SAIDUZZAMAN SIDDIQUI, J:---Evacuee house bearing No.Q/43 Chowk Imambara, Rawalpindi (herienafter to be referred as 'the house' only), was transferred to one Haji Muhammad Abdullah, a non-claimant displaced person, against his N.C.H. Form under the provisions of Displaced Persons (Compensation and Rehabilitation) Act, 1958, hereinafter to be called 'the Act' only, by the Settlement Authorities by order dated 21-5-1960. The said Haji Muhammad Abdullah entered into an agreement of association with Shaikh Habib Ullah, the predecessor-in-interest of respondents 1 to 15, and surrendered his rights and interest in the house in favour of the latter. The agreement of association entered into between Haji Muhammad Abdullah and Shaikh Habib Ullah, was duly allowed by the settlement authorities. However, it appears that before a Provisional Transfer Order (P.T.O.) could be issued in favour of Shaikh Habib Ullah, he died. Accordingly, the P.T.O. Was later issued on 21-8-1964 in favour of respondents 1 to 15 (hereinafter to be referred as 'the respondents' only). The P.T.O. Was ,followed by a Permanent Transfer Deed (P.T.D.) dated 8-7-1965 issued in favour of the respondents.
2. After about 7 years of the transfer of the house in favour of the respondents, the petitioner filed a belated appeal before the Additional Settlement Commissioner challenging the order of Deputy Settlement Commissioner dated 21-8-1964 transferring the house in favour of Haji Muhammad Abdullah. The appeal was allowed by the Additional Settlement Commissioner on 4-4-1968 and the case was remanded to the Deputy Settlement Commissioner for fresh decision on merits. The respondents challenged the order of Additional Settlement Commissioner through a revision petition before the Settlement Commissioner, but the same was dismissed on 8-2-1969. The respondents, thereafter, filed Writ Petition No.342-R/69 before the Lahore High Court which was allowed on 7-2-1975 and as a consequence thereof the order passed by the Deputy Settlement Commissioner on 21-5-1960 and the P.T.O./P.T.D. Issued to the respondents were restored. The petitioner filed C.P.L.A. No.253/75 before this Court to call in question the judgment of the High Court in Writ Petition No.432-R/69 but leave was refused on 19-6-1979. The review petition filed by the petitioner against the order of this Court dated 19-6-1979 was also dismissed on 24-3-1980. The petitioner made yet another attempt to get the case reopened by filing a miscellaneous application, C.M.P. No.190-R/82, before this Court but the same was also dismissed on 12-12-1982.
3. After termination of the proceedings as aforesaid, the applicant once again attempted to get the case reopened by filing a civil suit against the respondents. He also simultaneously moved a miscellaneous application before the Deputy Settlement Commissioner for reopening of the case.
The respondents on being served in the above cases, moved an application before this Court for drawing contempt proceedings against the petitioner which was entertained and notices were issued to the Civil Judge. Deputy Settlement Commissioner and the petitioner. However. The contempt proceedings were dropped on 5-10-1982, after the suit and application filed before the Deputy Settlement Commissioner were withdrawn by the petitioner. The respondents then instituted an ejectment case against the petitioner before the Rent Controller seeking his ejectment from the house. The ejectment application was granted and the petitioner was directed to hand over vacant possession of the house. The appeal filed by the petitioner against the order of eviction also failed. The petitioner then challenged the order of Rent Controller and the appellate authority in a writ petition which was also dismissed. He once again carne to this Court seeking leave to appeal against the order of the High Court maintaining the order of eviction but the same was dismissed by this Court on 30-1-1984.
In the meantime, it appears that the Settlement Authorities discovered that the compensation book utilised by the respondents for payment of the part of transfer price amounting to Rs.12,144 was not genuine and accordingly through notice dated 12-7-1979 respondents were called upon to show cause why the transfer in their favour should not be cancelled. The respondents in reply to the said notice sought permission to deposit the sum of Rs.12,144 in cash which was allowed and consequently the transfer price of Rs.12,144 was deposited in cash on 21-7-1979. The petitioner having come to know to the above facts lodged F.I.R. No.421/79 with Police Station Civil Lines, Rawalpindi under section 420/471/468, P.P.C. Against the respondents. The case was later taken up by the Summary Military Court and respondent No.1 was granted bail by the Summary Military Court on 8-11-1979. However, the Summary Military Court latter transferred the case for trial to the ordinary criminal Court and the same accordingly, proceeded before the Senior Civil Judge and Magistrate Section 30; Rawalpindi. Respondent No.1 moved an application under section 249-A, Cr.P.C. Before the Trial Court for his acquittal on the ground that the case was incompetent as cognizance could only be taken by the Court upon a complaint filed under section 28 of the Act.
