' Messrs Mir Nawaz Khan and others petitioners filed Suit No,296/1 of 1994 in the Court of learned Civil Judge, Karak against the respondents. On appearance before the trial Court respondents filed an application for dismissal of suit on the ground that the suit was hit by provisions of Order II, Rule 2, C.P.C. The said application was allowed and the learned trial Court dismissed the suit vide judgment and decree dated 8-6-1994. Feeling aggrieved with the said judgment and decree petitioners filed Appeal No,39/13 in the Court of learned District Judge, Karak which was also dismissed vide judgment and decree, dated 20-11-1996. Special costs of Rs,10,000 and counsel fee of Rs,2,000 was directed to be paid by the petitioners to, respondents/defendants. Feeling aggrieved to the extent of payment of special costs and counsel fee, the petitioners have filed revision petition in hand.
2. Mr. Muhammad Amin Khattak, the learned counsel representing the petitioners argued that the learned Appellate Court could not pass order for special costs under section 35-A, C.P.C. And the impugned order to the extent of payment of costs and counsel fee was without jurisdiction and lawful authority. The respondents were served but they opted to remain absent.
3. I have heard the learned counsel for the petitioner and have minutely gone through the record.
No doubt property and parties in Suit No,196/1 were the same which were before the Court in the previous round of litigation. The Courts below after going through the record came to conclusion that the suit filed by the petitioner was hit by the provisions of Order II, Rule 2, C.P.C. Hence suit as well as appeal were dismissed but the learned Appellate Court while dismissing the appeal burdened the appellant for payment of Rs,10,000 as special. Costs and Rs,2,000 counsel fee to the respondents.
4. The question that requires determination is as to whether the Appellate Court could award special costs under section 35-A, C.P.C., answer to this question is in negative. To award compensatory/special A costs under section 35-A, C.PC. It was necessary that the Court should reach to the conclusion that the claim or defence should be false or vexatious to the knowledge of the parties asserting it. Objection to such claim or defence should have been taken at the earliest possible opportunity and such claim or defence should not have been disallowed, withdrawn or abandoned wnolly or in part but these factors are to be seen by the learned trial Court. If the said Court reaches to the conclusion that the above mentioned conditions were fulfilled then compensatory/special cost could be awarded to the other party. The Appellate Court under proviso attached to Order 41, Rule 33, C.P.C. Is precluded from making such an order for payment of compensatory/special costs. The proviso is reproduced hereunder for convenience:-- "Provided that the Appellate Court shall not make any order under section 35-A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order."
' A similar proposition came up for hearing in Sharaf Din and 7 others v. Mst. Maqbool Jan 1995 M LD 1602 and Azad Government v. Afzal.Shah 1996 M LD 260, in which it was held that the High Court while dismissing the appeal could not award cost under section 35-A on account of bar contained in Order 41, Rule 33, C.P.C.
' Keeping in view the proviso attached to Rule 33 of Order 41, C.P.C. And above quoted judgments I am clear in my mind that imposition of special costs of Rs,10,000 and direction for payment of counsel's fee for Rs,2,000 in absence of any material with regard to payment of fee of Rs,2,000 by respondents to their counsel, was unjustified. I, therefore, allow the revision petition in hand and while keeping the impugned judgment and decree intact, set aside the direction with regard to imposition of special cost of Rs,10,000 and payment of counsel's fee Rs,2,000. With the above modification the revision petition is disposed of.