P L D 2012 Supreme Court 80 Damage

10/24/23, 4:35 AM P L D 2012 Supreme Court 80
P L D 2012 Supreme Court 80

Present: Iftikhar Muhammad Chaudhry, C.J., Khilji Arif Hussain and Amir
Hani Muslim, JJ
ABDUL MAJEED KHAN---Petitioner
Versus
TAWSEEN ABDUL HALEEM and others---Respondents
Civil Petition No.463 of 2011, decided on 19th September, 2011.

(On appeal against the judgment dated 9-2-2011 passed by the Lahore High
Court, Lahore in RFA No.312 of 2010)
Per Amir Hani Muslim, J, Iftikhar Muhammad Chaudhry, C.J. and Khilji Arif
Hussain, agreeing--
(a) Civil Servants Act (LXXI of 1973)---
----S. 23-A---Suit for recovery of damages---Exercise of official authority---Mala

fide acts---Rule of thumb---Applicability---Plaintiff was civil servant who suffered
on account of official orders passed by defendant which were based on mala fide---
Trial Court and High Court dismissed the suit filed by plaintiff---Validity---Orders
passed by defendant were reversed by competent authority and those were found to
be passed unauthorizedly---Plaintiff had brought on record a number of official
documents through custodian of the record, which documents were neither objected
to nor their contents were challenged by defendants before Trial Court at evidence
stage---Plaintiff though had failed to quantify the damages claimed by him as
required under the law, as such the same did not mean that plaintiff was not entitled
to grant of general damages under the rule of thumb on the face of material brought
on record by him during trial---Plaintiff was entitled to grant of general damages
for mental agony which he had suffered on account of the conduct of defendant---
Plaintiff pleaded specific instances to establish personal vengeance against
defendant on account of which he claimed to have suffered losses and mental
agony---Pleadings and evidence brought in support of claim of damages by plaintiff
were sufficient to award general damages to plaintiff against defendant---Supreme
Court set aside the judgments and decrees passed by Trial Court and High Court
and partly decreed the suit in favour of plaintiff---Plaintiff was entitled for damages
https://www.pakistanlawsite.com/Login/PrintCaseLaw?caseName=2012S3 1/24
to the tune of Rs.100,000 with mark up at the rate of 10% till the date of recovery
of the amount---Appeal was allowed.
Per Iftikhar Muhammad Chaudhry, C.J. agreeing with Amir Hani Muslim, J-
(b) Damages---
----'General damages' and 'special damages'---Distinction---Term 'general damages'

refers to special character, condition or circumstances which accrue from
immediate, direct and approximate result of wrong complained of---Similarly term
'special damages' is defined as actual but not necessary result of injury complained
of---Special damages follow as a natural and approximate consequence in a
particular case by reason of special circumstances or condition---In an action for
personal injuries, general damages are governed by the rule of thumb whereas
special damages are required to be specifically pleaded and proved---Special
damages consist of out-of-pocket expenses and loss of earning incurred down to the
date of trial and is generally capable of substantially exact calculation---General
damages are those which law implies even if not specially pleaded, which includes
compensation for pain and suffering and the like and if injuries suffered are such as
to lead to continuing or permanent disability, compensation for loss of earning
power in future---Basic principle, so far as loss of earnings and out-of-pocket
expenses are concerned, is that injured person should be placed in the same
financial position, so far as can be done by an award of money he would have, had
the accident not happened.
British Transport Commission v. Gourley [(1956) AC 185]; Qazi Dost
Muhammad v. Malik Dost Muhammad 1997 CLC 546; Islamic Republic of
Pakistan v. Sh. Nawab Din 2003 CLC 991; Azziullah Sheikh v. Standard Chartered
Bank Ltd. 2009 SCMR 276; Mrs.Alia Tareen v. Amanullah Khan PLD 2005 SC 99;
C.K. Subramonia Iyar v. T. Kunhikuttan Nair AIR 1970 SC 376; Waldon v. War
Office [(1956) 1 WLR 51] and The Mediana (1900 AC 113 and Cooper v. Firth
Brown Ltd. [(1963) 2 All ER 31=[(1963) I WLR 418 rel.
(c) Civil Servants Act (LXXI of 1973)---
----S. 23-A---Suit for damages---Special or general damages---Determination---

Exercise of official authority---Mala fide acts---Plaintiff was civil servant who
suffered on account of official orders passed by the defendant which were based on
mala fide---Trial Court and High Court dismissed the suit filed by plaintiff---
Validity---Plaintiff while appearing as his own witness did not try to explain the
causes of damages except stating that due to acts of defendant, he had remained
jobless for four years; suffered loss of lacs of Rupees; his father died due to mental
torture; and he spent lacs of Rupees on litigation as well as on medical treatment of
his wife; it was therefore, necessary to determine in the light of evidence available
on record the expenses which plaintiff had actually and reasonably incurred for
medical treatment and litigation---Plaintiff could recover as special damages under
such head only the amounts so determined---Defendant objected to the manner in
which damages were claimed by plaintiff, which were round sum on each head---
Apparently damages were not based on any account; neither any breakup had been
given nor any explanation was offered in that behalf---Plaintiff had failed to
quantify special damages as such he was not entitled for the same---Plaintiff had
suffered mentally due to illegal acts of defendant, which were ultimately set aside
by competent forum---Plaintiff was entitled for general damages under the rule of
thumb---Supreme Court partly decreed the suit in favour of plaintiff.
Per Khilji Arif Hussain, J. agreeing with Amir Hani Muslim, J--
(d) Damages--
----Classification---'General damages' are such, as the law presumes to be natural

and probable consequences of defendant's act---'Special damages' are such as the
law does infer from wrongful act but those must, therefore, be specially claimed in
pleadings and proved through evidence thereof at the trial---Besides broad
classifications as general and special, damages may also be contemptuous damages;
nominal damages; punitive or exemplary; compensatory; and prospective damages.
(e) Damages---
----General damages---Determining factors---General damages must be such which

would compensate the injured---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 such reasons alone, courts do not
decline to grant compensation and formulate certain parameters and devise
principles for evaluation or assessment of such general damages---Ordinarily in
such cases just, fair and reasonable compensation is assessed and awarded to
victim---No yardstick or definite principle for assessing damages in such cases and
it becomes difficult to assess a fair compensation---Court in its discretion 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 damage---
General damages are those, which law implies in very violation of legal rights---
Such damages 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---Vital canon
followed by judicial mind in such cases is that conscience of court should be
satisfied that damages awarded would, if not completely, satisfactorily compensate
the aggrieved party---Adequate care should be taken in such regard while dilating
on quantum of awards and court 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 an indicator of abstemious parsimony,
but court should give the aggrieved party what it considers in all circumstances a
fair and reasonable compensation for his loss.
C.B. Singh v. Agra Cantonment AIR 1974 All. 147; West Pakistan Industrial
Development Corporation Karachi (WPIDC) v. Aziz Qureshi 1973 SCMR 555 and
Muhammad Hanif v. Muhammad Bashir 2004 YLR 173 rel.
(f) Tort--
----Law of torts---Applicability---Principles---Law of torts or civil wrongs in

