' The present application under section 115, C.P.C. Is directed against judgment and decree respectively passed on 14-11-1988 and 12-12-1988 by the IInd Additional District Judge, Karachi
(East) in Civil Appeal No,131/87 decreeing the suit filed by Raees Ahmed, respondent herein, in the sum of Rs,25,000 against Ishtiaq Ahmed applicant herein.
2. The facts leading to the filing of the present application briefly stated are that respondent Raees Ahmad filed a suit for damages valued at Rs,25,000 against applicant Ishtiaq Ahmed in the Court of Ist. Senior Civil Judge, Karachi. His suit was registered as Suit No,1476/84. The suit was ultimately decided by the VIth Senior Civil Judge, Karachi (East), as it was transferred to him as a result of re- organization of Civil Courts in Karachi. Respondent Raees Ahmed, in his plaint, alleged that on 18-9- 1979 applicant Ishtiaq Ahmed reported at Police Station Korangi, Karachi, to register a complaint against him. His complaint was registered under section 341/506, P.P.C. Under F.I.R. No,219/79 of that Police Station. The police, after usual investigation, filed a challan against respondent Races Ahmed in the Court of 1Vth Additional City Magistrate, Karachi (East) and the case was registered as Case No,186/80. Ultimately he was acquitted by judgment passed on 27-4-1983 by the concerned Magistrate. He claimed in paras. 5 and '6 of his plaint that by reason of malicious prosecution he has suffered much in body, mind and reputation as well as mental torture and humiliation and also incurred expenses due to the said false case. He, therefore, claimed damages of Rs,25,000 on all counts.
3. The suit was resisted by applicant Ishtiaque Ahmed.
4.On the basis of pleadings of the parties the trial Judge framed the following issues:- "(1) Whether the plaintiff is a man of good moral character and enjoying good reputation in the eyes of the public?
(2) Whether the plaintiff was maliciously prosecuted by the defendant, if so, with what effect?
(3) Whether the plaintiff suffered much in body, mind and reputation, owing to mental torture, humiliation and/or expenses due to the false case of the defendant in Criminal Case No,186/80 (of F.I.R. No,219/79) lodged by the defendant under section 506, P.P.C. With the Korangi Police Station, Karachi?
(4) Whether the plaintiff was acquitted honourably from the said criminal case in which he was prosecuted by the defendant if so, what is its effect?
(5) To what relief or reliefs if any, the plaintiff is entitled?
(6) What should the decree be?
5. Both the parties led evidence in support of their stands respectively taken by them.
6. After hearing the parties the trial Court decided Issue (I) in affirmative while Issue (3) and (5) in negative and Issues (2) and (4) were decided against the respondent and the suit was dismissed with costs.
7. The plaintiff Raees Ahmed, respondent herein, then filed an appeal against judgment and decree passed by the trial Court. His appeal was ultimately decided on 14-11-1988 by the judgment passed by the IInd Additional District Judge, Karachi (East) in Civil Appeal No, 131/87. The appellate Court set aside the judgment and decree passed by the trial Court and decreed the suit in the sum of Rs,25,000 with costs. It is against these two judgments that the present revision application has been filed.
8. Mr. Badre Munir, Advocate for the applicant, only contended that in a suit where damages are claimed on account of malicious prosecution it is necessary to prove that the prosecution was initiated as a result of some malice. According to him, the plaintiff Raees Ahmed, who is the respondent herein, had failed to adduce any evidence on the point of malice and was not entitled to any decree. He further stated that the plaintiff, in his plaint or in evidence, did not give details of his claim of Rs,25,000. On that account too, according to him, no decree could be passed.
9. Respondent Races Ahmed appeared in person and filed his written objections.
10. In a suit for claiming damages on account of malicious prosecution the onus of proving the case heavily lies on the plaintiff. Such a view was taken in the cases reported in PLD 1970 Kar. 344; 1984 CLC 325; and PLD 1986 Kar.
476. In the above cases it was spelt out that in such cases the plaintiff is under the onus to show that he was prosecuted by the defendant on a criminal charge: the prosecution terminated in plaintiff's favour; the prosecution was malicious and the prosecution was without any reasonable or probable case. The plaintiff has also to prove his claim under the various headings. Although in a case where claim is made due to sufferings, harm to the body, mind or reputation or on account of torture and humiliation, as is claimed in this case, the amount of damages can always'be assessed after taking in view the status of the plaintiff in a given society on the basis of evidence produced by the plaintiff. Such claim in many cases may be purely of notional nature but in a case where, in addition to such claim, claim is also made for the costs in pursuing the litigation the plaintiff has to prove by cogent evidence the exact amount that he actually spent in defending himself. In the present case the plaintiff did not produce any evidence in support of his claim on various counts stated in para. 5 of his plaint. It was due to such lack of evidence that the trial Court had dismissed the suit. The appellate Court too did not examine such aspect of the suit.
11. For the above reasons, I am inclined to set aside the judgment and decree passed by the two Courts below and remand the suit to the trial Judge, who will decide the suit on the basis of evidence already recorded and the additional evidence that may be led by the both the parties which can be permitted according to law.