' SARDAR SAID MUHAMMAD KHAN, C.J.---This appeal has been directed against the order of the High Court, dated 23-9-2000, whereby the revision petition filed by the appellants, herein, was dismissed.
2. The brief facts of the case are that the respondent filed a suit for recovery of Rs,36,500 in the Court of District Judge, Rawalakot, alleging that she paid the said amount to her counsel as fee for defending her in civil proceedings initiated by Resham Khan, the predecessor-in-interest of the appellants, herein. Finally, the appeal filed by Resham Khan was also dismissed with costs by this Court. Thereafter, she filed a suit for the recovery of the said sum from Resham Khan and his legal representatives. The appellants, herein, were brought on record who moved an application before the District Judge that the suit was not maintainable because the said amount could be recovered only by submitting a bill of costs under the Supreme Court Rules and that in any case, separate suit for the recovery of expenses incurred was not competent and that the legal representatives of Resham Khan could not be brought on the record. The District Judge framed a preliminary issue as under:--- {{URDU TEXT}} ' The issue was decided against the appellants. A revision petition was filed before the High Court which was also dismissed observing that the suit was not for the recovery of damages for malicious prosecution and, thus, the same was maintainable against the appellant, herein, even after the death of their predecessor-in-interest. However, no findings were given as to whether the respondent should have filed a bill for the recovery of the costs under the Supreme Court Rules instead of filing a separate suit on the ground that the same was to be resolved by the trial Court.
3. Sardar Shamshad Hussain Khan, Advocate, the learned counsel for the appellants, did not specifically stress that the findings of the Courts below that the suit filed by the respondent is for the recovery of the counsel fee and the same could not be regarded as a suit for the recovery of damages under law of torts. However, he has strenuously argued that a separate suit for the recovery of counsel fee could not be instituted in view of the provisions contained in sections 35 and 47 of the C.P.C. He has contended that the question regarding the counsel fee and other expenses incurred by a litigant in a case is to be decided in the suit to which such expenses pertain; such expenses are to be compensated by awarding costs under sections 35 or 35-A, and same cannot be claimed by instituting a separate suit.
4. We have given due consideration to the arguments. It may be observed that it is well a settled principle of law that costs 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 costs/special costs to him. However, in cases of special nature, a suit for damages independent of the costs awarded can be maintained but in such suit exceptional circumstances must strictly be proved 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 costs 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 costs incurred or damages-suffered on account of institution or defence of previous civil suit. It was observed that under section 35, C.P.C.
The Court, while deciding the suit, is empowered to grant costs to the suffered party. It was further observed that under section.5-A of C.P.C., special costs can be awarded in case of frivolous and vexatious suit, the separate suit for claiming damages or costs 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 Sam (AIR 1932 Lahore 257), it has been held that no suit lies for recovery of the costs 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 not lie for falsely and maliciously 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 against his expenses by the award of costs against his opponent. The law does not award damages for mental anxiety, or for extra costs incurred beyond those imposed on the un successfull party."
' It may be observed that the point as to whether separate suit could be filed for the recovery of costs 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 costs.