P.M. Rajeshwari and P. Muthumani vs P. Kanthimathi, Sangeetha (alias) Geetha and P. Senthil Kumar

G. Rajasuria, J.—This Second appeal is focussed by the defendants animadverting upon the judgment and decree dated 25.11.2011 passed

by the Subordinate Judge, Tambaram, in A.S. No. 144 of 2009, reversing the judgment and decree dated 30.6.2009 passed by the Additional

District Munsif, Alandur, in O.S.No. 404 of 1998, which was one for declaration. The parties, for the sake of convenience, are referred to

hereunder according to their litigative status and ranking before the trial Court. Pendente lite the original plaintiff-Padmanabhan died and his L.Rs.

were impleaded as plaintiffs.

Compendiously and concisely, the germane facts absolutely necessary for the disposal of this second appeal would run thus:

(a) The original deceased plaintiff, namely, Padmanabhan, filed the suit seeking the following reliefs:

to declare that the sale deed registered as document No. 961 of 1997 dated 11.4.1997 with regard to the suit schedule property, executed by the

first defendant in favour of the second defendant, is a fraudulent transaction in view of the revocation of the power given to the first defendant by

the plaintiff by document deed 9.4.1997 and thereby would not be binding on the plaintiff;

(b) for cost of the suit.

(extracted as such)

(b) The gist and kernel of the plaint averments would run thus:

(i) There emerged an agreement to sell (Ex. A3) between the plaintiff-Padmanabhan and D2-Muthumani-the husband of D1, in respect of the suit

property described in the schedule of the plaint; Whereby, the former agreed to sell in favour of the latter the suit property for a total sale

consideration of Rs. 2,05,000/-(rupees two lakhs five thousand) and a sum of Rs. 2,00,000/- (Rupees lakhs) was paid by the proposed

purchaser(D2) to the owner of the land, namely, the original plaintiff-Padmanabhan. Time stipulated for performance was ten months.

(ii) It so happened that on the date of emergence of the agreement to sell (Ex. A3 dated 7.8.1995) itself a Power of Attorney (Ex. A2 dated

7.8.1995) was executed by the said Padmanabhan in favour of D1-Rajeswari (wife of Muthumani-D1).

(iii) Subsequently D2 committed default in performing his part of the contract, whereupon, the plaintiff revoked the Power Deed executed by him

on 7.8.1995, by the registered revocation deed 9.4.1997 (Ex. A1), and the same was communicated by registered post to D1, which was

received by her on 11.4.1997 itself; however, fraudulently, the sale deed was subsequently executed by D1 in favour of her husband-D2 and got it

registered in the Pammal Sub-Registration Office, which had no jurisdiction to get such sale deed registered.

Accordingly, the plaintiff would pray for decreeing the suit.

(c) Oppugning and impugning, challenging and refuting the averments/allegation in the plaint, D2 filed the written statement, which was adopted by

D1, the warp and woof of the averments in the written statement would run thus:

(i) Suppressing the material facts, the plaint was filed.

(ii) After the emergence of the agreement to sell(Ex. A3) as well as the Power Deed (Ex. A2), a sum of Rs. 50,000/- (Rupees fifty thousand) was

paid by D2 through D1 to the plaintiff on 20.3.1997.

(iii) The alleged cancellation of the power deed was communicated to D1 only after the registration of the sale deed-Ex. A4 dated 11.4.1997.

Without assigning any reason, the Power Deed was cancelled.

Accordingly, the defendants would pray for the dismissal of the suit.

(d) Whereupon issues were framed. Up went the trial, during which, the original plaintiff-Padmanabhan examined himself as P.W. 1 along with

P.W. 2-the second plaintiff(wife of P1) and marked Exs. A1 to A10. The second defendant examined himself as D.W. 1 and Exs. B1 to B9 were

marked on the defendants'' side.

(e) Ultimately, the trial Court dismissed the suit, as against which, the appeal was filed by the plaintiffs, whereupon, the first appellate Court

reversed the findings of the trial Court and decreed the suit as prayed for.

