REMEDIES
AGAINST A WRONG DOER AND ITS LIMITATIONS
By:
MRS.
NAILA SABIR KHAN
LL.M. Advocate High Court
Part Time Lecturer
B.Z.U. Gillani Law College,
In the case of Nasir Ahmad Sheikh Vs.
SLICP, 1990 MLD 2261) with reference being actionable, tort is types:-
(a) Tort is
actionable perse:
Defendant
is liable merely because he does particular act, even though the plaintiff has
suffered not the slightest harm. For example trespassing on
another's land.
(b) Torts
which are actionable only when actual damage is proved:
Defendant
is liable only if, in consequence of this act, damage is inflicted on the
plaintiff. For example slander is not actionable without proof of damage.
(c) WRONG WHICH ARE NOT TORTS:
These are not torts : -
(i) Wrongs exclusively
criminal for example dacoity, murder, forgery,
(ii) Breaches
of contracts
(iii) Brach of
trust.
An act which, prima facie, appears to be innocent may become
tortuous, if it invades the legal right of another person. A familiar instance
is the erection on one's own land of anything which obstructs the light to a
neighbour's house. It is, no doubt, lawful to erect what on pleases on one's
own land; but if by twenty years' enjoyment, the neighbour has acquired the
legal right to unobstructed stantially obstructs it is an invasion of the
right, and so not only does damage, but is unlawful and injurious.
Now, what is legal right? It has been defined, by
AUSTIN, (Vol II P.386) as a 'faculty' which resides in a determinate party or
parties by virtue of a given law, and which avails against a party (or parties
or answers to a duty lying on a party or parties) other than the party or
parties in whom it resides. Rights available against the world at large are
very numerous. They are sub-divided into private rights and public rights.
Private rights include al rights which belong to a
particular person to the exclusion of the world at large. These rights are:
(1) Rights of Reputation (2) Rights of bodily safety
and freedom: (3) Rights of property; or in other words, rights relative to the
mind, body, and the estate; and, if the general word 'estate' is substituted for
'property', these three rights will be found to embrace all the personal rights
that are known to the law".
To
every right there corresponds an obligation or duty. If the right is legal, so
is the obligation; if the right is contingent, imaginary, or moral, so is the
obligation. A right in its main aspect consists in doing something, or
receiving an accepting something. So an obligation consists in performing some
act or in refraining form performing an act. A servitude
of passage over a field appears as right of walking or driving over it by the
owner of the dominant tenement. The duty of the servient owner is to refrain
from putting obstacles. An easement of light appears as a right on the part of
the dominant owner to interdict the erection of buildings on the servient
tenement, or to remove them when erected. Duty is to abstain from erecting
them. The duty with which the law of torts is concerned is the duty to abstain
from willful injury, to respect the property of others, and to use due
diligence to avoid causing harm to others.
Liability for a tort arises, therefore, when the
wrongful act complained of amounts either to an infringement of a legal private
right or a breach or violation of a legal duty.
(ii) Damage:
"Damage" means harm or loss suffered or presumed to be suffered by a
person as a result of some wrongful act of another. The sum of money awarded by
Court of compensate "damage" is called "damages".
From the point of view of presumption of damage,
rights are classified into (1) absolute and (2) qualified. When are absolute
right is violated the law conclusively presumes damage although the person
wronged may have suffered no pecuniary loss whatsoever. The damage so presumed
is called legal damage. Violation of absolute right is, therefore, actionable
per se, i.e. without proof of any damage. In case of qualified rights, there is
no presumption of legal damage and the violation of such rights is actionable
only on proof of actual or special damage. In other words, in case of an
absolute rights, the injury or wrong i.e. the tortious action, is complete the
moment the rights is violated irrespective of whether it is accompanied by any
actual damage, whereas in case of a qualified right, the injury or wrong is not
complete unless the violation of the right results in actual or special damage.
The real significance or legal damage is illustrated
by tow maxims namely injuria sine damno and damnum sine (or absque) injuria.
By damnum is meant damage in the substantial sense of
money, loss of comfort, service, hearth, or the like. By injuria is meant a
tortious act; it need not be willful and malicious; for though it be
accidental, if it be tortious, an action will lie. Any unauthorized
interference, however trivial, with some absolute right conferred by law on a
person, is an injury, e.g. the right of excluding others from one's house or
garden.
(1)
IF A WILFUL WRONG IS DONE TO A PERSON BY A PUBLIC
FUNCTIONARY AND IN CONSEQUENCE TO SUCH WRONG, THAT PERSON HAS SUFFERED MENTAL
TORTURE AND AGONY OR PHYSICAL INJURY OR FINANCIAL LOSS, SUCH PERSON IS ENTITLED
TO BE REASONABLY COMPENSATED BY WAY OF DAMAGES IN ACCORDANCE WITH LAW.