Pakistan is almost wholly the English Law, which is administered as rules of
justice, equity and good conscience---Before applying any rule of English Law,
court has to see whether it suits to the society and circumstances.
(g) Tort--
----Malicious prosecution---Remedy---Where a claimant has been subjected to a

criminal prosecution, as a consequence of which he loses or risks losing his liberty
and/or his reputation, a remedy in the court of tort of malicious prosecution lies---
Institution of a civil action should exceptionally result in liability under tort, when
claimant loses the suit, the defendant's reputation is restored and he recovers his
cost spent on defending the action---For malicious proceedings in bankruptcy and
winding up, which may wreck claimant's business, destroy confidence in his
competence and integrity and in his company's goodwill, a remedy in tort lies.
(h) Malicious prosecution---
----Claim---Determining factors---To ground a claim for malicious prosecution

plaintiff must prove that the law was set in motion against him on a criminal
charge; that the prosecution was determined in his favour; that it was without
reasonable and proper cause; and that it was malicious.
Gregory v. Portsmouth Council (2001) 1 All.ER 560; Cavaley v. Chief Constable
(1989) All.ER 1025; Muhammad Amin v. Jogendra Kumar AIR 1947 PC 108;
Imran Raza Zaidi v. Government of Punjab 1996 PLC (C.S.) 691; Muhammad
Shafi v. Hamidan Bibi 1990 MLD 597; Abdul Rauf v. Abdul Hamid Khan PLD
1965 SC 671; Lucknow Development Authority v. M.K. Gupta AIR 1994 SC 787
and Yaqoob Shah v. XEN, PESCO (WAPDA) PLD 2002 SC 667 rel.
(i) Civil Servants Act (LXXI of 1973)---
----S. 23-A---Damages---Protection---Principle---Act of mala fide---Effect---

Protection provided under S.23-A of Civil Servants Act, 1973, to an officer is only
for the acts done 'bonafidely' but not for an act which is not bona fide---Malicious
acts are not protected under said provision of law---Any order passed malafidey in
colourable exercise of power cannot be termed as an act done in exercise of power
conferred by Act or Rules but in fact it is an act of abuse of power to which no
protection can be extended.
(j) Civil Servants Act (LXXI of 1973)---
----S. 23-A---Damages---Misuse of authority---Imposing markup/ interest on

damages---Various orders passed by defendant against plaintiff were result of
personal vendetta and without any basis, just to humiliate and torture him---
Plaintiff claimed for general damages aggrieved on account of mental torture,
damage to service career and legal expenses incurred by him---Supreme Court
found the plaintiff entitled to damages with markup/interest---In absence of any
statutory provisions, custom and usage, the defendant could not be burdened with
the interest/markup from the date of filing of the suit.
Messrs A.Z. Company v. Messrs S. Maula Bakhsh Muhammad Bashir PLD 1965
SC 505; Pakistan v. Waliullah Sufyan PLD 1965 SC 310; Messrs Ralli Brothers
Ltd. V. Firm Messrs Bhagwan Das Parmeshri Dass AIR 1945 Lah. 35; Jaggo Bai v.
Hari Har Prasad AIR 1947 Privy Council 173 and A. Ismailjee and Sons Ltd. v.
Pakistan PLD 1986 SC 499 rel.
Petitioner in person.
Hashmat Ali Habib, Advocate Supreme Court and M.S. Khattak, Advocate-on-
Record for Respondents Nos. 1 and 3.
Nemo for Respondent No.2.
Date of hearing: 15th July, 2011.
JUDGMENT
AMIR HANI MUSLIM, J. - Through this petition, the petitioner impugns the
judgment of the learned Lahore High Court by which it has denied damages
claimed by the petitioner in a suit against the respondents.
2. The relevant facts as they appear from the record are that the petitioner filed a
suit for recovery of damages to the tune of Rs.5.00 million against the respondents
before the Civil Judge, First-class, Mianwali.
3. The facts as has been pleaded in the plaint are that the petitioner applied for
L.P.R. on 13-5-2002, but later on, withdrew the same on 22-5-2002. On account of
mala fide on the part of respondent No.1, the L.P.R was allowed with effect from 2-
12-2002 and on appeal, the competent authority allowed the same and the petitioner
was reinstated in service. It was further pleaded that again retirement order was
issued by the respondent No.3 at the instance of respondent No.1 on the basis of
personal enmity. As a result of which, the petitioner challenged the said order
before the learned Federal Service Tribunal and the petitioner was reinstated in
service by the learned Tribunal.
4. The petitioner has pleaded in the suit that he has suffered huge losses during
the period when his L.R.R. was unauthorizedly allowed and further that on account
of unlawful order of reinstatement issued at the instance of respondent No.1, which
order was set aside by the Federal Service Tribunal. The petitioner in the plaint has
claimed the damages in the following terms:-
i. Damages to the service career, mental Rs.4,550,000/ - torture, death of my

