' IRFAN SAADAT KHAN, J.---The applicant is aggrieved by the judgment dated 29-2-2012 given in Civil Appeal No,81 of 2011 passed by learned II Additional District Judge, Karachi East, allowing the same and setting aside the Judgment dated 31-1-2011 passed by VII Senior Civil Judge, Karachi East whereby Suit bearing No,1335 of 2002 (Old Suit No,861/2001) filed by the respondent was dismissed, hence the present civil revision application.
2. Brief facts of the case are that the respondent was the absolute and lawful owner of residential premises bearing House No,A-453, Sector 36-B, measuring 160 square yards situated at Korangi Township, Karachi by virtue of Lease Deed executed by the Karachi Development Authority. On or about 21-11-2000, applicant No, 2 issued a show cause notice under section 3 of the Sindh Public Properties (Removal of Encroachments) Act, 1975, declaring the occupation of the respondent unauthorized and calling upon her to vacate the demised premises within three days from the date of the said notice. On 24-11-2000 the respondent attended the office of the applicant No,2 and placed on record the lease executed by the defunct KDA, Transfer Letter and other documents in reply to the aforesaid Show Cause Notice. Thereafter the matter was closed and she was never called upon to vacate the said premises. On 1-3-2001 just two days prior to the Eidul Azha and after almost three months from the show cause notice dated 21-11-2000, without any further notice or handing down a decision on the review application submitted by the respondent on 24-11-2000, applicants Nos.2 to 4 came to the said property with demolition squad and demolished the said property.
3. The respondent rushed to this Court by way of filing C.P. No,D-448 of 2001 praying, inter alia, for declaration that the action of the applicants/respondents in the petition whereby they have demolished the demised premises is illegal and without lawful authority and that the petitioner is the lawful owner of the said property and directions be issued to the respondents to restore physical possession of the said property to the petitioner/respondent herein and to award exemplary damages/compensation to the petitioner and to enable her to reconstruct her house.
The petition was allowed by a learned Division Bench (D.B) of this Court vide order dated 27-4-2001, however, with regard to payment of compensation, the learned D.B observed as under: " ... We would further add that in the instant case the petitioner is entitled to compensation from the KDA and its officers' responsible for such action, since it is not possible to determine the quantum of compensation in these proceedings we leave it open to the petitioner to approach the competent Court of law".
4. In view of the above observations of the learned D.B of this Court, the respondent filed Suit No, 1335 of 2002 (Old Suit No,861 of 2001) with the prayer for payment of compensation/damages in the sum of Rs,25,75,000, which was dismissed by the VII Senior Civil Judge, Karachi East vide its judgment dated 31-1-2011. The respondent being aggrieved by the said Judgment approached the Appellate Court by filing Civil Appeal No, 81 of 2011 which was allowed by the learned II Additional District Judge, Karachi East vide judgment dated 29-2-2012 to the extent of Rs,8,63,560 with interest @ 10% per annum from the of filing of the suit. It is against this Judgment that the present Civil Revision Application has been filed.
