MANZOOR HUSSAIN and others vs Mst. FAZIL ELAHI
This matter involves a petition for leave to appeal challenging the imposition of special costs by the Appellate Court, which was subsequently upheld by the High Court. The core legal question before the Supreme Court concerns whether an Appellate Court possesses the authority to award special costs under Section 35-A of the Code of Civil Procedure 1908 when such costs were expressly refused by the trial Court, specifically in light of the proviso to Order 41, Rule 33 of the Code of Civil Procedure 1908. The petitioners argued that the Appellate Court lacked the jurisdiction to grant these costs given the trial Court's prior refusal. The Supreme Court, upon considering the contentions, issued notice to the respondent and directed that the operation of the impugned judgment, solely regarding the imposition of special costs, remain suspended until the date fixed for the hearing. The Court did not issue a final pronouncement on the merits but established the necessity of examining the Appellate Court's power to award costs in these specific procedural circumstances.
- Does an Appellate Court have the power to grant special costs under Section 35-A of the Code of Civil Procedure 1908 if the trial Court expressly refused them?
- Does the proviso to Order 41, Rule 33 of the Code of Civil Procedure 1908 restrict an Appellate Court from awarding special costs when the trial Court has declined to do so?
- Section 35-A, Code of Civil Procedure 1908
- Order 41 Rule 33, Code of Civil Procedure 1908
ORDER
Learned counsel for the petitioners restricted his contentions to the grant of special costs by the learned Appellate Court which has been upheld by the High Court. It was contended that special costs under section 35-A, C.P.C. Were expressly refused by the learned trial Court, therefore, the learned Appellate Court had no power to grant the same in view of the proviso to Order 41, rule 33, C.P.C.
2. Notice to the respondent for a date to be fixed within a month. Till then operation of the impugned judgment to the extent of special costs shall remain suspended.
Notice issued.