' MALIK MANZOOR HUSSAIN J.---This appeal has been preferred against order dated 10-12-200a passed by the learned Senior Civil Judge, Mardan, whereby the plaint of the petitioner was rejected by invoking provision of Order VII, Rule 11, C.P.C:, being barred by law.
2. Briefly, the facts of the case are that petitioner Saeed-ur-Rehman filed a suit against respondents for recovery of Rs,50,00,000 as damages for alleged mental torture, humiliation and disrespect. The suit was resisted by the respondents by filing an application under Order VII, Rule 11, C.P.C., wherein they contended that the suit was not maintainable as per relevant Provision of Central Excise Act and Customs Act. After hearing the arguments of both the parties, the learned trial Court vide impugned order dated 10-12-2003 rejected the plaint being barred by law, hence the instant appeal.
3. The learned counsel for the appellant contended that the plaint was rejected on wrong footing as it was yet to be determined at trial that the respondent had exceeded their power by twice raiding the closed Factory of the petitioner which resulted into humiliation disrespect and bad name in the business circles. It was further contended that nothing was brought on record by the respondents that under what capacity they raided the close premises and what was the purpose behind that. Lastly it was concluded that, no output in the shape of any consequences were brought on record which could justify the action taken by the respondents.
4. Conversely, the learned counsel appearing on 'behalf of respondents contended that on the credible information received by Director General, Intelligence and Investigation (customs and Excise) Islamabad, the premises was raided and vital record containing documentary evidence and actual production of the branded cigarettes were impounded and in consequence thereof complaint was lodged on 26-3-2003 before the Special Judge, Customs and Excise, Lahore under the relevant provision of sections 9-A(6) and 13 of the. Central Excises Act, 1944 for cognizance. It was further argued that the suit was not maintainable as per provision of section 217 of the Customs Act, 1967, wherein jurisdiction of Civil Court had been barred. The attention of this Court was also drawn to nomenclature of respondents, wherein the office was arrayed as defendant and not the person who had raided the premises.
' Arguments heard and record perused.
5. Perusal of record reveals that on the tip of information received by the Director General, Intelligent and Investigation (Customs and Excise) Islamabad that the unit of the appellant (Messrs United Tobacco Industry Mardan) though is closed since August, 2001 in the record of the Central Excise Collectorate, whereas actually they are producing branded cigarettes and supply the same in the market without payment of Central Excise Duty and Sales Tax leviable thereon. In pursuance of this information on 9-9-2013 and 10-9-2013 the staff of Directorate of Intelligent and Investigation (Customs and Excise) Islamabad under the supervision of Additional Director Intelligence and Investigation (Customs and Excise) Islamabad visited the Factory premises firstly of Messrs Excel Tobacco Company, Chakwal and took vital record and found involved in production of United Tobacco Industry Mardan branded cigarettes. On the basis of recovered record it transpired that the management of appellant unit namely Messrs United Tobacco Industry Mardan with the active connivance of Messrs Excel Tobacco Company, Chakwal were found to have evaded central excise duty and sales, tax amounting to Rs,75,31,366. Therefore a crime was committed by the appellant punishable under section 9-A of Central Excises Act, 1944 and sections 73-A and 73-C of the Sales Taxes Act, 1990. That is why a complaint was lodged before the Special Judge, Customs and Taxes, Lahore under the relevant Provision of law against the appellant/ Industry. The arguments of learned counsel for appellant that without any reason' raid was made is without any substance as not only the reasons were forwarded but in consequence thereof a complaint was lodged before the Special Court in this regard. The suit was also barred under Provision of section 217 of the Customize Act, 1967, therefore rightly rejected.
6. There is another aspect of the case, the original suit for damages was filed by one Saeed-ur- Rehman, the suit was dismissed under Order VII, Rule 11, C.P.C. And it seems that during pendency of the appeal Mr. Saeed-ur-Rehman died and his legal heirs were impleaded in his place. Now a question arises whether a suit for damages which was dismissed as well as appeal had not been finalized during life time of person wronged could be maintainable being personal right. It is well established that a suit for compensation in the wrong done is personal to the person wronged and to such of right the maxim actio personalis moritur cum persona (a personal right of action die with the person) fully applies. Its equally clear that in the suit in hand the person allegedly wronged died before getting any decree passed in his favour, the suit would abate and his legal heirs could not have continue the suit after his death, as a right to sue in such a case being personal to the deceased did not survive. The position would have been different if the suit was decreed in favour of petitioner during in his life time, as passing of the decree no longer an action personalis is in existence. ,My this view is supported by the judgment passed in the case of A. Majid Sama v. The Asbestos Cement Industry Ltd. (1996 M LD 803) and Mercantile Co-Operative Bank Ltd. v. Messrs Habib and Co. And others (PLD 1967 Karachi 755) on this score also this appeal was also not competent. No mala fide could be alleged in the presence of such strong evidence against the official who were bound for protection the interest of State and it was their duty to arrange for raid on the premises where illegal activities were alleged.
' In view of what has been discussed above, this appeal is without any substance and is dismissed.