IN THE HIGH COURT OF SINDH, KARACHI

                                                  

   Present

                                                   Mr. Justice Mushir Alam.

   Mr. Justice Aqeel Ahmed Abbasi.

 

1.                Const. Petition No.D-1886 of 2006

 

Kawas B. Aga………………………………………………………..Petitioner

Versus

City District Government Karachi (CDGK)

and others……………………………………………………….Respondents

 

 

2.                Const. Petition No.D-1886 of 2006

 

Iftikhar Ahmed Soomro.. ………………..………………………Petitioner

Versus

City District Government Karachi (CDGK)

and others……………………………………………………….Respondents

 

 

Date of hearing    :                  06.10.2009

Date of order        :                    27.01.2010

 

Petitioners :         through Mr. Saadat Yar Khan Akhtar, Advocate.

                                                         

 

Respondents/CDGK: through Mr. Manzoor Ahmed, Advocate

                                 alongwith Mr. Imran Hassan Khan, DDO Land.

                                 Mr. Faisal Siddiqui, Amicus Curiae.

                                                        

 

O R D E R

 

Aqeel Ahmed Abbasi, J.   Through these two petitions, the petitioners being seriously aggrieved by the inaction and inordinate delay on the part of registration authority, who failed to execute and register the renewal lease in respect of the properties involved in the instant petitions. Following common relief is claimed in both petitions:-

"(a)     To direct the Respondents to execute and registered renewed lease (as per specimen attached annexure "H") before the registrar on same terms of that of the expired lease and submit the same in court within three weeks from the date of passing of Order.

 

(b)      To declare that the in action of the Respondents is illegal and bad in law.

 

(c)      To grant costs of the Petition to the Petitioner.

 

(d)      To grant such or any other decree or decrees, order or orders, direction or directions as this Hon'ble Court may deem proper or fit in or about the circumstances of the case."

 

2.       After notice to the respondent during the pendency of the above petitions, it appears that the lease was duly executed in favour of the petitioners by the official respondent. The said fact was brought to the notice of this Court. However, the petitioners were not satisfied by this belated action on the part of the official respondent and submitted an application under Section 35, 35-A read with Section 151 CPC in both the petitions. It was pleaded that the delinquent officer, responsible for such delay, shall be penalized by imposing exemplary cost either on his person or through the department concerned (CDGK) in addition to the normal cost to the petitioner. Learned counsel for the petitioners insisted that delay has caused grave inconvenience and financial loss to the petitioners, who were otherwise entitled for getting their property registered at the relevant time. Under the circumstances, it was urged that exemplary cost may also be awarded to the petitioners.

 

3.       On 04.11.2008, while hearing the application referred to hereinabove, learned counsel for both the parties were directed to make their submissions on the above legal proposition.

 

4.       Under the facts and circumstances of the instant petitions, it was required to be determined as to whether the cost can be imposed in writ jurisdiction, if yes. Whether it is to be imposed on the public functionary in person or through concerned department, and further as to whether compensatory cost could be claimed under the circumstances. On 10.9.2009, Mr.Faisal Siddiqui, advocate was appointed as Amicus Curiae to assist the Court on the above said proposition of law. The matter finally came-up for hearing on 06.10.2009 when all the counsels for the parties as well as the learned Amicus Curiae argued the case in detail.

 

5.       Learned counsel for the petitioners argued that the delinquent officer shall be held responsible to bear the exemplary cost. However, it was further argued that initially the same may be recovered from the department i.e. CDGK in the instant petition. Reliance was placed on Muhammad Zia v. Ch.Nazir Muhammad, Advocate 2002 CLC 59, Arvinder Singh Bagga v. State of U.P. and others, AIR 1995 SC 117 and Inayatullah v. Sh. Muhammad Yousuf 1997 SCMR 1020.

 

6.       Conversely, the learned counsel for the respondent argued that the claim of the petitioner cannot be examined in writ jurisdiction, without prejudice to this objection he further argued that even if compensation is to be allowed to the litigant, it cannot be claimed for a period prior to litigation. The same could possibly be awarded during the pendency of the litigation in Court. It was also argued that as soon as the notice of the above petitions was received by the respondents, the present official respondent immediately acted upon the directions of the Court and the lease was duly registered without any delay. It was argued that the previous D.D.O. has already been transferred by the learned Nazim on having received complaints.

