2009 PLP 1039 (CLC)

GHULAM MOHYUD DIN MALIK, J.

This writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 has been filed in respect of order dated 28-7-2008 passed by learned Additional District Judge-V, Abbottabad whereby application of the petitioner for setting aside ex parte proceedings was accepted but on payment of cost of Rs.30,000.

2. Arguments of learned counsel for the parties heard at some length, they by concluding their arguments stated at the bar that the amount of cost may reasonably be reduced so that the matter is taken for decision on merits to the trial Court.

3. We observe that normally discretion of Court in awarding costs is subject to the provisions of sections 35, 35-A, and Order IX, C.P.C. in civil cases. It is well-settled proposition of law that costs under section 35-A, C.P.C. are compensatory in nature and under section 35 of the Code, the actual expenses incurred by the successful party in the litigation are awarded by, the Court, to secure the expenses incurred by it as these costs are not given by way of compensation or benefit. In the instant case there is no proof of expenses incurred by the respondents in the matter under discussion, therefore, section 35, C.P.C. is not applicable.

4. With regard to compensatory costs, it appears from the language of impugned order that learned lower Court has acted under section 35-A, C.P.C. in awarding heavy cost to respondents. It is mentioned that according to section 35-A subsection (2), C.P.C. the maximum prescribed limit for compensatory costs shall not exceed twenty five thousand rupees whereas the learned appellate Court has awarded thirty thousand rupees as compensation to the respondents, by exceeding the maximum limit fixed by the law.

5. Apart from the above, as contemplated in section 35-A read with Order XLI, rule 33, C.P.C. under its proviso, appellate Court is stave off granting compensatory costs to successful party, therefore, the impugned order to that effect is patently illegal and against the spirit of section 35-A of the Code. Actually said section of law empowers the trial Court alone to give compensatory costs to the successful party against the defeated party, if the claim or defence is found false, vexatious and the successful party has taken the plea at earliest stage of suit. On the subject case law reported in 2001 SCMR 1680 and 2003 CLC 1428 can be referred, wherein it was held that Court of appeal is not legally competent to award punitive or compensatory costs under section 35-A read with Order XLI, rule 33, C.P.C. 5-A. In our view, Order IX, rule 7, C.P.C. provides the remedy against ex parte proceedings as the defendant who has been proceeded against ex parte, no doubt remains a party to the proceedings, as he cannot be relegated to the position, he would have occupied, had he appeared. Therefore, in view of his position, on cause being shown, ex parte proceedings can be set aside, on nominal costs.

6. With these observations and by keeping in view the consenting statement of learned counsel for the parties, coupled with the fact that the petitioner has been found negligent in attending his case, we partially allow this writ petition and reduce the amount of cost to Rs.3,000 only payable before the trial Court.

7. This writ petition stands disposed of according. H.B.T./114/P Order accordingly.