P L D 2022 Lahore 328 (PLP)

TARIQ SALEEM SHEIKH, J.

The Petitioners and Respondent No.3 are real brother and sisters. Petitioner No.1 lives on the first floor of a house in Dholanwal, Multan Road, Lahore, while Respondent No.3 resides on its ground floor with her family and also looks after their 90-year-old father, Muhammad Sharif, who is admittedly with her for the last 34 years. The Petitioners allege that Muhammad Sharif lost his mental balance in March 2019 and Respondent No.3 and her husband, Respondent No.4, have illegally confined him and even stopped them from meeting him. On 30.08.2021 Petitioner No.1 filed a habeas corpus petition under section 491, Cr.P.C. in the Sessions Court, Lahore, for the recovery of Muhammad Sharif from the alleged illegal custody of Respondents Nos. 3 and

4. The learned Additional Sessions Judge had the alleged detenue brought before him, recorded his statement and dismissed the said petition vide order dated 01.09.2021. The Petitioners are aggrieved of the observation of the learned Judge that Muhammad Sharif is enjoying good physical and mental health and have moved this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, for its expunction.

2. The learned counsel for the Petitioners contended that the Court of Protection constituted under the Mental Health Ordinance, 2001, has the exclusive jurisdiction to determine whether a person is mentally disordered and the procedure therefor is set out in Chapter V of that enactment. The Additional Sessions Judge was not the Court of Protection so he was not competent to comment on the mental health of Muhammad Sharif in a habeas corpus proceedings.

3. The learned counsel for Respondents Nos. 3 and 4 vehemently opposed this petition and contended that it was mala fide and vexatious. He submitted that Muhammad Sharif was of sound mind despite his old age. The Petitioners were eying his properties as he was a moneyed man. They were irked when a few months back he transferred a small piece of land to Respondent No.3 and since then they were trying to get him declared insane. Petitioner No.1 also filed an application under section 29 of the Ordinance for appointment of guardian for his person and properties but failed. The learned counsel contended that the Petitioners had impugned the Additional Sessions Judge s observation because it was likely to stand in their way in future litigation. On the legal plane he argued that the Court had not exceeded its jurisdiction while making the impugned observation and the Petitioners objection was misconceived.

4. The Petitioners had not impleaded Muhammad Sharif in this petition. The Court observed that he was a necessary party to these proceedings and ordered him to be made Respondent No.5 which was done. He was issued notice and, in compliance with another direction, subsequently also appeared in person.

5. Heard and record perused.

6. The Mental Health Ordinance, 2001, was promulgated by the President of Pakistan on 20.02.2001. After the passage of the Eighteenth Amendment, when Health became a provincial subject, it was adopted by the provinces with some amendments.

7. The preamble of the Mental Health Ordinance, 2001 [as amended by the Punjab Mental Health (Amendment) Act, 2014], which shall hereinafter be referred to as the Ordinance , reads as follows: An Ordinance to consolidate and amend the law relating to mentally disordered persons with respect to their care and treat-ment, the management of their property and other related matters.

8. Preamble is a part of a statute though not its operative part. Nevertheless, it provides a useful guide to find out the legislative intent. Coke said: The preamble of the statute is a good means to find out the meaning of the statute, and as it were a key to open the understanding thereof. 1 According to another jurist, it is a key to open the minds of the makers of the Act, and the mischiefs which they intend to redress. 2 In Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others (PLD 1972 SC 279) the Hon ble Supreme Court of Pakistan held that the preamble is a legitimate aid in discovering the purpose of a statute. In Mst. Ummatullah through Attorney v. Province of Sindh through Secretary Ministry of Housing and Town Planning, Karachi and 6 others (PLD 2010 Karachi 236) a Division Bench of the Sindh High Court held that preamble is the gateway to any statute; it is bedrock to understand the scope, purpose and object to any statute. Similarly, in Kamil Khan Mumtaz and others v. Province of Punjab through Chief Secretary, Government of Punjab, Lahore and others (PLD 2016 Lahore 699) a Division Bench of this Court ruled: A preamble is, therefore, a window to the main statute. Although the preamble does not control the main enactment, it certainly gives an inkling of the intention of the legislature and as to the policy of the Act. The concept relating to the policy of the Act is of paramount importance and all interpretation must be done in accordance with the policy and the intention of the legislature found therein.

