MUHAMMAD YUNUS SURAKHVI, J.---This appeal, with the leave of the Court, is directed against an order passed by the High Court on February 12, 1995, whereby the appellants, herein, were provided only one opportunity to produce evidence on payment of Rs.12,000 as costs to the respondent.
2. The brief facts of the case are that Syed Muhammad Afzal Shah, respondent-plaintiff, filed a suit for recovery of Rs.500,000 against appellant-- defendants in the Court of District Judge, Muzaffarabad, on 8th October, 1991. After evidence of the plaintiff was closed the appellant- defendants were directed to produce their evidence and in case the assistance of Court was required for summoning the witnesses the appellant-defendants were to submit the list of the witnesses alongwith their addresses and for making necessary deposit of their expenses. The appellant-defendants instead of seeking the assistance of the Court in the matter of production of witnesses decided to produce evidence on their own responsibility. When no evidence was produced despite availing numerous opportunities, on May 7, 1994 the evidence of appellant- defendants was closed by the trial Court. Feeling aggrieved with the aforesaid order the appellants, herein, filed a revision petition which was accepted conditionally that only one opportunity will be provided to them for producing S.D.O. And that too on payment of Rs.12,000 as costs to plaintiff--- respondent vide the impugned-order of the High Court, dated February 12, 1995. Hence this appeal.
3. It was contended by Sheikh Abdul Aziz, the learned counsel for the appellants, that the High Court has committed a grave error in awarding costs to the respondent; as the same was not permissible either under section 35-A or under section 35, C.P.C., in view of the bar contained under Order XLI, Rule 33, C.P.C. The learned counsel relied upon a case of this Court titled "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 XLI, 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 decision on the point being clearly violative of statutory provisions, can be corrected in exercise of review jurisdiction."
So far as the question of awarding costs under section 35, C.P.C. 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. The learned counsel maintained that there is no certificate filed by Advocate concerned on the record as to how much fee was actually paid as envisaged under Rule 2, Chapter XVII of the High Court Rules, 1984.
4. On the other hand Syed Mumtaz Hussain Naqvi, the learned counsel for the respondent, controverting the arguments advanced on behalf of the appellants, argued that the Court was competent to award exemplary costs under section 35-A, C.P.C. And the bar contained under Order XLI, Rule 33, C.P.C. Is applicable only to appeals and not to revision petition. The learned counsel argued that when this Court has come to the conclusion that the revision petition filed by the appellants in 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. It was also contended by the learned counsel for the respondent that the question of imposing costs was primarily within the discretion of the High Court and there exists no reason to interfere in the discretion exercised by the High Court.
5. We have heard the learned counsel for the parties, taken into consideration the respective contentions raised by them and perused the record made available with care. There is no cavil 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 argued 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 in case the costs are awarded under section 35, C.P.C. Those could only be awarded to the extent of actual costs incurred by the party concerned. Thus, the contention of the learned counsel for the respondent that the matter being purely within the discretion of 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.
Although it has not been specifically mentioned in the impugned judgment by the learned Judge in the High Court that the power exercised by him for imposing costs on appellants is exercised under section 35-A, C.P.C. But all the same the fact remains that the costs awarded are exemplary as stated by the learned Judge in his impugned judgment. This power purports to have been exercised either under section 35-A or section 35, C.P.C.; but in both the situations, as we would be adverting to it, in the later part of this judgment, the power is not available to the High Court. So far as the question that the High Court' in its appellate jurisdiction is barred from passing an order about costs under section 35-A, C.P.C. Is concerned, it was considered by the Supreme Court of Pakistan in a case reported as "Muhammad Hanif Shibli v. Deputy Settlement Commissioner, Gojra at Layllpur (1983 SCM R 1273), 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 the bar contained in Order XLI, Rule 33, C.P.C. An identical view has been taken by this Court in the review petition titled "Zaighum Saleem v.
Muhammad Saleem" referred to above.
6. As contended by the learned counsel for respondent the important question which needs resolution is as to whether the bar contained in Order XLI, Rule 33 applies only to the appeals or the same is equally 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., squarely applies to the revision petitions. A reference may be made to the cases reported as "Abdul Ghafoor v. Mst.
