Daily Times

Cost of Litigation Act, 2017 was a game changer when it was enacted by the Parliament. And it is beginning to show its impact.  It amends section 35 of the Civil Procedure Code, 1908 to the extent of Islamabad and mandates that parties to suits are to disclose details of the actual costs of litigation, including fee paid to the counsel and all the ancillary or incidental expenses. On the basis of affidavit submitted by parties; the court has the power to award costs of litigation to a successful party.

In addition, the courts can award costs other than actual costs incurred for litigation, say for frivolous claims, which is at a complete discretion of the court. The Act also envisaged costs on adjournments amounting to at least five thousand rupees per adjournment, if a party to the proceedings fails to appear or comply with any order seeking time for compliance on sufficient cause. There is also a provision for special costs in the Act that empowers the courts to award costs against a party if the averments asserted at the Bar are false or vexatious.

The Act certainly curtailed habitual adjournments in the district courts in matters where lawyers objected to adjournments on account of the new statutory intervention. But the recent judgment of the Islamabad High Court, in Civil Revision No 234/2018 in a case entitled Malik Sajjad versus Shafqat Zaman, would go a long way in addressing the issues of expensive and protracted litigation in the courts. The case was about eviction proceedings instituted by the owner of a shop against a tenant. Like the court notes: “After long drawn proceedings, vide order and decree dated 20.01.2014, the learned Rent Controller, allowed the said eviction petition and directed the petitioner to handover vacant possession of the rented…”

Since his elevation to the Bench, Mr Justice Hassan Miangul has authored number of opinions across the legal spectrum enunciating principles of law that have added to and pushed the contours of law and helped develop legal scholarship in number of areas

Taking stalk of the long procedural posture of the case, dating back July 1, 2010 and concurrent findings of courts below, the opinion concludes: “I do not find any jurisdictional infirmity in the judgment dated 06.07.2018 passed by the learned Appellate Court. Consequently, the instant revision petition is dismissed.” The court then goes onto award actual and discretionary costs: “Consequently, in terms of section 35(1)(i), CPC, as amended by section 2 of the Costs of Litigation Act, 2017, the petitioner shall pay Rs 95,000 as costs … Additionally, for protracting the execution proceedings by taking objections which had been decided in the earlier round of litigation, this Court in its discretion imposes an amount of Rs 1,00,000 as costs in terms of section 35(1), (iii) CPC on the petitioner.”

This decision, in a seemingly low-profile matter concerning eviction proceedings, is arguably one of the most important opinions authored by Mr Justice Miangul Hassan. It is significant because it addresses the twin vices of protracted and frivolous litigation; cancer that has plagued our system. It is not the quantum but the decision of awarding costs which is significant here.

Our civil procedure code has been levered to blatant abuse for too long now. People will now be mindful of the dynamic approach taken by the Islamabad High Court. The opinion has been well received in the Bar – that we hope also plays its part in improving the justice project in Pakistan.

Since his elevation to the Bench, Mr Justice Hassan Miangul has authored number of opinions across the legal spectrum enunciating principles of law that have added to and pushed the contours law and helped develop legal scholarship in number of areas. This one too is top draw.

Interventions, at times, become essential to unblock the choked system. The Cost of Litigation Act and the decision by the Islamabad High Court in Malik Sajjad case would go a long way, in moulding the bad habits we have carried in our attitudes towards litigation, simply for lack of deterrence. But the buck does not stop here. More corrective measures need to be taken such as introduction of mandatory pre-action protocols, track allocation system depending upon the nature of the case and active case management by the courts to resolve the issues of backlogs and delays.

The courts are conscious of the problems that exist in our system. Our Parliament to the extent of Islamabad has shown an intent to address the issues. With this decision of the court as a case in point – reformative statutory interventions by provinces must follow to the enable the courts to discourage frivolous and protracted litigation. Till such time, with the flakes melting, dreamers look forward to the arrival of spring.

The writer attended Berkeley and is Barrister of Lincoln’s Inn

Published in Daily Times, December 4^th 2018.