Challenging and impugning the judgment and decree of the first appellate Court, this second appeal has been focussed by the defendants on

various grounds and also suggesting the following substantial questions of law:

(a) Whether the findings of the lower appellate Court in decreeing the suit merely on the prescription that the defendants did not discharge the

burden of proof to prove the receipt of the payment under the document under Ex. B8 by failure the examination of the witness.

(2) Whether the findings of the lower appellate Court that the revocation of the Power of Attorney under Ex. A1 is valid, even though the power of

attorney coupled with interest by paying the entire sale consideration by the purchaser to the PW1, the plaintiff are correct.

(3) Whether the findings of the lower appellate Court is correct when particularly the plaintiff did not come forward to return the sale consideration

by termination of sale agreement while he cancelled the power of attorney revealed about the reason for such cancellation.

(4) Whether the unilateral cancellation of registered power Deed is valid after receiving the entire sale consideration.

(Extracted as such)

The learned counsel for the appellants/defendants would pyramid his arguments, which could succinctly and precisely be set out thus:

(i) The first appellate Court simply took it for gospel truth the case of the plaintiff as though the cancellation of the Power Deed(Ex. A1) was

communicated to D1 on 11.4.1997 itself, so to say, well before the execution of the sale deed(Ex. A4) and registering the same.

(ii) Ex. A10-The postal receipt was not at all a document to be relied upon, as there is nothing to indicate and exemplify that the information as

contained in Ex. A7 was communicated to D1 on 11.4.1997.

(iii) There is absolutely nothing to show as to what prevented the plaintiff from filing the postal acknowledgment card bearing the date and the

signature of D1.

(iv) No letter from the postal department was filed to establish and evince that in fact, on 11.4.1997, the registered letter as contained in Ex. A7

was served on D1. In the absence of such evidence, the first appellate Court was not justified in inferring or discerning that after knowing the

cancellation of the Power Deed (Ex. A1 dated 9.4.1997), D1 executed the sale deed (Ex. A4 dated 11.4.1997) in favour of D2.

(v) P.W. 2-the wife of the deceased P.W. 1-the original plaintiff admitted candidly and categorically, pulling no punches, that the signatures-Ex. B1

as found in the said receipt-Ex. B8 were that of her husband.

(vi) The original plaintiff, during his life time had not chosen to file any reply or deny the receipt Ex. B8 in his chief examination affidavit.

(vii) When such is the case, the first appellate Court was not justified in jumping to the conclusion that Ex. B8 was not proved. Admitted

documents need not be proved, since Ex. B8 was not denied by the original plaintiff during his life time, the first appellate Court was not justified in

doubting the genuineness of Ex. B8-the receipt.

(viii) Without assigning any reason whatsoever the Power Deed was allegedly cancelled by the original plaintiff.

Accordingly, the learned counsel for the appellants/Defendants would pray for setting aside the judgment and decree of the first appellate Court

and for restoring the judgment and decree of the trial Court.

Per contra, in a bid to torpedo and pulverize the arguments as put forth and set fort on the side of the defendants, the learned counsel for the

plaintiffs would advance his arguments, which could tersely and briefly be set out thus:

(i) Absolutely there is no necessity for the principal to state reasons for cancelling the power Deed, which was not supported by consideration. No

law envisages that only on valid reasons to be stated and specified such power deed should be cancelled.

(ii) Ex. A10 is a public document and that has not been challenged, despite it was marked through P.W. 2-Gandhimathi. If at all the defendants

had any doubt about the genuineness of Ex. A10, the defendants should have taken steps to summon the postal authorities and examine them in

that regard, but such exercise was not undertaken.

(iii) The burden of proof is on the defendants to prove the genuineness of Ex. B8-the receipt.

(iv) During cross-examination, P.W. 2-Gandhimathi simply admitted the signatures-Ex. B1 of her husband in Ex. B8-the receipt and not the

contents of it.