father, health damage to my wife. ii. Illegal act of the then Administrator
Rs.2,00,000/ - defendant No.1 on LPR allowances are also ceased (sic) iii.
Lodging of 1st appeal in FST, Rs.50,000/ - Islamabad, travelling and staying
charging Court fee, Counsel fee iv. Lodging of 2nd appeal in FST, Rs.1,00,000/ -
Islamabad, travelling and staying charging Court fee, Counsel charges. v.
Lodging of 3rd appeal in FST, Rs.1,00,000/ - Islamabad, travelling and staying
charging Court fee, Counsel charges.
5. The written statement was filed by the respondents disputing the claim of the
petitioner and on the basis of the pleadings, the trial Court framed following
issues:--
(I) Whether the plaintiff has no cause of action to file the suit? OPD
(2) Whether the suit is not maintainable in its present form? OPD.
(3) Whether the plaint has not been verified in accordance with legal
requirements? OPD
(4) Whether the suit is bad due to mis-joinder of the parties.
(5) Whether this court lacks jurisdiction to try the suit? OPD.
(6) Whether the suit is liable to be dismissed in view of preliminary objection
Nos.6, 7 of written statement? OPD
(7) Whether the plaintiff has not come in the court with clean hands? OPD
(8) Whether the plaintiff is estopped by his words and conduct to file the suit?
OPD.
(9) Whether the plaintiff has filed frivolous suit and vexatious and defendants
are entitled for special costs? OPD.
(10) Whether plaintiff suffered mental torture by the act of the defendants and he
also suffered loss of reputation, loss of business, health and he is entitled for
the compensation of Rs.50,000/ -? OPD
6. After the evidence, the trial Court, by its judgment dismissed the suit of the
petitioner with compensatory costs of Rs.25,000/-. The petitioner preferred R.F.A.
before the learned Lahore High Court, which by its impugned judgment has
maintained the judgment of the trial Court.
7. It is contended by the petitioner that both the judgments of the learned courts
were erroneous as they have failed to appreciate the evidence brought on record by
the petitioner. According to him, he has suffered the injury and mental agony on
account of unauthorized acts of the respondent No.1. He has submitted that he has
proved the claim of damages before the trial Court and the courts below have
wrongly dismissed his suit overlooking the evidence brought on record.
8. On the other hand, the learned counsel for the respondents Nos.1 & 3
supported the impugned judgment of the High Court.
9. We have heard the petitioner in person, the learned counsel for the
respondents and have also perused the available record. The petitioner has brought
on record sufficient evidence which reflects the conduct of respondent No.1. The
orders passed by the respondent No.1 were reversed by the competent authorities
and they were found to be passed unauthorizedly. The petitioner has brought on
record a number of official documents through custodian of the record, which
documents were neither objected to nor their contents were challenged by the
respondents before the trial Court at evidence stage. It is, however, correct that the
petitioner has failed to quantify the damages claimed by him as required under the
law. This does not mean that the petitioner was not entitled to the grant of general
damages under the rule of thumb on the face of the material brought on record by
him during trial.
10. We have gone through the documentary evidence brought on record with the
assistance of the parties and we are of the view that the petitioner was entitled to
the grant of general damages for the mental agony which he has suffered on
account of the conduct of the respondents. The petitioner has pleaded specific
instances to establish personal vengeance against the respondent No.1, on account
of which he claimed to have suffered losses and mental agony. We may observe that
the pleadings and the evidence brought in support of the claim of damages by the
petitioner were sufficient to award general damages to the petitioner against the
respondent No 1.
11 . For the aforesaid reasons, we accordingly convert this petition into appeal
and partly allow the same setting aside the impugned judgment as well as the
judgment of the trial Court, award damages to the petitioner to the tune of
Rs.1,00,000 with mark up at the rate of 10% from the date of filing of the suit, till
the recovery of the entire amount against the respondent No.1 for his unwarranted
actions which resulted the petitioner to suffer mental agony and the injury as
pleaded by him in the suit. This amount shall be paid by the respondent No.1 from
his own pocket.
(Sd.)
Amir Hani Muslim, J
I agree and have also added my separate Note.
(Sd.)
Iftikhar Muhammad Chaudhry, C.J.
I have recorded my own reasons.
(Sd.)
Khilji Arif Hussain, J
IFTIKHAR MUHAMMAD CHAUDHRY, CJ.- I have had the benefit of

perusing the judgment rendered by my learned brother. I am in full agreement with
his conclusion; however, I would like to add a few lines in this regard.
2. In the instant case the petitioner has claimed damages on the basis of loss
caused to his service career; mental torture; death of his father; health damage to
his wife; and expenses for the litigation, which were allegedly caused due to the
mala fide acts on the part of respondent No. 1 .
3. At this stage, it is to be noted that there are two types of damages namely;
'special damages' and 'general damages'. The term 'general damages' refers to the
special character, condition or circumstances which accrue from the immediate,

direct and approximate result of the wrong complained of. Similarly, the term
`special damages' is defined as the actual but not necessarily the result of injury
complained of. It follows as a natural and approximate consequence in a particular
case, by reason of special circumstances or condition. It is settled that in an action
for personal injuries, the general damages are governed by the rule of thumb
whereas the special damages are required to be specifically pleaded and proved. In
the case of British Transport Commission v. Gourley [(1956) AC 185] it has been
held that special damages have to be specially pleaded and proved. This consists of
out-of- pocket expenses and loss of earnings incurred down to the date of trial, and
is generally capable of substantially exact calculation. The general damages are
those which the law implies even if not specially pleaded. This includes
compensation for pain and suffering and the like, and, if the injuries suffered are
such as to lead to continuing or permanent disability, compensation for loss of
earning power in the future. The basic principle so far as loss of earnings and out-
of-pocket expenses are concerned is that the injured person should be placed in the
same financial position, so far as can be done by an award of money, as he would
have been had the accident not happened. The same principle has been referred to
in the case of Qazi Dost Muhammad v. Malik Dost Muhammad (1997 CLC 546), in
the following terms:--
"It is a settled principle of law that in respect of special damages it is the duty of
an aggrieved person to prove each item of the loss, on the basis of evidence
and as far as general damages are concerned, relating to mental torture,
defamation etc. those are to be measured, following the 'Rule of Thumb',
according to which, discretion rests with the Court to calculate such
compensation keeping in view the attending circumstances of the case. As
far as inconvenience is concerned, this item can be considered while
assessing the general damages."
In the case of Islamic Republic of Pakistan v. Sh. Nawab Din 2003 CLC 991 the
principles for ascertaining the quantum of general and special damages have been
discussed in the following words:--
"13. ..Principle for ascertaining the quantum of general and special damages is
laid down in the leading case of Hadly v. Baxendale (1854) 9 Exch. 341
which clearly provides the distinction between the two. The provisions of
section 73 of the Contract Act, 1872 are not much different for purpose of
practical application. Claim for damages was rejected as being too remote in
the case of Banco de Portugal v. Waterlow and Sons Ltd. (1932) A.C. 452
and again in the case of Commell Lairds and Co. v. Managanese Bronze and
Brass Co. (1993) 2 KB 141. General damages naturally arising according to
the usual course of things from the breach of contract are recoverable in the
ordinary circumstances. Special damages are awarded in cases, as may
reasonably, be supposed to have been in contemplation of both parties at the
time of contract. The law does not record consequential damages arising of
delay in respect of money as one in the case of Graham v. Campbell. (1877)
7 Ch. D. 494 and Urquhart Lindsay and Co. v. Eastern Bank Ltd. (1992) 1
K.B. 318. Same view has been taken by honourable Supreme Court of
Pakistan in the case of Syed Ahmad Saeed Kirmani v. Messrs Muslim

