1995 PLP 1319 (MLD)

Syed Zulfiqar Ali for Respondents. Date of hearing: 21st March, 1995. The petitioner filed `a suit for permanent injunction. The respondents resisted the same on the ground that it is the 4th suit in the series. The trial Court after hearing the arguments proceeded to reject the plaint vide order dated 15‑6‑1994, which was assailed through an appeal before the lower appellate Court but the appeal was dismissed vide judgment dated 19‑9‑1994 with Rs. 5,000 as special costs under section 35‑A, C.P.C., hence the present revision petition, which was admitted to hearing and the notices were issued to the respondents, who have appeared and contested the petition.

2. The learned counsel for the petitioner argued that the plaint was rejected in the earlier two suits by the petitioners and the third one by his father, therefore, there was no bar in filing the present suit, It is added that the appellate Court has no jurisdiction to award the special costs under section 35‑A, C.P.C.

3. On the other hand, the learned counsel for the respondents argued that the earlier two suits by the petitioner were dismissed by the trial Court vide judgments and decrees dated 14‑2‑1990 and 8‑11‑1990, whereas the suit filed by his father was dismissed as withdrawn on 18‑6‑1986, therefore, the trial Court rightly proceeded to reject the plaint in the 4th suit. It is added that the purpose of the Rule 11, Order VII, C.P.C. is to nip the evil in the bud. The learned counsel in this behalf has referred to the case reported as Latif Ahmad v. Mst. Rashidan (1992 CLC 1173) and Haji Muhammad etc. v. Government of Punjab and others (1994 CLC 1248). Mr. Nabi Ahmad Cheema and Mr. Iftikhar Ullah, Advocates were present in connection with other cases. They were asked to assist this Court on the Point whether the appellate Court can award costs under section 35‑A, C.P.C: or npt? Mr. Nabi Ahmad Cheema, Advocate argued that the Appellate Court can pass any order and enjoy the same powers as available to the trial Court but it cannot award cost for the first time under section 35‑A, C.P.C. The learned counsel in this behalf has referred to the judgments reported as M/s. M. S. Yousaf and Brothers v. Muhammad Mehdi Pooya (PLD 1965 SC 15), Ahmad Khan v. Sattar Din (PLD 1981 SC 148), Punjab Road Transport Board v. Abdul Ghafoor etc. (PLD 1989 SC 541) and Salah‑ud‑din Butt etc. v. Punjab Service Tribunal etc. (PLD 1989 SC 597). Mr. Iftikhar Ullah, Advocate added that the costs are awarded under section 35, C.P.C. while the special costs under section 35‑A, C.P.C. It is submitted that the costs under section 35, C.P.C. are in the discretion of the Court concerned while costs under section 35‑A can only be awarded by the trial Court.

4. I have given my anxious consideration to the arguments of the learned counsel for the parties as well as the learned amicus curiae. It is worthwhile to refer to Rule 33, Order XLI, C.P.C. which reads as under:‑‑‑ "The appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any or the respondent or parties, although such respondents or parties may not have filed any appeal or objection: Provided that the Appellate Court shall not make any order under section 35‑A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order." It is clear therefrom that the Appellate Court possessed all the Powers exercised by the trial Court but this has been curtailed by adding provision in respect of special costs. The provision is in line with the provision of section 35 A, which reads as under:‑‑‑ "(1) 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 objection false or vexatious to the knowledge of the party by whom it has been put forward, and if thereafter, 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 reason 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 twenty‑five thousands rupees or exceeding the limits of its pecuniary jurisdiction, whichever amount is less:" It is clear that the legislature in its own wisdom did not arm the appellate Court powers of awarding special costs. The intention is very clear if both the above provision are read together. Now coming to the other point that in all the three earlier suits plaints were rejected, therefore, there was no bar in filing the present suit. The learned counsel for the petitioner was asked to refer to the judgment dated 14‑2‑1990 and 8‑11‑1990. He confessed that he does not have these judgment before him and the argument was based on the instructions of the petitioner. This is a matter of great regret that the learned counsel with sufficient long standing at bar is making submission without checking of the position from record. The learned counsel for the respondents on the other hand, has placed photostat copies of these judgments on record, according to which the suits were dismissed by detailed judgments. It is also clear that in all the suits the subject‑matter remained the same. The learned trial Court, therefore, legally and correctly proceeded to reject the plaint in the present suit. I feel constrained to record before parting with the judgment, that the trial Court was too kind to the petitioner while not burdening him special costs. There cannot be a glaring example of the misuse of the Court process then this suit by the petitioner' still the trial Court did not bother to exercise powers under section 35‑A, C.P.C. The lapse becomes all the more serious when one finds that the petitioner was not burdened with special costs in spite of claim of the respondents. It is this type of attitude of the trial Courts, which encourages unscrupulous litigants like the petitioner to go on filing suit after suit. This does not only cause harassment and financial loss to the opposite side but also result in wastage of time of the Courts, therefore; the trial Court while dealing with such matters should burden the parties responsible for such frivolous litigation with heavy costs. The absence of such order should be justified otherwise it would be treated as incompetence and inefficiency of the Presiding Officer. It is worthwhile to point out here that it was with a view to curb this tendency that the legislature has enhanced the special costs to Rs. 25,000 through Act XIV of 1994 promulgated on 31‑7‑1994. If looked from this angle, the trial Court has failed to exercise the jurisdiction.

5. The upshot of the above discussion is that this revision petition is partially allowed. The result is that the judgments of Court below are confirmed except to the award of Rs. 5,000 costs by appellant which is set aside A.A./M‑2056/L Revision partly accepted.