MIR BAZ MUHAMMAD KHAN Versus NAZ BIBI

ORDER

JAMAL KHAN MANDOKHAIL, J.--- Facts of the case are that the predecessor of the respondents Nos.1 to 6 and the respondent No.7 filed a suit for declaration, possession and permanent injunction against the petitioner and the respondents Nos.8 to 10 in the Court of the Civil Judge, Loralai. The suit was decreed by means of the judgment and decree dated 30-6-1998, against which no appeal was filed, as such, the same attained finality.

The predecessor of the respondents Nos.1 to 6 and the respondent No.7 filed an execution application on 19-8-2003. The petitioner filed objections thereto. The executing Court on 23-4-2005 rejected the objections to the application and allowed the execution application in the following terms:--

The petitioner again filed objections before the executing Court on 17-11-2006, which was were dismissed for non-prosecution on 23-12-2006: The petitioner for the third time filed objections. The predecessor of the respondents Nos.1 to 6 and respondent No.7 filed rejoinder to the objections. The executing Court by means of the order dated 17-9-2011, rejected the objections. The petitioner, feeling aggrieved, preferred an appeal before the Court of District Judge, Loralai, which too was dismissed on 28-9-2007, hence this petition.

2. Learned counsel for the petitioner stated that the executing application filed by the private respondents was barred by time under Article 181 of the Limitation Act, but it was not considered by the Courts below, therefore, the orders impugned are void. The learned counsel further argued that the private respondents have no concern of whatsoever nature with the property in dispute, which actually belongs to the Government of Balochistan, therefore, they are not entitled for the execution of the judgment and decree impugned.

3. Learned counsel for the private respondents opposed the contention and stated that the execution application has been allowed by the executing Court by means of the order dated 23-4-2005, which has not been challenged till date, therefore, the petitioner is not allowed under the law to file the objections. They further state that even otherwise, the objections filed by the petitioner for the second time two years after passing of the order of the executing Court were also dismissed on 23-12-2006. According to him, again instead of challenging this order before the higher forum, the petitioner filed objections for the third time, which have rightly been dismissed by the Courts below. The learned counsel lastly requested that since the petitioner has lingered on the matter by dragging the private respondents in frivolous litigation, therefore, they be compensated for such count and be also granted mesne profit.

4. Learned A.A.-G. states that the petitioner could not assail the order dated 23-4-2005 of the executing Court, which attained finality, therefore, the objections were not legally entertainable, as such, the Courts below acted rightly by dismissing the same.

5. I have heard the learned counsel for the parties and have perused the record. Admittedly, the judgment and decree dated 30-6-1998 passed in favour of the private respondents attained finality. Subsequently, the execution application filed by the private respondents was allowed by the executing Court on 23-4-2005. The petitioner did not challenge the order of the executing Court. There is no provision under the Civil Procedure Code to file objections to challenge the judgment and decree, which have been acted upon through the execution application. Legally speaking, at the time of filing the second objection by the petitioner, actually there was no proceeding pending before the executing Court. Anyhow, the objections filed by the petitioner for the second time were dismissed by the executing Court, but again that order was not assailed, hence it also attained finality. It is important to mention here that the objections filed by the petitioner for the third time were filed after a lapse of more than five months. The learned counsel for the petitioner was unable to satisfy the Court as to under which provision of law, the objections for the third time are entertainable when the execution application has already been allowed and the execution proceedings were not pending. The learned counsel was unable to show any provision of law in this behalf.

It is also to be noted that even through this petition, the order dated 23-4-2005 of the executing Court, whereby the execution application was allowed, has not been challenged. In view of the fact that the said order is still in field, executing Court has rightly declined to entertain the objections filed by the petitioner. The learned counsel for the petitioner has failed to point out any illegality, irregularity or jurisdictional defect in the orders impugned passed by the Courts below warranting this Court to interfere in them.

It is now proved that the petitioner had fraudulently mutated the property of the respondent on his name. His act compelled the private respondents to approach the Court in the year 1991 and since then, he has been dragged by the petitioner till filing of this petition, which cost him a huge amount. Under section 35 of the Civil Procedure Code, the Courts have the discretion to grant the actual cost of the litigation to the successful party, to be paid by the unsuccessful party. In the present case, the Courts below did not exercise its jurisdiction, which ought to have been exercised. Admittedly, the respondent is in litigation for a long time in different Courts. Even after the decree attained finality, the petitioner was reluctant to accept it, which compelled the respondent to file execution application in the year 2003 and till date, the respondent could not get his right. The conduct of the petitioner compelled the respondent to start the second round of litigation. He has naturally spent a huge amount upon the litigation, including travelling and lodging expenses. The respondent was entitled for the actual cost of the litigation, but the same has not been granted to him by the Courts below. The Courts have 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 of aforesaid. A Court can make an order as to cost, even though it may not have jurisdiction to entertain a suit. Reference has been made on the case of Kesavalu v. Venkatarama, ((29) A.I.R. 1942 Madras 35).

The jurisdiction under section 115, C.P.C. is discretionary in nature. The Court can exercise such power in aid of justice and not to affect its ends. The Court will interfere, where grave injustice or hardship will result on account of non-exercise of jurisdiction vested in the Courts below. The jurisdiction means the power of administering justice according to the means, which law provides. Section 115, C.P.C. confers superintending and visitorial power of correction upon High Court.

According to Article 203 of the Constitution of the Islamic Republic of Pakistan, the High Courts have general power to supervise and control subordinate Courts in the interest of administration of justice and not to benefit any party. Through this Article, the High Courts have been made the custodian of justice within the territorial limits of its jurisdiction to see that the justice is being fairly and properly done by the Courts subordinate to it. By exercising power under section 115, C.P.C., in appropriate cases, the High Court may call for the record of the Courts subordinate to it and may exercise power of suo motu, where it appears that such subordinate Courts; (a) have exercised the jurisdiction not vested in it by law; or (b) have failed to exercise the jurisdiction so vested; or (c) to have acted in exercise of its jurisdiction illegally or with material illegality.

Due to the litigation, the private respondents have not only suffered mental and physical agony, but besides, have been bearing huge financial loss/expenses, not only during the trial of the suit, but also after obtaining a decree, which attained finality. The petitioner is since wilfully avoiding implementation of the decree, therefore, he is not only the cause of the actual cost of the litigation incurred, but is also responsible for the damages accrued to the respondent No.1.

Thus, in view of what has been stated and discussed hereinabove, the petition is accordingly dismissed. The petitioner should pay an amount of Rs.175,000 (Rupees one hundred seventy five thousand) to the private respondents as actual cost of the litigation and an amount of Rs.25,000 (rupees twenty five thousand) as compensation for the frivolous and false litigation. As regards the request of the learned counsel for the private respondents regarding mesne profit, the same is declined at this stage. However, the private respondents are liberty to avail an alternate remedy by approaching the competent forum.

AG/115/Bal Revision dismisse