(v) Without mincing words plainly and flatly P.W. 2 denied the sum of Rs. 50,000/-(rupees fifty thousand) having been received by her husband. In

such a case, it ought to have been proved as per law. But that was not done so.

(vi) After the expiry of the prescribed period of ten months for performance of the contract as envisaged under the agreement to sell-Ex. A3 dated

7.8.1995, D1 executed the impugned sale deed-Ex. A4 dated 11.4.1997, in favour of her husband/D2 Muthumani, relying on Ex. B8-the receipt

issued by the original plaintiff in her favour and those suspicious circumstances were taken into consideration by the first appellate Court, which

passed a reasoned order, warranting no interference in second appeal.

(vii) There is no question of law much less substantial question of law is involved in this case.

Accordingly, the learned counsel for the plaintiffs would pray for the dismissal of the second appeal.

On hearing both sides, I thought fit to formulate the following substantial questions of law to the knowledge of both sides:

(i) Whether reliance could be placed on Ex. A10-the Postal receipt to hold that even on 11.4.1997 itself the information concerning the

cancellation of the power of attorney as contained in Ex. A7, was communicated to D1?

(ii) Whether the defendants could be absolved from proving Ex. B8-the receipt, simply because Ex. B1 signatures were admitted by P.W. 2-the

wife of the deceased P.W. 1, that those signatures happened to be that of her husband?

(iii) Whether there is any perversity or illegality in the judgment and decree of the first appellate Court?

All these substantial questions of law are taken together for discussion as they are interwoven and interlinked, interconnected and entwined with

one another.

I recollect and call up the following maxims:

(i) Affirmatis est probare He who affirms must prove.

(ii) Affirmanti, non neganti incumbit probatio. The burden of proof lies upon him who affirms, not upon one who denies.

It is the duty of the person who affirms a particular fact to prove it and he cannot call upon the other side to prove the negative aspect.

The burden is on the plaintiffs to establish their case. No doubt, the deceased original plaintiff-Padmanabhan approached this Court with the

categorical version that despite cancellation of the Power Deed (Ex. A1 dated 9.4.1997) executed by him in favour of D1, D1 proceeded to

execute the sale deed (Ex. A4 dated 11.4.1997) in favour of her husband/D2. Precisely the burden of proof is on the plaintiffs. It has to be seen as

to whether the plaintiffs discharged such burden.

The learned counsel for the plaintiffs would place heavy reliance on Ex. A10-the postal receipt to prove that even on 11.4.1997 itself D1

received the said cancellation communication. They would also hasten to highlight the points that quiet contrary to the false version of D1 that even

during the forenoon hours of 11.4.1997 Ex. A4 dated 11.4.1997 was presented to the registrar''s office, the endorsements in the original deed

would reveal that the very sale deed itself was presented between 4 p.m. and 5 p.m. on 11.4.1997 and that itself is indicative of the fact that after

receipt of the notice containing the communication relating to the cancellation of the power deed, D1 got the sale deed registered in favour of D2

during evening hours of 11.4.1997.

Whereas the learned counsel for the defendants in a bid to oppugn the averments/allegations on the side of the plaintiffs would point out that

absolutely there is no shard or shred, molecular or jot of evidence to show that on 11.4.1997, the said communication relating to the cancellation

of the power deed was received by D1 through post.

At this juncture without any apprehension of contradiction from any quarters it could be observed that if a registered postal letter is delivered

by the postman to the addressee concerned, then it is the duty of the postman to receive the signature of the addressee in the acknowledgment

card and send the acknowledgment card back to the addressor and the postman also is enjoined to get the signature in the prescribed form

evidencing that the said registered letter was delivered to him. So far this case is concerned neither the postal acknowledgment card nor the said

form was exhibited as documents.

