Costs that Pinch

Costs that Pinch

The development of law is an interesting phenomenon. It is informed by so many factors. While it may be true that evolution of collective consciousness precedes or shapes up laws for societies, political will manifesting itself through a parliamentary intervention is just one aspect. The other, especially in common law jurisdictions, is the development of law, through judicial precedent.

It must weigh heavily on the judges who are prepared to push forward the judicial arch in areas hitherto left untouched or completely condoned, whether they should or must push, and how much and to what extent, and the areas of law that one must focus on to create, however small, a difference nonetheless, in the justice system. It’s a judgment call at the end of the day. It is highly subjective. Every decision made to gradually reform or improve, while creating precedent, is a risk, that may also induce a backlash at the time – sometimes even from the legal fraternity. It’s disruptive yet essential to unclog the justice system as we experience it.

Imposing costs on parties for frivolous litigation or abuse of the litigation process is one such area of law which a few judges are willing to develop. In future, imposing costs may become a norm in Pakistan and when it does, it will enable substantial reduction of workload on the dockets of the courts. Should this happen, it will be because of the exceptional judges who are willing to take risks today. Like the ones in Courtroom No.4 at the Islamabad High Court…

It was an unwelcoming winter for busy bodies. In a little over a month, Justice Miangul Hassan Aurangzeb imposed costs on parties, thrice. The first of the three cases, Civil Revision (CR) No.181/2013 titled Abdul Khaliq v Muhammad Younas & Others, was a property dispute arising out of two agreements, one with initial buyer and other with the subsequent buyer, involving the same seller.

The opinion, while dilating upon Article 79 of the Qanoon-e-Shahadat Order, 1984, was given as a consequence of an omission to produce the scribe of the document when witnesses had been examined. The court concluded that such a scenario wasn’t fatal to the specific context of costs and noted the following:

“It has become commonplace for the unscrupulous to enter into agreements to sell property and before the expiry of the period fixed in such agreements for performance, they sell the same very property at a better price to third party purchasers. Such reprehensible conduct on the part of sellers leads to endless litigation and waste of public time. Courts would be failing in their duty if such sellers are not burdened with actual as well as heavy exemplary costs when decreeing suit for specific performance of agreements to sell.”

For this reason, while dismissing the CR of the petitioner [subsequent buyer], the court imposed on the seller [respondent No.2 before the court] costs amounting to PKR 1,00,000 under section 35(1)(iii) of the Civil Procedure Code, 1908, as amended by the Cost of Litigation Act, 2017, to the extent of Islamabad.

The second case was CR No. 142/2016 titled Mst Parveen Akhtar v Mian Salah-ud-Din. The judgment while painstakingly comprehensive is a hallmark of Justice Hassan’s opinions from the Bench. The litigation dates back to 05.06.1991 when the initial agreement to sell a property had been signed between the parties. In essence, the case hinged upon the claim of one, Mst Parveen Akhtar, the petitioner before the court, who contended that she was a bona fide subsequent purchaser of the property and had no knowledge of any earlier agreements.

The court dismissed her contention in view of the law on constructive notice under section 27(b) of the Specific Relief Act, 1877 and requirements of due diligence under section 41 of the Transfer of Property Act, 1882. The court then expanded on the conduct of the seller [respondent No.2 before the court] and described it as “most deplorable”, imposing hefty discretionary costs amounting to PKR 10,00,000 on the seller as a punitive measure to discourage such conduct in future.

The third case, Constitutional Petition No. 4199/2017 titled SM Tariq Khawaja v Registrar Cooperative Societies involved directions, inter alia, to the National Police Foundation [respondent No.3] to hand over possession of plots. The court noted the following:

“It has been almost five years that the petitioner has been striving for his right to gain the possession of the plots owned by him.”

The Foundation, according to the judgment, remained evasive in implementing the mandate of the law, by protracting the proceedings on one pretext or the other and for the most part being aided by the Circle Registrar Cooperative in abusing the process of law. The court imposed PKR 50,000 as costs on the Circle Registrar and PKR 2,00,000 on the Foundation, with directions to hand over the possession of plots within one month of the judgment.

There is a clear policy shift in the court’s approach towards costs. ‘Costs must pinch’ appears to now be the underlying thought-process. Costs should not be nominal, or merely imposed as token of disgrace, as this will not really create sufficient deterrence – which is also an indictment of the culture at the Bar these days. The shift in policy will gradually but surely chip away at the manner in which litigation is treated and perceived both by parties and their lawyers in this country.

More power to the courts and to the judges who dare!

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