' KHAWAJA MUHAMMAD SAEED, J.--Both these appeals have arisen out of the same suit and with leave of the Court are also directed against the same judgment of the High Court dated 12-6-2002, therefore, these shall be disposed of through this common judgment.
2. Facts relevant for the disposal of these appeals, briefly stated, are that the plaintiff-appellant Muhammad Hanif brought a suit in the Court of District Judge, Mirpur on 17-4-2000 for the recovery of Rs,2,00,000 as damages against Muhammad Bashir, the respondent in Civil Appeal No,49 of 2002 and appellant in Civil Appeal No, 84 of 2002. In his suit it was claimed by him that Muhammad Bashir lodged F.I.R. No,107 of 1998 on 23-12-1998 under section 447, A.P.C. And section 14 of the Offences Against Property (Enforcement of Hudood) Act, 1979) at Police Station Islamgarh. The police conducted the investigation and sent the plaintiff-appellant to face trial in Tehsil Court of Criminal Jurisdiction, Mirpur. The respondent Muhammad Bashir also appeared as witness before the trial Court and made a false statement in support of the charge. As the charge was not proved, therefore, the plaintiff-appellant moved an application under section 249-A, Cr.P.C. Seeking his acquittal in the case. The trial Court after taking into consideration the overall circumstances of the prosecution case and in the light of the evidence of the plaintiff-appellant found the charges baseless and consequently recorded the order of acquittal in favour of the plaintiff-appellant. In paras. Nos.6, 7 and 8 of his plaint the plaintiff-appellant contended that the prosecution was malicious, without any reasonable and probable cause and further that it injured badly the good reputation of the plaintiff-appellant. It was further pleaded in the plaint that some persons on the instigation of Muhammad Bashir called him as a thief. In para.No,10 of the plaint he further pleaded that he had a dispute with Muhammad Bashir over a `Shamilat Deh' land and case relating to the possession of the parties over the `Shamilat Deh' land was pending adjudication before the Revenue Assistant, Mirpur. In order to compel the plaintiff-appellant to vacate the land under his occupation the defendant-appellant Muhammad Bashir fabricated a false case against him with mala fide intention. He, therefore, claimed initially the damages of Rs,1,75,000 for mental torture, worry and loss of reputation. Rupees 10,000 for transport charges and money which was spent for taking meal and other related items. Rupees 5,000 as loss of daily income and Rs,10,000 as fee which he paid in the Court of District Criminal Court and Tehsil Criminal Court for defending himself from the false accusation.
3. Muhammad Bashir denied the averments of the plaint through his written statement however, no specific ground was taken against the assertions made in the plaint by the plaintiff-appellant Muhammad' Hanif. The learned District Judge in his capacity as trial Court found him entitled to claim Rs,20,000 for mental torture worry and loss of his reputation, Rs,3,000 for the payment of fee to the counsel in the case and Rs,5,000 for expenses in the prosecution of the suit filed by him for the recovery of Rs,2,00,000. In this way a decree of Rs,28,000 was passed in his favour by the trial Court vide judgment and decree dated 24-11-2001.
4. This judgment was assailed by the parties through separate appeals before the High Court.
Muhammad Hanif the plaintiff-appellant filed his appeal on 14-1-2002 seeking enhancement in the decretal amount to the extent of Rs,2,00,000 as claimed by him in his suit whereas Muhammad Bashir requested through separate appeal that the decree be set aside.
3. Both the appeals were dismissed by the learned Judge in the High Court through a consolidated judgment dated 12-6-2002. Two separate petitions for leave to appeal were filed by the parties.
Muhammad Hanif, the plaintiff-appellant, however failed to file the copy of the memorandum of appeal filed by Muhammad Bashir, therefore, a preliminary objection was raised by Mr. Liaquat Ali Khan, the learned counsel for Muhammad Bashir, that the plaintiff-appellant Muhammad Hanif has not appended with the petition for leave to Appeal the certified copy of the memorandum of appeal filed by his client in the High Court, therefore, under rule 3, sub-rules (i) and ii) of Order XIII of the Azad Jammu and Kashmir Supreme Court Rules, his appeal is liable to be dismissed. The plaintiff-appellant requested for an adjournment to meet this objection which was allowed to him.
