1. IFTIKHAR MUHAMMAD CHAUDHRY, J.---Precisely the facts of the case are that on 14th March, 1979, appellant Qazi Dost Muhammad filed a suit against respondents, for compensation in the sum of rupees three lacs, including special and general damages. Break-up whereof, is reproduced hereinbelow from the plaint:- "Special damages:
(1) Market value of house demolished.Rs.1,21,000
(2) Breaking and loss of householdRs.3.000 articles.
(3) Loss of Fruit Trees.Rs.11,000
(4) Loss of accommodation andRs.15.000 Inconvenience thereof Total:- Rs.1.50.000 General Damages:---
(1) Mental worries and lowering of Rs.1,50,000 status (defemation and disgrace)
2. Grand Total:- Rs.3.00,000"
3. It was the case of appellant that he was in possession of a house constructed on land measuring 6,200 sq.Ft. In Khasra Nos.8134/2561 situated at Hari KishanRoad, Quetta since 1957, he was forcibly dispossessed from it by the then superintendent of Police, Malik Dost Muhammad on 30th March, 1978; during night hours at the instance of-respondents 2 to 5, out of whom, some were the representative of Jamat-e-Islami, Baluchistan, whereas respondent Fazl-e-Haq Mir, was Principal, Tamir-e-Nau Public School, Archer Road, Quetta. The Superintendent of Police, before taking over the possession, arrested him and thereafter, brought good number of Policemen in official trucks and entered inside the house on breaking open the main gate of house compelling womenfolk to leave the house-bare footed without veils and then they were loaded in a truck and left near Liaquat Bagh, from where, appellant managed to shift his family to "Dilkusha" Hotel to spend night.
4. The superstructure of the house was pull down by the Police contingent acting under the command of respondent No. l and the household articles were badly damaged, by mishandling them during process of shifting to Municipal Hall situated under Toba Mosque Makid Road, Quetta.
5. It was also contended by petitioner that he is a respectable citizen of Pakistan and also religious Scholar, Qari of Holy Qur'an, Khateeb of the mosque as well as Homoeopathic Doctor. Due to the tortious and disgraceful acts he suffered mental worries, defamation, besides sustaining special loss on account of demolishing of his household articles etc. The respondent No. l contested the suit admitting that on 30th March, 1978, at about 18-15 hours, he was summoned with A.S.P. And Additional S.H.O. Police Station, City, Quetta, at the Headquarter Martial Law, Sector No. 1, Quetta and was ordered to maintain law and order situation at the time of eviction of the plot belonging to Tameer-e-Nau Public High School, which shall be taken over by the Administrator, Municipality, Quetta, Syed Muhammad Hussain Shah from possession of plaintiff as was desired/ordered by the Supreme Court of Pakistan in a decree. So, in compliance of such orders, he remained present at the spot to maintain law and order situation. Remaining contents of the plaint, however, were denied by him. He also admitted that the household articles were collected by Tajamul Hussain Shah, S.I. Police Station, City, Quetta, in presence of independent witnesses Abdul Samad son of Noor Muhammad, case Khilji and Mehmood Ahmed Sabri son of Ghulam Mehboob, case Urakzai, under the orders of Administrator, Quetta Municipality Syed Muhammad Hussain Shah, through Seizure memo. Prepared on the spot at the relevant time. The damages sustained by appellant, as alleged in the plaint to the tune of rupees three lacs were not accepted and prayer was made that suit be dismissed.
6. Similarly respondents Nos.2 and 5 denied the claim of appellant contending that appellant was the trespasser and his presence on the plot was altogether unlawful, unwarranted etc. They also denied their participation in any unlawful activity for the dispossession of appellant.
7. Learned Trial Court framed as many as 19 issues, arising out of the pleadings of parties. Appellants to substantiate his case led the evidence of following witnesses:---- P.W.1 Malik Karim Bakhsh, Architect. He produced Certificate Exh.P/1, dated 20th July, 1975. Contents whereof reveals that at the relevant time, the cost of superstructure raised by appellant on the plot was worked out to be Rs.49,475.