2005 SCMR 1950
(a) Damages--
---Act
of public functionaries--Recovery of damages--Principle--Public functionaries must
act and discharge their duty quite fairly and in accordance with law--If a
wilful wrong is done to a person by a public functionary and in consequence to
such wrong, that person has suffered mental torture and agony or physical injury
or financial loss, such person is entitled to be reasonably compensated by way
of damages in accordance with law--Court must determine proper damages keeping
in view the nature of wrong done and loss caused to such person.
2003 SC MR 1734
---S.73--Damages--Suit
for recovery of damages--Plaintiffs' claim was that on defendants' failure to
provide air-conditioned railway coaches, wherein they had reserved seats, they
had to travel on the relevant date under protest by ordinary coach, thus, faced
mental torture in the month of July under great heat and temperature--Courts
below had determined question of fact that plaintiff had suffered mental
torture on account of conduct and behaviour of defendants.
PLD 2002 Supreme Court 723
---Suit
for damages--Plaintiff, a Government servant, for almost five months was made
to face hardship due to unreasonable, .unjustified and sadistic attitude of the
District Accounts Officer by not passing his pay bills against the Rules--Plaintiff
brought a suit for damages for Rs. 10,00,000 which was decreed to the extent of
Rs. 50,000 by the First Appellate Court as well as the High Court--Validity--Documentary
evidence on record was more than sufficient to prove the high-handedness of the
judgment-debtor who in his capacity as District Accounts Officer should have
refrained from being adamant when policy letter on the subject was brought to
his notice and he had no authority to raise objection challenging the very
authority of the competent officer--Two Courts below having rightly arrived at
the conclusion about the quantum of damages which was a question of fact.
Supreme Court, in circumstances, declined interference and dismissed the
petition for leave to appeal against the judgment of High Court--Supreme Court
observed that the Government officials dealing with the rights of the people and
other Government officials were not supposed to have a negative and sadistic
attitude merely to satisfy their false egos--Supreme Court deprecated, the
conduct of the judgment-debtor on account of which a Government servant drawing
small salary was forced to face monetary loss as well as mental torture--Civic
sense of the aggrieved civil servant who did not feel contented upon the
sanction of the bill and initiated to ask for damages was appreciated by the
Supreme Court with the remarks that it was healthy sign to make others realise
the consequences of their omissions to perform an act which they were legally
as well as morally bound to perform.
2004 YLR 999
Disconnection
of telephone without notice--Suit for damages filed by licensee/subscriber
against Pakistan Telecommunication Corporation was decreed by Trial
Court and upheld by the Appellate Court--Validity--Corporation had not placed
on record any document showing that such disconnection was after notice to the
plaintiff--Courts below had given concurrent finings of fact that Corporation
had disconnected the telephone of plaintiff without any notice--Order of
disconnection was in violation of judgment of Supreme Court--Civil Court had
jurisdiction to take cognizance under S. 9, C. P. C. --Courts below had rightly
awarded meagre damages to plaintiff--High Court dismissed revision petition.
Damages--Public
functionaries taking law in their own hands and not proceeding in terms of law--Awarding
damages to aggrieved person is the need of day--Such process can only save the
nation and people of
2005 YLR 2520
Malicious
tort--Suit for damages--Vicarious liability--Malfeasance--Misfeasance--Joint
tortfeasors--Rule of thumb--Appreciation of evidence--Plaintiff filed suit for
damages alleging that he filed application for electricity connection in 1987
and defendants issued demand notice in 1988 which was paid--Meter was not
installed according to demand notice--Plaintiff filed application before
Federal Ombudsman who directed the defendants to install the meter mentioned in
the demand notice--Defendants obeyed the order in 1991--Plaintiff filed suit
for damages which was concurrently dismissed--Validity--Defendant's acts of
malfeasance and misfeasance, caused agony to the plaintiff--Defendants had
taken false pleas--Plaintiff had made specific and unambiguous complaint--
Employer being fully responsible and liable for the tortious acts of its
employees, tortfeasors were jointly and severally liable and all of them, each
or any of them could be sued--Judgments and decrees of both the Courts below
were set aside--Quantum of damages were assessed by application of thumb rule
and suit was decreed in the sum of Rs.10, 000 in circumstances.