 

7.       Learned Amicus Curiae, besides arguing verbally on the legal proposition, has also placed on record a written treatise alongwith case law in support of the submissions therein. The learned amicus curiae has categorized the legal proposition into following categories.

(i)       Whether cost can be imposed in constitutional petition.

(ii)      Against whom cost to be imposed.

(iii)     Whether cost be imposed for a period prior to litigation or it can be imposed for the period of pendency of litigation.

 

8.       The learned amicus curiae submitted that cost, compensation, damages are three different and distinguishable categories having different parameters. According to learned amicus curiae, in a case where any defence plea or stand is taken by any party which is false/vexatious, compensatory cost is attracted under Section 35-A CPC, whereas claim of damages relate to actual injury. The learned amicus curiae referred to several judgments to support his contentions that the cost can be imposed in constitutional jurisdiction. He also referred to various judgments in which it was held that cost can be imposed against State/Department.

 

9.       Similarly, several judgments were referred by the learned amicus curiae, wherein it was held that cost can be imposed against a person including private and corporate entity.

 

10.     After having referred to various cases wherein the cost has been imposed in constitutional jurisdiction on state as well as delinquent public functionary, the learned amicus curiae argued that in the facts and circumstances of the instant petitions the cost claimed by the petitioners appears to be in the nature of compensatory cost as provided under Section 35-A CPC. According to learned amicus curiae, the provisions under Section 35-A are attracted where indefensible position is taken during the proceedings and it transpires that such claim or defence is false or vexatious. According to learned amicus curiae, compensatory cost can be allowed in addition to any other cost or damages as may be available to a party to the proceedings.

 

11.     Counsel for the petitioners argued that the petitioner are entitled to penal cost and the compensatory cost as inaction on the part of public functionary, without any lawful excuse, attracts penal and exemplary cost to be imposed upon his person, whereas the compensatory cost is attracted for the period which was consumed during the litigation/proceedings on account of a false frivolous and vexatious defence by the public functionary.

 

12.     We have heard both the learned counsel as well as the learned Amicus Curiae, who has provided valuable assistance to this Court by referring to a number of judgments relating to imposition of cost, compensatory cost, penal cost and damages in the writ jurisdiction and further on the point as to whether such cost can be imposed either on the person i.e. delinquent public functionary or upon the State/Department. However, for the purposes of question proposed under the facts and circumstances of the instant petitions, we would like to dilate upon the precise issue agitated by the petitioners by claiming cost and compensatory cost under Section 35 and 35-A CPC. Undisputedly in both the petitions the petitioners were entitled for getting their expired lease renewed by the respondent. It has also emerged that the petitioners having complied with all the requirements for getting their renewal lease duly executed by the respondent were denied to get such renewal lease deed registered by the respondent without any legal justification in this regard. It was only after filing instant petitions, such renewal leases were duly executed by the respondent on the basis of already available documents and compliance by the petitioners to this effect. The respondent could not come forward with any plausible explanation for this inordinate delay of about more than one year in discharge of the duties by the public functionary. During the course of arguments, it was pointed out by Mr. Manzoor Ahmed, learned counsel for CDGK that the delinquent officer has been transferred from such post. Whereas the present official having come to know about the instant matter and the pendency of the petitions has immediately executed the renewal lease without any delay.

 

13.     On 10.9.2008 it was pointed out by the learned counsel for the petitioners that the two functionaries i.e. namely, Khalid Hashmi, DDO and Shariq Ilyas, DO of CDGK were instrumental in refusing the registration of lease and it was only after filing of these petitions they executed such lease.

 

14.     Be that as it may, the fact of unexplainable inordinate delay in the execution of the renewal of the lease of the petitioners by the respondents department through their delinquent public functionaries is established.

 

15.     To thresh out the legal issue involved in these petitions, it will be advantageous to reproduce provisions of Section 35 and  35-A of Civil Procedure Code.

