' CHAUDHARY MUHAMMAD TAJ, J.---This appeal, with the leave of the Court, has been filed against the judgment and decree passed by the High Court on 19-5-2004 whereby an appeal filed against the order of the District Judge Bhimber was dismissed.
2. The facts are that the appellant herein filed a suit for damages in the Court of District Judge, Bhimber on the ground of frivolous litigation against him by the respondent in a previous suit. The suit was dismissed on two preliminary legal issues. An appeal with the High Court also failed.
Hence, this appeal.
3. Raja Saadat Ali Kayani, the learned counsel representing the appellant, contended that the suit was illegally dismissed on the ground of failure to disclose cause of action and also on the ground of maintainability of the suit. It was argued that a malicious and frivolous litigation was made by the respondent which ultimately resulted in dismissal of his appeal by this Court with cost, therefore, the appellant filed a suit for damages which included all expenses in the shape of damages, therefore, it was required that the Court should have decided the matter after receiving the evidence from both the parties. The suit could not be dismissed simply on the aforesaid technical grounds which have resulted in miscarriage of justice.
4. Raja Muhammad Siddique Khan, who appeared from the opposite side, while defending the order, argued that a previous suit which was filed by the respondent before the Senior Civil Judge, Bhimber, was decreed in his favour and the same was upheld by the District Judge. However, an appeal filed with the High Court on behalf of appellant and others was accepted and the concurrent findings by the Courts below were set aside without any cost. The respondent filed an appeal before this Court which was dismissed with cost. The learned counsel asserted that there was no frivolous litigation as both the subordinate Courts decreed the suit in favour of the respondent. Though the suit was dismissed by the High Court and the judgment and decree was maintained by this Court but the High Court did not pass any order in respect of cost. The learned counsel further argued that the appellant could file a bill of cost or the Court could grant if persuaded for an exemplary cost but no separate suit after final resolution by this Court could be filed for recovery of damages. The learned counsel further argued that the suit was filed alone on behalf of the respondent and similarly the suit was filed against the appellant, therefore, the appellant had no cause of action against the respondent alone and similarly in absence of others against whom the respondent had filed a suit. Thus the suit was not maintainable and was correctly dismissed by the trial Court as well as the Appellate Court.
5. We have heard the learned counsel for the parties and also gone through the record. The trial Court dismissed the suit on two preliminary issues framed on the basis of pleadings. The learned Judge in the High Court through a detailed order dismissed the appeal with the following observations:-- "6. I have examined the case law cited at Bar by the learned counsel for the respective parties. The case law cited by the learned counsel for the appellant after its examination is found not helpful to the case of appellant because it is not relevant in the instant case. However, the case law relied upon by the learned counsel for the respondent being perfectly relevant to resolve the controversy between the parties is respectfully followed. The Honourable Supreme Court of Azad Jammu and Kashmir in Shamim Akhtar's case 2001 YLR 3167 observed that the cost incurred in a suit cannot be claimed by a separate suit after the decision in which the costs have been incurred. After examining the averments made in the present suit it appears that it is a case for damages for malice and frivolous litigation incurred during a previous litigation between the parties. This suit therefore, is not maintainable for the reasons that the plaintiff could be compensated by awarding cost/special cost through a bill of cost in the previous suit. No doubt for the cost of special nature, the suit for damages independent of fhe cost awarded is maintainable but in such suit exceptional circumstances are required to be proved by the plaintiff before he succeeds in getting damages and in such cases the test would be as it has been held in 1988 CLC 147 whether the action complained of necessarily or naturally involved damages which could be re-compensated by awarding cost through a separate suit. It means that in order to succeed to get the damages through a separate suit the plaintiff has to strictly prove that the previous litigation was luxurious, malicious or frivolous. Here in this case, the trial Court and the Ist Appellate Court did not make any order as to cost while deciding the previous suit and the learned Judge in the High Court also passed no order as to cost in view of the peculiar circumstances of the case. However, as stated earlier, the apex Court disallowed the appeal with cost. It was within the jurisdictional competence of the apex Court to award even special cost under section 35-A of C.P.C. If the litigation was found frivolous and vexatious provided the bill of cost was submitted to it. The plaintiff-appellant failed to submit any bill of cost in the Supreme Court and brought the present atilt for damages on the ground of malicious and frivolous litigabbn due to which he incurred alleged damages. The reasons why a separate suit does not lie for frivolous and malicious prosecution as held in Muhammad Amin's case AIR 1947 PC 108 is that defendant's reputation can be cleared of any imputations made against him and he can be indemnified against his expenses by awarding of cost against his opponent. The law does not award damages for mental agony for extra-cost incurred beyond those imposed on the unsuccessful party. The present case when seen in view of above stated legal position merited its dismissal as has rightly been done by the Court below."