Commercial Bank Ltd. 1993 SCMR 441."
While relying upon the above said judgment, this Court in the case of Azizullah
Sheikh v. Standard Chartered Bank Ltd. (2009 SCMR 276) has held as under:-
"6. The petitioners did not produce any evidence to show that in fact they
suffered any loss due to breach of contract. Solitary statement of petitioner
No.1 is not sufficient to decree the colossal suit amount, as P.W.2 did not
state anything about the damages. Besides the reasons advanced by the
learned High Court (single Bench and Division Bench) for declining the
total claim of the petitioners, we may add here that the petitioners through
production of evidence comprehensively failed to prove that due to breach
of contract they are in fact entitled to damages and to what extent, which are
sine qua non for the grant of damages under section 73 of the Contract Act.
Thus we are clear in our mind that the petitioners could not prove that they
suffered any loss. They also failed to prove, through production of evidence
on record, that they were entitled for decree of the total amount claimed in
the suit."
In the case of Mrs. Alia Tareen v. Amanullah Khan (PLD 2005 SC 99), it has been
held 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 attributed to the
defendants.
4. It is an admitted fact that human life is invaluable. Any effort at assessing its
loss in terms of money is an exercise nearing an impossibility. Although there can
be no compensation of mental tension and agony in monetary terms, as money
cannot renew a shattered human frame, but still the law has provided that on
account of damages, monetary compensation can be awarded, and so the Court
must do the best it can in the light of the facts of each case, on the basis of settled
principles of law. In the case of C.K. Subramonia Iyar v. T. Kunhikuttan Nair (AIR
1970 SC 376), the Indian Supreme Court has observed as under:--
"There can be no exact uniform rule for measuring the value of the human life
and the measure of damages cannot be arrived at by precise mathematical
calculations but the amount recoverable depends on the particular facts and
circumstances of each case. The life expectancy of the deceased or of the
beneficiaries whichever is shorter is an important factor. Since the elements
which go to make up the value of the life of the deceased to the designated
beneficiaries are necessarily personal to each case, in the very nature of
things, there can be no exact or uniform rule for measuring the value of
human life. In assessing damages, the Court must exclude all considerations
of matter which rest in speculation or fancy though conjecture to some
extent is inevitable. As a general rule parents are entitled to recover the
present cash value of the prospective service of the deceased minor child. In
addition they may receive compensation for loss of pecuniary benefits

