P L D 2014 Balochistan 71
Before Jamal Khan Mandokhail, J
MIR BAZ MUHAMMAD KHAN ---Petitioner
Versus
NAZ BIBI and 9 others ---Respondents
Civil Revision No.38 of 2008, decided on 20th September, 2013.
(a) Civil Procedure Code (V of 1908) ---
----Ss. 47 & 35 ---Specific Relief Act (I of 1877), S. 42 ---Suit for declaration ---Execution
petition ---Cost of litigation ---Scope ---Execution petition was filed wherein objection petitions
were submitted which were dismissed concurrently ---Validity ---Judgm ent and decree passed in
favour of plaintiffs had attained finality ---Execution petition moved by the plaintiffs was
accepted and defendant did not challenge the said order passed by the Executing Court ---No
provision was available in Civil Procedure Code to file objections to challenge the judgment and
decree which had been acted upon through execution petition ---No proceeding was pending
before the Executing Court when second objection petition was submitted by the defendant ---
Objections filed for second time were dismissed by the Executing Court but such order was not
assailed and same had attained finality ---Objections filed for third time were submitted after
lapse of more than five months ---Executing Court had rightly declined to entertain the objectio ns
filed by the defendant ---Defendant had failed to point out any illegality, irregularity or
jurisdictional defect in the impugned order passed by the courts below ---Defendant had
fraudulently mutated the property of plaintiffs in his favour ---Such act of defendant compelled
the plaintiffs to approach the court in the year 1991 and since then they had been dragged in
litigation by the defendant which cost them a huge amount ---Court had discretion to grant the
actual cost of litigation to the successful par ty by the unsuccessful party ---Plaintiffs were in
litigation in the present case for a long time in different courts ---Conduct of defendant compelled
the plaintiffs to start second round of litigation by filing execution petition ---Plaintiffs had spent
a huge amount upon the litigation including travelling and lodging expenses who were entitled
for actual cost of litigation but same had not been granted by the courts below ---Plaintiffs had
not only suffered mental and physical agony due to litigation but ha d also suffered huge financial
loss/expenses not only during the trial of suit but also after obtaining a decree ---Defendant was
wilfully avoiding implementation of decree and had not only caused the actual cost of litigation
but was also responsible for t he damages accrued to the plaintiffs ---Court had power to
determine as to by whom or out of which property and to what extent such costs were to be paid
and to give necessary directions for the said purpose ---Court could pass an order as to costs even
it m ight not have jurisdiction to entertain the suit ---Defendant should pay an amount of
Rs.175,000/ - to the plaintiffs as actual cost of litigation and an amount of Rs.25,000/ - as a
compensation for frivolous and false litigation ---Revision was dismissed in c ircumstances.
Kesavalu v. Venkatarama ((29) AIR 1942 Mad. 35 rel.
(b) Civil Procedure Code (V of 1908) ---
----S. 115 ---Revisional jurisdiction of High Court ---Scope ---Jurisdiction under S.115, C.P.C. was
discretionary in nature ---High Court could e xercise such power in aid of justice and not to affect
its ends ---Revisional court would interfere where grave injustice or hardship would result on
account of non -exercise of jurisdiction vested in the courts below ---Section 115, C.P.C. had
conferred supe rintending and visitorial power of correction upon the High Court ---High Court
might call for the record of the courts subordinate to it by exercising power under S.115, C.P.C.
and might exercise power of suo motu where it appeared that subordinate court h ad exercised
jurisdiction not vested in it or had failed to exercise jurisdiction so vested or had acted in
exercise of its jurisdiction illegally or with material illegality.
(c) Words and Phrases ---
----"Jurisdiction" ---Meaning ---"Jurisdiction" is t he power of administering justice according to
the means which law had provided.
(d) Constitution of Pakistan ---
----Art. 203 ---Supervisory power of High Court over subordinate courts ---Scope ---High Court
has general power to supervise and control subordinate courts in the interest of administration of
justice and not to benefit any party ---High Court has been made t he 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.
Mujeeb Ahmed Hashmi and Khushal Khan Kasi for Petitioner.
Muhammad Saleem Lashari, M unir Ahmed Langove and M.A. Rauf for Respondents
Nos. 1 to 7.
Tariq Ali Tahir, Addl.A.G.
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 applicat ion 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
objec tions. 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 th e 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 Limita tion 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 t he 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 fo r 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 ha ve 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 righ tly 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 ap plication 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 afte r 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 t he 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 Cour ts 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 re spondent 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 c ould 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 purpo ses 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 w ithin 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 exerc ise 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 da mages 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 res pondents 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 dThis judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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