 

Section 35

Costs:- (1) Subject to such conditions  and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incident to all  suits shall be in the discretion of the Court, and the Court shall have full power to determine by whom or out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid. The fact that the Court has no jurisdiction to try the suit shall be no bar to the exercise of such powers.

 

(2)  Where the Court directs that any costs shall not follow the event, the Court shall state its reasons in writing.

 

(3)  The Court may give interest on costs at any rate not exceeding six per cent, per annum, and such interest shall be added to the costs and shall be recoverable as such.

 

Section 35-A

 

Compensatory costs in respect of false or vexatious claims or defenses:- (1) If in any suit or other proceeding, including an execution proceeding, not being an appeal, any party objects to the claim or defence on the ground that the claim or defence or any part of it is, as against the objector, false or vexatious to the knowledge of the party by whom it has been put forward, and if thereafter, against the objector, such claim or defence is disallowed, abandoned or withdrawn in whole or in part, the Court, if the objection has been taken at the earliest opportunity and if it is satisfied of the justice thereof, may after recording its reasons for holding such claim or defence to be false or vexatious, make an order for the payment to the objector by the party by whom such claim or defence has been put forward, of costs by way of compensation.

 

(2)  No Court shall make any such order for the payment of an amount exceeding twenty five thousand rupees or exceeding the limits of its pecuniary jurisdiction, whichever amount is less.

……………………………

…………………………….

 

(3)      ……………………………..   

……………………………..

 

          (4)      …………………………......

……………………………..

16.     On combined reading of the above provisions it emerges that the costs awardable by a court can either be actual costs or compensatory costs. Actual costs are awardable by a court in order to secure expenses undergone by a successful litigant in the assertion of his rights/claim before a court. However, while exercising this discretion relating to awarding of actual costs such discretion is subject to conditions and limitations as provided in Order 9, rule 3, Order 13 rules 2 and 4, Order 19 rule 3(2), Order 21 rule 72(3), Order 23 rule 1 (3), Order 24 rule 4, Order 32 rules 4 (4) and 5 (2), Order 33 rules 10, 11 and 16, Order 34 rule 10 and Order 35 rule 3.  

 

17.     Similarly, it is also within the discretion of the Court that where the costs awarded under Section 35 of Civil Procedure Code are not sufficient compensation. The Court in addition, award costs by way of compensation to the successful litigant. Such costs are compensatory in nature and not awarded as a penalty against unsuccessful party. In addition to actual costs and compensatory costs the High Court in its constitutional jurisdiction can award compensatory cost even in excess of twenty five thousand rupees as prescribed under Section 35-A of Civil Procedure Code. Similarly, special cost can also be awarded by the High Court in exercise of its inherent powers. In this regard we are guided by following reported judgments:

(i).      Muhammad Akram v. Mst. Farman Bi PLD 1990 SC 28.

(ii).     Haji Muhammad Shafi v. Mst. Hamidan Bibi 1990 M.L.D 597.

 

(iii).    M.D. Tahir, Advocate v. Federal Government & others

P.L.D 1999 Lahore 409.

(iv).    Mrs. Asma Begum v. The Commissioner, Karachi Division, Karachi. P.L.D 1997 Karachi 13

 

(v).     Abdul Razzak v.The Federation of Pakistan 1997 M.L.D 3283

(vi).    Inayatullah v. Sh. Muhammad Yousuf (1997 SCMR 1020)

(vii).   The Postmaster General, Northern Punjab and (AJ&K), Rawalpindi v. Muhammad Bashir 1998 SCMR 2386

 

(viii).  Sayed Ahmad v. Mst. Khatoon Begum 1998 M.L.D 53

 

18.     Since the controversy in the instant petitions relates to imposition of cost under writ jurisdiction, we would also like to dilate upon the other relatable legal issues involved in these petitions i.e. (a) against whom cost can be imposed (b) for which period such cost be imposed. In this regard we would refer to a judgment Smt. Sulochanamma v. H. Nanjundaswamy reported as 2001 (1) Karnata LJ 215 in which it has been held as under:

