MUHAMMAD HANIF SHIBLI vs DEPUTY SETTLEMENT COMMISSIONER, GOJRA AT
This petition for leave to appeal challenged a judgment of the Lahore High Court, specifically contesting the imposition of exemplary costs amounting to Rs. 5,000 awarded to the respondent upon the dismissal of the petitioner's Intra-Court Appeal. The petitioner argued that the appellate court lacked the legal authority to grant such costs, asserting that the relevant statutory framework for compensation regarding false or fictitious claims is limited by the Code of Civil Procedure 1908. The core legal question was whether an appellate court possesses the jurisdiction to award exemplary costs when dismissing an appeal, particularly in light of the constraints imposed by Section 35-A and Order XLI, Rule 33 of the Code of Civil Procedure 1908. The Supreme Court held that the appellate court erred in awarding these costs, as the statutory provisions do not permit such an order in this context. Consequently, the Court allowed the appeal to the extent of setting aside the imposition of the exemplary costs, establishing that an appellate court cannot impose exemplary costs where the statutory conditions for such an award are not met.
- Does an appellate court have the power to award exemplary costs when dismissing an appeal?
- Can an appellate court make an order under Section 35-A of the Code of Civil Procedure 1908 if the trial court omitted or refused to make such an order?
- Section 35-A, Code of Civil Procedure 1908
- Order XLI Rule 33, Code of Civil Procedure 1908
ORDER
1. NASIM HASAN SHAH, J.-This petition is directed against the judgment of the I. C. A. Bench of the Lahore High Court dated 24-6-1979, whereby, while dismissing the Intra-Court Appeal preferred by the petitioner, noting the harassm ent caused by him to respondent No. 2, awarded exemplary costs amounting to Rs. 5,000 in his favour. Leave is sought only against the last-mentioned part of the order, namely, the award of examplary costs to respondent No. 2.
2. Mr. Sher Zaman, learned counsel for the petitioner, in support of this petition, has submitted that the appellate Bench did not have any power to grant examplary costs, even if it felt that the appeal filed before it was false or fictitious because the only provision in the Civil Procedure Code for granting compensation in respect of false and fictitious claims is contained in section 35-A of the C. P. C. However, a reference to that provision shows that such costs cannot be allowed by the Court while dismissing an appeal. He points out that the same position is reiterated in Order XLI, rule 33 of the C. P. C. Which deals with the powers of the Court of Appeal. The proviso to rule 33 of Order XLI is relevant in this behalf which reads :- "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."
3. Mr. Jariullah Khan, Advocate, who is present on behalf of respondent No, 2, has no answer to this contention.
4. We would, accordingly, convert this petition into an appeal and allow it to the extent that the last part of the order; whereby the petitioner (now appellant) has been burdened with costs amounting to Rs. 5,000 for payment to respondent No. 2 will be set aside. Order accordingly.
5. The parties will bear their own costs of this appeal.
6. M. Z. M.
Cited by 1 case
- S.I.T.E. vs Mst. QAMAR HILAL and others 2002 MLD 1569