Raghunath Kahar vs Rama Ratan Pandwey

Jwala Prasad, J.—This appeal comes before us from the decision of the Subordinate Judge of Shahabad, dated the 30th May 1917, and relates to a very small sum of costs awarded to the plaintiff in respect of a suit brought by the latter in the Court of the Munsif of Airah on the 27th March 1916. In that suit the plaintiff claimed a declaration that a moiety of a house attached in execution of a decree, which had been obtained by defendant No. 1 against defendant No. 2 and advertised for sale, belongeu to him and that the same was not liable for the decree of defendant No. 1

Exhibit A, an order sheet of Execution Case No. 181 of 1915, shows that the house in question was advertised for sale to be held on the 3rd April 1916. After filing the suit the plaintiff obtained an order from the Court on 4th April directing the other half of the property, which was not claimed by the plaintiff, to be sold first and accordingly half the share in the house belonging to defendant No. 2 was sold on the 5th April 1916 and fetched a value which entirely satisfied the decree of the defendant No. 1. There was, therefore, no necessity of selling the share claimed by the plaintiff in the suit.

Accordingly, on the 27th April, defendant No. 1 filed a written statement stating that at that time no decree was under execution and that the property in suit, namely, half the house, was not at all advertised for sale in execution of any decree and hence the plaintiff''s suit was premature and ought to be dismissed. The case was adjourned to 6th May for the plaintiff to prove service of summons upon defendant No. 2.

On the 6th May the defendant No. 2 took time to file a written statement bat'' did not do so, nor did he since then appear in the suit.

The following issues were framed for trial as between the plaintiff and the defendant No. 1:

(1) Has there been any attachment of the plaintiff''s share in Execution Case No. 181 of 1916? If so, has the plaintiff any valid cause of action to bring the suit?

(2) Is the suit premature?

(3) To what relief, if any, is the plaintiff entitled?

But when the case was ultimately taken up on the 2nd January 1917, the Court discovered that there was no necessity of trying any of the aforesaid issues framed in the case, inasmuch as the share claimed by the plaintiff was not sold at all and the decree of defendant No. 1 was long before satisfied by the sale of the property of defendant No. 2 in Execution Case No. 181. The Court, therefore, went into the question of costs only, as to which it held that "this question should have been decided long ago had not the plaintiff taken several adjournments; and so a good many unnecessary costs could have been avoided. The plaintiff could have besides had this sale stayed by the simpler process of filing a claim in the execution case instead of filing a regular suit, and could have got this remedy by spending only a rupee if he liked...Hence I think that the plaintiff is not entitled to the full Court fees be has spent as he did not try for the simpler procedure at first. In all fairness I think further that it will serve* the ends of justice fully if we set off the costs of the defendant as awarded on 28th July 1916 with the costs of the plaintiff'' and hold that the two have been satisfied by being thus set off. If the plaintiff was harassed by the 1st attachment, the defendant too has been sufficiently harassed in return by the adjournments and subsequent delays caused by the plaintiff. "

As the costs of both the parties were, as above indicated, set off one against the other, no decree for costs was prepared by the Munsif,

Against this order of the Munsif the plaintiff appealed to the District Judge and the appeal was ultimately heard by Mr. Abdul Jabbar, Subordinate Judge. By his decision of the 30th of May the Subordinate Judge upset the order of the Munsif and held that the plaintiff was entitled to costs incurred by him in both the Courts, except that. he should get Pleader''s fee as in an ex parte suit. Defendant No. 1 has, therefore, appealed to this Court.

A preliminary objection was taken on behalf of the plaintiff-respondent- that no second appeal lay to this Court against the order of the lower Appellate Courts Reference has been made to Section 35 of the CPC in support of; this contention. That section gives full discretion to the Court in the matter of. awarding costs in a suit. That discretion was exercised by the Munsif, who had the seizin of the case, in favour of the appellant, and if the contention of the respondent were good his appeal to the Court'' below was incompetent. The respondent cannot also rely upon Clause (2) of Section 35, which embodies the principle that a successful litigant is entitled to his costs, inasmuch as the suit was "disposed of without adjudicating upon the merits,", as neither party pressed for that before the Munsif. There was no decision in the suit upon the merits of the case and the question to be decided by the trying Court related only to the costs incurred in the suit, The Court in determining the costs, had to exercise the judicial discretion based upon certain principles and as such the order of the Munsif was appealable to the lower Appellate Court, Similarly, the order of the latter as to costs involves matters of principle and as such is subject to second appeal to this Court. This contention of the respondent is, therefore, overruled.

