1. ' The plaintiff has filed this, suit for damages of Rs,50,00,000 to IA be recovered from the defendant.
2. ' It is the case of the plaintiff that she is hailing from a very respectable family being wife of Syed Aftab Ahmed Zaidi who had worked on very prestigious posts as Director of National Investment Trust (N.I.T.); Governor, Overseas Foundation; Chairman; Executive Committee of Equity Participation Fund; Founder Member of Sir Syed University of Engineering and Technology, Karachi and Member of the Governing Body of Karachi Development Authority. The family is enjoying very good reputation within the vast members of the society. It is further stated in the plaint that the plaintiff had purchased a Plot bearing No,24, B-2, Street, Phase V, Khayaban-e-Ghazi, D.H.A.
3. Measuring 1000 sq. Yds. From Major Iftikhar Ahmed Khan, brother-in-law of defendant after making full payment of the sale price. The plaintiff got constructed two portions of one unit and incurred huge amounts over the same.
4. ' As per plaint, defendant Anwar Khan Ghouri filed Suits Nos.479 of 1969 and 1799 of 1974 for declaration and injunction against the plaintiff and the said Iftikhar Ahmed Khan claiming himself as a real owner of the above plot and declaring Iftikhar Ahmed Khan as only a Benamidar. He also prayed for possession and injunction. In that suit it was managed to get Major Iftikhar Ahmad Khan adjudged as ex parte.
5. ' However, both the above said suits were dismissed whereafter Mr. Anwar Khan Ghauri filed First Appeals Nos.36 and 37 of 1986 in the Court of District Judge, South Karachi, wherefrom the said, appeals were transferred to the Court of Vth Additional Judge, (South), Karachi and the appeals were partly allowed. The operative part of the judgment, dated 23-7-1990 reads as follows:-- ' ".... Let the preliminary decree be prepared accordingly, and Commissioner be appointed for giving his report that for how much amount the plot of potential exactly same that of the disputed one can be purchased in the open market. After receiving the report final decree will be passed in accordance with law. The amount of Rs,5,825 paid to society in addition to the initial payment shall be deposited by the appellant for respondent No,1 at the time-of receiving the compensation. The appellant shall deposit Rs,3,000 towards Commissioner fee and expenses within 15 days, whereafter the Commissioner will be appointed. Appellant is directed to pay the remaining court- fee in the suit and the appeal in the light of finding in this judgment...."
6. ' The plaintiff in this suit claims to have filed two revisions before this Court which were dismissed on the point of limitation. However, in the meanwhile, in complete defiance of the operative part of the above referred judgment, Mr. Anwar Khan Ghauri got the Commissioner fee deposited maliciously sometimes in the first half of 1992 and got appointed Messrs F.A. Associates Engineers and Builders as Commissioner for determination of value of the plot, who submitted their report showing the value of the plot equal to the value of the plot in suit as Rs,26,00,000. The plaintiff has averred out that no notice for appointment of Commissioner was ever given to her by the Court.
7. The defendant thereafter applied on 28-11-1992 for final decree in the sum of Rs,26 lacs, and such request was granted on 20-3-1993 by Vth Additional District Judge, South Karachi but the defendants maliciously avoided to get the final decree prepared. Again in' the year 1996 by concealing the above fact the defendant again applied to the same Court for appointment of the Commissioner to ascertain the value of the plot of the plaintiff, suppressing the order, dated 20-3- 1993 already passed by that Court. Notice of the said application was served upon the plaintiff but as ill-luck would have it the counsel for the plaintiff either through inadvertence or being won-over by the other side consented for fresh appointment of Commissioner, though it was not required at all and as such another Commissioner was appointed on 15-9-1996 who submitted his report by showing the value of the plot at Rs,85,000. Even thereafter, the defendant avoided to get the final decree drawn in his favour. The defendant, thereafter maliciously, deceitfully and fraudulently filed an Execution Application bearing No,48 of 1996 on 20-10-1996 showing the decretal amount as Rs,85,000 and the link Judge without taking pains to verify the record that no final decree was available admitted execution application and proceeded with the same. In that execution application, the said decree-holder deliberately, intentionally and deceitfully mentioned the old address of the plaintiff in order to seek attachment order of the property of the plaintiff and the sale thereof. The decree-holder thereafter obtained orders for substituted service and also submitted an application under section 151, C.P.C. With reference to Order XXI, rules 54 and 56, C.P.C. The said application was granted by the link Judge. The Nazir of the Court issued proclamation order, dated 10-2-1996 and sent copies thereof to sub-Registrar D.H.A. And MEO. On 22-12-1996 Nazir requested the Court for permission to auction the property. The decree-holder himself participated in the auction and gave a bid of Rs,85,000 for the property of the plaintiff, however, Court was not satisfied and ordered for re-auction. In the meantime the plaintiff had come to know regarding the nefarious designs of the defendant against her and as such, she engaged another Advocate who filed two applications-first one under section 12(2), C.P.C. And the other under section 48, C.P.C. Stay application was also filed but the link Judge went on avoiding to pass any order and ultimately went on leave. The counsel for the plaintiff approached the District and Sessions. Judge (South) who was pleased to stay the execution proceedings otherwise the property of the plaintiff would have been auctioned on 30-4-1997. Ultimately the Execution Application No,48 of 1996 having been adjudged as premature was dismissed by the VIIth Senior Civil Judge, Karachi (South) by his order, dated 30-9-1998.