"Admittedly, the sale deed was presented for registration on 21.5.1987. In spite of fulfilling all the requirements and completing all the formalities, the same has not at all been registered so far. Thus, the petitioner is not only deprived of enjoying his property rights but she has been subjected to untold misery and hardship. Taking judicial note of the inconvenience, hardship, mental agony and the misery suffered by the petitioner all these years and having regard to the money spent on various litigations on account of the mischief committed by the Sub-Registrar and the District Registrar, this Court, instead of awarding damages, impose cost on these two officers. Learned Government Pleader fairly submitted that the present Sub-Registrar is ready to register the document and requested this Court not to award cost on the aforesaid two officers. Learned Government Pleader is not fair in pleading mercy on behalf of these two officers who have committed a great blunder in the discharge of their official duties, as a result of which the petitioner has suffered a lot. Normally this Court will not impose costs but in compelling and deserving cases costs or damages have to be imposed/awarded in order to prevent commission of such mischief's by the officers of the State. In the result, the writ petition is allowed and the endorsement made on the sale deed and the impugned order passed by the 3rd respondent in the appeal are quashed. The petitioner shall present the sale deed for registration within a week and the 2nd respondent is directed to register the same within a period of two weeks thereafter. Cost of Rs.10,000/- is awarded on the State Government to be payable to the petitioner within a period of four weeks and the same shall be recoverable equally from the concerned Sub-Registrar and the District Registrar."

 

19.     In another case reported as Mazharuddin V. The State 1998 P.Cr.L.J 1035, wherein it has been held as under:-

"In addition to payment by way of substantial relief we are also of the opinion that when a person unlawfully deprived of liberty has to approach the Court for relief and the Court finds his detention to be mala fide and unlawful he is entitled to costs. Depending on the circumstances, of each case such costs could be (i) actual (ii) Compensatory (iii) Penal or deterrent. In Muhammad Akram v. Farman Bi  (PLD 1990 SC 28) the distinction between actual and compensatory costs was clearly explained with reference to sections 35 and 35-A, C.P.C. In the subsequent case of Khurshid Ahmed Naz Faridi (1993 SCMR 639) the concept of penal costs required to be personally paid by Government official transgressing the limit of their power was discussed and considered. It is evident from the aforesaid judgments, of the Honourable Supreme Court that apart from actual costs incurred a petitioner may also be entitled to compensatory costs under section 35-A, C.P.C. In addition thereto, however, he may also be entitled to penal or deterrent costs. The quantum of costs awarded, whether compensatory or penal, may be determined by Court in its discretion. It might suffice to hold that in cases like the present one aggrieved person may be entitled to all three kinds of costs and the concerned official rather than the Government itself may be burdened with the liability to pay penal costs."

 

20.     In the case of Inayatullah v. Sh. Muhammad Yousuf             1997 SCMR 1020, the Hon'ble Supreme Court has held as under:

 

"We are unable to accept the contention of the learned counsel for the petitioner that special costs could only be awarded in terms of section 35-A, C.P.C………………… In these circumstances the High Court was fully competent in exercise of its inherent power to grant appropriate compensation to the respondents. There being no positive prohibition on the power of the High Court while exercising jurisdiction under Article 199 of the Constitution to award costs to compensate a party made to suffer unnecessarily through frivolous litigation. The High Court in appropriate case, in exercise of its inherent power, may award adequate costs by way of compensation to a party made to suffer on account of such litigation."

 

21.     In the case of Khurshid Ahmed Naz Faridi v. Bashir Ahmed and 3 others 1993 SCMR 639, the Hon'ble Supreme Court has held as under:

 

"Costs are granted to a person who succeeds in a litigation. Such costs are to be paid by the unsuccessful party. The object of granting such costs may be two-fold. One, to compensate the aggrieved party, who in successful assertion/defence of his right, has been put to unnecessary litigation and harassment. The other object is to penalize a party who may have initiated any action or passed the order in complete disregard of the obvious and glaring facts and provisions of law which a reasonable person would not do unless he acts with highhandedness, arbitrarily, malafide or ulterior motive. Where a person acting in his official capacity in complete disregard of the clear records and documents and having no authority to pass order of a particular nature, passes such an order, then while setting aside such order the Court awards cost to be paid by him personally, it will be property exercise of direction."