8. P.W.2 Mir Jan.
9. P.W.3 Arshad Rashid. He being representative of Education Department, produced documents Exhs.P/2, P/8-2 and P/8-2-A, from file of Education department to prove that the plot was sold to appellant by Education Department at the rate of Rs.5 p.s.f.
10. P.W.4 Muhammad Azam.
11. P.W. Dr. Habibur Rehman.
12. P.W. Abdul Rashid.
13. P.W. Javed Ayub, owner of Dilkusha Hotel. He produced documents Exh.P/9-A, to show that appellant with his family stayed as a guest in Dilkusha Hotel and made payment of rent etc. To the Management.
14. P.W.8 Muhammad Sharif. In his presence, Exh.P/12 i.e. 288 house-hold articles, belonging to appellant were delivered to him by Inspector, Ayaz.
15. P.W.9 Najibullah Jaffar. He being son of appellant appeared as his Attorney and gave detailed statement in support of the contents of plaint.
16. It appears that respondent No. 1, Malik Dost Muhammad during trial was proceeded ex parte because no evidence was led on his behalf nor he got recorded his own statement, whereas other respondents produced following witnesses:-- D.W.1 Muhammad Ibrahim, who for want of document in file pertaining to Board of Revenue could not be examined.
17. D.W.2 Abdul Samad. (This fellow also stood witness to the recovery memo. Of household articles belonging to appellantwhich were taken into possession by police on the night of incident). He was schoolteacher in Tameer-e-Nau Public High School at the relevant time. He admitted that after dismissal of case of appellant by Hon'ble Supreme Court, the possession of the plot was got delivered to Tameer-e-Nau Public School by Deputy .Martial Law -Administrator, Akhan Gul Tahir.
18. However, he did not produce any such document in support of his version. '
19. D.W.3 Hayat Muhammad. He admitted that possession of plot was taken from appellant through Martial Law Administrator, in presence of the Magistrate, and Chief Officer, Municipality. He did not produce any document of Martial Law Authorities.
20. D.W.4 Muhammad Ibrahim, representative of the Board of Revenue produced Exhs.D/1 and D/2 i.e. Provisional Transfer Order and Provisional Transfer Deed of Deputy Settlement Commissioner.
21. According to which appellant had raised construction was transferred in favour of Secretary, Tameer-e-Nau Public School in 1962, vide Provisional Transfer Order which was followed by Permanent Transfer Deed, dated 16th November, 1971.
22. D.W.5 Fazal-e-Haq Mir (respondent No.4) appeared for himself as well as for remaining respondents, except Chaudhry Muhammad Hussain. He admitted about taking over the possession of house from appellant, but his stand was that police is responsible for taking over the possession.
23. On completion of evidence learned Trial Judge, decreed the suit vide order, dated 14th December, 1992. However, this Court in Appeal No.35/90, remanded the case with directions to Trial Court to allow full opportunity to the parties of leading evidence and thereafter to dispose of the matter afresh on its own merits, keeping in view the provisions of Order 20, rule 5, C.P.C.
24. On remand of case, Trial Court, proceeded with the matter and again decreed the suit on 30th December, 1993. The respondent challenged the said order and decree before the District Judge, by filing an appeal, which was disposed of by Additional District Judge vide order/decree, dated 30th August, 1995, where-by on setting aside the order impugned therein, the suit of appellant was dismissed being incompetent on account of non-joinder of necessary parties. As such, instant appeal has been filed on 20th November, 1995, by plaintiff appellant.
25. Mr. S.A.M. Quadri, Advocate appeared on behalf of appellant, whereas Messrs Shakeel Ahmed and Chaudhry Rafique Ahmed, Advocates appeared for Respondents Nos.1 and 2 to 5 respectively, except respondent No.3.
