1. ' I would like to decide 1st Civil Appeal No,23 of 1997 and 1st Civil Appeal No,25 of 1997 by this single judgment as both the appeals arise out of one and the same judgment.
2. ' The appellants through these civil appeals have assailed the judgment, dated 19-8-1997 passed by 1st Senior Civil Judge, Sukkur, in 1st Class Suit No, 70 of 1993 Re. Messrs Alam Brothers v. WAPDA through its Chairman, and 4 others, whereby the suit filed by the plaintiff was partly decreed to the tune of Rs,70,00,000 (seventy lacs).
3. ' The Brief facts giving rise to these appeals are that the plaintiff filed suit on 27-5-1993 wherein he stated that the plaintiffs were the partnership firm registered under Companies Act and run business in the name and style of Messrs Alam Brothers Steel Furnance and Re-Rolling Mill, situated at B-30 S.I.T.E. Sukkur. The names and extent of their shares are mentioned in para.2 of the plaint.
4. They were the consumers of the electricity supplied by the defendants under three separate accounts bearing Nos.3/27/B3/ 3809/1, 3/27/B-1/3809 and 3/27/A2/3808. The said Mill came in operation with effect from 20-3-1982. They were regularly paying the electricity bills and the last bill of Rs,92,575/69 was paid on 7-3-1983. It is averred in the plaint that officers/defendants Nos.3 and 4 used to pressurize the plaintiff for payment of illegal gratification and they used to disconnect the supply for achieving the illegal designs. The electric connections were disconnected on 7-5-1982 and on the intervention of higher authorities only, it was restored on 12-5-1982. The electricity was again disconnected in the first week of February, 1983 and was restored on 7-3-1983 after the intervention of higher authorities of WAPDA. It is asserted that the defendants Nos.3 to 5 were annoyed and hatched a conspiracy to cause heavy damages to the industry and reputation of the plaintiff. The defendants No,3 to 5 alongwith their subordinate staff raided the Mill on 2-3-1983 when the Mill was not operating due to defect in the Transformer and for repairs of the furance and machines. No electricity was being consumed on that day but in spite of it, the defendants falsely alleged that the plaintiffs were indulging in theft of electricity. The F.I.R. In this regard bearing Crime No,56 of 1983 was lodged by defendant No,3 at Police Post, Abad on same day. Two of the partners of plaintiff's Mill were arrested on the same day and such news was reported in newspapers whereby the reputation of plaintiffs was seriously damaged. The said two persons were released later on. The defendants disconnected all the three connections of the plaintiffs with effect from 22-3-1983. The plaintiffs filed three separate Ilnd Class Suits bearing Nos.37; 38 and 39 of 1983 in the Court of Senior Civil Judge, Sukkur against the present defendants.
5. ' In Suit No,39 of 1983 the disconnection of electricity under Account No,3/27/B-3/ 3809/01, was challenged. The following prayer was made in the plaint:---
(a) To declare that the action of Defendants Nos.3 and 5 in disconnecting the electricity of the Mill of the plaintiffs "Messrs Alam Brothers Steel Furnance & Re-rolling Mill" situated at B-30, S.I.T.E.
6. Sukkur, under Account No,3/27/B-3/3809/01 is illegal, ultra vires, without any notice to the plaintiff without lawful authority, mala fide and against the provisions of Electricity Act, 1910, and the rules framed thereunder.
(b) to issue permanent mandatory injunction against the defendants, directing them to restore the electricity of the Mill of the plaintiff "Messrs Alam Brothers Steel Furnance and Re-Rolling Mill" situated at B-30, S.1.T.E., Sukkur, under Account No,3/27/B-3/3809/01.
(c) To award costs of this suit.
(d) To award any other equitable relief which this honourable Court deems fit in the circumstances of the case.
7. ' An application under Order 39, Rules 1 and 2 read with section 151, C.P.C. Was moved alongwith the plaint in Suit No,39 of 1983 but the injunction was declined by the Senior Civil Judge, Sukkur. The applications in remaining two suits were allowed. Since the main operation of the Mills was based on Account No,3/27/B-3/ 3809/01, which was the subject-matter of Suit No,39 of 1983. The Mill ceased to operate from 20-3-1983 which continued to remain closed till this day. Ultimately all the three suits were decreed. The appeals were filed before learned District Judge, Sukkur but the same were dismissed as withdrawn. The plaintiffs filed separate suits for damages being 1st Class Suits Nos.98 and 99 of 1988, which were also pending in the same Court.
8. ' It was further asserted in the plaint that judgment in Suit No,39 of 1983 was challenged in appeal by defendants being Civil Appeal No,66 of 1984. The said appeal was dismissed by learned IIIrd Additional District Judge, Sukkur by judgment, dated 16-9-1985. The defendants being aggrieved challenged this judgment before this Court in Civil Revision No,1 of 1985 but ultimately it was withdrawn on 12-11-1991. Although two of the electric connections Nos.3/17/B-1 / 3809 and 3/27/A- 2/3808 were restored but the electrict connection for the furnance bearing No,3/27/B-3/3809/01 was not restored. As a result of which, the Mill of plaintiff remained closed.