(2)
NO YARDSTICK EXISTED TO MEASURE OR ASSESS ACTUAL
QUANTUM OF DAMAGES IN RESPECT OF MENTAL TORTURE SUSTAINED BY PLAINTIFF
2004 CLC 223
No
yardstick existed to measure or assess actual quantum of damages in respect of
mental torture sustained by plaintiff while facing agonies of a frivolous
litigation against her--In order to prove the expenditure incurred on such
litigation, a party could place on record details of such expenditure, but in
the present case no specific evidence was available on that point--Even if
plaintiff failed to prove actual quantum of damages, her suit was not to be
dismissed on that ground as Court itself was competent in circumstances to
ascertain quantum of damages--Keeping in view the facts and circumstances which
had given rise to the present suit, particularly the fact that plaintiff who
was a Pardanashin lady belonging to a respectable family, was dragged by
defendant' and she had to face the agony of such frivolous litigation for a
number of years before various Courts in order to vindicate and safeguard her
right of property, family prestige and reputation, Court concluded that ends of
justice would meet if suit of plaintiff be decreed and she be awarded an amount
of Rs. 10,00,000 as damages to be paid by defendant to her-- Suit was decreed
accordingly.
2007 CLD 376
Unlawful
conversion--Suit for damages--Measure of damages--Pledge of book-entry
securities--Unlawful sate of pledged shares from the plaintiff s account by
Stock Exchange and Central Depository Company acting against the law and in
breach of the duty of care owed by it to the plaintiff-Such circumstances could
legitimately be factored into the measure of damages--Principles. In IBL V.
Coussens [1991] 2 All ER 133 which is a case decided by the Court of appeal in
PLD 2008
Statement
on oath of plaintiff had gone unchallenged and remained un-rebutted--Allegations
in constitutional petition filed by defendant were defamatory in nature and had
been levelled to lower reputation of plaintiff in estimation of others and
could be treated as malicious
False
and malicious allegations had caused loss of reputation, mental torture and
financial losses to plaintiff--Court was itself competent to ascertain question
of damages keeping in view the circumstances of the case--High Court awarded a
sum of Rs. 15,00,000 as compensation to plaintiff for malicious prosecution--Suit
was decreed accordingly.
Plaintiff
had been defamed on account of issuance of such legal notice and publication of
summons of Banking Court in newspapers-Allegations levelled against plaintiff
in recover suit by Bank were serious in nature also containing threat to
initiate criminal proceedings against him--Such allegations had lowered
reputation of plaintiff in estimation of others and could be treated as
malicious--Plaintiff had suffered immense legal injury for contesting false and
malicious previous suit--Plaintiff was entitled to damages claimed by him in
plaint--Suit was decreed in circumstances.
PLD 1957 (W.P)Lah. 284
Damages--suit
for--could not be dismissed solely on the ground that exact amount of damages
not prove.
PLD 1965
(W.P.) Kar. 2002
In the
reported case of Muhammad Sharif v. Nawab Din PLD 1957 W.P. Lah. 283 a Learned
Single Bench was held as under: -
. If we are to access damages only if the exact
amount is proved, no damages can ever be decreed. Damages have so many times to
be awarded by the rule of thumb but the fact that the exact amount is not determinable
can be no reason for dismissal of a suit
.."
The
other judgment with regard to the assessment of damages for mental torture,
nervous shock and injuries of like nature arising out of breach of duties or a
wrongful negligent act of defendant was reported as Suf Muhammad Ishaque v. The
Metropolitan Corporation Lahore PLD 1996 SC 737 it was held as under: -
There can be no yardstick or definite principle for
assessing damages in such cases. The damages are meant to compensate a party
who suffers an inquiry. It may be bodily injury loss of reputation, business
and also mental shock and suffering
."
Regarding
the question of damages, the Court is itself competent to ascertain the
question of damages keeping in view the circumstances of the case as held in
the reported case of Pakistan Industrial Development Corporation v. Aziz
Qureshi PLD 1965 (W.P)
It was
held by the Balochistan High Court in a case titled "Haji Salman Ali v.
The
As the
special damages are concerned, these are required to be proved item-wise to the
extent of the damages sustained by the claimant and the second kind of category
pertains to the general damages as measured by applying "rule of
thumb" and the Court has discretion to calculate the damages according to
the circumstances of the case. General damages are normally awarded where the
plaintiff has suffered mental torture, agony etc. I would like to reproduce the
relevant portion of the aforesaid report PLD 1994
"According to the law of Tort, compensation by
way of damages is generally categorized as Special and General Damages. As far
as former category is concerned it requires to be proved item-wise to the
extent of the damages allegedly sustained by the claimant and later category of
damages is measured by applying the "rule of thumb" and the Court
seized with the matter has discretion to calculate the damages in view of the
given circumstances of the case. It is to be noted that General damages are
claimed normally in the matters where, on account of injurious acts of the
defendants, plaintiff has suffered agony, mental torture, defamation etc. Since
in the case in hand, appellant is claiming the damages on account of specific
losses allegedly sustained by him, due to the cancellation of the contract work
by the Department, therefore, it was a legal obligation upon him to prove each
item separately. "
2006 CLC 440
Art.
