PLJ 2016
Present: Noor-ul-Haq
M/s. SUMMIT BANK LIMITED--Appellant
versus
MUHAMMAD RAMZAN--Respondent
R.F.A. No. 109 of 2014, decided on 29.9.2015.
Damages
----Wrongful act--Suit for damages on basis of malicious prosecution--Any loss was suffered award of general damages--Entitle of damages--Validity--Case was neither based on malicious prosecution nor any wrongful act committed by appellant entitling to recover damages from bank--Therefore, award of damages as general damages to respondent was not sustainable. [P. 53] A
Raja Muqsit Nawaz Khan, Advocate for Appellant.
Malik Qamar Afzal, Advocate for Respondents.
Date of hearing: 29.9.2015.
Judgment
Aamer
Farooq, J.--The instant regular first appeal
is directed against judgment and decree dated 18.06.2014, whereby
the suit filed by Respondent No. 1 for damages to the tune of
Rs. 5,000,000/- (Rupees five million only) was decreed by the
learned trial Court to the tune of Rs. 1,000,000/- (Rupees one million only).
2. Respondent No. 1 obtained finance facility
from the appellant bank for sum of Rs. 5,000,000/- (Rupees five million only)
on 18.03.2008 with an undertaking to pay the sum in equal installments. At the
time of grant of loan finance facility Respondent No. 1 also executed
post-dated cheque(s) for repayment of finance. The
appellant due to default on part of Respondent No. 1 presented Cheque No. 002831 drawn on Meezan
Bank Limited for encashment, however, the same was dishonoured for non-payment. On 12.11.2008, the appellant
filed application before the Station House Officer (SHO), Police Station, 1-9,
3. The learned counsel for the appellant, inter alia, submitted that the instant suit was filed against the appellant by Respondent No. 1 on the basis of malicious prosecution whereas in the instant case there is no malicious prosecution as FIR was never registered. It was further contended by the learned counsel that there is nothing on record which shows that any loss was suffered by Respondent No. 1; award of general damages was not warranted in the circumstances of the case as no wrong was committed by the appellant bank. The learned counsel placed reliance on cases titled “Sultan vs. Khan Muhammad Khan”(2014 CLD 579) and “Abdul Rauf vs. Abdul Razzaq”(PLD 1994 SC 476).
4. The learned counsel for Respondent No. 1, inter alia, submitted that the suit for recovery filed by Respondent No. 1 was not for malicious prosecution but was generally under the head 'Tort' for filing wrongful complaint by the appellant against Respondent No. 1. The learned counsel further contended that the learned trial Court had correctly awarded general damages to the tune of Rs. 100,000/- (Rupees one million only). Learned counsel placed reliance in support of his contentions on cases titled “Aurangzeb vs. Mushtaq Ahmad” (2015 MLD 601) and “Abdul Rehman vs. Chairman, Mari Gas Company” (2015 MLD 61).
5. Respondent No. 1 filed suit for recovery of Rs. 50,000,000/- (Rupees fifty million only) as damages suffered due to filing of complaint on part of appellant. Suit was resisted by the appellant and Respondents No. 2 & 3 and out of divergent pleadings of the parties following issues were framed:
1. “Whether the plaintiff is entitled to decree for recovery of Rs. 50,00,000/- as damages as prayed for? OPP
2. Whether the plaintiff has not come to the Court with clean hands and this Court lacks the jurisdiction to entertain the matter? OPD
3. Whether the suit is hit by mis-joinder and non-joinder of necessary parties? OPD
4. Whether the plaintiff has no cause of action to file this suit and this suit is not maintainable, hence liable to be dismissed? OPD
5. Whether the suit of the plaintiff is false, frivolous, vexatious and defendant is entitled to get special cost U/S 35-A, CPC? OPD.