5. Mr. S. Sultan Ahmed, Advocate has appeared on behalf of the applicant and stated that the action of demolition of property was made on the ground that the respondent has produced forged documents and could not satisfy that she is the lawful owner of the property. He further states that one Imtiaz Abbasi was the real owner of the property, who expired in 1991. He further states that no doubt there is an order of the D.B of this Court to file a suit for damages but it has nowhere been admitted by the department that due to some mala fide they have demolished the said property. He further states that the order of the trial Court is in the favour of the department, who after examining the witnesses and after a thorough investigation came to the conclusion that since no case of compensation has been made out, the claim of the respondent was rejected. He submits that since the appellate Court has not decided the case issue-wise, hence violated Order XLI Rule 31 C.P.C. He further submits that in a case of compensation the burden is always upon the person claiming the same, who must prove each and every item of his loss on the basis of the evidences. He further submits that perusal of the ownership documents would clearly reveal that the same are neither having dispatch number nor other necessary departmental entries. He further submits that the counter affidavit of Mr. Jamil Ahmed, an official of the CDGK who appeared before the Court, was not considered by the appellate Court. He further submits that title of the property is still in dispute even today. He, therefore, in the end has prayed that this revision application may be allowed. In support of this above contentions the learned counsel has relied upon the following decisions:--
(I) Qamaruddin v. Province of Sindh and 4 others (2002 CLC 825)
(2) Ali Raziq v. Sabar Khan (2003 CLC 1342)
(3) All Muhammad v. Muhammad Hayat (1982 SCM R 816)
(4) Federation of 'Pakistan v. Al-Farooq Flour Mills Ltd., (2000 CLC 215)
(5) Klb-e-Hyder and Company (Pvt.) Ltd. Through Chief Executive v. National Bank of Pakistan through President (2008 CLC 965)
(6) Malik Liaquat Ali v. Zafar Ali (2003 SCM R 1207)
6. Mr. Nazar Akbar, Advocate has appeared on behalf of the respondent and stated that this case is not that of a claim of fresh compensation but that of simple determination of quantum only. He states that from the perusal of the order of the D.B, mentioned supra, it is evident that the property of the respondent had been illegally demolished by the applicants and they are legally bound to compensate the respondent in this behalf. He further states that the order of D.B was challenged before the Hon'ble Supreme Court and the Hon'ble Supreme Court refused the leave to appeal meaning thereby that the order of the D.B. Has attained finality. He further states that if the cross- examination of the witness is examined it would be seen that the order of the appellate Court was in line with the order passed by the D.B and the trial Court was not justified in refusing to grant the compensation to the respondent. He further states that whatever was prayed before the D.B. Was granted. He further states that the claim of the compensation was reasonable as no exaggerated figures have been claimed and only that amount has been claimed which as per the respondent was genuine. He submits that firstly a notice was issued by the applicant to the respondent and a proper reply was given and apparently the claim of the respondent was accepted, however, after a substantial lapse of time, the applicants came and demolished the property of the respondent without any lawful and legal justification. He further submits that since the respondent is the legal owner of the property, the point now raised regarding one Imtiaz Abbasi that he is the owner is a false story created by the applicants just to save their skins from the rigors of the compensation.
He further submits that the parameters as given under Order XLI Rule 31 of the C.P.C. Are squarely applicable to the present case. He further submits that no rejoinder to his counter affidavit was filed. He further submits that why no second appeal has been filed by the applicant and why this revision application has been filed has not been explained, which is a sheer violation of section 115 of the C.P.C. He also invited my attention to section 100 of the C.P.C. And states that the present revision application under the above provision of law is not maintainable. He states that the decisions relied upon, by the learned counsel for the applicant, are distinguishable. He further states that the lease in the name of the respondent is still intact and has not been cancelled by the applicant. He further states that the respondent thereafter constructed the property at her own expenses and is now living there. In support of his above contentions the learned counsel has relied upon the following decisions:
(1) Hafiz Ali Muhammad v. Muhammad Abad and others (PLD 1999 Karachi 354)
(2) Muhammad Ishaq v. Azizuddin and others (2004 MLD 251)
(3) Municipal Corporation Bahawalpur v. Sh. Aziz Elahi (PLD 1970 SC 506)
(4) PIA v. Pak Saaf Dry Cleaners (PLD 1981 SC 553)
(5) Shaikh Faqir Muhammad v. Muhammad Din (1993 SCMR 1955)
(6) Molvi Muhammad Azeem v. Al-Haj Mehmood Khan Bangash and another (2010 SCMR 817)
7. Mr. S. Sultan Ahmed in his rebuttal has stated that the title as well as authenticity of the documents is in dispute, however, he frankly conceded that the case was not properly handled by the department before the D.B. He states that since there was material irregularity in the order of the appellate Court, hence, instead of filing second appeal, revision was filed as it is a trite proposition of law that if an order is illegal, revision is maintainable. To support his above contentions he has relied upon the following decisions:--
(1) UBL v. Yousuf Haji Noor Dhadhi (1988 SCMR 82)
(2) Zakirullah Khan v. Faizullah Khan (1999 SCMR 971)
(3) Mushtari Khan v. Jehangir Khan 2006 SCMR 1238
(4) Abdul Hameed and others v. Khalid and others 2007 SCMR 938
(5) Malik Muhammad Khaqan v. Trustees of the Port of Karachi (KPT) and another 2008 SCMR 428
(6) Shamshad v. Arif Ashraf Khan (2010 SCMR 473)
8. I have heard both the learned counsel at considerable length and have perused the record, the law and the decisions relied upon.
