' INAYAT ELAHI KHAN, J.-The order in this appeal also dispose of the connected appeal (R.F.A. No, 11 of 1984) as both the appeals have arisen out of the same decree of the learned Senior Civil Judge, dated 24th March, 1981.
2. Dr. Syed Haider Bukhari (plaintiff-appellant) has prayed for the acceptance of his claim in toto whereas in the other appeal filed by the North-West Frontier Province through Collector and others, the prayer is for the total dismissal of the plaintiff's suit. The suit of the plaintiff for the recovery of Rs, one lac (rupees 1,00,000) as compensation, for damages and the price of the car was decreed by the learned trial Court against defendants 1 to 3 to the extent of Rs, 35,000 only.
3. The facts of the case are that a Toyota Corona Car (1967 Model) bearing registration KAF No, 448 was found abandoned on the Warsak Road by the police. It was taken into possession and an inquiry was made to locate the owner of the car. Since, the owner of the vehicle was not traceable, it was put to auction and purchased by defendant No, 4 on 28th September, 1973 for Rs, 15,000. A proper auction certificate was duly issued to him. The auction-purchaser got the vehicle registered in his own name under a new registration No, PRB 703. The said defendant then sold the car to defendant No, 5 who later on sold it to the plaintiff for Rs, 28,000 on 28th March, 1975 and the car was registered in his name. In the month of November, 1975, it was detected that the car belonged to defendant No, 6 which had been stolen from Karachi and in this respect a case (F.I.R. No, 207/72) was also registered in Police Station, Preedi, Karachi. Since, the police wanted to take the custody of the vehicle from the plaintiff, he instituted a Civil Suit on 15th November, 1976 for a declaration and injunction in the Court of Senior Civil Judge, Peshawar. The suit was, however, dismissed in default on 24th October, 1978. Having failed to obtain a temporary injunction in the Civil Suit, the plaintiff surrendered the car on 3rd May, 1978 before the Magistrate concerned vide certificate Exh. P.W. 8/4.
Since the possession of the car was taken from him, the plaintiff instituted the present suit on 23rd January, 1979 for the recovery of Rs, 1 lac. The plaintiff claimed Rs, 40,000 as the price of the car and Rs, 60,000 as compensation for damages suffered by him. He prayed for a decree against defendant No 1 (N.-W.F.P. Through Collector, Peshawar) or other defendants as deemed proper by the Court. According to the plaintiff he was using the car as his own property when on 17th November, 1975 it was taken away by the police as it was stated to be the case property in case F.I.R. No, 207/72, dated 16th September, 1972 of Police Station, Preedi, Karachi. He got the car released on bail and later on instituted the declaratory suit as mentioned above. According to the plaintiff the market price of the car, when it was surrendered to the Magistrate on 3rd May, 1978 was Rs, 40,000. It is further alleged that during the period from 17th November, 1975 to 3rd May, 1978 the plaintiff had suffered a great deal due to mental worry and the wastage of his professional time. He also suffered in reputation because of some publication in the newspaper in regard to the recovery of the stolen car. He, therefore, also claimed a sum of Rs 60,000 as compensation for damages.
4. The suit was vehemently contested by defendants 1 and 2 who raised a number of legal and factual pleas. Defendants 5 and 6 also denied their liability by filing separate written statements.
The contentions between the parties gave rise to the following issues :-
(1) Whether the plaintiff was a bona fide purchaser of the suit car through auction from the State Government of N.-W.F.P. ?
(2) Whether the cost of the car was Rs, 40,000 at the time of taking its physical possession from the plaintiff by defendants Nos. 1 to 3 ?
(3) Whether the plaintiff is entitled to the compensation of damages for mental torture, agony, wastage of professional time and reputation, if so, how much ? O.P.P.
(4) Whether this Court has the jurisdiction to try the suit in hand ? O.P.P.
(5) Whether the plaintiff has a cause of action ? O.P.P.
(6) Whether the plaintiff is estopped from institution of the present suit? O.P.P.
(7) Whether the suit is incompetent in its present form ? O.P.P.
(8) Whether the suit is hit by the principle of res judicata ? O.P.P.
(9) Whether the suit is bad for non-joinder of necessary parties ? O.P.D.
(10) Relief.
' The plaintiff besides his own statement also examined a number of witnesses in support of his case. The evidence on behalf of defendants 1 and 2 is given by Khidmat Hussain Khan, Police Inspector (D.W. I) and Muhammad Yousaf, Senior Clerk, Office of Collector (D.W. 2).
