Tort
Damages—The
authority of the Crown would afford no defense to an action brought for an
illegal act committed by an officer of the Crown as the Sovereign cannot
authorize a wrong to be done. A person deprived of his goods due to no fault of
his is entitled to recover damages from loss of the goods due to the
intermeddling of the defendant investigating officer without legal authority.
1 PLR (Dac) 106.
Quantum—Suit for
compensation arising out of death caused by fatal accident—Appellate Court
would not interfere only because it would have awarded a different sum—Onus to
prove that the amount awarded is excessive is very heavy.
Lim Joo
Chiang Vs. Lim Slew Choo (1959) II DLR (PC) 84.
—Where the
goods insured arc partially damaged (n the present case the plaintiff sought to
recover compensation from the insurance company in respect of II sets of
sanitary wares of which some component parts were broken claiming full price of
those II sets without notice of abandonment), the insured cannot claim to
recover full price in respect of the damaged goods from the under-writer
without serving notice of abandonment on the under-writer that he is ready to
abandon and to make over the damaged goods to the latter, it not being open to
him to keep the damaged goods, as well as claim damages for them.
B.K. Rakshit
& Co. Vs. Federalion of Pak (1959) 11 DLR 106.
—It was
contended on behalf of the defendant- respondents that when the plaintiff based
his claim on the basis of total loss, constructive or actual, the plaintiff is
not entitled to get any decree on the basis of partial loss.
Held: Plaintiff
can be awarded a decree for partial loss even if he did not claim it in his
plaint which was framed on the basis of total loss.
Even if no
notice of abandonment is served, the insured’s whole claim will not be defeated
but he would be entitled to recover partial compensation in respect of the
damaged goods.
B.K. Rakshii
& Co. Vs. Federation of Pak (1959)11 DLR 106.
—Ship-owner’s
liability to pay damage for goods shipped where the bill of lading contained
the clause that the goods were shipped”in apparent good order and condition”.
Abdur Rahman
Abdul Gani Vs. United Oriental Steamship Co. (1959)11 DLR 133.
Damage—suit
for—A
Magistrate acting in a judicial capacity is not liable for acts done within his
jurisdiction but he is liable to an action for imprisonment if he unlawfully
commits a person in a matter in which he has no jurisdiction, provided that he
has knowledge or means of knowledge of the facts which show that he has no
jurisdiction.
A Magistrate
who is sued for wrongful arrest or detention is Protected under the Judicial
Officer’s Protection Act as soon as he shows that he was acting in the discharge
of his judicial duty and within jurisdiction. If he was acting in the discharge
of his judicial duty but outside his jurisdiction the Act gives him a good
defense if he at the time in good faith believed himself to have jurisdiction.
The good faith relates to the belief in jurisdiction. 54 CWN (2 DR) 71.
Damage caused to crops by overhanging trees—Damage recoverable.
Where the
plaintiff has established that damage was caused to his crops by the
over-hanging trees belonging to the defendant an action for the recovery of
damages would lie against the defendant, in spite of the fact the plaintiff has
the right to remove the over-hanging branches.
Abdul Gafur
Miah Vs. Abdul Gafur (1960)12 DLR 629.
Damage—When
payable for negligence of defendant—Contributory negligence of plaintiff—Injury
caused during trespass— Effect of.
The
appellant was crossing a railway line at a place other than level crossing. The
visibility was poor at that time. A railway wagon in contravention of
departmental rules was set in motion and hit the appellant who could not see it
due to the dust storm so as to avoid the accident.. The appellant claimed
damages for the injury.
Held: (a) To an
action based on an allegation of negligence, it was not only necessary for the
plaintiff to prove that the defendant or his agents or servants were negligent
but also to show that the negligence was the real or proximate cause of the
accident;
(b) Mere
negligence on the part of the plaintiff did not disunity him to damages for the
injury caused unless it could also be held that his negligence was the direct
or proximate cause of the injury;
(c) In the
present case the accident took place on account of gross negligence on the part
of the respondent’s employees which negligence amounted to willful default. (1960)
PLR I (Lah.) 281.
Defamation—A
Magistrate who was deputed to select Sarpanch in a village in Sylhet district,
said to the plaintiff who was candidate for Sarpanchship in presence of the
assembled villagers, that there was a police report against him and therefore
he could not be elected as a Sarpanch. The plaintiff thereafter instituted a
suit for damage against the Magistrate alleging that the Magistrate’s statement
about the police report was false and by the said slanderous statement the
plaintiff was defamed.
Held: The case
has to be decided not on the principles of the English Common Law of slander
but according to justice, equity and good conscience. The plaintiff’s suit must
fail since what the defendant had said was from a sense of duty in order to
protect public interest.
Mukunalla
Vs. Sukumar Bhatiacharyya (1952) 4 DLR 589.
—Words
spoken or written in professional capacity during litigation, Counsel’s
privilege.
An advocate,
while replying to a notice given to his clients by A and acting on the
instructions of his clients, defamed A’s brother. In the course of the trial of
the suit brought by A the advocate orally defamed A’s brother and in the
written statement in that suit the advocate and his clients also defamed A’s
brother, As brother then sued the advocate and the latter’s claim for damages
for defamation.