9. The mentally disordered persons are the weakest members of the society and are prone to all types of abuse. According to its preamble, the Ordinance aims to protect these people, to provide for their health care and management of their affairs, including property matters. The Ordinance has 11 Chapters comprising 61 sections which seek to attain these objectives.

10. For our present purpose section 29 is relevant which occurs in Chapter V of the Ordinance that outlines the procedure for appointment of guardian of person and manager of the property of the mentally disordered. The said section reads as under:

29. Judicial Proceedings.

Whenever any person is possessed of property and is alleged to be mentally disordered, the Court of Protection within whose jurisdiction such person is residing may, upon application by any of his relatives having obtained consent in writing of the Advocate General Punjab, by order direct an inquiry for the purpose of ascertaining whether such person is mentally disordered and incapable of managing himself, his property and his affairs.

11. According to section 2(1)(d), the Court of Protection means a District Court designated as such by Government of the Punjab and having jurisdiction to perform functions under the Ordinance. The proceedings before the Court of Protection are regulated by sections 30 and

31. In Ahsin Arshad and others v. Advocate General Punjab and others (PLD 2018 Lahore 9) this Court held that the consent of the Advocate General required under section 29 is a substantive function in order to ensure that the objectives of the Ordinance are achieved. The legislature in its wisdom created a first level of inquiry through the Advocate General s office to ensure that the application as well as the fact that prima facie there is a case to be placed before the Court of Protection. This heightened protection is given to protect a person who cannot coherently protect his or her rights or property .

12. The Ordinance is a special law and its application is limited to the subjects dealt by it. Therefore, the Court of Protection may not necessarily have jurisdiction over every matter involving a mentally disordered person. No exception can be taken to the impugned observations of the Additional Sessions Judge for two reasons: first, the Ordinance does not apply to the instant case as the proceedings were under section 491, Cr.P.C. and not under section 29 of the Ordinance. They did not involve question of appointment of guardian of Muhammad Sharif or any other matter covered by the Ordinance. Secondly, Petitioner No.1 had taken a specific plea in his habeas corpus petition that Sharif was mentally disordered and Respondents Nos.3 and 4 had wrongfully confined him. The Additional Sessions Judge was under a bounden duty to decide both these issues and for that purpose he was required to engage with the detenue when he was brought before him, to form an opinion about his mental health and then record his statement. He adopted this very course and the impugned observation is a part of those proceedings.

13. I summoned Muhammad Sharif in person and examined him in detail in open court. He was in good physical and mental health and answered all my questions intelligently. The documents produced by Respondents Nos.3 and 4 show that the Petitioners are in a dither ever since he transferred one of his properties to Respondent No.3 and are going all out to get him declared paranoid so that he could be stopped from making further alienations. It is shocking that they have stooped so low for worldly gains.

14. The general rule is that costs follow the event . It connotes that the court will order the party losing the case to pay the costs of the winner. The theory upon which they are allowed to a plaintiff is that the default of the defendant made it necessary to sue him, and to the defendant, that the plaintiff sued him without a fault. 3

15. According to the Black s Law Dictionary costs is a pecuniary allowance, made to the successful party (and recoverable from the losing party), for his expenses in prosecuting or defending an action or a distinct proceeding within an action. 4 Johnstone v. The Law Society of Prince Edward Island (1988) the Canadian Court of Appeal described costs as the sum of money which the court orders one party to pay another party in an action as compensation for the expense of litigation incurred. The definition continues to the effect that costs are awarded as compensation (i.e. reimbursement); there is, unlike damages, no restitutio in integrum, that is no concept in costs as there exists in damages, that the injured person should be placed, in so far as money can do so, in the same position as he occupied before the injury was suffered. 5

16. The costs are in the discretion of the court. However, the said discretion should be exercised judicially, properly and on sound legal principles. The court also has the power to determine by whom, out of what property and to what extent they are to be paid. Halsbury s Law of England states that the court should have regard to the following circumstances while deciding the question of costs:6 i) The conduct of all the parties; ii) Whether a party has succeeded on part of his case, even if he has not been wholly successful; and iii) Any payment into court or admissible offer to settle made by a party which is drawn to the court s attention. The conduct of the parties includes: (a) Conduct before as well as during the proceedings and in particular the extent to which the parties followed any relevant pre-action protocol; (b) Whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue; (c) The manner in which a party has pursued or defended his case or a particular allegation or issue; and (d) Whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim.