26. At the commencement of hearing, it was pointed out to parties' counsel that either they should confine their arguments to the extent of appellate order, by means of which appellant has been non-suited on technical points, instead of deciding the matter on merits or they may agree for the disposal of appeal on merits, by this Court because if the appellate order/decree does not sustain then case will be remanded for fresh disposal of appeal, keeping in view the fact that matter is lingering on from 1979. All the learned counsel for parties, consented to decide the appeal on merits.
27. As Issues Nos.16 to 19, are relevant to decide the matter, therefore, same are reproduced hereinbelow:-- "Issues:
(16) Whether the plaintiff suffered special and general damages to the extent of Rs.3,00,000 as alleged in para. 11 of the plaint?
(17) Whether the defendants are liable to pay damages to the plaintiff severally and jointly? OPP
(18) Whether the reliefs claimed cannot be sought jointly? (19) Relief.
28. Mr. S.A.M. Quadri, Advocate on behalf of appellant contended that overwhelming evidence has been produced to substantiate that on account of illegal action of the respondents to take over the possession of the plot from appellant, decree as prayed for is liable to be awarded. In this behalf he referred to the order of Trial Court, dated 30th December, 1993, and various other documents to support his contention.
29. On the other hand, learned counsel for respondent No. l contended that no illegal action was taken against the appellant, because the police was ordered by the Martial Law Authorities to remain present at the disputed plot to maintain law and order. Even otherwise directions issued by Martial Law Authorities cannot be challenged nor without joining the concerned officer of the office of D.M.L.A., relief as has been claimed can be awarded.
30. Learned counsel for respondents Nos.2, 4 and 5 contended that appellant has miserably failed to prove his entitlement to claim damages in the sum of Rs.3,00,000 because no tortious act has been attributed to them nor any of them participated in dispossession of appellant. The respondent No. l being Police Officer, acted under the directions of Martial Law Authorities-to take over the possession of plot from appellant and during process thereof, no defamation as defined in various Dictionaries as well as undersection 499, P.P.C., has been caused to him to claim special damages. The respondents have nothing to do with alleged illegal action, on the basis of which, appellant has been dispossessed from the plot. Learned counsel contended that even to prove special damages, contradictory evidence has been produced.
31. As far as respondent No.3, Chaudhry Muhammad Hussain, is concerned, ex parte order was passed against him on 6th June, 1996, as after service no one appeared to represent him.
32. We have heard parties' counsel and have also gone through evidence, produced by both the parties before Trial Court.
33. It may be seen that admittedly plot entering into Khasra No.8134/2561 measuring 14,000 sq.Ft.
34. Situated at, Harry Kishan Road, Quetta, was allotted to Tameer-e-Nau Public School, being Evacuee Property, as back as on 7th July, 1962 vide Exh.D/1, which was followed by a Permanent Transfer Deed on 16th November, 1971. It is also an undisputed fact that out of the total plot, an area of 6200 sq.Ft. Was occupied by appellant, on which he constructed a boundary wall alongwith residential accommodation. In this behalf statement of D.W.2 Abdul Samad Khilji can be referred.
35. As far as appellant Qazi Dost Muhammad is concerned his contention is that he occupied the plot since 1957, whereas contesting respondents' contention is that appellant forcibly took over the possession of the property, subsequently whereon he raised construction. It is also important to note that appellant approached the settlement authorities seeking cancellation of the Permanent Transfer Deed, from name of Tameer-e-Nau Public School, and succeeded in obtaining an order in his favour on 14th December, 1972, for the transfer of plot. Administration of Tameer-e-Nau Public School, challenged the said order before Erstwhile Sindh and Baluchistan High-Court in Writ Petition No.32 of 1973 which was allowed on 26th June, 1974 Thereafter appellant also filed a petition for special leave to appeal before Hon'ble Supreme Court, which was dismissed on 17th December, 1975, Tameer-e-Nau Public School through its Secretary filed a suit for possession and mandatory injunction against appellant in the Civil Court. It has also come on record through evidence of D.W.3 Arshad Rashid that during pendency of the suit Education Department, who had taken over the management of the school, after its being nationalized, agreed to dispose of plot to appellant at the rate of Rs.5 p.s.f. Vide Exh.P/4 wherein directions were also made to withdraw the suit filed for his ejectment. In pursuance of said directions appellant vide challan Exh.P/8-2, an amount of Rs.31,000 had also deposited in favour of Director, Education, Baluchistan, but before mutating the plot on name of appellant in the Revenue Record, he was dispossessed on 30th March, 1978.
