1997 PLP 3025 (MLD)

MALIK MUHAMMAD QAYYUM, J. ‑‑‑The appellant's suit for recovery of money was decreed as against respondent No. l in the sum of Rs.14.40,000 and against respondent No.2 to the extent of Rs.9,00,000, leaving the parties to bear their own costs.

2. Although in the memorandum of appeal various grounds have been raised by the learned counsel for the appellant but says that he shall press this appeal only in respect of costs of the suit and this appeal. He has argued that the trial Court has erred in not awarding the costs of the suit to the appellant/plaintiff.

3. No one has appeared for the respondents; they are proceeded against ex-parte.

4. There is force in the contention raised by the learned counsel for the appellant. According to section 35 of C.P.C., normally a party succeeding in the cause brought by him before the Court is entitled to have the costs of the litigation. But if the Court refuses to award costs to him, the reasons must be recorded by the Court for doing so. It is true that the award of costs is in the discretion of the Court and that the discretion exercised by the trial Court should not be interfered with lightly by the higher Court but that principle applies only when the discretion has been exercised judiciously and on sound principles. As already observed, the general rule is that costs follow the event and successful party can be denied costs of litigation only for some good cause. Without being exhaustive some of the reasons for not allowing the costs are that the successful party has been guilty of misconduct or negligent or has made false claims or raised dishonest pleas. If there is nothing wrong in the conduct of the successful party which disentitlies him to costs the Court cannot refuse to grant costs to him.

5. In Khurshid Ahmad Naz Faridi v. Bashir Ahmad and 3 others, (1993 SCMR 639) the Supreme Court was pleased to observe that the costs are granted to a person who succeeds in a litigation. Such costs are to be paid by the unsuccessful party. The object may be to compensate the aggrieved party who in successful assertion/defence of his right has been put to unnecessary litigation. In Naraindas v. Muhammad Ali Chand (1992 MLD 515), it was held by the Sindh High Court that even though the plaintiff has omitted to make prayer for costs in the plaint but as a rule on his success in the suit he should be allowed costs except for sufficient cause and for good reason recorded by the Court. In Mst. Sakina and others v. Muhammad Akram and others (1991 MLD 1891), it was held that where Courts find a litigant disentitled to costs they were legally required to give reasons for their refusal to burden unsuccessful litigant with costs.

6. If the present case is examined in the light of the above principle, it becomes clear that the refusal of the trial Court to grant costs to the plaintiff/appellant is not sustainable. No reason whatsoever has been given by the trial Court, for not awarding the costs, though it was mandated to do so by subsection (2) of section 35 (ibid) which is emphatic. Be .that as it may, we are unable to discover any special feature of the case which would disentitle the appellant to recover the costs. According to the finding of the trial Court itself, the plaintiff's claim in the suit was justified and was borne out by the evidence brought on the record. The refusal of the respondent to repay an amount of Rs.900,000 has been found by the trial Court to be without any basis. In these circumstances, the trial Court acted illegally in refusing to award costs of the suit to the plaintiff/appellant. In view of the above, we modify the decree of the trial Court and direct that the costs of the suit as also of this appeal shall be borne by the respondents. A.A./1‑26/L Decree modified.