6. The learned counsel representing the appellant laid a stress that his suit was maintainable in view of the pleadings made therein which related to malicious and frivolous litigation, therefore, it was argued that the learned Judge in the High Court fell in error while agreeing with the order passed by the trial Court. It may be mentioned that the question whether an independent suit on the above subject was maintainable or not came before this Court in a case reported as Shamim Akhtar and 14 others v. Mst. Fatima Bi 2001 YLR 3167, where it was held:-- "4. We have given due consideration to the arguments. It may be observed that it is well-settled principle of law that cost incurred in a suit cannot be claimed by a separate suit after the decision of the suit in which costs are alleged to have been incurred. A reference may be made to the following authorities:-- ' In a case reported as Ali Asghar v. Fazal Akbar 1988 CLC 147 it has been held that a suit for damages for malicious civil proceedings is not maintainable for the reason that a party defeated can be compensated by awarding cost/ special cost to him. However, in cases of special nature, a suit for damages independent of the cost awarded can be maintained but in such suit exceptional circumstances must strictly be provided by the plaintiff before he succeeds in getting the damages; in such cases test would be whether the civil action complained of necessarily or naturally involved damages which could be re-compensated by awarding cost in the suit. It was held on the facts of the case that as the suit filed by the respondent-plaintiff could not be regarded as luxuriouS, malicious or frivolous, the suit for damages was not maintainable and he was not entitled to a decree passed by the trial , Court. Consequently, the judgments and decrees of the Courts below were set aside.
' In a case reported as Haji Muhammad Shafi v. Mst. Hamidan Bibi 1990 M LD 597, it has been held that no separate suit can be filed for the recovery of cost incurred or damages suffered on account of institution or defence of previous civil suit. It was observed that under section 35, Cr.P.C., the Court, while deciding the suit, is empowered to grant cost to the suffered party. It was further observed that under section 35-A of C.P.C., special cost can be awarded in case of frivolous and vexatious suit, the separate suit for claiming damages or cost was not competent; in such a case no suit for the recovery of damages was competent.
' In a case reported as (Hafiz) Abdullah v. Mangal Sain AIR 1932 Lahore 257, it has been held that no suit lies for recovery of the cost incurred in formal litigation between the parties in view of the provisions contained in sections 35 and 47 of C.P.C.
' In a case reported as Muhammad Amin v. Jogendra Kumar Bannerjee AIR 1947 PC 108, it was observed as under:-- ' The reason why an action does lie for falsely prosecuting an ordinary civil action is that such a case does not necessarily and naturally involve damage to the party sued. A civil action which is false will be dismissed at the. Hearing. The defendant's reputation will be cleared of any imputations made against him, and he will be indemnified againsthis expenses by the award of - cost against his opponent. The law does not award damages for mental anxiety, or for extra cost incurred beyond those imposed on the unsuccessful party.
' It may be observed that the point as to whether separate suit could be filed for the recovery of cost was not decided by the High Court by observing that the same was not covered by the additional issue which was framed by the Court; the issue only pertained to impleadment of the legal representatives of Resham Khan. However, we are of the opinion that although the question of filing of separate suit for the recovery of counsel fee was not covered by the issue framed, yet it is a law point which was argued before the High Court. The aforesaid point' has been pressed in this Court at the time of granting leave as well as in the arguments in the present appeal. Therefore, we feel advised to decide the same instead of leaving the matter to be decided by the trial Court and thereby putting the parties to further inconvenience. In the light of what has been stated above, we accept the appeal and hold that the suit filed by the respondent, herein, for recovery of the fees of the counsel was not competent and the same is hereby dismissed with no order as to the cost."
7. So far as the previous litigation was concerned, the suit was filed on behalf of the respondent along with the other plaintiffs. Similarly, the suit was filed against the appellant herein and others but the appellant did not implead the other plaintiffs. It is also important to mention that the present suit was not filed on behalf of all the parties against whom the respondent and others filed a suit. The other factor which has also to be considered is that the respondent's suit was decreed by the trial Court as well as the first Appellate Court. However, the High Court was persuaded to allow the appeal but without any cost. The order was upheld by this Court with costs. The appellant did not file any bill of cost.
8. Relying upon the aforesaid dictum of this Court, we hold that the appellant could not maintain a separate suit as such the order passed by the High Court does not warrant any interference by this Court. Hence, the appeal is dismissed with no order as to costs.