 

22.     In the case of Muhammad Din v. District Magistrate reported as 1992 M.L.D 107, it has been held that,

"Further for the manifestation of utter lack of sense of responsibility by the District Magistrate in not even caring to call upon the Superintendent of Police to reveal the bogy supportive material tending to substantiate his subjective opinion despite the patently self-demonstrative vague generalization without spelling out particulars thereof and just hastily thumb-marking the stamped portion of the papers tendered before him in the nature of requisition slip as a matter of automatism, while dealing with the rights of citizens amounts to dereliction of  duty in breach of Article 5(2) of the 1973 Constitution ; consequently, the petition is allowed with special costs of Rs.3,000/- against Arif Bajwa, present incumbent of the office of District Magistrate, Narowal personally."

 

23.     In the case of Asma Begum v. The Commissioner, Karachi Division, Karachi P.L.D 1997 Karachi 13, Division Bench of this Court has held as under:

"Now section 35-A of the Code of Civil Procedure restricts the special costs to Rs.25,000/- and that may be in relation to each of the parties, assessed separately, bringing forth a larger amount than Rs.25,000/- by way of costs in totality and adopting that rule, we may award suitable costs to the petitioners in their first Constitutional petition. However, such a course need not be adopted….because in the exercise of the Constitutional jurisdiction of this Court, the procedural powers of the Court cannot be controlled by a sub-constitutional legislation such as the Code of Civil Procedure. Not being thus bound by the restrictions in section 35-A of the Code of Civil Procedure, we impose costs in the sum of Rs.50,000/-."

 

24.     In view of hereinabove referred judgments, we are of the considered opinion that the cost including compensatory cost as well as the exemplary cost can be imposed by High Court in its writ jurisdiction. Now we would like to advert to the second proposition as to against whom (State/Department) or person/public functionary such cost can be imposed. In this regard we would like to place reliance on a judgment by the Hon'ble Supreme Court reported as The Postmaster General, Northern Punjab and (AJ&K), Rawalpindi v. Muhammad Bashir 1998 SCMR 2386, Inayatullah v. Sh. Muhammad Yousuf 1997 SCMR 1020 and  State of U.P. v. Manohar AIR 2005 SC 488.

 

25.     Similarly, cost can also be imposed against person/public functionary under writ jurisdiction. In this regard we are guided by following reported judgments:

 

1.       Province of Balochistan v. Murree Brewery Company Ltd. P.L.D 2007 SC 386

 

2.       Inayatullah v. Muhammad Yousuf 1997 SCMR 1020

3.       Khurshid Ahmed Naz Faridi v. Bashir Ahmed and 3 others 1993 SCMR 639

 

26.     On perusal of above referred judgments, it transpires that the High Court in its writ jurisdiction can award cost, compensatory cost as well as exemplary cost/penal cost in appropriate cases. It also emerges that such cost can be recovered from State/Department instead of delinquent public officer, as the State/Department may recover the same from the delinquent officer. Exemplary or penal costs are imposed on the delinquent public functionary and is required to be recovered from such person.

 

 

27.     Under the circumstances, we are of the considered opinion that in the instant petitions the petitioners are entitled for the claim of cost as well as compensatory cost. Looking at the facts and circumstances of these instant petitions, we would direct the respondent department to deposit Rs.20,000/- (Rupees Twenty Thousand) each towards actual cost of the petition and Rs.25,000/- (Rupees Twenty Five Thousand) each towards compensatory cost with the Nazir of this Court who after proper verification disburse the same to the petitioner. We are restraining ourselves from imposing exemplary/penal cost on the delinquent public functionaries, who by abusing the authority have dragged the petitioners to instant litigation. However, we would direct the respondent department to initiate departmental inquiry against the delinquent officers and if delinquent officers are found to be guilty of such misconduct, then besides any disciplinary action deemed necessary, the cost so imposed may be recovered from them. Accordingly, both the petitions alongwith the listed applications are disposed of in the above terms. Before parting with this order we would like to express our appreciation to Mr. Faisal Siddiqui, learned Amicus Curiae for the valuable assistance provided in this case.

 

                                                                                           JUDGE

                                                     JUDGE

Karachi

Dated:  -01-2010