COMPENSATORY COSTS UNDER SECTION 35A OF THE CODE OF CIVIL PROCEDURE

COMPENSATORY COSTS UNDER SECTION 35A OF THE CODE OF CIVIL PROCEDURE <!--[if gte mso 10]> COMPENSATORY COSTS UNDER SECTION 35A OF THE CODE OF CIVIL PROCEDURE [Case: Muhammad Ashraf Khan v. Muhammad Akhtar Khan PLD 2002 Lahore 438] By Ch. Irshad Ahmad, Consultant, President's Secretariat Subsection (1) of section 35A of the Code of Civil Procedure provides that if in any suit or other proceeding, (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it has been put forward, and, if thereafter, as against the objector, such claim or defence is disallowed, abandoned or withdrawn in whole or in part, the Court, if the objection has been taken at the earliest opportunity and if it is satisfied of the justice thereof, may, after recording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. Subsection (2) of section 35A ibid provides that no Court shall make an order for the payment of amount exceeding twenty five thousand rupees or exceeding the limit of its pecuniary jurisdiction whichever amount is less. In Muhammad Ashraf Khan v. Muhammad Akhtar Khan the plaintiffs filed, a suit in civil Court seeking declaration that only they were the heirs of the propositus and the defendants who also were claiming to be the heirs of propositus were not his heirs. The trial Court dismissed the plaintiffs' suit. Their appeal was dismissed by the District Judge. The plaintiffs filed revision petition before the High Court. The High Court has dismissed the petition, and the decision is reported as Muhammad Ashraf Khan v. Muhammad Akhtar Khan PLD 2002 Lahore 438. While dismissing the revision petition the High Court has burdened the plaintiffs with a sum of Rs.100,000 as special costs. The High Court has noted that the plaintiffs had dragged the respondents in frivolous litigation. This commentary examines the question whether a High Court, as an appellate Court, can make an order for the payment of compensatory costs under section 35A of the Civil Procedure Code, and if so, to what extent. The law report shows that the trial Court had framed an issue to the effect whether the defendants were entitled to compensatory costs under section 35A of C.P.C., and if so, to what extent. It appears that the trial Court decided the issue against the defendants and they did not appeal that decision. Section 35A of C.P.C. specifically provides that proceeding in respect of which compensatory costs can be awarded shall not include an appeal. An appellate Court cannot thus order payment of compensatory costs if it finds that the appeal filed before it is false or vexatious. Of coarse, if the trial Court refuses to make an order under section 35A of C.P.C. the appellate Court can, on appeal by the aggrieved person, make an order awarding such costs but since the power to award special costs is directly related to the proceedings before the trial Court the amount of compensatory costs cannot exceed the limits of pecuniary jurisdiction of the trial Court or twenty five thousand rupees whichever is less, and similarly if the trial Court makes an order under section 35A of C.P.C. the appellate Court can, exercising appellate jurisdiction, set aside that order or reduce the award. One of the main causes of proliferation of litigation in Courts is that the loosing party is not obligated to pay proper costs of the winning party. The decision of the High Court awarding costs is welcomed. But since the judgment of High Court which appears in law report has to play its function as precedent therefore for its value and legitimacy as a precedent it is essential that it contains the reason for the decision clearly demonstrating on what statutory provision or precedent it is based, because not the result of decision but the principle of law which a decision of superior Court enunciates is precedent. The case does not answer all the relevant questions that arise in the context of awarding compensatory costs for false or vexatious proceedings by an appellate Court