17. Every case filed that is dismissed is not frivolous and does not mean that it was instituted with mala fide intention. There are cases which involve intricate questions of law requiring interpretation of the Constitution or a statute. Sometimes civil disputes also have grey areas. Therefore, the courts are to adjudicate the frivolity on certain touchstone. According to the Corpus Juris Secundum,7 a claim or defence is frivolous if its proponent can present no rational argument based upon evidence or law in support of it, based on an objective standard A motion is frivolous and in bad faith where any reasonable attorney would agree that it is totally devoid of merit A party acts in bad faith, warranting sanctions, when it acts vexatiously, for the purpose of harassment or unreasonable delay, or for another improper reason. A pattern of delay and filing repetitious and irrelevant documents may establish bad faith and warrant sanctions. 8 In U.S. West Communications Inc. v. Taborski, 572 N.W.2d 81, the Court defined frivolousness as being legal position wholly without merit, that is, without rational argument based on law and evidence to support litigant s position . In Kahn v. Cundiff, 533 N.E.2d 164 (Ind. Ct. App. 1989), the Court held that a claim or defense is frivolous (a) if it is taken primarily for the purpose of harassing or maliciously injuring a person, or (b) if the lawyer is unable to make a good faith and rational argument on the merits of the action, or (c) if the lawyer is unable to support the action taken by a good faith and rational argument for an extension, modification, or reversal of existing law. In Michael Costanza v. Jerry Seinfeld et al., 693 N.Y.S. 2d 897, 181 Misc. 2d 562, it was held that a frivolous lawsuit is one for which there is no genuine basis either in law or fact, or good faith argument for a change in the law.

18. Proceedings are vexatious if they are instituted with intent to annoy or embarrass the opposite party. In Board of Commissioners, County of Boulder v. Eason, 976 P. 2d 271, the Court explained that vexatious claim is one that is brought or maintained in bad faith , which may include conduct which is arbitrary, vexatious, abusive, or stubbornly litigious, and may also include conduct aimed at unwarranted delay or disrespectful of truth and accuracy. Vexatious litigation is a type of malicious prosecution.9

19. Imposition of costs on the losing party is one of the effective means to curb frivolous and vexatious litigation. In Copper v. Smith (1884) 26 Ch.D. 700 (CA), Justice Bowen said: I have found in my experience that there is one panacea which heals every sore in litigation and that is costs.

20. In Vinod Seth v. Devinder Bajaj and another [(2010) 8 SCC 1] the Supreme Court of India held that the provision of costs is intended to achieve the following goals: a. It should act as a deterrent to vexatious, frivolous and speculative litigations or defences. The spectre of being made liable to pay actual costs should be such, as to make every litigant think twice before putting forth a vexatious, frivolous or speculative claim or defence. b. Costs should ensure that the provisions of C.P.C., the Evidence Act and other laws governing procedure are scrupulously and strictly complied with and that parties do not adopt delaying tactics or mislead the court. c. Costs should provide adequate indemnity to the successful litigant for the expenditure incurred by him for the litigation. This necessitates the award of actual costs of litigation as contrasted from nominal or fixed or unrealistic costs. d. The provision for costs should be an incentive for each litigant to adopt alternative dispute resolution (ADR) processes and arrive at a settlement before the trial commences in most of the cases. However, the Supreme Court emphasized that the provisions relating to costs should not obstruct access to courts and justice. The costs should not be a deterrent for the people with genuine claims and for those members of the weaker sections of the society whose rights have been affected to approach the courts.

21. The Supreme Court of Pakistan highlighted the importance of imposition of costs in Khurshid Ahmad Naz Faridi v. Bashir Ahmad and 3 others (1993 SCMR 639). It said: 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 penalize 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 fide or ulterior motive.