9. Serious averments have made by both the counsel with regard to the fact that whether under the given circumstances, the respondent is entitled for any compensation or not? Guidance in this regard has to be taken from the decision given by the learned D.B in the petition bearing No,D-448 of 2001 decided on 27-4-2001. For the sake of brevity, I am reproducing herein below the relevant portion of the said order passed by the learned D.B:- "3. Nevertheless in the parawise comments filed on behalf of the KDA it was alleged that the plot in question had been allotted to one Imtiaz Ahmad and the copy of the lease deed between the petitioner and the KDA was a forged document. We requested Mr. Muzaffar Imam, learned counsel for the respondent to explain the discrepancy between the comments and the impugned notice and categorically state whether the plot in possession of the petitioner had been allotted to some body else or was it a public property being reserved for construction of a road. Learned counsel was unable to offer any satisfactory explanation and stated that the impugned notice was only a cyclostyle notice and the real reason for taking action was the fact that the petitioner had encroached upon some body else's property and fabricated documents of title. This admission indeed establishes that the impugned notice was not only illegal but even mala fide in as much as it was issued on grounds which were false to the knowledge of the officers of the KDA and action was taken pursuant thereto by suppressing the review application preferred by the petitioner and in flagrant defiance of law.
4. Mr. Muzaffar Imam however, attempted to argue that since the petitioner had encroached upon the plot allotted to another person and on forged documents she was not entitled to any relief. In this context it is important to mention that in the first instance there is nothing to indicate that the so called genuine allottee of the plot Imtiaz Ahmad took any action to establish his legal rights.
Moreover the officers of the KDA instead of seeking cancellation of the so called forged lease or even giving an opportunity to the petitioner to present her point of view proceeded to issue a notice containing grounds which were false to their own knowledge and thereafter demolished the construction and forcibly ejected the petitioner. Such action cannot be described as anything but mala fide abuse of public power and requires to dealt with severely. While we were dictating the order granting relief of repossession to the petitioner the officers of the KDA informed us that they had handed over the possession of the plot to some other person. Though the petitioner disputed this assertion it may be observed that in case the same is correct but only augments our findings as to the mala fides of the respondents.
' For the forgoing reasons we allow this petition declaring the impugned order to be without lawful authority, mala fide and of no legal effect. As a consequence the respondents are directed to hand over possession of the property to the petitioner. The Nazir of this Court is directed to visit the property forthwith and ensure delivery of possession to the petitioner. However, in case the property is found in possession of some other person, an appropriate notice will issue to him requiring him to appear before the Court on 9-5-2001 at 8-30 a.m. And show under what authority of law he claims possession. We would further add that in the instant case the petitioner is entitled to compensation from the KDA and its officers responsible for such action, since it is not possible to determine the quantum of compensation in these proceedings we leave it open to the petitioner to approach the competent Court of law.
' A copy of this order will also be sent to Director General KDA for initiating appropriate action against officials responsible for such misuse of power and report compliance on 9-5-2001.
Moreover in case KDA is found liable to compensate the petitioner, the loss sustained could also be recovered from such officers". (Underline mine for emphasis)
10. From the perusal of the explicit directions given by the learned D.B the following points emerge:- - 'That the petitioner claimed herself to be a lessee of plot No,A-453, Sector 36-B, Korangi Township Karachi.
' That she received a letter of demolition from the respondent against which she filed a Review Application.
' That without hearing the applicant KDA staff demolished the applicant 's house.
' The D.B called the concerned officers of the respondents to explain why no action was taken on the Review Application and why the house was demolished in a hasty manner when admittedly the Review Application was entered in the diary. No explanation in respect of above question was given to the D. B. By the respondents /KDA officials.
' The D.B. Observed that by not hearing the said Review Application speaks of the level of credibility and efficiency of the KDA officials and callousness in dealing with the rights of the citizens.
' That the department took a somersault in giving reply vide para wise comments as firstly they state that the plot was on road side then explained that the documents furnished by the applicant were forged, as the plot was allotted to someone else.