reasonably to be expected after the child attains majority."
5. It is to be noted that it cannot be specifically declared that what should be the
right sum of damages in any particular case, and no two cases are alike. It cannot
be suggested that by any Arithmetic computation the exact sum of money could be
assessed, which would represent mental agony, pain and suffering which a person
has undergone. Reference in this behalf can be made to the cases of Singlete, J. said
in Waldon v. War Office [(1956) 1 WLR 51] and The Mediana (1900 AC 113). In
the case of British Transport Commission (supra), Lord Goddard has also observed
as under:--
"Damages which have to be paid for personal injuries are not punitive, still less
are they a reward. They are simply compensation, and this is as true with
regard to special damages as it is with general damages."
In a similar case titled as Cooper v. Firth Brown Ltd. [(1963) 2 All ER 31] =
[(1963) 1 WLR 418], Lawson, J. made the following observations:-
"It seems to me that the object of damages is to compensate the plaintiff for what
he has lost, and what he has lost is what would have been in his pay packet,
when he took it home and it seems to me that when special damages are
being calculated there should be deducted the amount of any National
Insurance contributions the plaintiff would have had to make, if he had
remained in work."
6. The principle is, therefore, well settled that damages are intended to put a
person in the same position as he would have been in, had he not received the
injury. We will endeavor to examine the measure of damages which the plaintiff is
entitled to get in the light of the above principles. In the instant case, the plaintiff is
only entitled to get as special damages all expenses actually and reasonably
incurred during the medical treatment of his family members; on the litigation
before the competent form, whereby, his claims were accepted and the orders of the
authority were set aside; and loss of earnings which would have accrued to him due
to non-payment of salary, etc., subject to the condition that the same are
specifically pleaded and proved. In this view of the matter, the petitioner has
claimed for Rs.45,50,000/- on account of damages to the service career, mental
torture, death of his father, health damage to his wife, as an item of general
damages. Second item relates to special damages on the ground of loss of
professional earnings. The petitioner has claimed Rs.2,00,000/- for the reason that
his LPR allowances were ceased due to illegal act of the then administrator,
defendant No.1 . In addition to it, the petitioner has claimed special damages
amounting to Rs.50,000/-, 1,00,000/- and 1,00,000/- respectively, by way of
compensation on account of three appeals filed before the Federal Services
Tribunal, Islamabad. For all these items the petitioner has not produced any
documentary proof in support of his claim. Further, while appearing as PW-I, he
did not try to explain the causes of the said damages except stating that due the acts
of respondent No.1, he remained job less for four years; suffered loss of lacs of
rupees; his father died due to mental torture; and had to spend lacs of rupees on
litigation as well as on the medical treatment of his wife. It is, therefore, necessary
to determine in the light of the evidence available on record the expenses which the
plaintiff has actually and reasonably incurred for the medical treatment and
litigation. The plaintiff can recover as special damages under this head only the
amount so determined.
7. The learned counsel for the respondent vehemently objected to the manner in
which damages were claimed by the petitioner. It is to be noted here that the
petitioner has claimed a round sum on each head. Apparently, it has not been based
on any account; neither any breakup has been given nor any explanation has been
offered in this behalf, therefore, the petitioner has failed to quantify the special
damages as such he is not entitled for the same. On the other hand, there is no
denial of the fact that the petitioner had to suffer mentally due to illegal acts of
respondent No.1, which were ultimately set aside by the competent forum.
Therefore, the petitioner is entitled for general damages under the rule of thumb,
detail of which has been provided in the concluding para. of the opinion given by
Mr. Justice Amir Hani Muslim.
(Sd.)
Iftikhar Muhammad Chaudhry, C J
KHILJI ARIF HUSSAIN, J.---I have had the privilege of going through the
opinion recorded by my learned brother Mr. Amir Hani Muslim, J. and note
annexed by the Hon'ble Chief Justice of Pakistan. With respect, I could not
persuade myself to agree with his lordship that the petitioner is entitled for markup
from the date of filing of the suit on the general damages awarded, and I would like
to give my own reasoning.
2. The conventional classification of damages was made under two broad heads,
(i) General Damages; and (ii) Special Damages.
3. General damages are such, as the law will presume to be natural and probable
consequences of the defendant's act. Special Damages are such as the law will not
infer from the wrongful act, but they must, therefore, be specially claimed in the
pleadings, and proved through evidence thereof at the trial.
4. Besides the broad classifications of General and Special Damages, damages
may also be of the following kinds:
(i) Contemptuous damages;
(ii) Nominal damages;
(iii) Punitive or exemplary;
(iv) Compensatory; and
(v) Prospective damages.
5. In Black's Law Dictionary (Fifth Edition) Compensatory Damages, Nominal
Damages, Presumptive Damages and Prospective damages have been defined as
under:---
Compensatory damages.- Compensatory damages are such as will compensate
the injured party for the injury sustained, and nothing more; such as will
simply make good or replace the loss caused by the wrong or injury.
Damages awarded to a person as compensation, indemnity, or restitution for
harm sustained by him."
Nominal damages.-Nominal damages are trifling sum awarded to a plaintiff in
an action, where there is no substantial loss or injury to be compensated, but
still the law recognizes a technical invasion of his rights or a breach of the
defendant's duty, or in cases where, although there has been a real injury, the
plaintiffs evidence entirely fails to show its amount."
Presumptive damages.-A term occasionally used as the equivalent of
"exemplary" or "punitive" damages."
Prospective damages.-Damages which are expected to follow from the act or
state of facts made the basis of a plaintiffs suit; damages which have not yet
accrued, at the time of the trial, but which, in the nature of things, must
necessarily, or most probably, result from the acts or facts complained of"
6. It is difficult to draw line between what are general damages and special
damages, but the line though it may be thin, is yet there.
7. In case of general damages, the well-established principle is that damages
must be such, which would compensate the injured. As far as money is concerned,
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 the courts have formulated certain parameters
and devised principles for evaluation or assessment of such general damages.
Ordinarily in such cases just, fair and reasonable compensation is assessed and
awarded to the victim. From the preponderance of authorities on this issue of
quantification, it emerges that 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, which 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 damage.
The general damages are those, which law will imply in very violation of 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
the aggrieved party. However, adequate care should be taken in this regard while
dilating on the quantum of awards and the 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 an indicator of
abstemious parsimony, but the Court should give the aggrieved party what it
considers in all the circumstances a fair and reasonable compensation for his loss.
8. The law of torts or civil wrongs in Pakistan is almost wholly the English Law
which is administered as rules of justice, equity and good conscience. However, in
Pakistani Courts before applying any rule of English Law it is to be seen whether it
suits to our society and circumstances.
9. The term 'Tort' is the French equivalent to English word 'wrong'. It means
breach of some duty independent of contract giving rise to a civil cause of action
and for which compensation is recoverable. The maxim that "The King Can Do No
Wrong" resulting that the Crown was not answerable for the torts committed by its
servant, was never applied in our country, like in case where due to negligence of a
driver of a car owned by the Government, damages have been awarded under tort
against the Government.
10. If a person has been malafidely prosecuted, it is to be presumed that some
damage to that party has resulted. He may or may not have suffered pecuniary loss,
but loss to his reputation and mental anxiety in every case is bound to result. A
plaintiff may recover damages for the distress, which normally results from being
prosecuted for a time without proving that he has suffered any emotional
disturbance. Damages of this kind are called general damages. While awarding
damages, the wounded feeling and injured pride of a plaintiff are taken into
consideration.
11. In the case of C.B. Singh v. Agra Cantonment (AIR 1974 Allahabad 147), it
was held that:--
"The next question relates to the quantum of damages. The most important
remedy which is available to a victim of tort is award of damages. The
conventional classification of damages is made under two head-general and
special. General damages are those which the law presumes to flow from the
negligence complained of. These damages must be proved, but it is not
necessary to allege them in detail in the statement of claim. Special damages
mean some specific item of loss which the plaintiff alleges is the result of
the defendant's negligence in the particular case, although it is not presumed
by the law to flow from the negligence as a matter of course. Full particulars
of all special damage must be given. The orthodox approach was to bring
the various head of damages under one or the other of these two classes, but
the practice of the courts has demonstrated that these head often overlap and
it is not always possible to maintain the distinction between them. Another
classification which seems to have evolved in actions for personal injury is
based on the distinction between damages which are capable of substantially
exact pecuniary assessment and those which are not. In this sense, 'special
damages' refers to loss which is capable of substantially exact pecuniary
assessment. It thus includes any loss of earnings suffered by the plaintiff
which has accrued by the date of the trial. It also includes such other items
as legal expenses, loss of pension rights, reduction of prospects of marriage
and even the consequent inability to pursue one's hobby etc."
12. In the case of West Pakistan Industrial Development Corporation Karachi
(WPIDC) v. Aziz Qureshi (1973 SCMR 555), it was held that proof of actual
damage is not always necessary in order that damages may be awarded. Every
injury, although without loss or damage, would entitle the plaintiff to judgment.
13. In the case of Azizullah Sheikh v. Standard Charted Bank Ltd. (2009 SCMR
276), despite the plaintiff has failed to prove quantum of damages, this Court
maintained the award of damages of US$175.
14. In the case of Muhammad Hanif v. Muhammad Bashir (2004 YLR 173),
Supreme Court (AJK) upheld the decree of damages for malicious prosecution
keeping in view the status of the plaintiff.
I would like to discuss the issue in the matter from three different following
angles:--
(i) Whether remedy of tort can be extended to departmental proceedings against
a civil servant?,
(ii)..Whether after passing of order by the Federal Service Tribunal, set aside the
said order without cost, which order attained finality, can another suit for
cost of proceedings is maintainable? and
(iii) Whether the petitioner proved mala fide in exercise of official authority by
the respondent No.1 if so, can he claim general damages against him?
16. The petitioner in memo of plaint filed on 17-7-2006 alleged that respondent
No.1, the then Administrator of Pakistan Atomic Energy Commission (PAEC) due
to some personal grudge/mala fide intention had forced him to proceed on LPR
with effect from 2-12-2002 for which he had never applied for.
17. The petitioner filed departmental representation against the said order of
retirement on 26-12-2002 and appeal before the Federal Service Tribunal on 12-11-
2003, however, he was reinstated within four days after filing the appeal i.e. on 25-
11-2003 by the departmental authority which establishes the fact that the
respondents knowingly acted against the rules.
18. From the perusal of record, it appears that the respondent No.1 thereafter
once again passed order of retirement of the petitioner against which departmental
representation filed by the latter was turned down where-after the petitioner
approached the Service Tribunal, which set aside the order passed by the authority
without awarding any cost. The petitioner thereafter filed the suit claiming damages
under Torts as well as for the cost he claimed to be incurred on defending the
proceedings.
19. The learned trial Court dismissed the suit, which order was maintained by
the High Court.
20. Where the claimant has been subjected to a criminal prosecution, as a
consequence of which he loses or risks of losing his liberty and/or his reputation, a
remedy in the tort of malicious prosecution will lie. The institution of a civil action
should exceptionally, results in liability under tort, when the claimant loses the suit,
the defendant's reputation is restored and he recovers his cost spent on defending
the action. However, for malicious proceedings in bankruptcy and winding up,
which may wreck the claimant's business, destroy confidence in his competence
and integrity and in his company's goodwill, a remedy in the Tort will lie.
21. It is well-known that a person who is maliciously prosecuted on a criminal
charge can sue in tort for damages if the prosecution ends in his acquittal and the
prosecution was malicious in the sense that it was without any reasonable cause. To
ground a claim for malicious prosecution a plaintiff must prove (1) that the law was
set in motion against him on a criminal charge; (2) that the prosecution was
determined in his favour; (3) that it was without reasonable and proper cause; and
(4) that it was malicious.
22. The question whether a person can also claim damages for maliciously
prosecuted in disciplinary proceedings has quite recently been examined by the
House of Lords in the case of Gregory v. Portsmouth Council (2001) 1 All ER 560
and after extensive survey of the proceedings and textbooks Lord Steyn noted:--
"In England law the tort of malicious prosecution has never been held to be
available beyond the limits of criminal proceedings and special instances of
abuse of civil legal process. Specifically, it has never been extended to
disciplinary proceedings of any kind. On the contrary, it has been stated by
the House of Lords that this tort does not extend to disciplinary proceedings.
The point arose in Calvelev v. Chief Constable of the Merseyside Police
(1989) 1 All ER 1025, (1989) AC 1228. The House held that there was no
common law duty of care owed by a Chief Constable to a police officer who
was the subject of disciplinary proceedings. Lord Bridge of Harwich,
speaking for a unanimous House, observed:
"Where no action for malicious prosecution would lie, it would be strange
indeed if any acquitted defendant could recover damages for negligent
investigation." (1989) 1 All ER 1025, at 1030, (1989) AC 1228, 1228, at
1238. In other words, Lord Bridge observed that since the tort of malicious
prosecution is unavailable it flows a fortiori that an action in negligence
does not lie. Having mentioned Calveley's case, which was not cited in
argument, I entirely accept that on this appeal the correctness of the