36. Subsequently said suit was withdrawn in the month of May, 1978. Appellant Qazi Dost Muhammad also filed a suit for specific performance, mandatory injunction, possession and in alternate damages, against Government of Baluchistan through Chief Secretary, Education, Tameer-e-Milat (registered) Society, through its Secretary and four others including respondent Fazl-e-Haq Mir, Principal Tameer-e-Nau Public School and Muhammad Siddique. The suit was finally dismissed on 17th December, 1988. During pendency of that suit appellant filed suit for damages which has given rise to present proceedings.
37. Mr. Shakeel Ahmed, learned counsel, contended that earlier suit filed by appellant for specific performance was dismissed, therefore, present suit was not competent and in this behalf while filing written statement, respondents raised an objection and later on an application was also filed for framing issue in this behalf. But perusal of the written statement as well as record, no such objection was raised, nor any application was found available on record, therefore, decision of suit fore specific performance etc: will have no bearing on present proceeding.
38. These facts make it abundantly clear that appellant was in possession of a piece of land, on which he had raised construction alongwith boundary wall and respondents 2 to 5 without waiting for the result of suit filed by Tameer-e---Nau Public School, through its Secretary, adopted an unrecognized way to take over the possession of the plot.
39. Now the question would be that to what extent liability can be fixed upon respondents in respect of the damages caused to appellant during the process of dispossessing him forcibly from the premises.
40. Before proceeding ahead, it may be seen that respondent No. l did not adduce evidence to prove contention raised by him in written statement nor through their Attorney i.e. Fazl-e-Haq Mir, had brought on record a single document to indicate that the ,then Martial Law Administrator, directed the S.P. For taking over the possession of the, plot through Police Agency, headed by respondent No. l for handing over the same to respondents Nos.2 to 5. Statement got recorded by the Attorney of respondents Nos.2 to 5 makes it clear that it was the police who had taken action. So, when there is admission with regard to entering in the house built by appellant on the plot, thereby demolishing the superstructure and also removing household articles of appellant, details whereof have been brought on record through P.W. Muhammad Sharif vide Fxh.P/12 and unchallenged statements of Mir Jan son of Allah Dad, Muhammad Azam, Dr. Habibur Rehman and Abdul Rashid as well as that of Attorney Najib Jaffar, that all respondents physically participated in process of forcibly taking over the possession of plot, during course whereof, female members of appellant's family were compelled to leave the house bare-footed without veils, and they were made to sit in a truck and they were taken to Liaquat Park where they were left to spend night, there is no necessity to enter into detailed discussion concerning the individual act of each respondent, but the question arises whether agony suffered by appellant on such illegal acts, can be measured in terms of money and decree as prayed for by him for damages by way of compensation can be granted. It is a settled principle of law that in respect of special damages it is the duty of an aggrieved person to prove each item of the loss, on the basis of evidence and as far as general damages are concerned, relating to mental torture, defamation etc. Those are to be measured, following the 'Rule of Thumb', according to which, discretion rests with the Court to calculate such compensation keeping in view the attending circumstances of the case.