' The Court asked the officials of the department to explain such discrepancy but no satisfactory explanation was furnished.
' It was also admitted by the department that impugned notice was only cyclostyle and D.B. Then came to the conclusion that the impugned notice was not only illegal but was sent to the petitioner with mala fide intention.
' The D.B. Also came to the conclusion that suppressing of the Review Application by the respondent is a flagrant defiance of law.
' The Department took the plea that the petitioner encroached upon the said plot whereas the bench noticed that the so called genuine allottee of the plot has taken no action to establish his legal right. The bench also noticed that the officers of the KDA instead of seeking cancellation of the so called lease did not give an opportunity of hearing to the petitioner to present her point of view and proceeded to act upon the notice, which was illegal to their own knowledge and thereafter demolished the house and forcibly ejected the petitioner.
' The D.B. Also came to the conclusion that such action is mala fide and misuse of public power and requires to be dealt with severely.
' The D.B. Also came to the conclusion that as per KDA the possession of the plot has been handed over to some other person to which the bench showed its annoyance and noted that it only augments their findings as to the mala fides of the respondents.
' The D. B. Allowed the petition by declaring the impugned order to be without lawful authority and of no legal effect.
' The D.B. Further issued directions to the respondents to hand over the possession of the plot to the petitioner.
' Nazir of this Court was also directed by the D.B. To visit the site forthwith and ensure the delivery of possession of the plot to the petitioner.
' The D.B. Further observed that the petitioner is entitled to compensation from KDA and its officers who were responsible for such action, since it was not possible to determine the quantum of compensation, the bench left it open to the petitioner to approach the competent Court of law in this behalf. The bench then sent a copy of the order to the Director General KDA for initiating appropriate action against the delinquent officials and asked for report compliance on 9-5-2001.
' The D.B also directed the Director General that in case KDA fails to compensate the petitioner, the loss sustained by the petitioner could also be recovered from such officers.
11. In my view, nothing much now is left in deciding the instant case in view of explicit directions of the learned D.B, as the issue of ownership and submission of forged documents is now over. Raising of this issue now is nothing but an attempt to give the present case a new lease of life, which could not be done at this belated stage when the D.B has categorically observed by giving its findings as explained supra, about the ownership or otherwise of the plot. The applicant now could not take advantage of these arguments which had already been heard by the D.B. As the only question regarding quantum of compensation is now to be decided and determined. It is also an undeniable fact that nobody has come forward from Imtiaz Ahmad Abbasi to establish his right in respect of the plot. Hence the entire arguments made by the learned counsel for the applicant regarding doubtful, dubious possession or that of forged and fabricated documents of ownership in favour of the respondent are misplaced and misconceived. The respondent now only has to satisfy about the veracity of the quantum of compensation claimed by her. The D.B. Instead of involving itself to determine the quantum of compensation has left the same open for the respondent to approach the competent Court of law for claiming the said compensation by tiling a suit, if deemed necessary.
12. It is also an undeniable fact that the counsel appearing for the department has candidly conceded before me that the case before the D.B was not properly handled by the department.
Moreover it is also an admitted position that the appeal filed before the honourable Supreme Court of Pakistan against the above order of the. D.B. Was subsequently withdrawn by the department.
Now the question is what precluded the department not to agitate the matter before the Hon'ble Supreme Court and as to why they had withdrawn their case. Nothing has been explained in this regard; meaning thereby that the decision of the D.B. Has attained finality and the department does not seem to be aggrieved against the said decision. The instant matter thus has to be seen and proceeded in view of the explicit observations of the D.B. Which are quite clear. It is also seen from the record that in the written statement filed by the applicant before the lower authorities it has been admitted that lease was not granted to the respondent by the competent authority but the question is what action has been taken by the department in this regard against the delinquent officers and whether the said lease was cancelled. No answer is available with the department in respect of these two questions. It is also seen from the record that in the W/S the departmental official namely Mr. Jameel Ahmad had categorically admitted that the department has no grievance in respect of the decision given by the D.B., which is against them and only opposed granting of compensation claimed by the respondent. It was also stated and admitted that C.P.L.A. Bearing No,575 of 2001 was filed before the Hon'ble Supreme Court, which was subsequently withdrawn being time barred. It is also evident from the affidavit-in-evidence of Mr. Jamil Ahmed that he has admitted that situation before the High Court was in favour of the respondent. Mr. Jamil Ahmed has further admitted that the department has not filed proper reply in respect of the demolition. He has further stated that he has not filed any document to establish that he got verified such lease from the concerned department. He has further stated that it is incorrect to suggest that allotment is forged and fabricated document and voluntarily stated that plot was purchased by respondent in 1987. He further stated that legal heirs of Imtiaz Ahmad Abbasi has filed a suit for cancellation of lease and in cross-examination of Mr. Jamil Ahmed he has admitted that he has not filed any notice with his affidavit-inevidence regarding demolition.