22. In Pakistan the Parliament has enacted Cost of Litigation Act, 2017.10 It is however, applicable to the Federal Capital only. In Punjab sections 35 and 35A of the Code of Civil Procedure, 1908 ( C.P.C. ), are relevant which are reproduced below for ready reference:

35. Costs. --11[(1) Subject to such conditions and limitations, as may be prescribed, and to the provisions of law for the time being in force, the costs of an incident to all suits and other proceedings in the suit, including execution proceedings, shall follow the event, and the Court shall have full power to determine by whom or out of which property and to what extent such costs are to be paid, and to give all necessary directions for the purpose aforesaid. (1a) The fact that the Court has no jurisdiction to try the suit shall be no bar to exercising the powers under subsection (1). (2) Where the court directs that any costs shall not follow the event, the Court shall state its reasons in writing. (3) The Court may give interest on costs at any rate not exceeding six percent per annum, and such interest shall be added to the costs and shall be recoverable as such. 1235A. Compensatory costs in respect of false or vexatious claims or defences. --(1) If in any suit or other proceeding 13[(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 of 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 satisfied 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 compensation. (2) No Court shall make any such order for the payment of an amount exceeding 14[one hundred thousand] rupees or exceeding the limits of its pecuniary jurisdiction, whichever amount is less: 15[***] Provided 16[***] that the High Court may limit the amount which any Court or class of Courts is empowered to award as costs under this section. (3) No person against whom an order has been made under this section shall, by reason thereof, be exempted from any criminal liability in respect of any claim or defence made by him. (4) The amount of any compensation awarded under this section in respect of a false or vexatious claim or defence shall be taken into account in any subsequent suit for damages or compensation in respect of such claim or defence.] Part E, Chapter 11-E of Volume I of the Lahore High Court Rules and Orders supplement the above provisions.

23. Section 35 deals with actual costs while section 35A with compensatory costs. Actual costs reimburse the expenses incurred by the successful litigant in asserting his rights/claim but the court s discretion in awarding them is subject to the conditions and limitations stipulated in Order IX, Rule 3, Order XIII, Rules 2 and 4, Order XIX, Rule 3(2), Order XXI, Rule 72(3), Order XXIII, Rule 1(3), Order XXIV Rule 4, Order XXXII, Rules 4(4) and 5(2), Order XXXIII, Rules 10, 11 and 16, Order XXXIV, Rule 10 and Order XXXV, Rule 3. [See: Kawas B. Aga and another v. City District Government, Karachi (CDGK) (PLD 2010 Karachi 182)]. Inasmuch as section 35 aims at reimbursement of reasonable litigation expenses to the successful party, the costs awarded under this section should be realistic. In contrast, the compensatory costs envisaged by section 35A, C.P.C. are a compensation for false and vexatious claims and defences and are in addition to the actual costs. In awarding them the court does not take into account the actual injury to the person or property of party which can be claimed in a separate suit for damages. However, the aforesaid costs are taken into account in that suit. In Muhammad Akram v. Mst. Farman Bibi (PLD 1990 SC 28) the Hon ble Supreme Court held: They [costs] are not awarded by way of penalty or punishment against the unsuccessful party nor are they to be made a source of profit for the successful party. They are also not awarded by way of compensation, but by its very nature, actual costs are awarded to reimburse a successful party for the expenses incurred by him. And further that even under section 35A costs are compensatory and are not awarded as penalty against an unsuccessful party. All this shows that though the costs awarded under sections 35A, C.P.C. can be taken into account when awarding damages , they are not even by statutory dispensation, the same as the damages . The conditions for application of section 35A are different and much less than the elements set out earlier for an action for malicious prosecution. The actual costs of the suit under section 35, C.P.C. are at a much lower level when considered in this behalf. Besides this, a combined reading of subsection (4) of section 35A and subsection (2) of section 95 which deal with the effect of the orders under these provisions on actions for damages are clearly indication of the legislative intent; that unless a case is fully covered by section 95(2), the award of costs under sections 35 and 35A, instead of barring a suit for damages supports the right for such an action.