Held: It is not the law in Pakistan that in the tort of defamation
absolute privilege is not a defense. (1960) PLR (WP) 244.
Liability in
tort is joint and several— one person can be sued.
The
plaintiff originally sued nine persons for recovery of damages but the names of
eight of them were struck off by the court as the plaintiff failed to take
steps for effecting service of summons on them:
Held: In a case of
tort the liability of the writ doers is joint and several and the person
wronged against can either sue one or all of them for the recovery of the whole
damage.
Abdul Gafur Miah
Vs. Abdul Gafur (1960) 12 DLR 629.
Libel—definition
of—actionable
without proof of special damage. A statement ex facie innocent may be defamatory
by reason of extraneous circumstances which must be pleaded.
Sahabuddin
Azad Bakht Vs. Khan Saheb Md. Rezwan Ullah Khan (1953) 5 DLR 189.
—Extraneous
facts which make the statement defamatory must be pleaded. Where it is admitted
that the words are libelous in their nature and obvious meaning, it is not
necessary to state in the claim what is called an innuendo, that is, a
statement of the meaning which the plaintiff contended that the words conveyed
to those who read them and which he will endeavour to adopt at the trial, and such
innuendo where necessary must be carefully drafted as the plaintiff is bound by
it and he cannot discard it and set up a new meaning at the trial. The test is
whether the words arc such as would reasonably lead people acquainted with the
plaintiff to the conclusion that he was the person referred to. Ibid.
—It is
sufficient to allege malice as a fact without setting out the circumstances
from which it is to be inferred. Again proof of intention is not necessary. So
also no malice is required to be proved but it is sufficient if the statement
was made without lawful occasion. Ibid.
—There can
be no libel unless there is publication which means the making known of
defamatory matter to some person other than the plaintiff. Ibid.
—Where the
meaning of the words or their application to the plaintiff is not clear, there
must be inserted an innuendo in the statement of the claim, and if it is done
the defendant will be entitled to get a decision in his favour. Ibid.
—it is now
firmly established that it is no part of the statement of the claim to
anticipate the defense case and to state what the plaintiff would have to say
in answer to it. Ibid.
—In deciding
a case it is necessary to remember that a libel may be published by reading the
contents of the writing to a third person or allowing him to read them for
himself. Ibid.
Libel and
slander—Under
English Common Law there is an important distinction between libel which means
written defamation, and slander, which means oral defamation. Libel is
actionable per se, but subject to certain exceptions, slander is not.
Makiinulla
Vs. Sukumar Bhattacharyya (1952) 4 DLR 589.
Malicious
prosecution.
Reasonable
and probable cause means a genuine belief based on reasonable ground that the
proceedings arc justified. The defendant must show a reasonable sound judgment
and use reasonable care in determining whether there arc sufficient grounds for
the proceedings instituted by him, and any failure to exhibit such judgment or
care will be imputed to him as a want of reasonable and probable cause.
Province of
E Bengal Vs. SM Faruque (1958) 10 DLR 601.
—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 a claim for damages for malicious prosecution. Ibid.
To secure
the protection, there must be in the first place, a bona fide belief by the
official that the act complained of was justified by the statute, secondly, the
act must have been performed under colour of a statutory duty, and, thirdly,
the act must be in itself a tort in order to give rise to the cause of action.
It is against such actions for tort that the statute gives protection Ibid.
—A claim for
tortuous acts not perfected by a judgment during the life time of the deceased
neither creates any liability on the estate of the deceased nor devolves any
personal liability on his heirs. PLR (1960)1 (WP) 412.
—Suit for
damage is not maintainable against the State for legal duties directed to be
performed by its Officers. PLR (1960) 1 (WP) 412.
Tort—negligence
of the Railway Company to lake due care at the level- crossing.
The
principle enunciated in Donoghue Vs. Stevenson when applied to the duty of a
railway company with regard to level-crossing means that the railway company is
under duty to keep the crossing in a proper state for the passage of traffic
across the rails. The railway company “must take reasonable care to reduce
danger created by their line to a minimum… The railway company must take
reasonable care to avoid injury to the members of the public at a
level-crossing where it is in the neighborhood of a place where a considerable
population assembles from time to time, the duty of closing gates in sufficient
time before the approach of a train is cast on the railway company and if the
railway company leaves the gates open it is an invitation on the part of the railway
company for passengers and traffic approaching the line.
Ehsan Ali
Vs. Karachi Road Transport Corporation (1968) 20 DLR (WP) 226.
Suit against
State—Action
in tort against the Slate does not lie—But for salary due for periods prior to
dismissal of the servant an action will lie in accordance with the term of
service. (1955) PLR Lah) 437.
—Motive,
generally speaking, is irrelevant in the law of tort, whether it is laudable or
improper.
Ali Bepari
Vs. Nowshar Ali (1951)3 DLR 86.
—“Tort”—Liability of
government for tortuous acts of its servants.
It was
contended that no suit for tort could lie against government in respect of acts
done by its servants just as no action can in such a case lie against the Crown
in England.
Held: The
constitutional status of the Crown of England is wholly different from that of
the Government of Pakistan.
Pakistan Vs.
Muhammad Yaqub Butt. (1963) 15 DLR (SC) 369.