KHURSHID AHMAD NAZ FARIDI vs BASHIR AHMAD and 3 others

' SALEEM AKTHAR, J.---This appeal by leave of the Court challenges the judgment passed by the High Court by which the petition filed by respondent No,1 was allowed and the appellant and the Inspector, F.IA., respondent No,4 in this appeal were directed to pay to respondent No,1 costs of Rs,1,000 each from their own pocket.

2. Respondent No,1 had purchased Plots Nos.650 and 651 in an auction and necessary title documents were issued by the Settlement Department. The sale was challenged, but it was maintained by the High Court as well as by the Supreme Court, which had upheld the order of the High Court. The appellant filed an application dated 25-3-1989 addressed to the Director, F.IA., alleging that these plots have been obtained by respondent No,1 by misrepresentation, fraud and forgery. Respondent No,4 issued a notice/order dated 2-7-1989 directing respondent No,1 not to construct any building on Plots Nos.650 and 651 till the disposal of the application filed by the appellant. Respondent No,1 filed a Constitution Petition in the High Court challenging the order, which was allowed by the impugned judgment. The learned Judge after considering the documents produced in Court while granting the relief observed as follows:-- "From the copies of the various orders referred to in the writ petition and attached with the writ petition, it is obvious that the petitioner had purchased Plots Nos.650 and 651 from the Settlement Department in open auction and after the payment of necessary charges he acquired their title from them (Settlement Department). Later a dispute arose between him and the Town Committee Kot Mithan Sharif as the latter was claiming some right with regard to Plot No,652 and for the resolution of their controversy they took recourse to the Settlement Authorities which, after protracted proceedings, held the petitioner as lawful transferee of Plots Nos.650 and 651 and by the process of demarcation he took possession thereof. When the Town Committee lost its cause before the Settlement Authorities invoked writ jurisdiction of the superior Courts but there too it failed up to the level of Supreme Court. Now it has, through respondent No,4, who is one of its petty employees, has thought proper to re-agitate the matter before respondents Nos.1 to 3, the officers of F.IA., and respondent No,3 surprisingly enough, assuming the role of a Civil Court, issued the impugned order in the form of a notice, restraining the petitioner as also collusively the Chairman of Town Committee, Kot Mithan Sharif, who appears to be still pulling wires behind the curtain from raising any construction on the disputed plot. Whatever respondent No,3 has done either of his own accord, or at the instance of other respondents, is altogether against law and without lawful authority. So far as Plots Nos.650-651, which belong to the petitioner and stand duly demarcated, are concerned the question of their title and possession stands settled once for all at the highest judicial level and neither the respondents nor anyone else including the Chairman, Town Committee, Kot Mithan Sharif, has any, authority or justification whatsoever to re-agitate and re- open this matter in any manner and before any authority. In view of the above, the writ petition is accepted and it is declared that order/notice dated 2-7-1989 issued by respondent No,3, is illegal and without lawful authority and respondents Nos. 1 to 3 are restrained from taking proceedings against the petitioner on the application of respondent No,4. Respondent No,3, who had issued the impugned notice and respondent No,4 shall pay to the petitioner costs of Rs,1,000 each from their own pocket."

3. Leave was granted to consider whether the High Court could competently give the following direction to the appellant and respondents Nos.2, 3 and 4:-- "... Respondents Nos.1 to 3 are restrained from taking proceedings against the petitioner on the application of respondent No,4. Respondent No,3, who had issued the impugned notice and respondent No,4, shall pay to the petitioner costs of 1,000 each from their own pocket."

4. The learned counsel for the appellant contended that the record produced by the appellant establishes forgery and fraud in obtaining the property from the Settlement Department. At the moment we are not concerned with this aspect of the case as it does not form part of the leave granted to the appellant. Only two things are to be considered. Firstly, whether the investigation carried out on the basis of the application filed by the appellant can be quashed and secondly, whether the costs allowed against the appellant and respondent No,4 were proper and legal. So far the first question is concerned, it seems to be beyond the scope of the prayer of the appellant.

Respondent No,1 had filed a Constitution Petition challenging the validity and legality of notice/order dated 2-7-1989 by which respondent No,4 had restrained No,1 from constructing a building on the plots which he had purchased from the Settlement Department in open auction.

However, while accepting the Constitution Petition and declaring the impugned order/notice dated 2-7-1989 illegal and without lawful authority, further observation was made with regard to the investigation and proceeding which respondents Nos.2 to 4 had initiated on the basis of the application filed by the appellant: This part of the relief was not sought for and therefore it ought not to have been granted. The relief with regard to quashment of the impugned order/notice and declaring it to be without lawful authority was just and proper. The learned counsel for the appellant and respondent No,2 have not been able to point out to any provision under which respondent No,4 was empowered to issue a notice restraining respondent No,1 from constructing any building on the plot. Such an order was without jurisdiction.

5. The next question arises whether costs granted and the direction that it should be paid by the appellant and respondent No,4 from their own pocket is proper and legal. 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 penalise 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, mala tide 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 proper exercise of discretion. But such discretion is based on the facts and circumstances of the case and conduct of parties. As the order granting costs is discretionary, it should be based on well-recognized principles of justice and equity and should not be fanciful, arbitrary, whimsical or capricious. Such discretion is exercised with regard to the party that will be charged with costs, the amount and the manner in which costs are to be paid. The discretion exercised by a Court should not be lightly interfered in appeal unless well-settled principles are violated. Refer to S.S. Miranda Ltd. v. Chief Commissioner, Karachi (PLD 1959 SC (Pak.) 134).

6. Considering the facts and circumstances of the case and the admitted position that respondent No,4 did not have any jurisdiction, authority or power under law to pass a prohibitory order restraining respondent No,1 from raising construction on the plots to which he had prima facie legal title, the costs ordered to be paid by him (respondent No,4) and the appellant personally cannot be termed as whimsical, arbitrary or illegal. We, therefore, refuse to interfere with the proper exercise of discretion by the learned Judge of the High Court.

' The appeal is partly allowed. No costs.