5. In view of the evidence produced in the case, the learned trial Court came to the conclusion that the plaintiff purchased the car in good faith for Rs, 28,000 from defendant No, 5 after making every effort to satisfy himself about the ownership of the car by verification from the Registration Office.
Since the market value of the car was assessed at Rs, 35,000 to Rs, 42,000 in the month of April, 1978 by the witnesses who were dealing in the business, the learned trial Court, keeping in view the minimum price given in Exh. P.W. 4/1, fixed the price of the car at Rs, 35,000 at the time when the possession of the car was taken from the plaintiff. Regarding the claim of damages it was found that excepting the solitary statement of the plaintiff, there was no evidence about the damages sustained by him. No details of the damages were given. Therefore, in the absence of any particulars of the expenses incurred or the damages suffered due to mental shock or loss of reputation, the plaintiff was not held entitled to any relief on this account.
6. The learned counsel for the parties, in both the appeals, confined their arguments to issues Nos.
1, 2, 3, 8 and 9. The learned Advocate-General, appearing for respondents 1 to 3, contended that Abdul Muhammad and Mrs. Major Tanveer Akhtar were necessary parties to the suit because the car in question stood transferred in their names. The plaintiff transferred the car in the name of Abdul Muhammad on 17th December, 1977 and thereafter it was transferred in the name of Mrs. Major Tanveer Akhtar. However, the plaintiff stated that he transferred the car to Abdul Muhammad in lieu of some loan on the condition that on payment of the loan the car would be re-transferred in his name. It is also stated by the plaintiff that Mrs. Major Tanveer Akhtar is his sister-in-law and after getting back the car from Abdul Muhammad it was temporarily given to her for use because he was already in possession of another car and the car in question was to be returned to him whenever required. This assertion is supported by the fact that Mrs. Major Tanveer Akhtar did apply to the Registration authority on 20th March, 1978 for the re-transfer of the car in the name of the plaintiff vide Exh. P.W. 8 D A. And Exh. P.W. 8/D.B. It is in evidence that the plaintiff was in possession of the car on 3rd May, 1978 when he surrendered the car to the Magistrate. In these circumstances, it is legitimate to presume that the plaintiff himself was the owner of the car at the time when its delivery was taken from him and, therefore, the objection that Abdul Muhammad and Mrs. Major Tanveer Akhtar were necessary' parties to the suit is without any substance. The learned counsel for the plaintiff contended that according to the evidence available in the case the plaintiff was entitled to the recovery of Rs, 40,000 as the price of the car and there was no justification for fixing the price at Rs, 35,000. It is also contended that the plaintiff was entitled to the compensation for damages due to mental shock, wastage of professional time, loss of reputation and the expenses incurred. In this regard it may be mentioned that excepting the statement of the plaintiff there is no evidence to support his contention. The plaintiff has merely claimed a fixed amount of Rs, 60,000 without giving any details of the damages sustained by him. No evidence was adduced to prove the particulars of the damages on various counts. There is nothing to prove the expenses stated to be incurred or the loss suffered due to the alleged wastage of professional time. Similarly, there is no evidence to prove the financial loss suffered by him which was the direct consequence of the publication in the newspaper. The alleged publication in the newspaper was not produced in evidence. The plaintiff has claimed a total amount of Rs, 60,000 without giving a break-up of his claim. The learned counsel for the plaintiff-appellant, to support his contention, relied on Pakistan Industrial Development Corporation v. Aziz Qureshi (1), Messrs Abdur Rahim-Ghulam Qadir v. The Federation of Pakistan (2) and A. V. Joseph v. R. Shew Buz (3). But the cited cases are distinguishable as the principle enunciated therein is based on claim of damages arising out of breach of contract. In the case in hand no such question is involved. The contention that the plaintiff should have been given at least some compensation for the mental worry cannot prevail, for, it is well-established that in a suit for damages the burden lies on the plaintiff to establish his case. He has to prove the nature of damages sustained by him on account of every A element he has relied on. Nothing is proved about the loss sustained by the plaintiff due to mental worry and the circumstances do not justify award of any pecuniary compensation on this account. In Dipchand v. Manakchand (4) it was held that : "So far as the prayer for damages is concerned, there was manifestly no cause of action as there was not injury. Damages are pecuniary compensation which the law awards to a person for actual injury he has sustained by reason of the act or default of another, when such act or default is a breach of a contract or tort. What the plaintiffs describe as worry was nothing but a mental perturbation or emotional excitement caused by the opposition set up by the defendants. It is of too trivial nature to be regarded seriously as an injury in the legal sense of the term. The so-called worry cannot provide the plaintiffs with any cause of action for damages."