9. ' The plaintiffs suffered heavy losses, which are specified in para.20 of the plaint as the main connection was not restored by the defendants. The different figures of damages sustained by the plaintiff are mentioned in subsequent paras of the plaint. The total damage claimed by the plaintiff is as under:--- {{TABLE}}
(i) Loss of earnings, as per schedule 'A' ,2,58,62,250-00
(ii) Destruction of Machinery as per schedule 'B'. 51,20,758-00
(iii) Amount of interest paid on loan schedule 'D' 5,40,200-00
(iv) Lease money paid schedule 'E' 93,037-00 IS I Medical treatment as per schedule 'F'
10. VI) Loss of reputation of the plaintiffs. Vii) Mental anguish and torture.
11. 3.91.05.068-00. {{TABLE}} ' The plaintiff prayed for the relief as under:-
(a) To pass judgment and decree in the sum of Rs,3,91,05,068 by way of damages in favour of the plaintiff, and against the defendants, to be paid by them jointly and severally.
(b) To grant mark-up at the prevailing rates on the Rs,3,91,05,068 or on any other amount decree granted by this honourable Court till satisfaction of the decree;
(c) to grant any other equitable relief, deemed fit and proper by this honourable Court, in the facts and circumstances of this case; and
(d) to grant costs of these proceedings.
12. ' The defendants were served and they filed their written statement wherein they denied the averments made in the plaint. They have stated in their written statement that the plaintiffs were consuming the electricity by illegal means and committed the theft. The defendants therefore, entered the Mill in accordance with Electricity Rules and Laws. They have committed no illegality and the F.I.R. Was lodged at Police Station, Abad. They were empowered under the law to enter the premises if the energy was being consumed illegally. It is further urged by the defendants that if some news were published in respect of the case or arrest of the plaintiffs, it was not at their instance. It was admitted that the plaintiffs were acquitted from the charge. The plaintiffs with mala fide intention never approached the defendants for restoration, of the electricity connection.
13. As before its restoration, some codal formalities were to be complied with by the plaintiffs. They purposely avoided to do so. It is asserted that defendants never objected and still they were prepared to restore the electricity subject to payment of bills outstanding against them, including the fee of re-connection. It was averred that no documents regarding the purchase of machinery, bill and vouchers, feasibility reports, plans, purchase of land and estimate etc; were filed by the plaintiffs. The disconnection of electricity was in accordance with law and the closure of Mill was likewise not illegal. It was pleaded that the (Riba) interest is against the Injunction of Islam and the same cannot be granted to plaintiffs.
14. ' The trial Court out of the pleadings framed the following issues:--
(1) Whether this honourable Court has jurisdiction?
(2) Whether the suit is maintainable?
(3) Whether the claim of the plaintiff is genuine and legal?
(4) Whether the plaintiffs are entitled to the damages as claimed, if so to what extent?
(5) What should the decree be?
15. ' The plaintiffs examined one of their partner namely Muhammad Alam, who produced certain documents pertaining to the above stated suits. The trial Court on 11-6-1997 closed the side of defendants and fixed the matter for arguments. Ultimately the suit of the plaintiffs was partly decreed to the extent of Rs,70,00,000 (seventy lac). The said judgment and decree is challanged by the plaintiffs as well as the defendants.
16. ' Mr. S. Manzar Alam, Advocate for the appellant in 1st. Civil Appeal No,23 of 1997 has contended that the action taken by .WAPDA authorities was legal and in accordance with law. The plaintiffs were committing theft of energy, therefore, the WAPDA authorities were competent under the law to enter the premises and disconnect the electricity. It is submitted that the F.I.R. Was lodged against the respondents but the accused were given benefit of doubt and acquitted. It is argued that nowhere in the impugned judgment it is held that the criminal proceedings launched against the plaintiffs were malacious. The defendants cannot be penalized for the actions of journalists. The news items published in newspapers were otherwise not false but in fact the F.I.R. Was lodged and the plaintiffs were arrested in a substantive offence. The trial Court has nowhere observed in the impugned judgment that the entry of defendants in Mill premises was illegal or that the plaintiffs did not commit theft of energy. It is submitted that no such issue was framed by the trial Court, which was essential for deciding the out-standing controversies between the parties relating to the demand of damages. The defendants were not afforded proper opportunity to examine their witnesses. The learned counsel has placed reliance upon the cases reported as Pakistan Coast Guards v. Umar Saleya (1997 CLC 1), Dr. Q.M. Qarni v. Mir Khalilur Rehman and 4 others (PLD 1975 Kar.