The postal acknowledgment is concerned that must normally be with the sender/addressor, namely, Padmanabhan. Neither Padmanabhan-

P.W. 1 nor his wife-P.W. 2 produced it and the learned counsel for the defendants would comment upon it by pointing out that for no good reason

the plaintiffs refrained from producing the said acknowledgment card.

No doubt, the signature in the prescribed form referred to supra must be with the postal department and the plaintiffs should have summoned

that document for being produced as evidence and they should have got it marked.

At least the plaintiffs should have got some letter from the Postal Department that on such and such date, so to say, on 11.4.1997, the said

registered letter was served. Wherefore, the first appellate Court''s discerning and understanding of the circumstances relating to such notice sent

by the original deceased plaintiff to D1 cannot be upheld as correct. Scarcely could it be held that the first appellate Court decided the lis au fait

with law.

The learned counsel for the plaintiffs would vehemently argue that the burden was on the defendants to summon the postal authorities to place

before the Court how Ex. A10 is not a reliable piece of evidence.

In respect of Ex. A10 I would like to observe that it is captioned as ""Sub-Office Daily Account"". There are some endorsements that could be

seen there. However, the No. 11 is found to have been over written. Ex. A9 is only the copy of the intra departmental letter sent by the Sub-Post

Master, H.S. Chrompet P.O. to the Sub-Post Master, Nagalkeni, Chrompet. There is nothing to indicate that along with that, copy Ex. A10 was

sent. In fact, Ex. A9 is nothing but a copy of the letter sent to Padmanabhan the complainant for his reference. There is nothing to establish and

display as to how Ex. A10 which was expected to be with the postal Department came into the possession of the plaintiffs for being filed as an

additional document at the time of further chief examination of P.W. 2.

The learned counsel for the plaintiffs would strenuously argue that Ex. A10 was not challenged by the defendants. However, the perusal of the

cross-examination of P.W. 2 would convey and portray that the documents marked on the side of the plaintiffs, including Ex. A10, were

challenged by the defendants. Even taking Ex. A10 as such, it cannot be concluded that that would act as a piece of evidence to demonstrate and

convey that the letter as contained in Ex. A7 was served on D.1, on 11.4.1997. As such, I am of the considered view that the plaintiffs should

adduce further evidence so to say, the best available evidence as envisaged supra before the lower Court and for that I am of the view that one

more opportunity could be given.

The learned counsel for the defendants would strenuously argue that P.W. 2(Gandhimathi) candidly and categorically admitted the genuineness

of the signatures of her husband in the receipt Ex. B8 and in such a case, the burden got shifted on her to show up that the amount contemplated in

Ex. B8 was not received by her husband.

I would like to point out that such an argument is neither here nor there. No doubt, I recollect the maxim ''Favorabiliores srei potius quam

actores habentur'' Defendants are rather to be favored than plaintiffs. It does not mean that the defendant can simply refrain from proving his case.

Indubitably and indisputably, unarguably and incontrovertibly, the impugned sale deed Ex. A4 dated 11.4.1997 emerged long after the expiry

of the period of 10 months found stipulated in the agreement to sell-Ex. A3. In order to justify the act of D1 in executing such sale deed in favour

of D2, the defendants relied upon Ex. B8 the receipt. Wherefore as a sequale, the burden is on them to prove the genuineness of Ex. B8 and that

too, when it has been specifically challenged.

At this juncture, I recollect the following decisions of the Honourable Apex Court.

(i) Bipin Shantilal Panchal Vs. State of Gujarat and Another, certain excerpts from it would run thus:

When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence-taking stage regarding

the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document

tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in

the final judgment. If the Court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence

excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to

deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure

suggested above can be followed.)

The above procedure, if followed, will have two advantages. First is that the time in the trial court, during evidence-taking stage, would not be

wasted on account of raising such objections and the court can continue to examine the witnesses. The witnesses need not wait for long hours, if

not days. Second is that the superior court, when the same objection is recanvassed and reconsidered in appeal or revision against the final

judgment of the trial court, can determine the correctness of the view taken by the trial court regarding that objection, without bothering to remit the

case to the trial court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation

and would not add to their misery or expenses.