Therefore, in the circumstances of the case the measure of damages to which' the plaintiff is entitled would be the market value of the car at the time when he was deprived of its custody.
However, the contention that the price of The car has not been correctly fixed requires consideration.
7. It may be mentioned that the plaintiff in his evidence clearly stated that the car was purchased by him for Rs, 28,000 and since the car was not in good running condition, he got it repaired and paid Rs, 4,500 to the motor mechanic. The spare-parts worth Rs, 6,940 and Rs, 4,890 were also purchased by him vide cash memos. (Exhs. P. W. 8/1 and P. W. 8/2). Before surrendering the car to the Magistrate the value of the car was assessed by Millat Motors Auto Mobiles and National Motors Bargain Centre. Noor Ilahi, Motor Mechanic (P. W. 2) deposed that he had repaired the car in question and charged Rs, 4,500 from the plaintiff vide Exh. P. W. 2/4. Mumtaz Ahmed (P. W. 3) who is a partner of National Motors Bargain Centre proved Exh. P. W. 3/1 whereby the market value of the Motorcar was assessed at Rs, 38,000 to Rs, 42,000 on 15th April, 1978. Similarly, Shah Alam Khan' (P.
W. 4), Proprietor Millat Motors, proved Exh. P. 4/1 whereby the market value of the car was assessed at Rs, 35,000 to Rs, 42,000 on 2nd April, 1978. The plaintiff or his witnesses' were neither cross- examined to show that the value of the car was not correctly disclosed nor any evidence was led by the defendants in rebuttal. In the circumstances, there was no reason for the trial Court to fix the price of the car at Rs, 35,000. In view of the evidence available in the case, the contention of the plaintiff that the price of the car at the relevant
(1) PLD 1965 (W. P.) Kar. 202 (2) PLD 1957 (W. P.) Lah. 279
(3) A I R1918 P C 149 (4) AIR 1939 Nag. 154 ' time was Rs, 40,000 appears to be well-founded and he was entitled to the recovery of this amount.
8. According to the learned Advocate-General it was not establishe that the officers of the Government had auctioned the car without any reasonable or probable cause. Since the car was found abandoned on the road and its owner was not traceable even after due inquiry, there was no alternative for the Government officials but to put the car to auction. In this regard it may be mentioned that the registration number of the abandoned car disclosed that it belonged to Karachi but no effort was made by the police to locate the owner at Karachi or to get the particulars of the car from there. The car was auctioned on 29th September, 1973 and late on the Motor Registering Authority, Peshawar, came to know about the particulars of the car when an inquiry was made from Registration Office at D Karachi vide Exh. P. W. 1/2, dated 4th March, 1974. If an inquiry could be made by the Motor Registering Authority, Peshawar, about the particulars of the car, there was no reason why the Investigating Officer should not have done so. Thus, it is clear that no proper inquiry was conducted by the concerned official to find out the owner of the car. On the request of the police the car was auctioned by a Magistrate and the auction money of Rs, 15,000 was deposited in Government Treasury. In this view of the matter, there is no force in the argument that the Government should be absolved from all responsibility in respect of the negligence of the officials concerned. It is not proved that the plaintiff purchased the car knowingly that it was stolen property. Rather, it was purchased by him in good faith after making due inquiry from Motor Registration Office through Dr. Rehmatullah Khan (P. W. 7). Hence the plaintiff cannot be made to suffer for no fault of his own.
9. Regarding the argument that the present suit was barred under section 11, C. P. C., it may be mentioned that in the earlier suit the plaintiff, being in possession of the car, merely prayed for a declaration and injunction. But later on when the car was seized from him, he instituted, the present suit claiming damages and the price of the car. The causes of action in the two suits are entirely different. The cause of action for the present suit accrued to the plaintiff subsequently when the possession of the car was taken from him. In this view of the matter the principle of res judicata would not be attracted to the case.
10. The car was put to auction by the officials of defendant No, 1 and there is absolutely no evidence to prove the liability to defendants 2 and 3. They could not be held responsible for the claim of plaintiff. Therefore, there was no justification for passing the decree against them.
11. For the aforesaid reasons, by partially accepting the appeal of the plaintiff, the decree of the trial Court is modified. The plaintiff is granted a decree of Rs, 40,000 against defendant-respondent No, I with proportionate costs throughout. The decree against defendants 2 and 3 is set aside. The connected appeal (RFA No, 11 of 1984) is accepted to the extent that the decree against appellants 2 and 3 is set aside with no order as to costs.