observation by Lord Bridge must be considered:
Lord Steyn thus concluded:
"I would hold that tort of malicious prosecution does not extend to disciplinary
proceedings."
23. In Cavaley v. Chief Constable (1989)1 ALL ER 1025, certain police officers,
on complaints, had been the subject of disciplinary proceedings. The complaints
had been either dismissed, quashed on appeal or discontinued. The police officer
brought action claiming damages for loss of overtime pay and general damages for
anxiety, vexation and injury to reputation. The trial Judge struck out the claim
holding that no action lay for damages against the police for the way in which they
conducted the disciplinary inquiry. The officers appealed. The Court of appeal
dismissed their appeals. The officers further appealed to the House of Lords. Their
appeals were also dismissed for the reason that police officers whose conduct had
been subject of a disciplinary proceedings who alleged that the proceedings had
been mis-conducted had no cause of action. Lord Bridge who spoke for the
unanimous House examined the police officers' right for damages from the point of
view whether the police was in breach of statutory duty in conducting the
proceedings or was guilty of negligence or misfeasance in public office, and from
all angles the House concluded that disciplinary proceedings do not provide cause
of action for damages even if disciplinary proceedings ended in the acquittal of the
person proceeded against.
24. The above analysis show that where an employee who was wrongfully
dismissed from service to his position he is entitled to that salary for the period he
remained out of job from his employer, but he is not entitled to sue in tort to claim
damages on account of the injury to his reputation due to wrongful dismissal or for
tort of malicious prosecution of disciplinary proceedings.
25. In the case of Muhammad Amin v. Jogendra Kumar (AIR 1947 PC 108), it
was held that:--
"the word 'prosecution' in the title of the action is not used in the technical sense
which it bears in criminal law is shown by the fact that the action lies for the
malicious prosecution of certain classes of civil proceedings, for instance
falsely and maliciously presenting a petition in bankruptcy or a petition to
wind up a company: (1883) 11 Q.B.D 674. The reason why the action does
not lie for falsely and maliciously prosecuting an ordinary civil action is as
explained by Brown L.J. in the last mentioned case, that such a case does
not necessarily and naturally involve damage to the party sued. A civil
action which is false will be dismissed at the hearing. The defendants
reputation will be cleared of any imputations made against him, and he will
be indemnified against his expenses by the award of costs against his
opponent. The law does not award damages for mental anxiety or for extra
costs incurred beyond those imposed on the unsuccessful party."
26. I am in agreement with the reasoning recorded in the cases of Gregory and
Muhammad Amin (supra) that remedy of tort normally cannot be extended to
departmental disciplinary proceedings.

