1. ' SARDAR SAID MUHAMMAD KHAN, CJ.---This appeal has been directed against the order of the High Court dated 13-2-1995, whereby the revision petition filed. By the appellants, herein, was rejected and they were imposed Rs,1,000 under section 35-A, C.P.C., and Rs,14,000 under section 35,_ C.P.C., as compensatory costs.
2. ' The brief facts of the case are that the appellants sought amendment in the written statement to the effect that the plaintiff-respondent, Mst. Maqbool Jan, was not the daughter of Muhammad Azeem; and that their, possession over the suit land had ripened into ownership. The appellants also challenged the order of the trial Court, dated 6-5-1991, whereby their evidence was closed by the trial Court. The High Court expressed the view that the amendment in the written statement regarding the paternity of Mst. Maqbool Jan, plaintiff-respondent, was made about ten years after the striking of the issues in the case and the amendment for raising the plea of adverse possession was also unnecessary because the point of adverse possession had already been made subject of issue in light of pleadings. The High Court further opined that the revision against the order of closing the evidence was preferred after two years which is beyond the period of limitation prescribed under the High Court Rules.
3. ' Mr. M. Tabassum Aftab AM, Advocate, the learned counsel for the appellants, has argued that the High Court has committed error in awarding costs to the respondent. The learned counsel maintained that no compensatory costs could be awarded under section 35-A in view of the bar contained under Order XLI, Rule 33, C.P.C. The learned counsel has relied upon a case of this Court entitled Zaighum Saleem v. Muhammad Saleem (Civil Review Petition No,2 of 1992, decided on 25- 5-1992), wherein it was held as under:- "As has been indicated above, the High Court at the time of imposing the exemplary costs under section 35-A, C.P.C., on the petitioners, herein, did not take note of the provisions contained under section 35-A and Order 41, Rule 33, C.P.C. Which prohibit an appellate Court to award exemplary costs. The judgments so far as the same pertained to awarding exemplary costs are patently illegal. Although the decisions were not assailed on the said ground at the time of hearing the appeals, yet the decisions on the point being clearly violative of statutory provisions, can be corrected in exercise of review jurisdiction."
4. ' So far as the question of awarding costs under section 35, C.P.C., to the extent of Rs,14,000 is concerned, the learned counsel for the appellants submitted that only actual costs incurred by a litigant can be awarded under section 35, C.P.C. He has maintained that there is no material on the record that such an amount was incurred by the respondent as a result of filing the revision petition by the appellants in the High Court. The learned counsel drew our attention to Chapter XVII of the High Court Rules, wherein under rule 1 of Chapter XVII, the counsel fee could only be allowed if a certificate to that effect as envisaged under rule 2, Chapter XVII is duly given by the counsel. The learned counsel submitted that there was neither any affidavit nor any certificate by the Advocate concerned on the record that how much fee he was actually paid.
5. ' Mr. Nazir Ahmad Khan, Advocate, the learned counsel for the respondent, controverted the arguments advanced on behalf of the appellants and has argued that the Court was competent to award compensatory costs under section 35-A, C.P.C. And the bar contained under Order XLI, Rule 33, C.P.C. Is applicable only to appeal and not to revision petitions. The learned counsel has further argued that when this Court has come to the conclusion that the revision petition filed by the appellants to the High Court was frivolous and vexatious, there is no justification to interfere with the order of the High Court so far as the same pertains to the costs awarded to the respondent. The learned counsel has cited following authorities in support of his contention that the discretion exercised in awarding costs under sections 35 and 35-A, C.P.C., is ordinarily not interfered with by the appellate Courts:--- ' In case reported as Ishar Das v. Maya Mal AIR 1933 Lah. 329, it was held that in absence of any reason to the contrary, the successful party must be allowed costs.
6. ' In case reported as Sri Krishen v. Sham Sunder AIR 1933 Lah. 585 it was observed that the matter of awarding costs or disallowing the same is in the discretion of the Court and it should not be interfered with.
7. ' In Amulakchand Mewaram v. Babulal Kanalal Taliwala AIR 1933 Bom. 304, it has been observed that the question of awarding costs is always in the discretion of the Court, especially when the same are allowed in case of the amendment of the pleadings.
8. ' In case reported as Ratan Lal v. Mukandi Lal AIR 1933 All. 299, it was held that the question of awarding or disallowing costs is within the discretion of the Court and it should not be interfered with unless the lower Court failed to exercise the discretion judicially.
9. ' In Mangu Lal Ganga Charan v. Manni Lal AIR 1933 All. 311, it was observed that the question of costs is principally within the discretion of the Court below and unless the High Court is satisfied that this discretion has been exercised arbitrarily, the order should not be interfered with.
10. ' We have given our due consideration to the matter. There is no quarrel with the proposition that ordinarily the party who succeeds in suit, appeal or other proceedings is entitled to costs unless the same are not awarded for sufficient reasons. In the instant case the question is not that the respondent could not be awarded costs but the learned counsel for the appellants has submitted that the costs have been awarded arbitrarily because the costs ordered under section 35-A, C.P.C., could not be awarded under Order XLI, Rule 33, and the one awarded under section 35, C.P.C., could only be awarded to the extent of actual costs incurred by the party concerned. But in the instant case the High Court has arbitrarily awarded costs to the tune of Rs,14,000. Thus, the contention of the learned counsel for the respondent that the matter being discretionary with the High Court could not be interfered with, is not tenable because the High Court has acted arbitrarily and in violation of the relevant law. So far as the question that the appellate Court is debarred from passing any order about costs under section 35-A, C.P.C., is concerned, it was considered by the Supreme Court of Pakistan in case reported as Muhammad Hanif -Shibli v. Deputy Settlement Commissioner, Gojra at Lyallpur 1983 SCM R 1273 and it was held that the High Court while dismissing an appeal could not award costs under section 35-A, C.P.C., in view of bar contained in Order XLI, Rule 33, C.P.C.; identical view has been taken by this Court in the review petition entitled Zaighum Saleem v. Muhammad Saleem, referred to above.
11. The next question which needs resolution is as to whether the bar contained in Order XLI, Rule 33, C.P.C., applies only to the appeals or it is also applicable to the revision petitions. It may be stated that there is ample authority in support of the proposition that bar contained under Order XLI, Rule 33, C.P.C., equally applies to the revision petitions. A reference may be made to the cases reported as Abdul Gafoor v. Mt. Wahidan Bibi AIR 1966 Pat. 173, The Great Eastern Shipping Co., Ltd. v. S. Muhammad Samiullah Saheb & Co. AIR 1959 Madras 367 and Rangrao v. Pandurang AIR 1924 Nag.
12. 154 wherein it has been held that the bar contained in Order XLI,Rule 33, C.P.C., is also applicable to the revision petitions.
13. In the light of what has been stated above, we accept the appeal, set aside the order of the High Court in terms that the High Court was not legally justified to award Rs,1,000 under section 35-A, C.P.C. And Rs,14,000 under section 35, C.P.C. As costs to the respondent. Hence the impugned order of the High Court stands amended to that extent.