The trial Court by order dated 16-7-1981 accepted the application of the respondent and acquitted him in the case on the ground that the complaint could only be filed by the competent authority as envisaged under section 28 of the Act. The petitioner filed a revision petition against the acquittal of respondent No.1 before the learned Sessions Judge which was dismissed on 14-3-1982. The petitioner then approached Summary Military Court and obtained a stay against his eviction from the house from the said Court on 4-2-1984. However, this order was subsequently vacated by the Summary Military Court on 6-2-1984. The respondents then filed an execution application and obtained possession of the house from the petitioner.
4. Respondent No.1 was later arrested on 2-1-1985 in F.I.R. No.421/79 and was tried before the Summary Military Court which convicted him and sentenced him to one year R.I. With fine of Rs.3 lacs and in default to suffer further R.I. For one year. The Summary Military Court further directed the District Magistrate on 5-2-1985 to dispossess the respondents from the house and deliver possession thereof to the petitioner. The respondents then instituted Writ Petition No.79/85 which was finally allowed by a learned Division Bench of Lahore High Court as follows:-- "20. For the foregoing reasons we hold that the proceedings taken by the Summary Military Court No.18, Rawalpindi, for the trial of petitioner No.1 on the charges framed against him and order dated 3-1-1985 passed by the said Court sentencing petitioner No.1 to rigorous imprisonment for one year with a fine of Rs.3,00,000 and in default thereof to suffer further R.I. For one year and the order for the delivery of possession of the property to respondent No.4 erroneously assuming him to be the lawful owner thereof are without lawful authority and of no legal consequence and quashed. The writ petition stands accepted in terms thereof. Since the proceedings have been held to have suffered from positive mala fides And they were unjustifiably defended by respondent No.1 the Provincial Government and respondent No.4, therefore, we direct that each of these shall pay an amount of Rs.5,000 to petitioners as special costs."
The petitioner is now seeking leave to appeal against the order of learned Division Bench of the Lahore High Court.
5. Mr. Muhammad Akram Shaikh, the learned counsel for the petitioner conceded before us that in so far the direction of-Summary Military Court ordering delivery of possession of the house to the petitioner was concerned, the order was without jurisdiction: The learned counsel, however, contended that in so far prosecution of the respondent was concerned, it was lawful as the question whether compensation book utilized by the respondents in payment of transfer price was bogus or not, was not finally adjudicated by this Court while declining leave to appeal in C.P.L.A.
No.253/75. The learned counsel referred to the subsequent order of this Court passed in C.P.L.A.
No.98-R/83 which was directed against the eviction of the petitioner from the premises and contended that in that case the petitioner was left free to pursue the case regarding fraudulent adjustment of compensation book towards the transfer price of the house. The learned counsel also contended that in any case the learned Judges of the High Court while dismissing writ petition filed by the petitioner could not award special costs of Rs.5,000 against the petitioner.
6. From the facts stated above, it is quite clear that the allegation against the respondents regarding utilization of bogus compensation book for payment of transfer price of the house was an offence which at the best amounted to misrepresentation under section 27 of the Act and was punishable for imprisonment for a term which may extend to three years or with fine or with both.
However, an offence under section 27 of the Act, could only be taken cognizance of by a Court upon a complaint in writing made b9- an officer appointed under the Act, as provided under section 28 of the Act. It is not disputed before us that no complaint whatsoever was ever made by the Settlement Authorities regarding misrepresentation or fraud or concealment of facts on the part of the respondents by way of a complaint under section 28 of the Act. In the absence of a complaint by an authorised officer as provided under section 28 of the Act, the offence if any committed by the respondents could not be taken cognizance of by any Court. Apart from it, respondent No.1 was proceeded against before the Civil Judge/Magistrate Section 30, on the basis of F.I.R. And he was acquitted by that Court under section 249-A, Cr.P.C. After acquittal of respondent No.1 in that case a second prosecution on the same I charge was, therefore, totally misconceived unless a complaint in writing was filed as required by section 28 of the Act. We are, therefore, of the view that the learned Judges of the High Court rightly came to the conclusion that the order passed by the Summary Military Court convicting the petitioner and sentencing him to one year R.I. And fine of Rs.3 lacs was an order coram non judice. Similarly, direction issued by the military authorities directing respondents to hand over possession of the house to the petitioner was also an order which had no existence in the eye of law and was rightly struck down by the learned Judges of the High Court. The learned counsel for the petitioner, however, contended that the learned High Court while dismissing writ petition could not award special costs of Rs.5,000 against the petitioner. The contention of the learned counsel for the petitioner is, that there is no provision which authorised the High Court to award special costs and in case the learned Judges were inclined to award special costs to the respondents in terms of section 35-A of the Code of Civil Procedure then an issue should have been framed and finding given on that C issue justifying award of special costs. 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 35-A, 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 case, 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. With these observations, the petition is dismissed and leave is refused.