S.S. Byas, J.
1. This civil miscellaneous appeal of the plaintiffs is directed against an order passed by Mr. Bahadur Singh Chandrawat, Additional District Judge, Udaipur on September 21, 1984, whereby he dismissed their appeal and maintained the order of the Additional Civil Judge (2), Udaipur, by which the appellants request for temporary injunction was turned down.
2. Very few facts need narration for the disposal of this appeal The plaintiffs instituted a suit for perpetual prohibitory injunction against the defendants. It was averred by them that the defendants are raising unauthorised constructions in a plot of land. The constructions are likely to cause substantial injury to the plaintiffs. Along with the filing of the suit, the plaintiffs submitted an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure and prayed that pending the final disposal of the suit, the defendants be restrained from raising constructions. The learned Additional Civil Judge heard the parties and by his long and detailed order, dismissed the plaintiffs' application on August 22, 1984. The plaintiffs went in appeal which was heard and decided by the Additional District Judge, Udaipur He maintained the order of the Additional Civil Judge and dismissed the plaintiffs' appeal on September 21, 1984. While dismissing the appeal, the Additional District Judge took the view that the plaintiffs had filed the suit on false vexatious and frivolous grounds. He further took the view that in order to discourage such false litigations, the plaintiffs should be directed to pay compensatory costs under Section 35A(2) of the Code of Civil Procedure. Accordingly he imposed a sum of Rs. 2000/- as compensatory costs on the plaintiffs and directed them to pay it to the defendants. Aggrieved against the order, the plaintiffs have come up in appeal.
3. I have heard the learned Counsel for the parties and perused the orders of the courts below.
4. Mr. Mathur, learned Counsel for the plaintiff-appellants raised no grievance against the refusal of temporary injunction by both the courts below He confined his arguments only on the question of imposing compensatory costs on the appellants by the Additional District Judge. It was contended by him that the order of the Additional District Judge, in imposing compensatory costs on the appellants, was wholly improper, illegal and uncalled for It was argued that in an appeal or revision compensatory costs cannot be awarded to a party under Section 35A of the Code of Civil Procedure. Mr. N.P Gupta learned Counsel appearing for the respondents could not dispute the legal position that compensatory costs cannot be awarded to a party in an appeal under Section 35A of the Code of Civil Procedure.
5. Since the order of imposing compensatory costs of the Additional District Judge is of unusual nature, it would be proper to deal-with the matter at some length. Sub-sections (1) and (2) of Section 35A of the Code of Civil Procedure, which deal-with the compensatory costs in respect of false frivolous or vexatious claim or defence, read as under:
35-A. Compensatory costs in respect of false or vexatious,
claims or defences-
(1) If in any suit or other proceeding including an execution proceeding but (excluding an appeal or a revision any party objects to he claim or defence on the ground that the claim or defence or any part of it is as against the objector, false or vexatious to the knowledge of the party by whom it has been put forward, and if thereafter, as against the objector such claim or defence is disallowed, abandoned or with-drawn whole or in part, the Court, (if it so thinks fit) may after recording its reasons for holding such claim or defence to be false or vexatious, make an order for the payment to the objector by the party by whom such claim or defence has been put forward, of costs by way of compensation.
(2) No Court shall make any such order for the payment of an amount exceeding three thousand rupees or exceeding the limits of ft, pecuniary jurisdiction whichever amount is less:
Provided that where the pecuniary limits of the jurisdiction of any Court exercising the jurisdiction of a Court of Small Cause under the Provincial Small Cause Courts Act 1887, or under a corresponding law in force in any part of India to which the said Act does not extend, and not being a Court constituted under such Act or law, are less than two hundred and fifty rupees, the High Court may empower such Court to award as costs under this section any amount not exceeding two hundred and fifty rupees and not exceeding those limits by more than one hundred rupees:
Provided, further that the High Court may limit the amount which any Court or class of Courts is empowered to award as costs under this section.
6. A bare reading of Sub-section (1) makes it abundantly clear that exemplary costs cannot be awarded in appeal or revision. In other words the appeals and revisions have been kept beyond the ambit of compensatory costs As such, the Additional District Judge was clearly in error in imposing compensatory costs on the appellants. It appears that the learned Additional District Judge did not even take trouble to go through the provisions of Sub-section (1) of Section 35A of the Code of Civil Procedure.
7. The compensatory or exemplary costs under Section 35A CPC can be awarded only by a trial court and not by a Court sitting in an appeal or revision. The appellate court has no jurisdiction to grant or impose compensatory costs even if the claim or defence raised by the parties are false, vexatious or frivolous. The award of compensatory costs is in the exclusive realm of the trial court. The impugned order of the Additional District Judge, by which he directed the appellants to pay a sum of Rs. 2000/- as compensatory costs to the respondent (defendants) cannot be maintained. The imposition of compensatory costs on the appellants by the Additional District Judge in appeal is wholly erroneous and illegal.
8. As a result of the aforesaid., discussion, the appeal of the plaintiffs is partly allowed. The order of the Additional District Judge, Udaipur dated September 21, 1984, so far it relates to the imposition of compensatory costs of Rs. 2000/-on the appellants, is set-aside. The impugned order in other respects is maintained. The parties are left to bear their own costs.