2017 Y L R 372
[Balochistan]
Before Mrs. Syeda Tahira Safdar, J
PRINCIPAL, BOLAN MEDICAL COLLEGE, QUETTA ---Petitioner
Versus
Dr. SHARBAT KHAN and 4 others ---Respondents
Civil Revision No.235 of 2012, decided on 26th August, 2016.
Civil Procedure Code (V of 1908) ---
----S. 35 -A---Compensatory costs for false or vexatious defenses ---Requirements ---Trial Court
while deciding the case imposed costs under S. 35 -A, C.P.C. upon the defendant ---Validity ---
Written statements were filed with specific pleas but ther e was no objection on the part of
plaintiff ---Nothing was on record to object that defence taken against the plaintiff was false or
vexatious to the knowledge of defendant ---Objection had to be taken by a party at an earliest
opportunity and such claim sho uld have been held to be false and vexatious by recording
reasons ---Trial Court had failed to state reason on basis whereof defence was held to be false or
vexatious ---Nothing was on record that defendant had knowledge that defence taken was false
and vexa tious ---Trial Court was not justified to allow compensatory costs in circumstances ---
Impugned judgment and decree to the extent of compensatory costs were set aside ---Revision
was allowed in circumstances.
Rauf Atta for Petitioner (called absent).
Zafaru llah Langove and Naseer Ahmed Bangulzai Additional Advocate General for
Respondent No.1.
Date of hearing: 29th July, 2016.
ORDER
MRS. SYEDA TAHIRA SAFDAR, J. ---The brief facts which resulted in filing of the
instant petition that a suit was filed by resp ondent No. 1 Sharbat Khan to get him declared lawful
allottee of bungalow No. APB -7 situated in residential colony of Bolan Medical College, Quetta
with an order to restrain the defendants Nos. 1 and 2 from making further allotment of the house,
and handin g over its possession to any one else. He also requested for vacant possession of the
bungalow in question.
2. The suit was contested by the defendants, Official and private. Written statements were
filed. During course a number of applications were filed to become party to the proceedings
under Order I Rule 10 Civil Procedure Code (C.P.C.). As a consequence Secretary, Health
Department, Government of Balochistan, Allotment Committee, (Health Department)
(respondents Nos. 3 and 4) and Dr. Munir Ahmed (prese nt respondent No.5) were allowed to
become party. While the request of one Dr. Muhammad Dawood Khan was declined. Amended
plaint was filed with necessary alterations, while the newly impleaded defendants filed their
written statements. Out of pleadings of the parties issues were framed on 14th June 2011.
Witnesses appeared on behalf of the plaintiff (respondent No.1) and he also recorded his
statement in support of his plea. Due to non -appearance on part of the defendants, including the
present petitioner, the right to defend was struck off, and on hearing of counsel for the plaintiff
the trial court decided the case. The trial court vide judgment dated 5th November 2011 allowed
the relief in the terms: --
"a. It is declared that plaintiff is lawful allottee of bungalow No. APB -7 situated in
residential colony of Bolan Medial College, Quetta and defendant No. 1 under the
Government accommodation rules has got no authority to cancel the same or make
further allotment in favour of any other Government employee.
b. The defendant No. 1 is restrained from making further allotment in favour of any
other Government employee and defendant No. 2 is also restrained from handing over the
possession of same to any other person except the plaintiff, further the defendant No . 2 is
also restrained not to issue any allotment order in favour of any person.
e. The defendant No. 2 i.e. Mrs. Shahnaz Baloch, Principal Bolan Medical College,
Quetta is also directed to pay cost of suit to the plaintiff at the rate of Rs. 25,000/ - (rupees
twenty five thousands) as envisaged under Section 35 -A, C.P.C., for issuance of illegal
and unauthorized order and compelling the plaintiff for filing instant suit, and facing of
agony of trial and mental torture, which wasted time of plaintiff as well , which could be
spent for the service of poor patient."
3. The petitioner in capacity of Principal, Bolan Medical College, Quetta (defendant No.2)
questioned the findings of the trial court not on merit, rather only to the extent of the relief
granted at serial No. C of the relief. It was directed that defendant No.2 Mrs. Shahnaz Baloch,
The Principal Bolan Medical College, Quetta to pay cost of the suit to the plaintiff at the rate of
Rs.25,000/ - in exercise of the powers available under section 35 -A, C.P .C. None else questioned
the findings of the trial Court except the petitioner and her appeal was also declined vide order
dated 29th May 2012 by Additional District Judge -IV, Quetta. The appellate court without going
into merit of the case dismissed the a ppeal holding it to be filed beyond the stipulated period,
thus not maintainable.
