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Regular Second Appeal No.161 of 1966, decided on 22nd December, 1986.

---S.13--Damages claimed for improper search of house, recovery of foodstuff and subsequent arrest and prosecution--Acts of negligence by Government functionaries within pale of good faith--Effect--Mere negligence by itself, held, would not take act out of pale of good faith--Damages for negligence, on part of such person whose acts fall within purview of good faith as provided in S.13 of Act XX of 1958 could not be recovered.

--S.23--West Pakistan Food Grains (Licensing Control) Order,- 1957, Cl.(3)--West Pakistan Foodstuffs (Control) Act (XX of 1958), S.13- Search of plaintiff's house carried out under provisions of Foodstuffs (Licensing Order), 1957, which was no longer in field at time of such search, provisions having been repealed by Act XX of 1958- Effect--Order passed under repealed provision, held, would be deemed to have survived under provisions of S.23, General Clauses Act, 1958 in spite of repeal thereof.

---S.100--Second appeal--Decree passed in appeal dismissing suit of plaintiff well founded--Effect--Where decree passed in appeal dismissing suit of plaintiff was well founded and no valid exception could be taken thereto, for exercise of jurisdiction in second appeal, High Court dismissed such appeal.

Mian Hidayat Ali Taib for Appellant.

Aftab lqbal Ch. for Respondent.

Dates of hearing: 24th and 27th March, 1984.

Appellant Abdul Ghafoor Shah, claiming to be a Member of Union Council and an owner of rice husking mill, instituted a suit on 18-6-1962 for recovery of Rs.20,000 as damages for improper search of his house made on 28-8-1961 by defendant No.2 Hamid-ur-Rehman, A. S. I. wherein he recovered 67 maunds and 30 seers of rice and took the same into possession it spite of his having been told that the plaintiff was entitled to keep even a larger quantity upto one hundred maunds and yet he challaned the plaintiff who was ultimately discharged on 22-11-1961. It was alleged that the acts of the defendant were against the law and a result of extreme carelessness which, if he may have taken the proper care, would have saved him from dishonour and the damage that he suffered. It was also pleaded that the Province of West Pakistan was liable for the acts of its servant. The suit was contested by both the defendants by admitting the search and recovery but it was urged that the plaintiff was not authorised to keep that quantity of. rice towards the end of year 1960-61 and hence he was challaned for contravention of the provisions of the West Pakistan Food grains (Licensing Control) Order of 1957 (hereinafter referred to as 'the Order of 1957') after obtaining a report from the Food Department, Sheikhupura. It was also asserted that the search was made in the discharge of his duties by defendant No.2 and that his act was not based on negligence or carelessness. Bar of section 13 of the West Pakistan Act XX of 1958 was also pleaded in opposition to the suit.

2. Necessary issues were settled and the parties led their evidence wherein a report (Ex.D.l), dated 31-8-1961 was produced and got proved from Muhammad Abbas Khan, A.F.C. (D.W.3) to ,have been made on the basis of an application produced before him by the defendant A.S.I. to inquire whether the plaintiff could, keep 100 maunds of rice as was claimed by him whereat he opined that at the end of the year a producer could not keep such a quantity of rice and advised that he should be prosecuted under clause (3) of the Order of 1957. The defendant, in his statement as D.W.5, stated that he had conducted the search of the plaintiff's house on the instructions of his Inspector Muhammad Aslam who .had appeared in the witness-box as D.W.1 to support him in this behalf. The defendant further stated that after the recovery made by him he did not arrest the plaintiff and that it was only after the report (Ex.D.2) of the D.F.C that the plaintiff was arrested and challaned. He also alleged that he had no personal grudge against the plaintiff and whatever he did was in the honest discharge of his duties.

3. After considering the evidence of the parties, learned trial Judge held that the Order of 1957 was no more in the field at the time of search and challan of the plaintiff because it had been repealed on account of Act XX of 1958. He held also that defendant No.2 was not competent to search the house and he had not acted in good faith and that the prosecution of the plaintiff was not only without any reasonable or probable cause but was also malicious. In consequence, on 2-6-1964, he passed a decree for Rs.10,000 in favour of the plaintiff, without attending to the bar against the suit contained in section 13 of Act XX of 1958, which formed the subject-matter of preliminary issue No.3 and he could have missed it by oversight.

4. An appeal filed by the defendants against the trial Court's decree was accepted on 20-9-1965 by a learned Additional District Judge to reverse the trial Court's decree and dismiss the suit of the plaintiff with the conclusions that the act complained about was done in good faith, without any malice and upon reports about the matter obtained by the defendant to satisfy himself with regard to the guilt of the plaintiff. He referred to section 23 of the West Pakistan General Clauses Act, 1956 for the conclusion that the Order of 1957, though issued under the West Pakistan Foodstuffs (Control) Ordinance, 1957 which had been repealed by the Act of 1958, did not get wiped out with the repeal thereof because there was no provision inconsistent therewith contained in the West Pakistan Act XX of 1958 and no order or notification superseding or cancelling the Order of 1957 had been issued. He took notice of the fact that the plaintiff had not alleged that defendant No.2 had any personal grudge or motive against him and found that the allegation about his desire to be bribed was only an afterthought, not pleaded in, the plaint. He observed also that the act of the defendant was the result of sheer carelessness in his having placed faith on the report of the A.F.C. to the effect that the plaintiff could not keep 67 maunds and 30 seers of rice on 28-8-1961 despite the Order of 1957 itself permitting 100 maunds of rice to be retained by a producer and held that even though the defendant may have been well-advised to have himself perused the relevant provisions, yet, his having not done so was a mere negligence which could not take his action out of the definition of good faith contained in section 2(27) of the West Pakistan General Clauses Act, 1956 which provides honesty as the only test, whether or not the act may have been done negligently and tound that section 13 of the West Pakistan Act XX of 1958 was a complete bar to the suit and, as sue: , no decree for recovery of damages could be passed against the defendants. The suit of the plaintiff having been thus dismissed in the appeal below, he has now come up to this Court in this Second Appeal.

5. Learned counsel contends that the act of defendant. had not been done in good faith because despite being apprised that the plaintiff was entitled to retain 100 maunds of rice he recovered 67 maunds and 30 seers of rice and even challaned him on the basis of this quantity which was obviously within the entitlement of the plaintiff. No doubt, the defendant had acted negligently in preferring the report of the A.F.C. over the provisions of the law but one thing is clear that he took the care of ascertaining the legal position from the Food Department whom he may have honestly believed to be well-versed A with the legal provisions governing the matter and his placing implicit faith on that report cannot be anything more than a mere negligence which, by itself, does not take the act of the defendant out of the pale of good faith and it is provided in section 13 of the West Pakistan Act XX of 1958 as under:-

"13. (1) No suit, prosecution or other legal proceeding shall lie against any person for anything which is, in good faith, done or intended to be done in pursuance of any order made under section 3.

(2) No suit or other legal proceeding shall lie against the Government for any damage caused or likely to be caused by anything which is, in good faith, done or intended to be done in pursuance of order made under section 3."

The said section 3 relates to the power to control supply, distribution etc., of foodstuffs and by virtue of the provisions of section 23 of the West Pakistan General Clauses Act, the Order of 1957 will be deemed to have survived thereunder. There is no merit in the contention of the learned counsel, which is accordingly repelled.

6. Decree passed in the appeal below to dismiss the plaintiff's suit is well founded and no valid exception can be taken thereto. There is no case made out within the contemplation of section 100 of the C-P-C- Hence, dismissed. Parties are, however, left to bear their own costs

A.A./A-53/L Appeal dismissed.

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