14--Defamation--Suit for damages and injunction--Assessment of fair
compensation--Factors to be kept in view--Discretion of Court-- Scope--Held,
usually it was difficult to assess fair compensation and in those circumstances
it was the discretion of the Judge who might, on the facts of the case,
determine the amount to be awarded to a person who suffered such a damage--Other
factor was that conscience of the Court should be satisfied that the damage
awarded, would, if not completely, satisfactorily compensate the aggrieved
party--Article 14 of the Constitution provided that dignity of man was
inviolable and it was legitimate right of plaintiff to defend his good name and
the defendant had no right to defame him--Where the evidence available on
record showed that the defendant had caused defamation, mental agony and
physical discomfort to the plaintiff and defamed him in his business circle, by
damaging the good name of the plaintiff the defendant exposed himself to the
consequences--Plaintiff having proved that the defendant had defamed him in the
family and in his business circle, he was liable to compensate the plaintiff
and the plaintiff was entitled to general damages and relief of permanent
injunction to the extent that the defendant had no right to damage the
reputation of the plaintiff in public in general and in the circle of plaintiffs
friends and relations in particular--Relief that defendant may be restrained
from claiming anything in the shape and kind could not be granted and the
defendant had every right to recover legal dues if he could prove the same,
before a competent legal forum.
2008 MLD 12
----Suit
for--Award of damages by Court--Principles.
The
damages can be granted by the Court keeping in view the circumstances 'and
merits of each case--While granting damages, the Court has to satisfy itself
that the damages awarded if not completely satisfactory does compensate the
plaintiff.
Suit
for--General damages, award of--Criteria--Amount of damages assessed by Court
must not appear to be punitive or exemplary-- Principles.
There
is no hard and fast rule for grant of general damages and there is also no
yardstick to measure the damages caused to a person and then to determine the
compensation--Amount assessed must not appear to be punitive in nature or
exemplary
2003 YLR 136
It is
true that loss arising out of injury to reputation of a person cannot be
compensated in terms of money and other non-pecuniary losses may not be
accurately calculated in terms of coins, but for this reason alone, Courts do
not decline to grant compensation and still the Courts have formulated certain
parameters and devised principles for evaluation of assessment of such general
damages. Ordinarily in such cases just, fair and reasonable compensation is
assessed and awarded to victim. There is no yardstick or definite principle for
assessing damages in such cases and it becomes difficult to assess a fair
compensation. In these circumstances, it is the discretion of Court, who may on
facts of each case and considering how far society would deem it to be a fair
sum, determine the amount to be awarded to a person, who has suffered such a damage. The general damages are those, which law will imply
in every violation of a legal rights. They need not be
proved by strict evidence as they arise by inference of law, even though no
actual pecuniary loss has been or can be shown. The vital canon followed by
judicial mind in such cases is that the conscience of Court should be satisfied
that damages awarded would, if not completely, satisfactorily compensate
aggrieved party. However, adequate care should be taken in this regard while
dilating on the quantum of awards. Courts should be vigilant to see that claim
is not fanciful or remote, the award should never rise to be reflective of
lavish generosity and must also obviously not dwindle down to be air indicator
of abstemious parsimony, but Courts should give aggrieved party what it
consider in all the circumstances a fait and reasonable compensation for his
loss.
2009 CLD 665
There
is no hard and fast rule to grant general damages and there is also no
yardstick to measure the same. The rule of award of general damages is that in
the case of defamation, the conscience of Court should be satisfied that the
damages awarded would, not completely and satisfactorily compensate the
aggrieved party; and that the amount assessed must be compensatory in nature
and not to appear punitive or exemplary.
The
Court is itself competent to ascertain the question of damages keeping in view
the circumstances of the case.
PLD 2002
Maqasid-ul-Sharah--Types--There
are six Maqasid-ul-Sharah, which are to be protected and they are Hifzul Din
(protection of faith), Hifzul Nafs (protection of life), Hifzul Mal (protection
of property), Hifzul Aql (protection of intellect), Hifzul
Irz (protection of dignity) lnd Hifzul Nasb (protection of paternity).
An
earlier judgment of his Lordship Mr. Justice Kaikaus (as Judge of High Court,
as his lordship then was), in the case of Sharif v. Nawab Din PLD 1957 Lah.
