The main legal point established in the judgment is the judicial discretion given to the Trial Court in exercising the award of compensatory or exemplary costs under Section 35-A of the Civil Procedure Code (CPC).

JUDGMENT :

GURBIR SINGH, J.

1. The prayer in the present Civil Revision filed under Article 227 of the Constitution of India is to impose exemplary cost under Section 35 and 35-A CPC for filing vexatious suit by the plaintiff/respondent, which stands dismissed as withdrawn vide order dated 24.12.2015 passed by learned Civil Judge (Junior Division), Gurgaon (for brevity - Trial Court) and appeal against the said order was dismissed vide order dated 26.08.2016, passed by learned Additional District Judge, Gurgaon (for brevity - Lower Appellate Court).

2. The brief facts, as culled out from the paper book, are that the plaintiff/respondent filed a suit for mandatory injunction and recovery of mesne profit against the defendant/petitioner. At a later stage, he made statement before the learned Trial Court that he did not wish to proceed further with the suit but defendant/petitioner opposed the prayer for withdrawal of suit stating that his application dated 19.03.2015 for perjury against the plaintiff/respondent was pending in the said suit. However, the suit was dismissed as withdrawn vide order dated 24.12.2015 and it was held by the learned Trial Court that since application of perjury is criminal in nature, separate proceedings can be initiated by the defendant/petitioner in the competent court of law.

3. Aggrieved by the aforesaid order dated 24.12.2015, the defendant/petitioner preferred appeal praying that the learned Trial Court should have imposed exemplary cost upon the plaintiff/respondent. The learned Lower Appellate Court, while observing that the Trial Court was having discretion in imposition of costs, dismissed the appeal filed by defendant/petitioner, vide order dated 26.08.2016.

4. The defendant/petitioner, who has appeared in person, has stated that plaintiff/respondent filed a suit for mandatory injunction against him and his wife to hand over possession of House No. F-009, Block-A, Executive Floors, Ist Floor, South City-II, Gurgaon (hereinafter referred to as - house in question) and to pay a sum of Rs.3,40,000/- along with interest on account of mesne profit for use and occupation of the house in question. He contested the suit and denied the claim of the plaintiff/respondent. He also filed an application for dismissal of suit with exemplary cost. On one date, he did not appear and was proceeded ex-parte. He again moved application for setting aside ex-parte order. On the very next date, without even filing reply to the application for setting aside ex-parte order, the suit of the plaintiff/respondent was dismissed as withdrawn on the basis of his statement. He filed appeal and before the Lower Appellate Court, where it was clarified that he received notice from the District Magistrate for delivering the possession of the house in question, only after filing of the suit by the plaintiff/respondent. Thus, it is evident that the possession of the house was never taken from him. It was further contended by him that all the proceedings taken under the SARFAESI Act are illegal and a fraud has been played upon him since the possession was never taken from him, so, there was no question of mandatory injunction and payment of mesne profits. Thus, the suit filed by the plaintiff/respondent was vexatious and deserved dismissal with heavy costs. To add to his plight, the plaintiff/respondent has further submitted that during this whole process of litigation, he had to attend the hearings more than 40 times, had to file written replies twice, had to spend various charges i.e. copying/typing/stationery etc. So, the revision petition be allowed.

5. On the other hand, learned counsel appearing for plaintiff/respondent, has submitted that the defendant/petitioner took loan against the house in question by mortgaging the house. Since he failed to repay the loan, symbolic possession of the house was taken by the Bank under Section 13 of the SARFAESI Act. The defendant/petitioner filed Scrutinization Application before the Debt Rec