SYED MUHAMMAD FAROOQ SHAH, J.:- Applicant Mr. Abdul Latif Shaikh, Advocate, by invoking the revisional jurisdiction of this court, preferred the captioned revision against the concurrent judgments of dismissal of Suit No. 1242 of 2009 by learned XVIth Civil Judge, District south, Karachi, upheld in Appellate judgment, recorded by the learned 5th Additional District & Sessions Judge, Karachi-South.
2. Relevant facts leading to the case in hand are that Mr. Shaikh (Plaintiff) purchased World Call USB for internet use on 04.9.2009 on advance monthly payment. It is alleged that the plaintiff suffered slow speed and signal problem while working on the internet. It is stated that on 16.10.2009 the connections was disconnected due to non-payment of subscription fee for the month of October 2009. It is further alleged that the said act of the defendant was unjustified and illegal due to which the plaintiff suffered serious mental torture, agony and inconvenience as well as financial losses, for which the defendant is liable to pay damages. It is stated that after making the payment on 26.10.2009, the internet USB signals were restored on 27.10.2009 but the same was not functioning properly and just after four days the defendant again sent the bill for the month of November 2009 instead of curing the problem. He has prayed for the following relief:- (a). To declare that the act of defendant for stop / Freeze signals of USB and slow speed release of USB and without resolving complain or positive response as well as sent bill month of November 2009 in advance without justification and trying to damage reputation all are illegal, unlawful, unwarranted, without lawful authority, against the law, based upon the malfide intention and to disturb life as well as peaceful living with family, as such the same is illegal unlawful, unjustified and violative of the rules of natural justice and the Constitutions.
(b) To direct the defendant payment of Rs. 49,500/- being the compensation for the damages, losses, occurred due to obstinacy of the defendant, whereby they without any reason or moral cause stop signals and slow speed of the USB hence create tensions and disturbed mentally, due to which the plaintiff suffered with serious mental torture, mental agony, physical inconvenience, damage to his reputation as well as financial losses and suffered with irreparable loss caused by the defendant above named hence the defendants should pay the above said amount to the plaintiff, along with the markup/currency fluctuation at the rate @ of 20% per month from October 2009.
(c) To grant Permanently and mandatory injunction against the defendant for restrain the defendant, them employ employees, colleagues, friends, representatives, attorneys and/or anybody / any person else acting on his/her behalf or in his/her name stop signals of USB or slow speed provide or come negative response.
(d) To grant permanent injunction against the defendant, thereby restraining the defendant, theirs agents, servants, colleagues, representatives and/or anybody else acting through him or on their behalf from interfering with the signals or slow speed of USB, customer ID No. 120744, Check digit: 3 which is in possession of the plaintiff and all facilities not disturb in any manner whatsoever in nature except due process of law.
(e) Cost of the suit and / or any other relief, which this Hon'ble Court may deem fit and proper in the proper in the circumstances of the case may be granted.
3. In their written statement, the defendant/ respondent has vehemently denied the averments of plaint and challenged the maintainability of the suit and submitted that the appellant is enjoying the service without advance payment of bill and as per terms the services are automatically disconnected due to non-payment of bill hence the suit is liable to be dismissed.
4. From perusal of the record it appears that by deciding the application under order 39 rule 1 & 2 CPC filed by the applicant/plaintiff, the learned trial court rejected the plaint under Order VII Rule 11 CPC, which was challenged before appellate court and the said order was set aside in Appeal No. 178 of 2010 by the learned VIIth Additional District Judge, Karachi-South vide order 11.10.2010 and the case was remanded to trial court with direction to decide the matter on merits.
5. On remand, the trial court settled the following issues from the pleadings of the parties: "1. Whether the suit is maintainable?
2. Whether the U.S.B. of the plaintiff was disconnected due to default in payment of the charges by the plaintiff?
3. Whether the plaintiff suffered signal problem due to poor services of the defendant?
4. Whether the plaintiff suffered mental torture and financial loss due to the poor service of the U.S.B.?
5. Whether the plaintiff is entitled for the recovery of Rs. 49,500/- as damages from the defendant?
6. Whether the plaintiff is entitled for the relief claimed?
7. What should the decree be? "
6. On the above issues, both the parties led their evidence and after hearing the parties counsel, learned trial court dismissed the suit on the ground that neither the plaintiff produced any evidence to prove that there was some problem of slow speed or continued disconnection in service, particularly the USB was checked and found unfunctional by the concerned staff of I.T.
Department of District South. The trial court has further held that no medical prescription is produced by the plaintiff showing that he visited any doctor or psychiatrist in respect of mental pain suffered by him due to poor internet service provided by the defendant.
7. While dilating upon the issues pertains to damages, the learned trial court held that details of the loss are required to be disclosed and in the absence of proof of each and every item the claim has to be rejected being remote and unproved. However, the learned trial Judge has also observed that the matter was to be referred to the arbitrator in view of terms and conditions agreed between the parties that the matter relating to any dispute be referred to sole arbitrator whose decision shall be final and binding upon the parties. On maintainability of the suit, while deciding issue No. 1 the trial court has observed that suit of the plaintiff is hit by Arbitration Act 1940 and the same is not maintainable.