283, has been cited with approval. In this judgment it has been observed as
follows:
"If damages are to be assessed only if the exact
amount is proved, no damages can ever be decreed. Damages have so many time to be awarded by the rule of thumb but the fact that
the exact amount is not determinable can be no reason for dismissal of
suit."
2006 CLC 440
This
is a case of slander. The slander is defined the case of Sir Edward Senlson,
K.B.E. and Secretary to the Government of Pakistan, Ministry of Law V. the
Judges of the High Court of West Pakistan, Lahore and others PLD 1961 SC 237,
which reads as under :
"Slander is defamation by words or in some
transitory or fugitive form. It is actionable where the matter
calculated to F disparage to plaintiff in regard to his office,
profession, etc. without proof of special damage."
The principle for assessment of general damages in a
case of libel also applies to the case of slander and the damages have to be
assessed keeping in view the circumstances of the case.
Regarding the determination of quantum in a case of
frivolous litigation it was held in Mrs. Zahra Zaidi V. M. Anwar Khan Ghauri
2004 CLC 223 which reads as under: --
"No Yardstick existed to measure or assess actual
quantum nof damages in respect of mental torture sustained by plaintiff while
facing agonies of a frivolous litigation against her--In order to prove the
expenditure incurred on such litigation, a party could place on record details
of such expenditures, but in the present case no specific evidence was
available on that point--Even if plaintiff failed to prove quantum of damages,
her suit was not to be dismissed on that ground as Court itself was competent
in circumstances to ascertain quantum of damages."
In another judgment relating to assessment of damages
arising out of an accident on account of mental torture and nervous shock
reported as Abdul Qadir V. S.K. Abbas Hussain and 2 others PLD 1997 Kar. 566 it
was held as under: -
"--Fair Compensation would be difficult to assess
in such cases--Court would have discretion to determine on basis of evidence,
fair sum to be awarded to affected person--Concience of Court must be satisfied
that damages awarded would not completely, at least satisfactorily compensate
aggrieved party person who suffered mental torture and nervous was thus,
entitled to recover damages."
The other judgment with regard to assessment of
damages for mental torture, the nervous shock and injuries of like nature
arising out of breach of duties or a wrongful negligent act of defendant
reported as "Sufi Muhammad Ishaque V. The Metropolitan Corporation Lahore
through Mayor PLD 1996 SC 737 it was held as under:-
"There can be no yardstick or definite principle
for assessing damages in such cases. The damages are meant to compensate a
party who suffers injure. It may be bodily injury loss of reputation, business
and also metal shock and suffering.'.
(3)
"REASONABLE AND PROBABLE
CAUSE"
PLD 2005 SC 432
(f) Tort--
--Malicious
prosecution--Proof of existence of malice itself is not enough in suit for
malicious prosecution but it should be accompanied by poof of absence of
reasonable and probable cause.
(g) Tort--
--Malicious prosecution--"Reasonable and probable cause"--Meaning--"Reasonable
and probable cause" means that it is an honest belief in the guilt of
accused based upon full conviction, based on reasonable grounds, of the
existence of a state of circumstances, which, assuming them to be true, would
reasonably lead any ordinary prudent man to come to the conclusion that the
person charged was probably guilty of crime imputed--If reasonable and probable
cause is established, then question of malice becomes irrelevant.
(h) Words and phrases--
--"Reasonable" and probable cause"--Connotation.
(i) Constitution of
--Arts.
4 & 14--Tort--Malicious prosecution--Suit for damages--Held, it would be
more in consonance with the genesis of the Constitution, Arts.4 & 14 in
particular, to say that the foundation of the action for damages for malicious
prosecution lies not in the abuse of the process of Court, but in the abuse in
process of law--Principal--Supreme Court urged the Bar Associations and the Bar
Councils to educate the people and to file suit for damages against the
offenders apart from the criminal proceedings.
By Article 4 of the Constitution, it is the
inalienable right of every citizen to enjoy the protection of law and to be
treated in accordance with law and in particular no action detrimental to the
life, and, liberty, body, reputation of property of any person shall be taken
except in accordance with law. Article 14 of the Constitution also guarantees
the dignity of man and subject to law, the privacy of home. In
the context of the Constitution, if is no more necessary to hedge in an action
for damages for malicious prosecution by the condition that the action was an
abuse of the "process of the Court". It will be more in
consonance with the gensis of the constitution, Articles 4 and 14 in particular,
to say that the foundation of the action for damages for malicious prosecution
lies, not in the abuse of the process of Court, but in the abuse in process of
law. For, one has to bear in mind the ground realities of life existing in the country,
it should appear plainly that proceedings before the police afford a stronger
ground for an action for malicious prosecution than proceedings in a Court of
law, for it is an unfortunate fact that, as things are, human dignity suffers
or is likely to suffer more at the hands of the police than in a Court of Law.