6. Relief.”
6. Respondent No. 1
entered into witness box as PW/1 whereas Muhammad Ashraf,
ASI deposed as PW/2. Muhammad Aamer Iqbal gave evidence as DW/1 on behalf of the appellant and Respondents
No. 2 & 3. In documentary evidence the complaint to the Police Station was
tendered in evidence as Ex.P/1, the statement of
accounts as Ex.P/2, the prescriptions of Doctor Ex.P/3 and Ex.P/4, Special power
of attorney as Ex.P/5, transfer letter dated
24.02.1994 Ex.P/6, Special Power of attorney as Ex.P/7, list of agreements Ex.P/8
to Ex.P/15. On behalf of appellant the authority
letter was exhibited as Ex.DW-1. The Court allowed damages to the tune of Rs. 1,000,000/-
(Rupees one million only) to Respondent No. 1 for the loss suffered by him on
account of filing of complaint by the appellant. There is nothing on record to
establish that firstly any wrongful act was committed by the appellant and
secondly that on account of same some loss was occasioned by the Plaintiff/Respondent
No. 1. Mere filing of complaint with the Police Authorities on the basis of dishonoured cheque or outstanding
finance is not a legal wrong. The learned trial Court has observed that filing
of the application before the Police and confinement of the plaintiff is a
proven fact. We are afraid of that such observation of the learned trial Court
does not find support from the evidence inasmuch as Muhammad Aamer Iqbal DW/1 in examination
in chief submitted that Respondent No. 1 was called to the Police Station where
there was meeting/Jirga wherein there were Bank
representatives as well as Respondent No. 1 and Market President and the matter
was settled amicably whereby Respondent No. 1 agreed to pay outstanding finance
amount and on the basis thereof the bank withdrew its complaint. There is nothing
on record to show that cheque of Respondent No. 1 was
not dishonoured rather Respondent No. 1 in his
examination in chief admitted tendering of cheque to
the appellant bank. Similarly Muhammad Ashraf DW/2
admitted in his examination in chief that alongwith
complaint there was a cheque with dishonoured
slip and also that in response to the complaint filed by the bank, Respondent
No. 1 was called in the Police Station and after negotiations the matter was
settled. In the referred circumstances and evidence it cannot be said that any
wrongful act was committed by the appellant. Moreover, there is nothing on
record to show that any loss was suffered by Respondent No. 1 entitling him to
damages. The submission by the learned counsel for Respondent No. 1 that in the
circumstances the Court was justified in awarding general damages is not
tenable. In this behalf reliance is placed on case titled “Aalia Tareen vs. Aman Ullah Khan” (PLD 2005 SC
99) in which the
“Damages in the Law of Torts are of numerous kinds but in the present case the kinds relevant are general damages and special damages. The terms general damages are defined as, “ without reference to the special character, condition, or circumstances of the plaintiff”, the general damages are implied or presumed” to have accrued from the wrong complained of, for the reasons that they are its immediate, direct, and proximate result, or such as necessarily result from the injury, or such as did in fact result from the wrong, directly and proximately. “The term “special damages” is defined as “those which are the actual, but not the necessary, result of the injury complained of, and which in fact follow it as a natural and proximate consequence in the particular case, than is, by reasons of special circumstances or conditions.” Such special damages must be specially pleaded and proved. This brings us to the conclusion that in a suit for damages, the wrong done to the plaintiff must be proved to be the immediate, direct and proximate result of the act or acts of negligence attributed to the defendants.”
Similarly, in case titled “Abdul Rauf vs. Abdul Razzaq” (PLD 1994 SC 476) it was held as follows:
“However, the learned Judge failed to distinguish between special damages and general damages. Special damages could be awarded only on strict proof thereof. No particulars of special damages were stated much less any proof thereof was furnished. Even otherwise since no case for malicious prosecution was made out, therefore, it is not necessary to go into this question any further.”
Similarly, the Hon’ble Peshawar High Court in case titled “Sultan alias Kaloo vs. Haji Muhammad Khan and another” (2014 CLD 579) held as under:
5.
To establish the
malicious prosecution, the following ingredients are to be proved by the
plaintiff:
“(i) that plaintiff was prosecuted by the defendant.
(ii) that prosecution ended in favour of plaintiff.
(iii) that the defendant acted without reasonable and probable cause,
(iv) that the defendant was actuated by malice,
(v) that the proceedings had interfered with plaintiffs liberty and has also affected his reputation, and
(vi) that the plaintiff has suffered damages.”
The case law relied upon by the learned counsel for Respondent No. 1 is not relevant and does not substantiate the submissions made on behalf of Respondent No. 1.
7. In view of pleadings and the evidence available on record we are of the opinion that the instant case is neither based on malicious prosecution nor any wrongful act committed by the appellant entitling Respondent No. 1 to recover damages from the appellant. Therefore, award of damages to the tune of Rs. 1,000,000/- (Rupees one million only) as general damages to Respondent No. 1 is not sustainable.
8. For the foregoing reasons, the instant appeal is allowed, consequently the judgment and decree dated 18.06.2014 is set aside and suit filed by Respondent No. 1 is dismissed.
(R.A.) Appeal allowed