4. The instant petition was pressed on the grounds that there was no prayer for
compensatory cost on part of the plaintiff (present respondent No.1); that no reasons were
recorded for awarding of the cost; that the allotment was made under bona fide impression. The
prayer was for setting aside of the impugned judgment to the stated extent.
5. The petition in hand filed on 30th July 2012 and remained pending only due to the
conduct adopted by the petitioner and his counsel. In view of the described facts and on non -
appearance on part of the petitioner, the right of audience of the petitioner was declined, and the
other party was heard for a decision on merit.
6. The only issue n eeded to be addressed that whether the trial court was justified to
exercise the powers available under section 35 -A, C.P.C., and to allow the costs against the
petitioner. Section 35 -A placed a discretion with a trial court to allow payment of costs as
compensation in respect of false and vexatious claims or defences. For better understanding re -
production of subsection (1) of Section 35A C.P.C., would be beneficial: --
35-A. Compensatory costs in respect of false or vexations claims or defenses. ---(1) If i n
any suit or other proceeding 2[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 o f the party by
whom it has been put forward, and if thereafter, as 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 sa tisfied 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 c ompensation.
7. The discretion available could only be exercised if the conditions required are fulfilled
that the claims or defenses should be false or vexatious to the knowledge of the party asserting it.
Secondly the objection to such claims or defences should have been taken at the earliest possible
opportunity, and thirdly such claims or defences should have been disallowed, withdrawn or
abandoned wholly or in part. It is to remind that costs could only be allowed to an objector, who
objects the claim or the defence.
8. In order to ascertain the true facts the record of the trial court was called and perused. The
perusal of the case file reveals that initially the suit was filed against three defendants, including
the petitioner and respondents Nos. 3 and 4. Later amended suit was filed with addition of the
Secretary Health Department, the Allotment Committee (Health Department) and Dr. Munir
Ahmed, while House Allotment Committee, original defendant No.1, was deleted from the list of
defendants. The petitioner (defendant No.2) filed the written statement on 25th May 2011
asserting the authority for allotment of the houses situated in colony in Bolan Medical Collage,
Quetta. On amendment two of the newly impleaded defendants i.e. defendants Nos. 1 -A and 4
(Respondents Nos. 2 and 5) filed their written statements. Defendant No.1 -A was with the plea
that the Principal, Bolan Medical Collage had no authority to allot the accommodation after
issuance of Policy for the purpose in 2009.
9. Despite the fact that the written stateme nts were filed by the defendant with specific
pleas, but there was no objection on part of the plaintiff as required. Nothing filed in writing by
the plaintiff (respondent No.1) to object the defence on the ground that the defence taken as
against him (pla intiff) was false or vexatious to the knowledge of the petitioner defendant No.2).
Nor there was any oral request to the effect noted down by the trial court in the order sheets
maintained in the case file.
10. For exercise of the power available under Sec tion 35 -A, C.P.C., the law mandated that
the objection has to be raised by a party at an earliest opportunity, and such claim has been held
to be false and vexatious by recording the reasons, and the court is satisfied only then the costs
could be allowed. While going through the record the requirements, mandatory in nature, found
missing. The written statement was filed by the petitioner on 25th May 2011. The plaintiff
(respondent No.1) had the opportunity to timely object the same as required, but he opte d to
remain silent. Secondly though the plea taken in defence by the petitioner (defendant No.2) was
disallowed by the trial court, but while delivering the judgment the trial court was unable to state
the reasons on basis whereof such defence was held to be false or vexatious. Further there was
nothing to state that on what basis it was concluded that it was in knowledge of the petitioner
(defendant No.2) that the defence taken was false and vexatious. The reason given in the
judgment failed to fulfill the requirement. Thus in absence of the requirements, mandatory in
nature, the trial court was not justified to allow the compensatory costs, thus the order was made
in violation of the law.
In view of the above discussion the petition is allowed. The judgme nt and decree dated
5th November 2011 of Civil Judge -II, Quetta to the extent of the relief at serial No. C is set
aside. The judgment of the appellate court also not remain in the field. Amended decree sheet be
prepared.
ZC/60/Bal. Revision allow eThis 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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