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Civil Petition No. 550 of 1979, decided on 13th April, 1983.

(On appeal from the judgment dated 24th June, 1979 of the Lahore High Court in I. C. A. No. 174 of 1979).

----S. 35‑A and O. XLI, r. 33‑High Court while dismissing Intra Court Appeal noting harassment caused by appellant to respondent and awarding exemplary cost‑Held, such cost cannot be allowed by Court while dismissing appeal‑Order of burdening appellant with cost set aside by Supreme Court while converting petition into appeal.

Sher Zaman Khan, Advocate Supreme Court and Mahmood A. Qureshi, Advocate‑on‑Record for Petitioners.

Shahzad Jahangir, Advocate Supreme Court for Respondent No. 1.

Jariullah Khan, Advocate Supreme Court and Sh. Abdul Karim, Advo cate‑on‑Record for Respondent No. 2.

Date of hearing : 13th April, 1983.

This petition is directed against the judgment of the I. C. A. Bench of the Lahore High Court dated 24‑6‑1979, whereby, while dismissing the Intra‑Court Appeal preferred by the petitioner, noting the harassment caused by him to respondent No. 2, awarded exemplary costs amounting to Rs. 5,000 in his favour. Leave is sought only against the last‑mentioned part of the order, namely, the award of examplary costs to respondent No. 2.

Mr. Sher Zaman, learned counsel for the petitioner, in support of this petition, has submitted that the appellate Bench did not have any power to grant examplary costs, even if it felt that the appeal filed before it was false or fictitious because the only provision in the Civil Procedure Code for granting compensation in respect of false and fictitious claims is contained in section 35‑A of the C. P. C. However, a reference to that provision shows that such costs cannot be allowed by the Court while dismissing an appeal. He points out that the same position is reiterated in Order XLI, rule 33 of the C. P. C. which deals with the powers of the Court of Appeal. The proviso to rule 33 of Order XLI is relevant in this behalf which reads :‑

"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."

Mr. Jariullah Khan, Advocate, who is present on behalf of respondent No, 2, has no answer to this contention.

We would, accordingly, convert this petition into an appeal and allow it to the extent that the last part of the order; whereby the petitioner (now appellant) has been burdened with costs amounting to Rs. 5,000 for payment to respondent No. 2 will be set aside. Order accordingly.

The parties will bear their own costs of this appeal.

M. Z. M.

Appeal allowed.

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