Section 35 essentially deals with the actual costs of the ‘suit’

“… It would be seen that Section 35 essentially deals with the actual costs of the ‘suit’ while under section 35-A they are ‘compensatory’. Their nature is well summarized by Mr. Amer Raza A. Khan in his well known commentary on CPC that: costs awardable by a court can either be compensatory costs (S. 35-A) or actual costs (S. 35). Actual costs are awarded by a Court in order to secure the expenses undergone by a successful litigant in the assertion of his rights before a Court. They are not awarded by way of penalty or punishment against the unsuccessful party nor are they to be made a source of profit for the successful party. They are also not awarded by way of compensation, but by its very nature, actual costs are awarded to reimburse a successful party for the expenses incurred by him. And further that even under section 35-A “Costs are compensatory and are not awarded as penalty against an unsuccessful party”. All this shows that though the costs awarded under section 35-A CPC can be taken into account when awarding “damages”, they are not even by statutory dispensation, the same as the “damages”. The conditions for application of section 35-A are different and much less than the elements set out earlier for an action for malicious prosecution. The actual costs of the suit under section 35, C.P.C. are at a much lower level when considered in this behalf. Besides this, a combined reading of sub section (4) of section 35-A and sub section (2) of section 95 which deal with the effect of the orders under these provisions on actions for “damages”, are clearly indicative of the legislative intent; that unless a case is fully covered by section 95(2), the award of costs, under section 35 and 35-A instead of barring a suit for damages supports the right for such an action…”

PLD 1990 SC 28

Used in judgment of
Lahore High court

Civil Original Suit (C.O.S)
1343554.643-12