8. The plaintiff has further averred in her plaint that through the deceitful and fraudulent attempts by the defendant in obtaining of illegal orders by suppressing the facts, the defendant has done his best to defame the plaintiff and her family in the eye of relatives, friends and public at large who knew the plaintiff, her husband and the family. On account of such harassment, mental torture, loss of reputation and payment of heavy professional fee to the lawyers right from the original jurisdictional upto Supreme Court of Pakistan, the plaintiff has sustained heavy loss and as such she has claimed an amount of Rs,50,00,000 (Fifty lacs) as damages from the defendant.
9. ' Summons were issued to the defendant on the same address as disclosed by him in various proceedings initiated against the plaintiff in various Courts, but the summons against the defendant remained unserved. Attempts were also made to get the service effected upon the defendant through his Advocate Messrs Baig and Hussain, who have their office at 3rd floor of PIA Building, Awan-e-Saddar, Karachi, who were appearing for defendant in Civil Appeals Nos.36 and 37 of 1986 but this attempt also failed. After repeated summons substituted service was ordered through publication in newspapers and such notices were published in daily "News" and daily "Naw-e-Waqt" in their issues dated 20-1-2001.
10. ' Service was held good by the Additional Registrar of this Court by his order, dated 8-3-2001. It is worth to mentioned that other modes for service by pasting, affixing the notice on the Court notice board, dispatch through registered post A.D. As well as through courier service were also adopted.
11. Matter was placed in Court on 26-3-2001 for passing ex parte orders. Since the defendant failed to appear and contest the suit hence it was ordered to proceed ex parte against the defendant, the plaintiff was ordered to file ex parte proof by way of evidence through affidavits. On 2-4-2001 Syed Jawed Asghar Zaidi, who is son and attorney of the plaintiff filed his affidavit-in-evidence in ex parte proof which is taken on record. The attorney of the plaintiff in his evidence/ statement on oath by way of affidavit has reitereated the facts as stated in the plaint and fully supported the case of the plaintiff. Since, nobody was there on behalf of the defendant to contest the suit even on that date hence the said witness was not subjected to cross-examination and the statement on oath of the attorney of the plaintiff has gone unchallenged and remained unrebutted.
12. ' Mr. Mirza Waqar Hussain, learned counsel for the plaintiff thereafter closed his side and has addressed this Court in support of the case of the plaintiff.
13. Now the point which requires consideration will be in respect of the quantum of the damages to be awarded to the plaintiff. In fact there is no such yardstick to measure or assess the actual quantum of damages in respect of the mental torture sustained by a person while facing the agonies of a frivolous litigation. Even if the plaintiff fails to prove the same, a suit is not to be dismissed in such cases. Reliance is placed on the case of Muhammad Sharif v. Nawab Din and another PLD 1957 (W.P.) Lah. 283 wherein Kaikaus, J. (as he then was) has held as under:-- ' "Damages---Suit for---Could not be demised solely on the ground that exact amount of damages is not proved."
14. ' In order to prove the expenditure incurred on such type of litigation a party may place on record the details of such expenditure but there is no specific evidence on this point. Now again a question will arise that in the absence of any such evidence- Whether the amount of Rs,50,00,000 (Rupees fifty lacs only) as claimed by the plaintiff in this suit should be granted as a rule of thumb or the Court has a discretion in awarding damages while keeping in view all other attending circumstances of the case. It has been held in the case of Pakistan Industrial Development Corporation v. Aziz Qureshi PLD 1965 (W.P.) Kar. 202 that a Court itself is competent in circumstances, to ascertain quantum of damages. Keeping in view the facts and circumstances which have given rise to this suit and particularly the fact that the plaintiff who is a Pardanasheen lady belonging to a respectable family was dragged by the defendant and had to face the agony of litigation for a number of years before various Courts ,in order to vindicate and safeguard her rights of property, family prestige and reputation and also keeping in view the fact that the defendant has not turned up to contest this suit or to controvert the claim of the plaintiff. I have reached to a conclusion that ends of justice would meet if the suit of the plaintiff is decreed and she is awarded an amount of Rs,10,00,000 (Rupees ten lacs only) as damages to be paid by the defendant. As above with costs.