24. The courts dealing with civil suits are bound by the provisions of C.P.C. and must award costs in accordance with them. Their discretion is circumscribed by these provisions. However, while exercising constitutional jurisdiction, the High Court may invoke its inherent powers to impose (special/exemplary) costs over and above the amount stipulated in section 35A, C.P.C. In Inayatullah v. Sh. Muhammad Yousaf and 19 others (1997 SCMR 1020) the Hon ble Supreme Court ruled: We are unable to accept the contention of the learned counsel for the petitioner that special costs could only be awarded in terms of section 35A, C.P.C. The learned Judges in the case came to a definite conclusion that the proceedings initiated against respondent No. 1 at the instance of petitioner were mala fide and that the petitioner had no reasonable ground to prosecute the same. In fact respondent No. 1 was sentenced to one year R.I. in the proceedings of the case initiated by the petitioner, which were ultimately found to be coram non judice. In these circumstances, the High Court was fully competent in exercise of its inherent power to grant appropriate compensation to the respondents. There being no positive prohibition on the power of the High Court, while exercising jurisdiction under Article 199 of the Constitution, to award costs to compensate a party made to suffer unnecessarily through frivolous litigation. The High Court in appropriate cases, in exercise of its inherent power, may award adequate costs by way of compensation to a party made to suffer on account of such litigation. Further reference may be made to The Postmaster-General, Northern Punjab and AJ&K, Rawalpindi v. Muhammad Bashir and 2 others (1998 SCMR 2386); Mst. Asma Begum and 10 others v. The Commissioner, Karachi Division, Karachi and 4 others (PLD 1997 Karachi 13); M.D. Tahir, Advocate v. Federal Government and others (PLD 1999 Lahore 409); Kawas B. Aga and another v. City District Government, Karachi (CDGK) (PLD 2010 Karachi 182); and Azhar Iqbal and others v. Government of Pakistan and others (PLD 2015 Islamabad 140).

25. I have already concluded that this petition has been instituted in bad faith. The Petitioners have shamelessly abused the process of law so they are liable to be burdened with heavy costs. Accordingly, this petition is dismissed with costs in the sum of Rs.200,000/- which shall be recovered as arrears of land revenue from the Petitioners jointly and severally and paid to Muhammad Sharif (Respondent No.5) against due acknowledgement within three months from today and if he refuses to accept the money it shall be deposited with the Shaukat Khanum Memorial Hospital, Lahore. The Deputy Commissioner, Lahore, shall submit compliance report to this Court through the Deputy Registrar (Judicial). SA/A-14/L Petition dismissed. 1 Craies on Statute Law, 7th Edition, p. 200. 2 See Bennion, Bailey and Norbury on Statutory Interpretation, 8th Edition. 3 Manindra Chandra Nandi v. Aswini Kumar Acharjya, [ILR (1921) 48 Calcutta 427]; and Vinod Seth v. Devinder Bajaj [(2010) 8 SCC 1]. 4 Black s Law Dictionary, Sixth Edition, p. 346. 5 Cited in 240th Report on Costs of Civil Litigation, Law Commission of Pakistan. Available at: https://indiankanoon.org./doc/185277830 6 Halsbury s Laws of England, 10th Volume, 4th Edition, para 17. 7 Volume 20, pages 24-25. 8 internal citations omitted. 9 West s Encyclopedia of American Law, Second Edition. 10 This Act has introduced various amendments in the Code of Civil Procedure, 1908. 11 Substituted by the Code of Civil Procedure (Punjab Amendment) Act, 2018 (XIV of 2018), published in the Punjab Gazette (Extraordinary), dated: 20 March 2018, pp. 6695-6698, S.9. 12 Inserted by the Civil Procedure (Amendment) Act, 1922 (IX of 1922), published in the Gazette of India, dated: 11 March 1922, p. 37, S. 2. 13 Inserted by the Code of Civil Procedure (Amendment) Act, 1963 (III of 1963); assented to by the President on 3 April 1963; and, was published in the Gazette of Pakistan (Extraordinary), dated: 3 April 1963, pp. 284b-284d, S. 3. 14 Substituted for the words twenty-five thousand by the Code of Civil Procedure (Punjab Amendment) Act, 2018 (XIV of 2018), published in the Punjab Gazette (Extraordinary), dated: 20 March 2018, pp.6695-6698, S.

10. They were earlier substituted for the words five thousand by the Civil Laws (Reforms) Act, 1994 (XIV of 1994); assented to by the President on 27 July 1994; and was published in the Gazette of Pakistan (Extraordinary) dated: 31 July 1994, pp. 683-688, S.

7. They were earlier substituted for the words one thousand by the Code of Civil Procedure (Amendment) Ordinance, 1962 (XLIV of 1962); made by the President on 5 June 1962; and, was published in the Gazette of Pakistan (Extraordinary), dated: 7 June 1962, pp. 921-953, S. 9. 15 The first proviso was omitted by the Code of Civil Procedure (Punjab Amendment) Act, 2018 (XIV of 2018), published in the Punjab Gazette (Extraordinary), dated: 20 March 2018, pp.6695-6698, S. 10. 16 Ibid, for the expression, further .