(ii) Shalimar Chemical Works Ltd. Vs. Surendra Oil and Dal Mills (Refineries) and Others, . Certain excerpts from it would run thus:

10...An objection to the admissibility of the document can be raised before such endorsement is made and the court is obliged to form its opinion

would depend, the document being endorsed, admitted or not admitted in evidence. In support of the submission he relied upon a decision of this

Court in R.V.E. Venkatachala Gounder vs. Arulmigu Viswesaraswami & V.P. Temple where it was observed as follows: (SCC p.764, para 20)

20...The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is

sought to be proved is itself is inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence

but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been

marked as ''an exhibit'', an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or

revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and

marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is

irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair

play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure

the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to

object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other

hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind and

pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought

to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or

method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and

procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and

timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved

being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior court.

(emphasis in original).

On a careful consideration of the whole matter, we feel that serious mistakes were committed in the case at all stages. The trial court should not

have ""marked"" as exhibits the xerox copies of the certificates of registration of trade mark in face of the objection raised by the defendants. It

should have declined to take them on record as evidence and left the plaintiff to support its case by whatever means it proposed rather than leaving

the issue of admissibility of those copies open and hanging, by marking them as exhibits subject to objection of proof and admissibility. The

appellant, therefore, had a legitimate grievance in appeal about the way the trial proceeded.

A mere perusal of the above precedents would exemplify and demonstrate that marking is different from proving. As such, the defendants, as per

law, ought to have proved the genuineness of Ex. A4-the sale deed in the way known to law.

A mere running of the eye over Ex. B8 would connote and denote that it was allegedly attested by two witnesses. In such a case, there is no

knowing of the fact as to what prevented the defendants from examining at least any one of the witnesses.

However, the learned counsel for the defendants would try to justify such non-examination by pointing out that when there was no denial by

the original plaintiff during his life time either by filing a reply statement or by denying Ex. B8 in his chief examination affidavit there was no necessity

for the defendants to prove it further.

As per law, the plaintiff is not enjoined to file any reply statement to the written statement. No doubt, by way of abundenti cautela, the original

deceased plaintiff can very well deny the defendants'' averments in his chief examination affidavit itself; but no law enjoins the plaintiff to deny the

averments in the written statement in the Chief examination itself. It is open for the defendants to cross-examine the plaintiff and at that time it is for

him either accept it or deny it. Hence, the burden of proof cast upon the defendants to prove Ex. B8, was not at all discharged.

At this juncture I would like to recollect the following decisions of the Honourable Apex Court:

(i) Maria Margarida Sequeria Fernandes and Others Vs. Erasmo Jack de Sequeria (Dead) through L. Rs., Certain excerpts from it would run thus:

In Ritesh Tewari and Another Vs. State of U.P. and Others, , this court reproduced often quoted quotation which reads as under:

Every trial is voyage of discovery in which truth is the quest.

This court observed that the power is to be exercised with an object to sub-serve the cause of justice and public interest and for getting the

evidence in aid of a just decision and to uphold the truth.

Lord Denning, in the case of Jones v. National Coal Board, 1957 (2) QB 55 has observed that:

In the system of trial that we evolved in this country, the Judge sits to hear and determine the issues raised by the parties, not to conduct an

investigation or examination on behalf of the society at large, as happens, we believe, in some foreign countries.

Certainly, the above, is not true of the Indian Judicial System. A judge in the Indian System has to be regarded as failing to exercise its

jurisdiction and thereby discharging its judicial duty, if in the guise of remaining neutral, he opts to remain passive to the proceedings before him. He

has to always keep in mind that ""every trial is a voyage of discovery in which truth is the quest."" In order to bring on record the relevant fact, he has

to play an active role; no doubt within the bounds of the statutorily defined procedural law.

In the administration of justice, judges and lawyers play equal roles. Like Judges, lawyers also must ensure that truth triumphs in the

administration of justice.