One of the modes to achieve this goal is to file a suit for damages against the
offenders by the aggrieved persons. It is the duty of the members of the Bar
associations and Bar Council to educate the people and to file suits for
damages against the offenders apart from the. criminal
proceedings.
It is a high time to put the nation on a right path to
promote the law of torts. In case citizens and the Courts and conscious to save
the nation from the agony of telling lies or involving innocent persons in
criminal cases, then the only solution to stop this frivolous litigation for
the purpose of taking revenge from the other side is to file suits for damages
as and when the competent forum has declared the accused persons as innocent
acquitted/discharge by the competent Court so that prosecution must lodge
genuine cases.
It is also well settled principle of law that a
prosecution may not be entirely mala fide but the continuance of such
prosecution after it was discovered that the facts upon which it was based are
not true may give rise to claim for damages for malicious prosecution. This
doctrine is based on the dictum of Cockburn, CJ in Fetzjohn v. 'Mackinder (30
LJCP 257). It is also settled law that in suits for malicious prosecution proof
of the existence of malice itself is not enough but should be accompanies by
proof of absence of reasonable and probable cause. See as follows:-
(i) United
Bank Vs. Raja Ghulam Hussain (1999 SCMR 343)
(ii) Abul
Rauf V. Abdul Razaq and another (PLD 1994 SC 476)
(iii) Muhammad Akram Vs. Mst. Farman Bi (PLD 1990 SC 28)
(iv) Raja Braja Sunder Deb V. Bandeb Das (AIR 1944 P.C. 1)
(v) Balbabaddar
Singh V. Badari Sah (AIR 1926 P.C. 46)
(vi) Abdul
Shakoor Vs. Lipton (AIR 1924 Lah. 1)
(vii) Noor Khan
V. Fiwandas (AIR 1927 Lah. 120)
8. The maxim "The reasonable and probable
cause" means that it is an honest belief in the guilt of the accused based
upon full conviction, based on reasonable grounds, of the existence of a state
of circumstances, which, assuming them to be true would reasonabley lead any
ordinary prudent man to the conclusion that the person charged was probably
guilty of crime imputed . See (1881) 8 QBD 167 Hicks Vs. Faulkner. It is also a settled principle of law that if
reasonable and probable case is established, then question of malice becomes
irrelevant as observed by Denning L.J. in Tempest Vs. Snowden (1952) 1 K.B. 130
H It is pertinent to mention here that judgments of both the Courts below are
in consonance with the law laid down by this Court in following judgments
keeping in view the conduct of the petitioners:
(i) Muhammad
Bashir V. The State (PLD 1982 SC 139)
(ii) Muhammad
Yousaf Vs. Syed Ghayyur Hussain Shah
and others (NLR 1993 SCJ 462)
One of modes to achieve this goal is to file a suit
for damages against the offenders by the aggrieved person. It is the duty of
the members of the Bar Associations and Bar Council to educate the people and
to file suits for damages against the offenders apart from the criminal
proceedings.
(b) Abdul Wahab
Abbas V. Gul Muhamamd Hajano PLD 2008
(c) Abdul
Ghafoor V. Riaz Ahmed 2007 YLR 3089
(d) United
Bank Ltd. V. Mian Ahmed Hassan 2006 CLD 255
(e) Muzammil
Shah V. The State 2006 YLR 1431
(f) Mian
Nazeer Ahmed V. WAPDA 2006 YLR 816
(g) Riaz
Ahmad V. I.G. of Police and others 2006 MLD 1093
(h) Azizullah
v. Jawaid A. Bajwa 2005 SCMR 1950
(i) Munir
Ahmed V. Mst. Fazlan and others 2005 MLD 690
(j) Alia
Khattak V. Muslim Commercial Bank 2005 CLD 99
(k) Shah Wali
V. Muhammad Iqbal, PLD 2005 Lah. 214
(1) Akbar
Khan V. Mausam Khan, 2004 CLC 1244
(m) Malik
Khadim Hussain V. Haq Nawaz, 2004 CLC 184
(n) Muhammad
Hanif V. Muhammad Yasin and others, 2004 YLR 173
(o) Mian
Muhammad Anwer Khurshid V. Muhammad Yasin and another, 2003 MLD 1485
(p) WAPDA V. Muhammad Yaqoob, 2003 MLD 1145.