Later on he filed a supplementary concise statement in the Court on 12-6-2003. Alongwith his supplementary concise statement he furnished an attested copy of the grounds of appeal filed by Muhammad Bashir. He contended that in his estimation it was mandatory for him to furnish a copy of appeal filed by Muhammad Hanif, his client against Muhammad Bashir, which was furnished by him alongwith the petition for leave to appeal; however if in the opinion of this Court, the copy of the memorandum of appeal filed by Muhammad Bashir was also mandatory, the same may be allowed to be brought on record which he is furnishing alongwith his supplementary concise statement.
4. Today the same objection was raised on behalf of the learned counsel for Muhammad Bashir that the requirement contained in rule 3, sub-rules (i) and (ii) of Order XIII of the Supreme Court Rules are mandatory in nature and in number of cases this Court without entering into the merits of the such appeals on this very ground. The reliance was placed by him on a case reported as Ch. Ajaib Hussain and another v. Mst. Zareen Akhtar and 11 others 1999 YLR 1426, wherein some other authorities given by this Court and the Supreme Court of Pakistan were relied and it was held that the observance of rule 3, sub-rules (i) and (ii) of Order XIII is mandatory and any party failing to observe the same unless has sufficient cause for condonation would render his appeal or petition as incompetent.
5. It was argued by Mr. Liaquat Ali Khan, the learned counsel for Muhammad Bashir that no explanation has been given for not furnishing the copy of the memorandum of appeal filed by his client in the same case before the High Court nor the same has been supplied within the lilnitation, therefore, the delay caused in furnishing the attested copy of the appeal in such circumstances cannot be condoned.
6. On the other hand Mr. Muhammad Yunus Arvi, the learned counsel for Muhammad Hanif, plaintiff-appellant argued that on account of misconception of legal provisions he did not file with the petition for leave to appeal the attested copy of the memorandum of appeal in the High Court.
He requested that his appeal be held competent, as he has now furnished the said copy alongwith his supplementary concise statement.
7. We have considered the respective arguments of the learned counsel for the parties and gone through the record of the case. Admittedly the ignorance of law is no excuse. No doubt the appellant, Muhammad Hanif, presented a copy of the memorandum of appeal alongwith his supplementary concise statement which too was filed without the permission of the Court on 12-6- 2003. The said copy of the memorandum of appeal was furnished after the period of limitation. It is a settled proposition of law that without the condonation of delay the errors of law committed by any party cannot be excused particularly where without sufficient cause the condonation of delay is sought. The negligent party has to explain the delay of each and every day through an application supported by an affidavit. In this case neither an application was moved nor any affidavit has been filed, therefore, without dilating much upon the point at issue, as it stood repeatedly concluded by this Court in various authorities referred to and relied upon in case titled Ch. Ajaib Hussain and another v. Mst. Zareen Akhtar and 11 others 1999 YLR 1426, the appeal titled Muhammad Hanif v. Muhammad Bashir, (Civil Appeal No,49 of 2002), filed by the appellant who is found guilty of negligence is held not properly constituted before this Court for the afore mentioned reasons, as such, is dismissed with costs.
8. Now we would like to take up Appeal No,84 of 2002 filed by Muhammad Bashir. Mr. Liquat Ali Khan, the learned counsel for Muhammad Bashir, argued that the decrees allowed by the District Judge and maintained by the High Court are not sustainable in law. According to-him, in a suit for damages it was enjoined upon the plaintiff-respondent to allege in his suit that he was engaged in the litigation by the defendant without any reasonable and probable cause; only then any evidence in support of such an allegation could have been read in evidence. In the present case mere acquittal order has been made basis for claiming damages against his client. He placed reliance .Upon a judgment of this Court reported as Muhammad Latif Khan and 2 others v.