I agree with the Court below that the'' defendant No. 1 having attached the entire house, ,it was open to the plaintiff to bring the suit to have it declared that half the share in the house belonged to him and was in hie possession and that the same, was not-liable to be attached or sold in execution of the decree of defendant No. 1, against defendant No. 2. The defendant No. 1 was, therefore, liable to the costs incurred by the plaintiff in instituting the suit.

The plaintiff obtained an order on the 4th of April that the share of defendant No. 2 in the moiety of the house should be sold first and that on the 6th of April that share, being sold, fetched a price whereby the entire decree was satisfied and the sale was confirmed on the 10th June. The defendant No. 1 in the written statement of the 27th April clearly stated that the decretal amount was realised by the auction sale of half the share of the disputed property and that there was no necessity for the determination of the plaintiff''s right. The issues in the case did not at all question the right of the plaintiff in the house, and the only question raised was whether the plaintiff had any cause of action on account of the result of the Execution Case No. 181 of 1916. It is, therefore, inconceivable why after this the plaintiff persisted in going to the trial of the case and not withdrawing from the suit. He went to the length of applying to the District Judge for the transfer of the case from the 61e of the Munsif and thus delayed the disposal of it and when the case came back from the District Judge, the plaintiff went on taking adjournment after adjournment although the defendant was ready, and the Munsif was perfectly right in holding that the question as to the costs could have been determined long'' before if the plaintiff had not taken these'' adjournments. The plaintiff is, therefore,'' responsible for the delay in the disposal of- the case and he is thus not entitled to any costs subsequent to the filing of the written statement by the defendant. I may go further and hold that the Court itself ought to have disposed of the case at the time when the issues were framed in the case, inasmuch as it was clear to the Court at that time that the decree of the defendant No. 1 was satisfied and that the cause of action ceased to exist, particularly so when both the present Title Suit No. 67 and the Execution Case No. 181 were going on simultaneously in the very Court and the same Munsif by his order of the 4th April directed that the plaintiff''s share was not to be sold in the first instance and on that very day sold the other half of the property whereby the entire decree was satisfied. At least at the time when the issues were framed the Court was cognizant of the foots of both the cases and ought to have decided, the title suit without so many adjournments extending over eight months. The adjournments appear to have been made automatically and the Munsif does not appear to have exercised his mind as to their reasonableness. The matter involved in this case is in itself not of great value, but is a sample of the procedure that is adopted by the Courts below in adjourning oases as a matter of course from month to month without looking into the requirements of the cases and. the possibility of their being disposed of on the dates fixed for their hearing. Much of the harassment to the parties and the costs incurred in the case could have been saved if the Munsif were alive to what he was doing.

Now, whether the delay in the disposal of; the case was due to the indifference of the Court or to the laches of the plaintiff, it is certain that the defendant is not liable for the costs incurred by the plaintiff on the adjourned dates, for he (the defendant) was ready on all the dates.

The plaintiff is, therefore, entitled to the costs of the suit incurred by him up to the time the issues were framed. Out. of the costs thus incurred, Rs. 6, which was due to defendant No. 1 from the plaintiff as costs of adjournment awarded by the Court to the latter by its order of the 28th July 1916, should be deducted. The plaintiff will, be entitled to the balance of the costs incurred in the first Court and the decree of the Munsif is, therefore varied accordingly,

The plaintiff was, therefore, entitled to prefer an appeal to the lower Appellate Court for recovery of the. balance and the costs of the lower Appellate Court will be assessed upon the sum that the plaintiff was entitled to get in the Munsif''s Court. The decree of the lower Appellate Court is also varied to that'' extent.

The appeal partially succeeds in this Court, Each party will, therefore, bear the costs of this appeal in proportion of its Costs. A decree will be prepared by this Court incorporating the costs of both the Courts below according to the aforesaid directions.