8. So far as the issue pertaining to the maintainability of the suit is concerned, the learned appellate court reversed the finding of the trial court and has given findings on the merits of the case and reached at the conclusion that the appellant has failed to substantiate his claim regarding poor performance of USB Internet services as alleged in the plaint, without producing any documentary and/or supporting witness, therefore, the findings on issue No. 2 & 3 were upheld and on issue No. 4 & 5 the appellate court has opined that the damages as alleged are the consequences of subject to issue No. 3 and further held that trial court had committed no illegality in deciding the damages so alleged by the appellant, on the score that the appellant has failed to establish his claim.
9. Mr. Tanoli, representing the applicant at the very outset submitted that the trial court has not properly evaluated the material brought on the record and reached to the conclusion by considering only Arbitration clause in the agreement but has ignored to appreciate that respondent has relinquished the option of referring the matter to the arbitrator, by filing the written statement and contested the suit without taking any objection or filing the application under section 34 of the Arbitration Act. In support of his contention, learned counsel for the applicant placed his reliance on the case of PIAC V/S PAKSAAF DRY CLEANERS (PLD 1981 Supreme Court 553), interestingly, this citation has also been relied by learned counsel representing the respondent and frankly conceded that the application under section 34 of the Arbitration Act, 1940 was not filed by the defendant before filing of written statement, which was requirement of law, therefore, the suit cannot be dismissed under section 34 of the Arbitration Act, 1940. Much has been argued on section 34 of Arbitration Act, though, as stated supra, such legal plea has already been entertained by the learned appellate court, in its judgment, delivered on merits. In such view of the matter, the aforementioned citation and the remaining case law on the point of referring the case to the arbitrator under section 34 is not attracting in the circumstances of the case.
10. It would not be out of context to mention here that violation in performance of contractual obligation, if any, is governed by the terms and conditions but the defendant has not opted to refer the matter to the arbitrator and contested it by way of filing written statement and the learned appellate court has given decision on merits, touching the terms of agreement relating to speed, signal, low browsing of World Call Tele Com: ltd;/defendant. Technicalities of such technology require the evidence of some technical person which has not been adduced by the plaintiff in this case. The plaintiff being an advocate, signed the plaint of the suit, averred in para: 4 of the plaint of the suit that due to poor and slow service his children using same USB were facing some sort of problem and stated that "it is illegal, unlawful and committed crime", without mentioning the relevant provision of law that as to how non-fulfillment of the contractual obligations is a crime? It is settled that one who seeks equity must come to court with clean hands. There is no specific contention made in the plaint or in evidence adduced by the plaintiff before the trial court, showing that what infringement or violation of terms and conditions has been breached by the defendant?
In this way, plaintiff has failed to discharge onus of proof lies upon him. Perusal of the record reveals that defendant by showing grace, courtesy, and business ethics, in reply to the letter issued by the plaintiff, tendered apology for inconvenience caused to him and assured smooth connection, therefore, it was incumbent upon the plaintiff that being a legal professional and an officer of the court, he may have to accept the apologetic reply of the defendant but instead he filed the suit for damages amounting to Rs. 49,500/-. It is also not clear from the available record that technical fault, if any, has occurred on the part of defendant or it was beyond their control, more particularly, no evidence has brought on the record that how much speed and signals were required by the plaintiff that as to how much extent it was slow browsing, therefore, the plaintiff, being a non-technical man has leveled allegations against the defendant without adducing any evidence of technical person. Covenants of the contract of said connection obtained by the plaintiff have also not been found available on the record, showing that what part and clause of the contract has been violated by the defendant.
11. In concurrent findings, both the learned lower courts have correctly observed that damages suffered and quantity of amount claimed under each head would have to be proved by cogent evidence and mere assertion of inflated amount without any corroboratory evidence would be of no avail to the plaintiff. Damages for mental suffering may be mental and physical shock, inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, attributable to medical treatment for the injury and the amount of compensation will vary with the intensity of pain and suffering of plaintiff. Mental suffering and psychiatric injury follows from foreseeable physical injury may be compensated under the head "pain and suffering" or mental suffering which amounts to recognizable psychiatric illness, requires psychiatric evidence, which is lacking in this case.
12. Learned counsel for the respondent while placing reliance on the cases reported as ABDUL GHAFFAR V/S JAMALUDDIN (1986 CLC 747) and HAJI MUHAMMAD ZAMAN V/S ZAFAR ALI KHAN & OTHERS (PLD 1986 SC 88), submitted that incorrect decision by the court having jurisdiction and even erroneous decision of fact are not revisable except in cases where decision is based on no evidence or inadmissible evidence or is so perverse that grave injustice would result therefrom, as under section 115(1)(b)(c) the illegality committed by the appellate court or any material irregularity cannot be invoked. Reliance has also been placed on the case MUHAMMAD BUX V/S MUHAMMAD ALI (1984 SCM R 504), wherein it was held that mere fact that finding of courts below may be wrong on a point of fact or on point of law unrelatable to exercise of jurisdiction, would not bring case within four corners of section 115. In the case of KANWAL NAIN & 3 OTHERS V/S FATEH KHAN & OTHERS (PLD 1983 SC 53), it is held that erroneous decision of fact are not revisable except when the decision based on no evidence, inadmissible evidence or so perverse as to cause grave injustice and held that court in upsetting conclusion of courts below on question of fact by means of re-examination of evidence in revision overstepped limits of its jurisdiction. Suffice is to say that there is no jurisdictional error and the decision of the appellate court is not so perverse that grave injustice would result therefrom.
13. In view of the foregoing discussion, the captioned revision application is dismissed with no order as to costs.