Similar admissions and submissions were made by the other two officials of the department namely Nisar Ahmed and Raja Adalat, who are respondents Nos.2 and 3 in the present Revision Application.
13. The trial Court while examining the case has failed and erred by not going minutely through the order passed by the D.B. As the only issue which requires adjudication was the quantum of compensation. The trial Court was only required to see whether the quantum of compensation claimed by the respondent was justified or not and whether the said claim is based on proper evidence and is not exaggerated. The trial court misguided itself in dilating upon the other issues, which were not required by it. The Appellate Court while deciding the case has come to the right conclusion that the only controversy now left to be decided between the parties is the quantum of compensation as the other issues have already been decided by the D.B. The Appellate Court then examined the various documents furnished by the respondent regarding the claim of the compensation and thereafter awarded a sum of Rs,863560 with interest at the rate of 10% per annum from the date of filing of the suit, which order in my view does not suffer with any illegality.
The decisions relied upon by the counsel for the applicant are found to be not on all fours with the facts obtaining in the instant Revision Application.
14. It is a settled proposition of law that awarding of damages is always the discretionary power of the Court and this power has to be exercised keeping in view the facts of each case. In the present case also the Appellate Court after threshing out the entire record and evidences A has come to the conclusion that the amount noted above would be the correct amount for granting compensation to the respondent in respect of the agonies suffered by her. I am mindful of the fact that no exact amount could be calculated in this regard and only a tentative assessment has to be made keeping in view the -evidences produced by the respondent and rule of thumb could be applied in this regard. In the circumstances the claim of money as nearly possible to damages suffered by the respondent are to be granted. There is no denial to the fact that demolition was done by the applicant which admission is available on record without proper application of law. At this juncture I would like to refer to a judgment given by the honourable Supreme Court of Pakistan in the case of Muhammad Akram v. Arman Bibi reported in PLD 1990 SC 28). Relevant portion of the said judgment is reproduced herein below:-- "Some damage must necessarily have been caused, if we are to assess the damages only if the exact amount is proved, no damages can ever be decreed. 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 suit".
' I also would like to refer to another judgment of the Hon'ble Supreme Court of Pakistan in case of Sufi Muhammad Ishaque's case (PLD 1996 SC 737) relevant portion of the said judgment is reproduced herein below:- "Once it is determined that a person who suffers mental shock and injury is entitled to compensation on the principles stated above, the difficult question arises what should be the amount of damages for such loss caused by wrongful act of a party. 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. So far nervous shock is concerned, it depends upon the evidence produced to prove the nature, extent and magnitude of such suffering, but even on that basis usually it becomes difficult to assess a fair compensation and in those circumstances it is the discretion of the Judge who may, on facts of the case and considering how far the society would deem it to be a fair sum, determines the amount to be awarded to a person who has suffered such a damage.
The conscience of the Court should be satisfied that the damages awarded would, if not completely, satisfactorily compensate the aggrieved party,"
15. In view of the observations made by the Hon'ble apex Court, I am of the view that the respondent has been able to prove that she is entitled for compensation and the compensation awarded by the Appellate Court keeping in view all the attending circumstances, evidence, documents and other material appears to be reasonable and no interference in this regard is warranted. This Revision Application is thus found to be devoid of any merit and is hereby dismissed. Since the instant Revision Application has been dismissed, therefore, the pending CMAs are also found to be devoid of any merit and are accordingly dismissed.
16. As I have given the decision on the issue of entitlement of respondent in respect of compensation alone I need not dilate upon the other issues raised by the counsel for the