' The land in this lot was cancelled from one Abdul Aziz and allotted to Hashim on 30-12-1966.
2. The Assistant Commissioner/Collector reviewed this allotment, with the permission of the Commissioner, and cancelled the order of allotment, dated 30-12-1966 by his order, dated 5-6-1971.
3. Hashim went to the Civil Court against this order of cancellation and obtained a decree against the State on 4-4-1974 from the Civil Judge.
4. Under this decree the sale-deed was executed in his favour on 13-1-1975.
5. On 3-10-1983 the Deputy Commissioner moved the Board of Revenue to take cognizance of this case under section 30(2)(b) of Colonization of Government Lands Act, 1912, to cancel the allotment of Hashim which was against the policy of the Government.
6. The policy of the Government conveyed to the Deputy Commissioner on 12-9-1962 was that the additional area up to the total allotment of 25 acres could be allotted to the existing allottee provided the area was undeveloped land which was to be irrigated with tube wells.
7. I would decide this case on the following arguments:
(i) The respondent Hashim first went to the Commissioner against the order of cancellation dated 5-6-1971. The Commissioner refused to interfere because he was not empowered to review the decision of his predecessor. After failing with the Commissioner Hashim went to the Civil Court against the State and obtained a decree in his favour on 4-4-1974. When a decree had been passed by the Civil Court against the State, it was necessary for the State to get this decree set aside, or move the Board of Revenue under the section now being invoked. The State did neither.
However, if this provision was not available in 1974, it was added to the statutory book soon after 1978. But again the State did not take advantage of this.
(ii) As a result of this acquiescence of the State the respondent continued to remain in possession between 1974 and 1983 when the present application was moved. Now the State wishes the Board of Revenue to help it by invoking section 30(2)(b), disregarding the facts that the respondent had obtained a decree against the State which was not appealed against, and also disregarding the fact that the new law was not taken advantage of between 1978 and 1983. In other words, the Board of Revenue is desired to interpret section 30(2)(b) so liberally as to cover any inaction on the part of the Government of whatever duration and whatever nature. If the Board of Revenue consents to interfere under this section after 8 years of silence by the Government, both administrative and judicial (a decree has been obtained against it), the Board of Revenue will have to interfere in the future under this section without regard to any lapse of time, thereby virtually making this provision of law open-ended, a Sword of Damocles hanging over the allottee and his future generation. In the present case too, the original allotee is dead and his next generation has been dragged before the Board of Revenue. There is a maxim of the law which says that the law helps the vigilant, and our superior Courts have respected it. To give one example of how the lapse of time changes the nature of the case is the law relating to mutation; if a mutation is allowed to stand on the record for considerable period of time the forum and procedure to assail it change.
(iii) I have seen the record. The respondent did install a tubewell on the land in 1975, and doing so he did oblige the underlying spirit of the instructions of the Government issued on 12-9-1962.
(iv) A perusal of the record further says that even at the time of allotment of this lot to Hashim in 1966 some area at least was ' Banjar'.
(v) Particularly noteworthy in this case is the fact that there is no allegation of fraud or misrepresentation against the respondents.
8. In view of the above, the Board of Revenue would hesitate to invoke section 30(2)(b) in favour of the State in the present case. Two generations have remained in occupation of this land for almost 30 years, installing a tube-well and presumably making other investment. Between the State and the individual in the present case the balance of convenience is on the side of the individual.
9. I would reject the petition.
Petition rejected.
1996 M L I) 260 [Supreme Court (AJ&K)] Present: Basharat Ahmad Shaikh and Muhammad Yunus Surakhvi, JJ AZAD GOVERNMENT through Chief Secretary and 2 others---Appellants versus Syed MUHAMMAD AFZAL SHAH--Respondent Civil Appeal No, 26 of 1995, decided on 29th July, 1995.
(On appeal from the order of the High Court, dated 12-2-1995 in Civil Review No,94 of 1994).
Civil Procedure Code (V of 1908)--- ---Ss.35, 35-A & O.XLI, R.33---Azad Jammu and Kashmir Interim Constitution Act of 1974), S.42--- Exemplary costs awarded by High Court under S.35-A, C.P.C. While deciding revision petition filed by defendant---Validity---Power to award such costs was not available to High Court in terms of 0.XLI,, R.33, C.P.C. Which also applies to revision---Only actual costs incurred by a litigant could he awarded in terms of S.35, C.P.C.-- Awarding of exerliplary costs was not available under S.35, C.P.C.---Counsel's fee could, however, be awarded in costs under S.35, C.P.C. If certificate of fee from counsel was placed on record- Power to award costs in terms of S.35-A, though available to Trial Court, was not available either in appeal or in revision in terms of 0.XLI, R.33, C.P.C.---High Court had awarded exemplary costs to plaintiff by noting the fact that defendant neither sought help of Court in securing attendance of his witnesses nor himself produced them and took successive dates and when his evidence was closed he sought six adjournments for arguments and thereafter filed revision against closing of his evidence---High Court had exercised its jurisdiction which was vested in it under law---Costs awarded for granting one opportunity to defendant for production of his evidence, however, were excessive---Relevant factor which must be kept into consideration was that when Trial Court had granted successive adjournments, to defendant, plaintiff had not challenged them---Amount awarded as costs was, thus, substantially reduced to meet ends of justice. [pp. 263, 264, 265] A, B, C & D Zaighum Saleem v. Muhammad Saleem Civil Review Petition No, 2 of 1992 and Muhammad Hanif Shibli v. Deputy Settlement Commissioner, Gojra at Lyallpur 1983 SCM R 1273 rel. Zaighum Saleem v. Muhammad Saleem Civil Review Petition No, 2 of 1992 Abdul Ghafoor v. Mst. Wahidan Bibi AIR 1966 Pat. 173; Great Eastern Shipping Co. Ltd. v. S. Muhammad Samiullah Saheb & Co. AIR 1959 Mad. 367; Rango v.
Pandurang AIR 1924 Nag. 154 and Sharaf Din and others v. Mst. Maqbool Jan Civil Appeal No, 22 of 1995 ref. Sheikh Abdul Aziz, Advocate for Appellants.
Syed Mumtaz Hussain Naqvi, Advocate for Respondent.
Date of hearing: 11th June, 1995.
' 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 Hand 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 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 once 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.