WHETHER THE PETITIONER CAN CLAIM COST OF THE PROCEEDINGS
BEFORE THE SERVICE TRIBUNAL BY FILING SUIT.
27. In the appeals filed by the petitioner, the Service Tribunal, while granting
him relief, did not award cost and this order was not called in question by the
petitioner by filing an appeal and as such attained finality.
28. The Service Tribunal under Section 5 of the Service Tribunals Act, 1973,
exercises the jurisdiction of a Civil Court under the Code of Civil Procedure 1908,
which it has to exercise judicially, keeping in view the recognized principles of law.
29. In the case of Imran Raza Zaidi v. Government of Punjab (1996 PLC (C.S.)
691), this Court held that the Tribunal is deemed to be a Civil Court having all the
powers which are vested in the Civil Court under Order XXXIX, Rules 1 and 2 of
C.P.C. and of the Appellate Court under Order XLI, Rule 5 of C.P.C and that the
Tribunal can award cost while deciding the appeal before it in exercise of powers
under section 35-A of the Civil Procedure Code, 1908.
30. In the case of Muhammad Shafi v. Hamidan Bibi (1990 MLD 597), Lahore
High Court, Lahore, while dealing with the same question held as under:--
"4. After hearing the learned counsel for the parties and having considered the
various provisions of law, the conclusion is inescapable that no separate suit
can be filed for recovery of costs incurred or damages suffered on account
of institution or defence of a previous civil suit. Under Section 35 of the
C.P.C. the Court while deciding a suit is empowered to grant cost to the
affected party. Similarly section 35-A of the C.P.C. provides Panacea for the
loss suffered by a person in case the action brought against him is found to
be frivolous, vexatious and mala fide. In these circumstances, it cannot be
contended with any success that a separate suit can be filed notwithstanding
that while deciding the earlier suit, the Court had declined to grant any cost
or had granted costs which are considered to be inadequate."
In this view of the matter, the petitioner is not entitled for the relief to the extent
of cost of proceedings claimed by him.
Whether the respondent No.1 acted malafidely by while exercising his official
authority, and if so, whether he can claim indemnity under Section 23-A of the
Civil Servants Act, 1973.
31. From perusal of the record, it appears that the petitioner
applied for the grant of 365 days LPR with effect from 26-7-2002, conditionally
vide his application dated 13-5-2002. Before his application for grant of LPR was
accepted, he moved another application dated 22-5-2002, wherein he requested that
LPR already applied for may be treated as withdrawn and he may be granted 115
days LFP with effect from 23-5-2002 to 14.09.2002 for construction of the house.
His request was duly recommended by Acting Manger (S&F), but he was granted
61 days LFP with effect from 1-6-2002 to 31-7-2002 and his case for grant of LPR
was closed. However, after a lapse of more than two months he was granted 365
days LPR with effect from 2-12-2002 by the respondent No.1 at his own accord for
which the petitioner never applied for.
32. It also appears that the departmental authorities did not dispute that the case of
withdrawal of petitioner's LPR was not properly processed, in accordance with the
relevant provision of law, and the order was passed in violation of the relevant rules
and due to mala fide intention on the part of respondent No. 1. In these
circumstances, the appellate authority decided to withdraw the notification of LPR
dated 2-12-2002, passed by respondent No.1 and allowed the petitioner to re-join
the service.
33. We are quite conscious of the fact that Section 23-A of the Civil Servants
Act, 1973 provides indemnity that no suit, prosecution or other legal proceedings
shall lie against a civil servant for anything done in his official capacity, but the
said indemnity is subject to that the act has been done in good faith or intended to
be done under this Act or the rules. It is evident from the record that the order
passed by respondent No.1 against the petitioner was not an act of bona fide on his
part, in discharging of his duty, but an act of mala fide and too being vindictive
against the petitioner. The protection provided under Section 23-A of the Act to an
officer is only for the acts done " bonafidely" but not for an act, which is not bona
fide, and malicious acts are not protected under the said provision of law. Any order
passed malafidely in colourable exercise of power cannot be termed as an act done
in exercise of power conferred by Act or Rules, but in fact it is an act of abuses of
power to which no protection can be extended. A mala fide act is by its nature an
act without jurisdiction. In the case of Abdul Rauf v. Abdul Hamid Khan (PLD
1965 Supreme Court 671), it was held that a mala fide act is by its nature an act
without jurisdiction. No Legislation when it grants power to take action or pass an
order contemplates a mala fide exercise of power. Malice in law is said to mean the
intentional doing of a wrongful act without just cause or excuse, due to against a
person.
34. In the case of Lucknow Development Authority v. M. K. Gupta (AIR 1994
Supreme Court 787), it was held that public administration, no doubt involves a
vast amount of administrative discretion which shields the action of administrative
authority. But where it is found that exercise of discretion was mala fide and the
complainant is entitled to compensation for mental and physical harassment then
the officer can no more claim to be under protective cover. When a citizen seeks to
recover compensation from a public authority in respect of injuries suffered by him
for capricious exercise of power and the National Commission finds it duly proved
then it has a statutory obligation to award the same. It was never more necessary
than today when even social obligations are regulated by grant of statutory powers.
The test of permissive form of grant is over. It is now imperative and implicit in the
exercise of power that it should be for the sake of society. When the Court directs
payment of damages or compensation against the State the ultimate sufferer is the
common man. It is the tax payers' money which is paid for inaction of those who
are entrusted under the Act to discharge their duties in accordance with law. It is,
therefore, necessary that the Commission when it is satisfied that a complainant is
entitled to compensation for harassment or mental agony or oppression, which
finding of course should be recorded carefully on material and convincing
circumstances and not lightly, then it should further direct the department
concerned to pay the amount to the complainant from the public fund immediately
but to recover the same from those who are found responsible for such
unpardonable behaviour by dividing it proportionately where there are more than
one functionaries.
35. This Court, in the case of Yaqoob Shah v. XEN, PESCO (Wapda) (PLD 2002
Supreme Court 667), held as under:--
"Therefore, keeping in view this aspect of the case, we have held that Umar
Farooq Bangash, XEN (PESCO) and Gohar Ali SDO (PESCO) Rehman
Baba, Peshawar, are responsible for making payment of back benefits
concerning the payment of past salaries of the petitioner from the date of his
termination till the date of reinstatement at the ratio of 60% + 40%
respectively within 30 days, after receipt hereof. If said amount is not paid
by both the officers i.e. Umar Farooq Bangash, XEN and Gohar Ali, SDO,
voluntarily, then compulsory deduction should be made from their
pensionary benefits and balance, if need be, shall be recovered from their
current salaries, accordingly. Such order against them is being passed by
way of imposing costs upon them in the interest of justice in terms of Order
XXV, rule 10 of the Supreme Court Rules, 1980. In addition to it, Wapda
will also proceed against them separately for not discharging their duties
according to rules."
36. I have carefully scanned the documents on record and came to the
conclusion that various orders passed by respondent No.1 against the petitioner are
result of personal vendetta and without any basis, just to humiliate and torture him,
and as such the petitioner is entitled to the general damages.
CAN THE COURT GRANT MARK-UP/INTEREST FROM THE DATE OF
FILING OF SUIT WHILE GRANTING GENERAL DAMAGES.
37. Facts of the case in some detail have been given in the reasons recorded by
my learned brother Amir Hani Muslim, J which can be summarized as:
(i) that the petitioner was an employee of Pakistan Atomic Energy Commission;
(ii) that the petitioner applied for retirement after completion of 25 years service
on 13-5-2002;
(iii) that the petitioner was forced to proceed on LPR;
(iv) that petitioner's departmental representation against the order of retirement
was accepted;
(v) that order of force LPR was set aside by Federal Service Tribunal, when
questioned by the petitioner by filing an appeal;
(vi) that the petitioner had filed two further appeals before Federal Service
Tribunal against different orders of the department passed by respondent
No.1 which too were set aside by the Tribunal;
(vii) that the petitioner filed suit in 2004 claiming damages, detail whereof has
been given in para. 4 of the reasoning recorded by my learned brother Amir
Hani Muslim, J;
(viii) that the suit after recording evidence, was dismissed with special cost of
Rs.25000/- vide judgment dated 26-2-2010; and
(ix) that the appeal filed by the petitioner was dismissed on 9-2-2011.
38. In the case of Messrs A.Z. Company v. Messrs S. Maula Bakhsh Muhammad
Bashir (PLD 1965 SC 505), a three Members' Bench of this Court held that:--
"A great numbers of decision under the Interest Act are not easily reconcilable,
but so far as the grant of interest by way of damages is concerned there is no
much difference in judicial opinion. Hence generally in the absence of an
express or implied contract to pay the interest, or usage of trade, interest
cannot be allowed on damages for breach of contract.
It was further held that the right of the seller under the agreement (with an
arbitration clause requiring application of rules of Karachi Cotton Association
Ltd.), is to have compensation assessed by the Arbitrators and until the amount had
been so determined there is no sum certain payable to the seller upon which interest
can run. Therefore, mere fact of issue of a debit note by the seller in respect of the
claim would not bring the case under the Interest Act.
In a note authored by Hon'ble Kaikaus, J, it was held that under Section 1 of the
Interest Act in case where interest was not already payable by law, permit interest
where the sum claimed is already ascertained. It only allows interest, apart from
contract, in cases where the sum ascertained is due and a notice has been given that
interest will be charged.
39. In the case of Pakistan v. Waliullah Sufyan (PLD 1965 SC 310), it was held:
"I have considered with some care whether the allowance of interest by the High
Court is supportable. Where a person has expended money for the benefit of
another, and is obliged to sue the latter to recover his money, it is
appropriate that the debtor should be required to compensate the creditor for
being deprived of the use of his money during the period covered by the
litigation and the subsequent period preceding full recovery. Interest cannot
in my view be allowed on this basis unless the debtor has derived actual
benefit from the outlay. But where the liability is wholly vicarious, having
to be borne exclusively in a representative capacity, to place such a burden
of interest upon the debtor would in my opinion neither be just nor
equitable. Once the liability is finally determined by the Courts, there would
be a duty upon the debtor to meet it, and therefore to impose interest, as
from the date of the final determination, until payment in full would be both
just and equitable."
40. In the case of Messrs Ralli Brothers Ltd. v. Firm Messrs. Bhagwan Das
Parmeshri Dass, (AIR 1945 Lahore 35), it was held that:--
"The only other question for determination is whether the plaintiffs should be
awarded any interest on the amount of damages sustained by them. Mr.
Mahajan very frankly admitted that ordinarily no interest is allowed on the