Truth is the foundation of justice. It must be the endeavour of all the judicial officers and judges to ascertain truth in every matter and no stone

should be left unturned in achieving this object. Courts must give greater emphasis on the veracity of pleadings and documents in order to ascertain

the truth.

(ii) Ritesh Tewari and Another Vs. State of U.P. and Others, . Certain excerpts from it would run thus:

Section 165 of the Evidence Act, 1872 empowers the court to ask questions relevant, irrelevant, related or unrelated to the case to the party

to ascertain the true facts. The party may not answer the question but it is not permitted to tell the court that the question put to him is irrelevant or

the facts the court wants to ascertain are not in issue. Exercise of such a power is necessary for the reason that the judgment of the court is to be

based on relevant facts which have been duly proved. A court in any case cannot admit illegal or inadmissible evidence for basing its decision. It is

an extraordinary power conferred upon the court to elicit the truth and to act in the interest of justice. A wide discretion has been conferred on the

court to act as the exigencies of justice require. Thus, in order to discover or obtain proper proof of the relevant facts, the court can ask the

question to the parties concerned at any time and in any form. ""Every trial is voyage of discovery in which truth is the quest"". Therefore, power is to

be exercised with an object to subserve the cause of justice and public interest, and for getting the evidence in aid of a just decision and to uphold

the truth. The purpose being to secure justice by full discovery of truth and an accurate knowledge of facts, the court can put questions to the

parties, except those which fall within exceptions contained in the said provision itself (vide Jamatraj Kewalji Govani v. State of Maharashtra and

Zahira Habibulla H. Sheikh vs. State of Gujarat].

The dictum as found displayed and enunciated in those decisions are to the effect that every trial is a voyage of discovery, in which the truth is

the quest.

No doubt, the learned counsel for the plaintiffs would vehemently argue that further opportunity should not be given to the defendants to prove

their false case, as they have not approached the Court with a consistent plea and they have also not proved their plea.

I am of the view that on both sides there were laches and the trial was not conducted properly. When best evidence is available, the same

should be produced before the Court. It is one thing to decide a case on available materials and by applying the burden of proof, disposing it off. If

that is done so in a case of this nature, it would amount to throwing the baby along with bathe water, which I do not want to do. The truth has to

be culled out in this case.

Not to put too fine a point on it, I am of the considered view that without pondering over other issues, the matter has to be remanded to the

first appellate Court by way of giving further opportunity to both sides for letting in oral and documentary evidence and to prove their respective

cases as envisaged supra.

Accordingly the substantial questions of law are answered as under: Substantial Question of Law No. (i) is answered to the effect that reliance

could not be placed on Ex. A10-the Postal receipt to hold that even on 11.4.1997 itself the information concerning the cancellation of the power of

attorney as contained in Ex. A7, was communicated to D.1.

Substantial Question of Law No. (ii) is answered to the effect that the defendants could not be absolved from proving Ex. B8-the receipt, simply

because Ex. B1 signatures were admitted by P.W. 2-the wife of the deceased P.W. 1 that those signatures happened to be that of her husband.

Substantial Question of law No. (iii) is answered to the effect that there is perversity and illegality in the judgment and decree of the first appellate

Court.

In the result, the judgment and decree of the first appellate Court is set aside and the matter is remitted back to the first appellate Court,

namely, the Subordinate Judge, Tambaram, with the following direction:

Both the plaintiffs and the defendants are permitted to adduce both oral and documentary evidence in the aforesaid line and thereafter, after hearing

both sides, a reasoned judgment shall be rendered by the first appellate Court, within a time frame of six months from the date of receipt of a copy

of this order.

In order to disambiguate the ambiguity if any, I make it clear that the first appellate Court is at liberty to decide the case untrammeled and

uninfluenced by any of the observations made by this Court in disposing of this second appeal. The second appeal is disposed of accordingly.

However, there is no order as to costs.