(q) Ameer ud
Din V. Fazal Ur Rahman 2003 YLR 136.
(r) Khursheed
Iqbal V. Allied Bank PLD 2003 AJK 1.
2004 YLR 173
Plaintiff,
in circumstances, had reasonable and probable cause to sue the defendant/complainant
for malicious prosecution--Trial Court according to status of plaintiff had
rightly determined the amount and rightly decreed the suit rejecting his excess
claim as plaintiff did not deserve more amount as damages than the decretal
amount.
PLD 2005 Azad J&K 15
----Damages--Right
to receive or recover compensation by way of damages--Nature, object and scope--Natural
Law (Jura Naturalia) gives basic right for satisfaction from injury--Such
fundamental right is of universal nature based on natural reasons and natural
justice--Such natural right is essential for growth of well-being of society
and primitive law of retaliation is not calculated to promote its tranquility
and advancement--Every violation of a right confers a right on injured party to
recover compensation--Damages are pecuniary compensation recoverable by process
of law by a person, who has sustained an injury through certain act or omission
of another--Basic object of damages is to compensate plaintiff for loss sustained by him due to fault of
other party--Right of injured persons to recover damages under various heads
illustrated by examples.
Damages--General
and special damages--Proof--Special damages are required to be proved item-wise
to the extent of damages sustained by claiment-- General damages are measured
by applying the "rule of thumb" and Court has discretion to calculate
damages according to circumstances of case.
The
right to recover compensation is a primary right conferred by the law of
nature. This fundamental right is of a universal nature. It is based on the
natural reasons and natural justice. Justinian in his institutes says
"Natural Law (Jura Naturalia)" which is observed equally, in all
Nations established by divine providence remains forever settled and immutable.
Blackstone
in his commentary in book second Chapter 29, page 438, says that the basic
right for the satisfaction from the injury was given by the law of nature and
the right to receive satisfaction is based on the sanctity of individual right,
which humanity has always been, from its infancy, jealously protecting from
being wantonly violated. This natural right is essential for the growth of
well-being of society and during the successive stages of civilizations,
various means were devised for enforcing the same. The right to receive
compensation is a natural right. It is regulated by a number of maxims which
are condensed for the good sense of Nations.
Harbert
Brown says that the authority of the maxims rests entirely upon the general
receptions and usages and the only method of proving that this maxim or that
maxim is a rule of common law, is by 'showing that it has been always the
custom to observe it.
Broom
says that it would indeed be highly interesting to trace from a remote period
though successive stages, the gradual development of these principles to
observe their primitive and more obvious meanings and to show how they have
been applied "by the living oracles" of the law to meet the
increasing exigency of society and those complicated facts which are the result
of commerce, civilization and reinforcement. Human society has gone through a
period by no means short of strife and tribulations. It must have recognized
that primitive law of retaliation is not calculated to promote for its
tranquility and advancement. The basic and elementary principle is evolved out
of this idea, therefore, has been embodied in the elementary maxim "ubi
jus ibi remedium" which means that where there is a right, there is a
remedy. In simple words, it can be said that there is no wrong without a
remedy. If a man has a right, he must have sources and means to vindicate and
enforce it. The maxim "lex semper dabat remedium" means that law will
always provide remedy.
Every
violation or infringement of a right confers a right on the injured party to
recover compensation. This right is called by the Jurist Salmond as a
sanctioning right which is of two kinds, i.e.:-
(i) The
right to receive pecuniary penalty;
(ii) The
right to exact and receive the damages or other pecuniary compensation.
The
British and Indian Laws are unfamiliar with the former kind. The later form of
right is most important and relief with this form of right is remedial in its
nature. Awarding of compensation to injured party against the wrong-doer is
punished by giving penal redress to the injured or simple compensation is
given. In either case, the law simply awards compensation to the sufferer. This
compensation 'is awarded in the shape of damages which is awarded according to
certain rules which are known as, measures of damages.
Damages
are defined as pecuniary compensation recoverable by the process of law by a
person who has sustained an injury through the certain act or omission of
another. Lexstone in his commentary defined damages as "spices of property
i.e. acquired and lost by suit and judgment at law". The injured party has
unquestionably a vague and indeterminate right to some damages. The damages may
also be defined.
As disadvantage suffered by a person as a result of
the act or default of another. The
basic object of the damages is to compensate the plaintiff for the loss
sustained by him. Its main object is to compensate the plaintiff, for all the
loss he has suffered so far again as money can do it.