17. 379), Muhammad Ansar-ul-Ishkm Qarni, Advocate v. Karachi Stock Exchange Ltd, Karachi (PLD 1975 Kar. 556), American Life Insurance Company v. M.S. Khawaja (PLD 1960 (W.P.) Kar. 568) and Altaf Gauhar v. Wajid Shamsul Hasan and another (PLD 1981 Kar. 515).
18. ' Mr. Gianchand learned counsel appearing for the appellants in 1st Civil Appeal' No,25 of 1997 has submitted that the learned trial Court has misappreciated the evidence and has ignored the facts that lot of money was spent by the plaintiff. Heavy investment was made for the purchase of plot, machinery and other material. It is stated that the attending circumstances are not taken into the consideration and the suit as a whole should have been decreed by the trial Court. He has prayed that the judgment of trial Court be set aside and the suit of the plaintiff be decreed, to the tune of Rs,3,91,05,068.
19. ' The impugned judgment is not elaborate and speaking one. The learned trial Court has not even properly discussed the Issues Nos.3 and 4. His entire discussion and finding on Issues Nos.3 and 4 is as under:--- "I have perused the entire evidence of plaintiff and comments produced by him. From perusal thereof it appears that the evidence of plaintiff is only word that the plaintiff not supported by documentary evidence authenticated by competent expert for destruction of Machinery so also any certificate from Bank and S.I.T.E. Authorities for payment of interest of loan and payment of lease money to the S.I.T.E. Authorities. The plaintiff has also not produced any medical bill incurred on Medical treatment for open heart -surgery. Besides this the plaintiff has prepared schedule 'A' for loss of company on his own accord which too is not authenticated by any expert, therefore, the plaintiff has failed to substantiate his claim regarding losses company's destruction of Machinery, amount of interest paid on loan, lease money paid to the S.I.T.E. Authority, payment of Medical bills, the plaintiff in this connection has not examined any expert Dr., who conducted open heart surgery, nor any Bank Manager, nor any official of the S.I.T. E. Authority in confirmation of his claim, therefore, I am of the opinion that the plaintiff is not entitled to any damages as referred to above. So far the damages for loss of reputation and mental torture is concerned. The plaintiff has deposed that due to disconnection of electricity he suffered a loss to his reputation in business circle which caused mental torture which has not been challenged by the defendants during the cross of plaintiff, nor produced any evidence in rebuttal, therefore, I am of the opinion that plaintiff is entitled to damages, on account of losses of reputation amounting to Rs,50,000,00 and mental torture amount to Rs,20,000,00. Thus the issues are answered accordingly.
20. ' Nowhere in his observations, it is stated that criminal prosecution initiated against the plaintiff was malicious. Heavy burden lies upon the plaintiff to produce cogent and reliable evidence to prove that the actions of the officers were mala fide and not in good faith. The impugned judgment does not show as to whether mental torture suffered by the plaintiff was invited by their own acts and conduct or it was due to illegal action taken by the defendants. The arrest and the publication of news reports were followed by the first report lodged against the plaintiff.
21. ' The plaintiff was involved in a substantive offence. If the plaintiffs/partners of firm were guilty of any- illegal act, they were liable to suffer for that. It was the bounden duty of the Court to fix the responsibility upon either party and the award damages but that has not been done.
22. ' No document was produced by the plaintiff to show that the electricity connections were being disconnected prior to the date The damages cannot be granted in all criminal cases, which ended in acquittal. But the same can only be granted when the proceedings were malacious and were not initiated in good faith. There is no material on record to show that illegal gratification was demanded by 'the WAPDA authorities.
23. ' One more important point which needs attention is that the plaintiff has never tried to get the connection restored and start with their business but they are only interested to get the full price of their machinery and close the business which does not appear to be more profitable to them.
24. ' However, I find that Issues 3 and 4 are important. These issues should have been framed in more comprehensive form. The relevant issues should be framed as under:-- No,1 "Whether the action taken by defendants in respect of disconnection of electricity was illegal and without lawful authority or the same was invited by the plaintiff by their own act and conduct?."
25. No,2 "Whether the criminal proceedings were malacious and were not initiated in good faith."
26. ' The parties have to prove these important factual aspects of the case by adducing their evidence.
27. The defendants were not given proper opportunity to adduce their evidence, although the application for reopening their side was moved but the same was dismissed. Though the record shows that the defendants were themselves inactive to adduce their evidence but since the decree of huge amount of Rs, seventy lacs was being passed against them, therefore, at least they should have been given proper opportunity to defend their case.
28. ' For these reasons, I find it just and proper to set aside the impugned judgment and remand the case to the trial Court for proceeding with the trial afresh. The parties be given full opportunities to adduce their evidence and the relevant issues stated above be framed for resolving the real controversies. The file be transmitted to District Judge, Sukkur, who should send it to a Senior Civil Judge, Sukkur, other than the Judge, who has passed the earlier judgment. The observations in this judgment are tentative and the trial Court should not be influenced by them. He should give finding on the basis of evidence.
29. ' The appeals are disposed of in above terms, with no order as to costs.