FIDA HUSSAIN WARRAICH vs Syed ZARFAN HUSSAIN SHAH Ss — 2023 MLD 437 ISLAMABAD

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FIDA HUSSAIN WARRAICH VS Syed ZARFAN HUSSAIN SHAH Ss. 35, 35-a & 34-B [as amended by Costs of Litigation act (XVII of 2017)]---Recovery of damages and litigation costs---Malicious prosecution---Civil litigation---Scope---Dispute between parties related to right of appellant/defendant to continue to use a parcel of land adjacent to his property that respondent/plaintiff claimed was his---Validity---Held, there could be civil proceedings that had undermined right of liberty at an interlocutory or final stage or right to property and/or reputation such as in a claim alleging bankruptcy or failure to abide by financial obligations---Such civil claims, which raised questions regarding probity and honesty of conduct of a claimant, could have consequences for reputation of such claimant, which might not be made whole simply by grant of litigation costs at the end of proceedings---Such was in the context of civil proceedings of such nature (which infringe upon the right to liberty and/or dignity/ reputation and property of a party forced to defend his/her conduct in civil proceedings) that had inflicted damage on appellant/defendant that could lead to a claim for malicious prosecution of civil proceedings---Nature of proceedings between parties was not such that could possibly undermine liberty or reputation of respondent/plaintiff---One of the ingredients in the test for malicious prosecution was not satisfied to the extent that respondent/plaintiff had incurred financial costs during civil proceedings in question---appropriate remedy for relevant Court was to grant costs to respondent/plaintiff under provisions of Ss. 35, 35-a & 35-B, C.P.C. as amended through Costs of Litigation act, 2017---For purposes of recovering litigation costs and/or costs in relation to any inconvenience suffered by respondent/plaintiff, no independent cause of action for recovery of damages for tort of malicious prosecution of civil proceedings accrued to respondent/plaintiff---Mere failure of one party to prove a civil claim did not create automatic right for contesting party to bring suit for malicious prosecution---To find otherwise could function as a major deterrent discouraging citizens from employing process of law to try their rights and could become a fetter on the right of access to justice, apart from creating further litigation even after the matter was laid to rest in civil proceedings---High Court set aside judgments and decrees passed by two Courts below in favour of respondent/plaintiff---appeal was allowed, in circumstances.

FIDA HUSSAIN WARRAICH vs Syed ZARFAN HUSSAIN SHAH Ss — 2023 MLD 437 ISLAMABAD

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