Wahidan Bibi" (AIR 1966 Pat. 173), "The Great Eastern Shipping Co. Ltd. v. S. Muhammad Samiullah Saheb & Co. (AIR 1959 Madras 367) and "Rangao v. Pandurang" (AIR 1924 Nagpur 154), wherein it was held that the bar contained in Order XLI, Rule 33, C.P.C. Is also applicable to the revision petitions. A similar view was expressed by this Court in a latest case titled "Sharif Din and others v.
Mst. Maqbool Jan" (Civil Appeal No.22 of 1995, decided by another Bench of this Court on 13-6- 1995).
7. So far as the question of awarding costs, if at all, under section 35, C.P.C. Is concerned, in our view only actual costs incurred by a litigant can be awarded. Under Rule 103 of Chapter XVII of the High Court Procedure Rules, 1984, 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. There is no certificate by the Advocate concerned on the record that how much fee was actually paid. Thus, it becomes clear that the power of awarding costs was not available to the learned Judge in the High Court even under section 35, C.P.C., keeping in view the facts and circumstances of the present case.
8. However, we are of the view that the case is covered by Order XVII, Rule 1(2), C.P.C. Which is reproduced below: -- "(1) Court may grant time and adjourn hearing.---(1) The Court may, if sufficient cause is shown, at any stage of the suit grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit.
(2) Cost of a adjournment.---In every such case the Court shall fix a day for the further hearing of the suit, and may make such order as it thinks fit with respect to the costs occasioned by the adjournment: Provided that, when the hearing of evidence has one begun, the hearing of the suit shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the hearing beyond the following day to be necessary for reasons to be recorded."
A reading of the Rule reproduced above shows that a Court can grant time to the parties and for that purpose may adjourn the case. There is a reference to recording of evidence in the proviso reproduced above which shows that this Rule is applicable to granting of time and adjournment for recording of evidence. In the present case the appellants failed to produce evidence on the date fixed for the purpose and prayer was made for granting more time which could only be done by adjourning the hearing. The order passed by the Trial Court refusing the prayer made by the appellants has been set aside by the High Court under its revisional powers. Rule 103 of the High Court Procedure Rules mentioned above has no application in the present case because no separate counsel fee was to be paid for the adjournment.
9. It is laid down in sub-rule (2) of Rule 1 of Order XVII above that while granting time to the parties and adjourning the case the Court may make such orders as it thinks fit with respect to the costs occasioned by the adjournment.
10. The learned counsel for respondent strenuously contended that at the time of passing the impugned order by the High Court, the quantum of costs to be imposed on the appellants was agreed upon by both the parties and as a result of that agreement the costs were awarded to the respondent. We have carefully perused the impugned judgment. In our view though the production of evidence on payment of costs was agreed upon by both the parties but the quantum of costs was not settled between the parties. In this view of the matter the argument advanced by learned counsel for respondent being devoid of any legal force is also repelled.
11. The High Court has fixed the quantum of costs in light of the facts that the appellants themselves decided not to seek the assistance of the Court for summoning the witnesses and then numerous opportunities were allowed to them to produce evidence but they failed to do so. The High Court also noted that even after the making of the impugned order the appellants sought six adjournments for arguments and then filed revision petition in the High Court after five months. It is obvious from the order of the High Court that costs have been fixed after keeping in view the previous adjournments and the delay caused due to the belated filing of the revision petition. In our view these considerations are relevant. However, there is no mathematical formula to determine as to how much costs have been occasioned by the adjournments within the meaning of Rule 1(2) of Order XVII. The High Court has exercised its jurisdiction which was vested in it by law. However, it is not customary with the Courts in Azad Jammu and Kashmir to fix such heavy amount of costs for adjournment as has been done in this case. Therefore, Rs.12,000 seems to be excessive. Another relevant factor is that when the previous adjournments were granted by the trial Court the respondents did not challenge them. Therefore, in our view the ends of justice would be met -if the amount is reduced to Rs.3,000.
The appeal is partly accepted as indicated above.