41. As far as special damages arc concerned, appellant claimed market value of the house to the tune of Rs.1,21,000. Such assertion has also been made by his Attorney in his statement, but as far evidence brought on record is concerned, it does not support to the extent of the amount claimed by him. In this context appellant led evidence of P.W.1 Muhammad Karim Bakhsh. Architect and P.W.4 Naseem Quadri, Municipal Engineer. Former witness had produced Certificate Exh.P/1, dated 20th July, 1975, according to which he worked out the valuation at the tune of Rs.44,475 at the rate of Rs.25 p.s.f. Whereas the latter witness had produced Certificate Exh.P/9, which reveals that according to his assessm ent, in the year, 1978 Rs.65 p.s.f. Was the cost of construction of Type 'VII' house. It may be noted that validity of both the certificates has not been challenged by respondents during cross-examination of witnesses or producing evidence, contrary to the contents of both the Certificates. Since P.W.1 had actually assessed, the value of the demolished house, which was constructed by appellant in 1975, therefore, his evidence would preferably be acceptable comparing to the evidence of P.W.4, who being an Engineer had assessed tile cost of construction of Type VII House, in the year, 1978, without specifying whether appellant had constructed the said house at the cost of Rs.65 p.s.f. In 1975 and before issuing the Certificate, he himself had visited the site or not. Because mere an opinion would not be sufficient to make appellant entitled for cost, which has been mentioned by this witness in Certificate. Therefore, in such circumstances, appellant is held entitled to receive the actual amount which' he spent on construction i.e. Rs.44,478 and not the one which was prevailing in the year 1978. In addition to it Attorney had stated that besides raising construction, Rs.5,000 vide Mark P/1 to P/3 were also spent for installing connection of Sui-gas and his this statement has also not been challenged, therefore, it can also be added towards the cost of construction.
42. The next item under the head of special damages is Rs.3,000 towards breakage and loss of household articles. But neither appellant's attorney nor his witnesses have given evidence in this behalf. Similarly with regard to fruit trees appellant's attorney claimed its valuation to the tune of Rs.11,000 and his this statement has gone unchallenged, therefore, damage under this head is acceptable.
43. As far as other item i.e. Loss of accommodation and inconvenience is concerned, except the receipts Exhs.P/9 and P/10, of Dilkusha Hotel, produced by P.W. Javed Ayub, no evidence has come on record. According to Exh.P/10, appellant paid Rs.20 to the hotel owner for staying a night with his family. As far as inconvenience is concerned, this item can be considered while assessing the general damages. Thus, in view of evidence on record., it is held that appellant instead of Rs.1,50,000 towards special damages is entitled to the extent of Rs.60,498 to claim from respondents severally and jointly.
44. Now turning towards the special damages, it is to be seen that as far as illegal act of respondents to dispossess appellant from the house during night hours in process whereof, his womenfolk were compelled to leave the house bare-footed and without Purdah, because heavy contingent of the police had entered to their house is concerned, there is no denial to it. Though it has come on record, that appellant himself is a respectable person, being Khateeb of Mosque, Qari, as well as Religious Scholar and Homeopathic Doctor, but even if he had not possessed recognized status, still he is entitled for general damages, during which he suffered mental torture, agony defamation, because, what could be more disgrace for a person who is being thrown out of the house, forcibly, with no alternate either to stay night under the sky or to take his family to some hotel, without allowing them to pickup their necessary belongings. Under these circumstances, no one can be allowed to take law in his own hand. It is an admitted fact that respondents Nos.2 to 5 had already instituted a suit for possession, which was pending adjudication in a competent Court of law, but instead of waiting for its result they selected to adopt such a way, for the relief, which is not recognized under the law. Therefore, on account of such acts, the respondents jointly and severally are responsible to make payment of Rs.1,50,000 towards the general damages to appellant, as it has been claimed by him in the plaint.
45. Thus, for the foregoing reasons, appeal is allowed, order passed by Additional District Judge, dated 30th August, 1995, is set aside and order/decree of Trial Court, dated 30th December, 1993 passed by Senior Civil Judge is modified to the extent that appellant is entitled for a decree of damages to the tune of Rs.60,498 + Rs.1,50,000 = Rs.2,10,498 severally and jointly against respondents 1 to 5, with costs throughout.
46. Office is directed to prepare the decree-sheet in above terms and on completion thereof, file be consigned to record.