar to this court to take notice of the facts, which involve special circumstances and decide the same at this stage once for all, in its revisional jurisdiction.
8. ' I, therefore, taking into consideration the circumstances highlighted above, proceed to decide the matter on merits with the available assistance.
9. ' The court by its short order allowed the revision application as prayed for, for the reasons to 'be recorded later on.
10. The perusal of the record goes to show that the judgment and decree in the appeal are passed on the finding of fact that the deceased/plaintiff remained in forceful and wrongful confinement for the period he has, pleaded in the plaint for which the government and other public officials who were impleaded as defendants., now applicants, are responsible and the court thereby granted the said damages. The court believed the plaintiff without applying its mind and looking into the facts leading to the initiation of the suit proceedings, simply on two fold grounds, firstly, that the record established that the said person remained in the said hospital for said period of time and his movement was restricted, and, secondly, the plaintiff was left uncross-examined and his evidence went unchallenged and therefore, what he has stated being left un-shattered, was acceptable as a matter of law and practice. Both these grounds do not constitute justifiable reason or ground for the court of first instance to decree the suit for damages. Even the ex parte matter is open to be dismissed since the plaintiff's side is burdened with the onus of proof and the court is bound to ensure that such burden has been discharged, before coming to the conclusion as to any finding of fact. And the court is also required in each matter, to ensure that the claim of the plaintiff and the suit, which he has filed, are covered by all the fours of law. In the instant case, there appears no such appreciation by the learned trial court and by the appellate court as well, at all.
11. ' It is an admitted position that the deceased/plaintiff was in the hospital for the said two days' period of time and his claim that he was under confinement, does not appear to have stood established even in the light of the position that the hospital is under a system supervised by different people under control of the government and no record is produced by the deceased/plaintiff to establish that he was illegally and forcibly taken or admitted, and he had no mental sickness needing any treatment in the said hospital at that relevant time, the fact concerning the hospital and treatment (provided to the said person), the applicants appear to have acted bona fide and there is no evidence against their malice or ill designs there against, at all. Most of the applicants, including the medical officer and the provincial government, seem to have had no reason to forcibly keep the said deceased/plaintiff in the said mental hospital and released him of his such presumptive confinement after two days.
12. ' Mares, the presumption of fairness is inherently attached with all the public functionaries in general and the action called in question (of the official respondents) in particular, and since there is nothing to show mala fide, or malice involved in the official functions in question, the same are not open to be termed as wrongful act warranting action of like nature. In this regard, it is further necessary to point out that the bare words of the plaintiff could hardly serve the purpose of law applicable to the claim in this suit. Similarly, there appears no positive proof to substantiate the case that the private respondents in connivance with the official respondents, having forcibly taken away the plaintiff, deposited him in the hospital in question, for neither there appears any F.I.R. Or criminal complaint to such effect from plaintiff side nor is there any material to prove so and hence, the case against such private persons is also not so established while the plaintiff's own statement, which though went unchallenged but is still insufficient for the purpose in question.
13. No witness, other than the deceased/plaintiff, appeared and the deceased being mentally sick and having had the treatment from the concerned mental hospital, could hardly be assumed to have been sound in mental state and approach. The learned trial Court, therefore, erred in ignoring the main factors requiring consideration before coming to the conclusion arrived at on its part.
14. Secondly, there appears nothing in the findings of the court below to show as to how the assessm ent of damages is made to. The tune of Rs,24,000/- particularly when there appears no evidence led by the plaintiff referred to above, which could reasonably lead the court to draw such conclusion.
15. ' The learned trial Judge has not discussed the tort involved in the matter and the law relating thereto as well. The general conditions of liability in tort or essential elements of tort are not taken into consideration at all. The case of tort carries following elements as its essentials,-which must co-exist in the circumstances thereof.
(i) A wrongful act committed by the defendant;
(ii) A wrongful, act must result in legal damage to another person;
(iii) A wrongful act must be of such a nature as may give rise to a legal remedy in the form of action for damages.
16. ' In other words, the defendant in a case of tort must be guilty of wrongful act, which is defined as an act contrary to law and includes omission to perform a legal duty and hence tortuous liability arises out of a breach of duty fixed by the law and wrongful act would finally mean infringement of legal duty as such. The other essential element of tort is the legal damage resulted from wrongful act of the defendant, to the plaintiff and such damage takes place when there is a breach of legal duty or when the plaintiff's legally recognized right stands infringed.
17. ' The third essential of tort is legal remedy against such wrongful act meaning thereby that such wrongful act of the defendant which if has infringed the legal right of the plaintiff, must be such as of giving rise to civil action for damages, for a tort is a civil, wrong while all civil wrongs, are not necessarily torts. The maxim "Ubi jus ibi remedium" which means that there is no wrong without a remedy, is the basis of tort or damages against tortuous act.
18. ' Similarly, in the impugned findings there appears no distinction on two counts of damages, one general and other special in nature, and no finding with reasoning, appears to have been given in that regard either by the learned trial Court or the appellate court as well. The law of damages, which was invoked by the plaintiff was not properly considered or appreciated and. Therefore, the conclusion arrived at, through the judgment and decree impugned in the appeal, which ended in the order that became the basis of the revision application in hand, are erroneous and both the said findings of the courts below, are not open to be approved either on facts or in law.
19. ' Consequently, this revision application is allowed and the impugned findings discussed above, stand set aside with the result that the suit of the plaintiff stands dismissed with no order as to costs.
2. This application stands disposed of in the above terms.