It is
to be noted that while considering the topic of damages, two questions arise
for determination:--
(i) The
question of liability i.e. whether damages are due at all or in other words
whether the person against whom the complaint was lodged is liable or not for
the damages;
(ii) The
question as to quantum of damages;
The
basic object of the damages is to compensate the plaintiff for all the loss
suffered due to the fault of other party. There are two kinds of damages:--
(1) General
and
(2) Special.
General
damages pertain to non-pecuniary losses which could not be calculated in the
terms of money. Such non-pecuniary losses are thus:--
(a) in respect of pain suffering and shock suffered by the plaintiff
by the assault;
(b) losses of
amenities of life such as the plaintiff suffers by reducing enjoyments of life
due to the damages caused by the assault which may apart from any material or
pecuniary losses of attendant upon the loss of amenities;
(c) loss of expectation of life;
(d) inconvenience and discomfort; and
(e) exemplary damages whether the conduct of the defendant has
been so outrageous or scandalous for which more punitive damages are required.
On the
other hand, special damages are such damages which could be computed in the
terms of money, Halsbury calls "special damages" which could be laid and
proved in the terms of figure.
While on the other hand, the general damages are
defined as which could not be computed in the terms of money.
The Court while awarding the compensation has to consider various kinds of
damages. An injured person can recover the damages in respect of various heads.
For example, reasonable expenses incurred for medical treatment, nursing,
medical appliances and other incidental expenses. The injured person is,
however, entitled to damages for loss of earning where he has lost his earning
capacity due to the injury. He is also entitled to the general damages in
respect of pain and suffering which he has undergone till the M date of trial
and which he is likely to undergo thereafter. The damages could also be awarded
in respect of the happiness which a person might expect to have enjoyed in the
years of life or which he has been deprived under the head of "loss of
expectations of life".
(4)
MENTAL AGONY
2005 MLD 690
Plaintiff
had suffered damages as protracted litigation initiated by defendant against
plaintiff not only caused plaintiff financial loss in shape of engaging counsel
to pursue his case, but also had caused him mental agony and torture..
1995 CLC 1246
Suit
for damages by Advocate on basis of article published in a monthly digest by
defendant--Plaintiff s assertion in plaint was that the article was aimed at to
deliberately and maliciously damage his integrity and character and to demolish
his reputation as a leading lawyer of the country and as a person of honour and
high social status.
Damages--Quantification
of--Paramount consideration in suits for damages would be to see whether in
case of a publication (giving rise to suit for damages) certain imputation
harmful to the reputation of a person was contained or not --Determination of
exact amount of damages was not possible and was in fact not a mandatory
prerequisite before filing of such suit.
PLD 1996
Suit
for damages--Imputation of a criminal offence -- Imputation of criminal offence
is actionable per se in the probability of social ostracism of the plaintiff --
Plaintiff, even in imputation of a criminal offence punishable with
imprisonment, can recover damages for malicious prosecution and for injury to
his reputation.
(5)
DOCUMENT IF AVAILABLE ON RECORD COULD BE
LOOKED INTO
1992 CLC 2193
Maxim
that a person can tell lies but a document cannot" was fully attracted to
the facts and circumstances of the case--Agreement to sell was not proved in
circumstances.
1993 CLC 185
Document
although not properly produced in evidence, but if available on record, could
be looked into.--[Practice and procedure].
PLD 1975
(6)
ACTION PERDONALIS MORITUR CUM PERSONA
-MAXIM - APPLICATION OF ENTIRE FAMILY SUFFERS
KLR 1991 CIVIL CASES
False
and malicious prosecution/damages claim for
Article
4 Good Reputation or fair name is a basic right of a citizen in Islam.
Article
4 & 14--The foundation of the action for damages for malicious prosecution
lies not in the abuse of the process of the Court but in the process of law.
It is
common knowledge that if man is subjected to false and malicious persecution
the object is to prosecute and harass not only that man but his dependents and
family members also. The resulting damage not confined to that man: the entire
family suffers--The objects of actions for damages for malicious prosecution
being to discourage the perversion of the machinery of justice for an improper
purpose.
(7)
SUIT FOR DAMAGES AGAINST JUDICIAL
OFFICER
2008 YLR 900
Suit
for damages against judicial officer for his malafide act--Maintainability
Judicial Officer after passing order of return of plaint in a previous suit,
kept its file with him for two months which order was ultimately set aside and
suit was decreed--Plaintiffs plea in subsequent suit for damages was that
Judicial Officer (Defendant) had retained file of his previous suit with
malafide intention in order to cause him prejudice--Trial Court rejected plaint
to the extent of Judicial Officer-- No Protection was available under law, for
such action--High Court accepted revision petitioner and set aside impugned
order with direction to Trial Court to decide case after inviting written
statements from defendants, framing issues and conducting trial.