PROVINCE OF PUNJAB and 3 others vs Dr. MUHAMMAD DAUD KHAN TARIQ

1. ' MUHAMMAD AFZAL ZULLAH, C.J.---In this appeal through leave of the Court the facts and circumstances as also the point for examination were noted in the ing order as follows:- "The respondent was authorised rice dealer entitled to store and husk paddy. For non-filing of report of the stock, his goods were seized on 4-6-1969 and he was prosecuted. He was acquitted of the charge and it was directed that the rice and paddy wrongly seized be returned. This is vide order of a learned Magistrate dated 1-7-1974 (sic) for malicious prosecution as well as for recovery of damages for seizure of his goods and their sale at a lower price. Two issues were framed by trial Court whether the suit is within time; and whether the plaintiff is entitled to recover the suit amount from the defendants as damages and compensation. The learned trial Couit prescribed a period of one year for bringing a suit for damages for malicious prosecution considered the suit to be out of time and dismissed the same vide judgment and decree dated 24-4-1983. He filed RFA No,43 of 1984. It was observed by the learned Judge of the High Court that 'at least the suit to the extent of claim for loss on account of sale of the appellant's goods at a lesser price and other charges he had to incur fell under Article 49 of the First Schedule of the Limitation Act, 1908, and was within time. The learned counsel for the respondents could not controvert this contention. No doubt the suit for compensation for malicious prosecution was time-barred. As it had been brought more than a year after the' appellant's acquittal and termination of his prosecution yet the suit for compensation for wrongful seizure and detention of the appellant's property was well within time.

2. The appellant's claim in this behalf to the tune of Rs,32,937.08 in the absence of any evidence in rebuttal from the respondents' side, cannot but he taken to be valid. The appeal is partially accepted and the decree of the learned trial Court is modified to that extent that the appellant's suit for relization of Rs,32,937.08 is decreed with proportionate costs throughout'. This is vide judgment and decree dated 5th of March, 1988. The petitioners seeks leave to appeal."

3. ' Contention of the learned counsel for the petitioners is that even if the suit for wrongful seizure of the respondent's goods and their sale at a lesser price was within limitation, it could not simply be decreed ipsi dixit without there being any evidence whatsoever because the learned trial Court as well as the appellate Court had dismissed the respondent's suit on the ground of limitation in respect of malicious prosecution. No evidence in respect of the actual loss or liability of the petitioners was recorded. Therefore, for the trial of the issue regarding the damages and compensation on account of seizure of the respondent's goods and their sale at a lower price, the matter should have been remanded to the Court of first instance for recording of evidence of the parties in respect to this claim. The suit could not be decreed straightaway.

4. "Leave is granted to consider the aforesaid contention."

5. ' It is no doubt that no evidence was recorded with regard to the loss which has been determined at Rs,32,937.08 as against the claim of the respondent amounting to a couple of sacs of rupees.

6. When questioned as to how such a detailed figure including paisas eight were worked out the learned counsel for the respondent stated it was on account of the rates admitted to be prevalent on the relevant dates. He also asserted that this aspect of the said counting of Rs32,937.08 was not disputed in the High Court.

7. ' This case was partly heard yesterday and the learned counsel for the appellants was told to seek instructions on the question; as to whether, if the case is remanded, the appellants could succeed in resisting the claim in so far as the merits of the case are concerned.

8. ' It was thought proper to do this exercise because even if the appeal was allowed on a technicality and the case is remanded for re-trial may be the Government is then obliged to pay even more than what has been decreed in respondent's favour. In that case it was further observed that the counsel may succeed but the appellant, the custodian of public exchequer, would fail and thus the public exchequer and the tax-payer shall also suffer.

9. ' The learned counsel, who from his own re-action appeared to have a double thought on the success of the appellants in case of remand, sought time. When he appeared today he wanted to pursue the appeal notwithstanding the visualised damage or loss to the appellants and the public exchequer. As it is not against any principle for the Courts of this country to protect the interest of the tax-payers as well as the public exchequer notwithstanding the follies or illogical and some times even casual attitude of the custodians of the public exchequer, we called upon both the learned counsel to assist us on the merits of the case, as are available on the present record.

10. Learned counsel for the appellants then raised two obviously immoral defence pleas on behalf of the Government which, it has been consistently ruled by the Superior Courts, could not be accepted when raised on behalf of the custodian of public order and morality. On merits the learned counsel for the appellants did not deny that the minimum amount that could be decreed in favour of the respondent keeping in view the price on the relevant dates would be Rs,32,937.08.

11. That being so, we consider it as a case of no contest, on a very vital point by the appellants. We do not consider it proper to allow this appeal on any technical plea or even on the plea noted in the order. There is thus no alternative but to withdraw the order, as on account of the aforestated reasons there is no, force in the point noted therein, either. There shall be no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.