(1.) The prayer in the present Civil Revision filed under Article 227 of the Constitution of India is to impose exemplary cost under Sec. 35 and 35-A CPC for filing vexatious suit by the plaintiff/respondent, which stands dismissed as withdrawn vide order dtd. 24/12/2015 passed by learned Civil Judge (Junior Division), Gurgaon (for brevity - Trial Court) and appeal against the said order was dismissed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 dtd. 26/8/2016, 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 dtd. 19/3/2015 for perjury against the plaintiff/respondent was pending in the said suit. However, the suit was dismissed as withdrawn vide order dtd. 24/12/2015 and it was held by the learned Trial Court that since application of perjury is criminal in nature, separate proceedings can be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 dtd. 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 dtd. 26/8/2016.