Muhammad Afsar Khan PLD 2000 SC (AJ&K) 31, wherein it is laid down that the plaintiff has first to allege that he was made to defend a criminal prosecution without any reasonable and probable cause and mere this fact that the accused was acquitted would not justify to award damages to such person for malicious prosecution.
9. On the other hand Mr. Muhammad Yunus Arvi, the learned counsel for the respondent, Muhammad Hanif, defended the judgment under challenge.
10. We have considered the respective arguments of the learned counsel for the parties and gone through the record of the case. Paras Nos.4, 5, 6, 7, 8 and 9 of the plaint filed by Muhammad Hanif before the trial Court, being relevant are reproduced below:-- "4. That the defendant No,1 appeared as witness in the Court. Statement of the defendant No,1 is Annexure `C'.
5. That the prosecution was terminated in plaintiff's favour and plaintiff was acquitted in conclusion of the trial and charge was found to be groundless by the trial Court. Copy of the judgment of the Tehsil Criminal Court is attached herewith as Annexure 'C'.
6. That the prosecution was malicious.
7. That the prosecution was without any reasonable and probable cause.
' That by this false prosecution not only the reputation 'of the plaintiff was badly injured but the plaintiff was also burdened with heavy costs and losses of money.
' That the plaintiff was mentally tortured and felt a great insult in the Society and due to this blame of theft the goodwill of the plaintiff was totally damaged and some of the persons called the plaintiff as a thief on the instigation of defendant No,l."
11. In these paragraph the plaintiff-respondent has clearly mentioned that prosecution was malicious and it was without any reasonable and probable cause.
' In order to prove the malicious intention of Muhammad Bashir, the plaintiff-respondent had alleged' in para. No,8 that his reputation was badly affected as the people on the instigation of Muhammad Bashir used to call him as thief. He has also alleged that on account of this malicious prosecution he was made to suffer heavy expenses. In paras. 11 and 12 of his plaint he again alleged that a false case was fabricated against him out of malice to force him to withdraw from the `Shamilat Deh' land which was under the occupation of the plaintiff-respondent. The learned District Judge in his detailed judgment has affirmed this allegation that the appellant, herein, got a fabricated false case instituted against the respondent, with the police. The trial Court at page 4 has discussed in detail the facts emerging out of the challan which the plaintiff-respondent faced in the trial Court and ultimately was acquitted from the charges and the Court concluded the case by making the following observations:-- {{URDU TEXT}}
12. From the above record it becomes clear that the plaintiff-respondent had reasonable and probable cause to sue Muhammad Bashir, respondent, for malicious prosecution. However, we agree with the learned counsel for the appellant that the learned Judge in the High Court has not attended true aspect of the case on account of which leave was granted. However, the trial Court has admitted the claim of the plaintiff-respondent to the extent of Rs,28,000 and has rejected the claim to the extent of Rs,1,72,000. No reason has been pleaded by Muhammad Bashir, in the memo.
Of appeal before the High Court or before this Court that the plaintiff-respondent did deserve more amount. So far as the matter of mental torture and loss to good reputation is concerned, the trial Court according to the status of the plaintiff-respondent has allowed him only Rs, 20,000. In such- like disputes the Presiding Officers of the Courts are allowed to record findings keeping in view the injury caused to such person by their opponents from whom damage is claimed. The trial Court, as said earlier, with reasons has assessed Rs,20,000 as cost due to mental torture and injury caused to his reputation on account of the prosecution of a false case. The plaintiff-respondent had claimed Rs,10,000 as fee in three cases which he had paid to the Advocates to defend the litigation started by the defendant-appellant. The Court allowed him Rs,3,000 as counsel fee in this case which without any contrary reason cannot be disturbed and Rs,5,000 as costs in the present case through which he demanded a decree of Rs,2,00,000 against the defendant-appellant which included the payment of court-fee of the amount claimed. Even otherwise as the appeal filed by Muhammad Bashir seeking enhancement of the decretal amount has been dismissed, therefore, we cannot allow him any amount in excess of what has been granted by, the Courts below.
' This appeal, on account of the j above reasoning, is also without any I merit which is hereby dismissed with costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.