amount of damages arising out of breach of contract."
41. In the case of Jaggo Bai v. Hari Har Prasad, (PLD 1947 Privy Council 406),
it was held that:--
"Their Lordships feel no doubt that the defendants refused to carry out the sale
agreement, and counsel for the appellant naturally felt unable to contend
that, if this were the true view of the matter, the claim for return of the
Rs.26,000 paid to the appellant could be resisted. He did, however, attach
that portion of the decree of the High Court which awarded interest from 16-
12-1928 onwards contending that no interest should be awarded, or
alternatively, that no interest should be awarded prior to 20-2-1937 when the
respondent abandoned his claim for specific performance of the sale
agreement. Their Lordships agreed with the alternative contention. They are
prepared to assume in favour of the respondent, without deciding the point,
that interest could be awarded for an earlier period, but they are clearly of
the opinion that the discretionary power to award such interest, if it exists,
should not be exercised in the circumstances of the present case. During the
whole of the period prior to 20-2-1937, the respondent was claiming specific
performance of the sale agreement against both defendants to the action-a
form of relief which, in their Lordships' view, he could never have obtained.
The respondent had never, during that period, made any demand and for
repayment of the Rs.26 000 save the demand in the plaint, which was
conditional upon the Court expressing the opinion that a decree for specific
performance of the contract could not be passed. At any time prior to 20-2-
1937, the appellant could have resisted any claim for repayment of this sum
on the ground that the respondent was still seeking specific performance and
that, if he obtained that relief the appellant would be entitled to retain this
part of the purchase price. As from 20-2-1937, having regard to the
abandonment of the claim for specific performance, the respondent was
rightfully claiming the return of the Rs.26,000 and the appellant was
wrongfully withholding that sum from him. In these circumstances, their
Lordships think that an award of interest at 4 per cent, as from that date, but
from no earlier date, does justice between the parties."
42. In the instant case, the petitioner claimed for general damages aggrieved on
account of mental torture, damage to service career and legal expenses incurred by
him and for the first time, this Court determined the amount of damages for which
the petitioner is entitled. In the absence of any statutory provision custom and
usage, the respondent cannot be burdened with the interest/mark-up from the date
of filing of the suit.
43. In the case of A. Ismailjee and Sons Ltd. v. Pakistan (PLD 1986 SC 499), by
a four Members Bench of this Court, when the case remained pending for about 12
years before it could be decided, held that:
"These are indeed weighty submissions but they ignore the fact that on the date
of suit the claim of the plaintiffs was for an unascertained sum, as damages
for breach of contract, which had to be determined by the Court. There

would, therefore, be no justification to burden the Government with the
payment of interest when they did not know what their liability in terms of
money as the principal amount towards damages was. Whether the plea
taken by the Government was vexatious was a matter for the trial Court to
comment upon and there is no such observation by that Court. However,
once the Court determined a sum certain and passed a decree, obviously the
plaintiffs being deprived of the amount due and payable to them on that
date, required to be compensated by award of interest. Although the High
Court did not expressly assign this reason for refusing the pendent lite
interest, we feel that the discretion exercised by it is reasonable and
consistent with equitable principles. No interference with the decision of the
High Court that interest be allowed from the date of the decree passed by the
trial Court is therefore warranted."
44. In the instant case, it appears that for the reasons best known to the
respondents various orders passed against the petitioner apparently due to some
vengeance were set aside by the Courts of competent jurisdiction and definitely the
petitioner must have spent expenses and time to get the said orders set aside, but for
what amount, if any, the respondents were liable to pay, becomes ascertainable on
the date when the court determines the said amount.
45. Having considered the matters from all angles and that of other, I agree with
the reasoning recorded by the Hon'ble Chief Justice of Pakistan and my learned
brother Amir Hani Muslim, J that in the giving circumstances, the petitioner is
entitled for general damages of Rs.100,000 (Rupee One Lac Only). However, I with
great respect disagree that the petitioner is entitled for the mark-up from the date of
filing of the suit, but is entitled for mark-up at the rate of 10% per annum from the
date of decree of the suit till the recovery against the respondent No.1, which is
reasonable amount looking to the issue in the matter.
(Sd.)
ORDER OF THE BENCH
The petitioner is entitled for damages to the tune of Rs.1,00,000 with mark-up at
the rate of 10% till the date of recovery of the amount. Petition is converted into
appeal and allowed.
(Sd.)
Iftikhar Muhammad Chaudhry, C.J.
(Sd.)
(Sd.)
Amir Hani Muslim, J
M.H./A-53/S Appeal allowed.

P L D 2012 Supreme Court 80 Damage

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10/24/23, 4:35 AM P L D 2012 Supreme Court 80

P L D 2012 Supreme Court 80

Civil Petition No.463 of 2011, decided on 19th September, 2011.

(a) Civil Servants Act (LXXI of 1973)---

----S. 23-A---Suit for recovery of damages---Exercise of official authority---Mala

----'General damages' and 'special damages'---Distinction---Term 'general damages'

(c) Civil Servants Act (LXXI of 1973)---

----S. 23-A---Suit for damages---Special or general damages---Determination---

----Classification---'General damages' are such, as the law presumes to be natural

----General damages---Determining factors---General damages must be such which

----Law of torts---Applicability---Principles---Law of torts or civil wrongs in

----Malicious prosecution---Remedy---Where a claimant has been subjected to a

(h) Malicious prosecution---

----Claim---Determining factors---To ground a claim for malicious prosecution

(i) Civil Servants Act (LXXI of 1973)---

----S. 23-A---Damages---Protection---Principle---Act of mala fide---Effect---

(j) Civil Servants Act (LXXI of 1973)---

----S. 23-A---Damages---Misuse of authority---Imposing markup/ interest on

i. Damages to the service career, mental Rs.4,550,000/ - torture, death of my

IFTIKHAR MUHAMMAD CHAUDHRY, CJ.- I have had the benefit of

special character, condition or circumstances which accrue from the immediate,

Pakistan in the case of Syed Ahmad Saeed Kirmani v. Messrs Muslim

addition they may receive compensation for loss of pecuniary benefits

compensation. In these circumstances, it is the discretion of Court, which may on

argument, I entirely accept that on this appeal the correctness of the

departmental disciplinary proceedings.

Mahajan very frankly admitted that ordinarily no interest is allowed on the

for breach of contract, which had to be determined by the Court. There

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