2001 PLP (C (PLC(CS))

SARDAR SAID MUHAMMAD KHAN, C.J.

This appeal, with leave of the Court, has been directed against the order of the High Court, dated 7-7-1999, whereby the writ petition filed by the appellant, herein was dismissed and compensatory cots to the tune of five thousand rupees was also awarded to the opposite party.

2. The brief facts of the case are that the appellant, herein, filed a writ petition stating that he was appointed as Research Officer B-17 in Industries Department on 2-3-1991 on ad hoc basis and subsequently was confirmed on the recommendation of the Public Service Commission. He alleged that a post of Entomologist Sericulture B-18 fell vacant and under rules the same was to be filled in by promotion from Research Officer Sericulture and Assistant Entomologist Sericulture but instead of promoting the appellant, therein, respondent No.7 was promoted on current charge basis on the post of Entomologist B-18 vide notification, dated 11-3-1998; the said appointment was further extended for six months. According to the case of the appellant, Deputy Director addressed a letter to the Director on 24-11-1998 which shows that in fact Zafar Iqbal Kanth, respondent No.7, was being promoted to the post of Assistant Entomologist. Consequently, he entertained the belief that instead of the petitioner-appellant, respondent No.7 was being promoted as Entomologist B-18 against the relevant rules. The writ had not yet been admitted for regular hearing when the High Court issued a temporary injunction and staved the relevant proceedings before the Selection Board. Subsequently when the comments were filed, it was found that in fact the case of respondent No.7 was being processed for his promotion as Deputy Director and not as an Entomologist. Consequently, the appellant was suggested to withdraw the writ petition, but he didn't do the needful. Thus, the High Court dismissed the writ petition imposing rupees five thousand as compensatory costs on the petitioner-appellant for filing a frivolous and vexatious writ petition.

3. Sardar Rafique Mahmood Khan, the learned counsel for the appellant has argued that the aforesaid letter of Deputy Director which was addressed to the Director clearly furnished the petitioner with the ground to file the writ petition. He has further submitted that subsequently the comments which were filed by the concerned authority showing that in fact the case of respondent No.7 was not processed for promotion as Entomologist but as Deputy Director would not render the writ petition as being vexatious within the meaning of section 35-A of Civil Procedure Code. He has further argued that the Civil Procedure Code in the State has not been amended and the maximum compensatory costs could not be imposed more than one thousand rupees. He has further submitted that-no findings have been given by the High Court that initially the stand taken by the appellant was vexatious in view of the aforesaid letter written by the Deputy Director to the Director. The learned counsel has argued that the High Court has imposed the costs to the tune of five thousand rupees without considering the requirement for awarding such costs under section 35-A of the Civil Procedure Code. He has submitted that mere fact that the appellant was not responsible for the delay in disposal of the matter by the Selection Board because after the comments were filed, the High Court could vacate the temporary injunction issued earlier.

4. In reply Raja Shiraz Kayani, the learned Advocate-General, has argued that after the comments which accompanied the working paper 'B', there was no room for the petitioner-appellant to continue with the prosecution of the writ petition. Thus, he has argued that the fact that the appellant was reluctant to withdraw the writ petition clearly indicates that he filed the writ petition on vexatious grounds, irrespective of the fact that letter, dated 24-11-1998 gave a wrong impression to the appellant. Thus, he contended that the High Court has rightly imposed the compensatory costs one.:' the petitioner-appellant.

5. We have given due consideration to the matter. For the sake of arguments the relevant provision of section 35-A of Civil Procedure Code is reproduced as below:-- "35-A. Compensatory costs in respect of the false or vexatious claims or defences.

(1) If in any suit or other proceedings 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 party of it is, as against the objector, false of 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 pare 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 one thousand rupees or exceeding the limits of its pecuniary jurisdiction, whichever amount is less: Provided that where the pecuniary limits of the jurisdiction of any Court exercising the jurisdiction of a Court of Small Causes under the Provincial Small Causes Courts, Act, 1887, and not being a Court constituted under that Act, are less than two hundred and fifty rupees, the High Court may empower such Court to award as costs under this section any amount not exceeding two hundred and, fifty rupees and not exceeding those limits by more than one hundred rupees: Provided, further, that the High Court may limit the amount which any Court or class of Courts is empowered to award as costs under this section." It is evident from the abovementioned provision that before a party could be imposed exemplary costs there must be a finding that averments made by one party or the other were patently vexatious which gave no legal foundation for the prosecution or defence of a particular cause. In the instant case there is no finding by the High Court that initially the letter written by the Deputy Director, dated 24-11-1998 could not give any impression to the appellant, herein, for filing writ petition, especially so when the appellant was not aware of the contents of the working papers. Therefore, the mere fact that subsequently the appellant did not withdraw the petition would not justify to hold that initial averments regarding the promotion of respondent No.7 as Entomologist B-18 were without any foundation and were vexatious. Even otherwise, in Azad Jammu and Kashmir section 35-A of Civil Procedure Code has not been amended and the amount of compensation in case of exemplary cost could not be awarded for more than one thousand rupees. In the light of what has been stated above, we accept the appeal set aside the impugned judgment of the High Court so far as the same pertains to the imposition of five thousand rupees as costs on the appellant. No order is made as to the costs. H.B.T./112/SC(AJ&K) Appeal accepted.