1990 PLP 597 (MLD)

This petition arises out of a suit for recovery of Rs.16,500 as damages filed by the respondent against the petitioner which was decreed by the trial Court on 14th November, 1982 to the extent of Rs.8,

000. On an appeal filed by the petitioner this amount was reduced to Rs.5,000 by the Additional District Judge on 17th December, 1986. These two judgments of the Courts below have been assailed by the petitioner in this petition.

2. The suit filed by the respondent was based on the ground that earlier the petitioner had filed two suits for declaration against the respondent challenging he sale‑deed dated 17th July, 1976 with regard to a house and a shop situate in Kasur. The plaints in both the suits were. rejected on 8th April, 1979. According o the respondent‑plaintiff these suits were filed mala fide, frivolous and vexatious and as such she was entitled to recover Rs.16,000 as damages and cost of litigation, which were detailed as under:‑ 1 Loss of reputation Rs.5,000 2 Mental torture Rs.10,000 3 Legal expenses. Rs.1,500 As against this claim the trial Court granted a decree for the recovery of Rs.8,000 as token damages after holding that the respondent‑plaintiff was entitled to recover the expenses of previous litigation and damages for injury to his reputation and mental torture. The Additional District Judge in his impugned judgment proceeded to reduce the decretal amount from Rs.8,000 to Rs.5,000.

3. The question which arises for consideration in this petition is as to whether, a separate action can be maintained in law for recovering the costs incurred by a person in prosecuting or defending a previous suit or for the damages suffered by him on account of the institution of that suit. Mr.Mahfooz‑ul‑Haq the learned counsel for the petitioner contended that no separate suit can be filed, in this respect in view of section 35 and section 35‑A of C.P.C. under which the Court is empowered to not only grant costs but also to impose special costs in case the action is found to be frivolous or vexatious. Raja Mahmood Akhtar Advocate, for respondent on the other hand, contended that under no law the filing of a separate suit was barred and therefore, the suit filed by the respondent was maintainable.

4. After hearing the learned counsel for the parties and having considered the various provisions of law, the conclusion is inescapable that no separate suit can be filed for recovery of costs incurred or damages suffered on account of institution or defence of a previous civil suit. Under section 35 of the C.P.C. the Court while deciding a suit is empowered to grant cost to the affected party. Similarly section 35‑A of the C.P.C. provides Panacea for the loss suffered by a person in case the action brought against him is found to be frivolous, vexatious and mala fide. In these circumstances it cannot be contended with any success that a separate suit can be filed notwithstanding that while deciding the earlier suit, the Court had declined to grant any cost or had granted costs which are considered to be inadequate.

5. As regards the costs for litigation it has since long been consistently held that no separate suit can be filed. Reference in this connection may be made to Qadir Bakhsh v. Salig Ram I L R (1887) Vo1.9 Allahabad 474), Abdullah Mangal Sain AIR 1932 Lah. 257 and Lalta Prasad v. Suraj Kumar and others AI 1922 Allahabad

145. Similarly no action can be brought to recover damages account of malacious prosecution of a previous instituted civil suit. The rational for so holding, has been explained by the Privy Council in Muhammad Amin Jogendra Kumar Bannerjee A I R (4) 1947 Privy Council 108, in the following passage appearing at page 112 which may be reproduced with advantage:‑ "The reasons why the action does not lie for falsely and malicious) prosecuting an ordinary civil action is, as explained by Bowen L.J. in th last mentioned case, that such a case does not necessarily and natural involve damage to the party sued. A civil action which is false will be dismissed at the hearing. The defendant's reputation will be cleared o any imputations made against him and he will be indemnified against hi expenses by the award of costs against his opponent. The law does no award damages for mental anxiety, or for extra costs incurred beyond those imposed on the unsuccessful party." The Patna High Court while dealing with the similar question in Jagdeo Sahu v Dwarka Prasad A I R 1948 Patna 88 observed that:‑ "It is not an actionable wrong to institute civil proceedings without reasonable and probable cause even if malice be proved, for in the contemplation of law defendant who is by a judgment in his favour, which gives him his costs against the plaintiff." The observations of the Peshawar High Court in case of Ali Asghar v. Fazal Akbar and two others 1988 C L C 147 also support this view. It is thus clear that the suit filed by the respondent for the recovery of costs and damages allegedly suffered by her on account of institution of the two previous suits was not maintainable. In view of what has been stated above this petition is accepted, the judgments and decrees of both the Courts below are set aside and the suit filed by the respondent is dismissed leaving the parties to bear their own costs. M.B.A./M‑1813/L Petition accepted.