Ramasami Naiken and Others vs Venkatasami Naiken and Others

Seshagiri Ayyar, J.—Following the Full Bench decision in Arumugham Chetty Vs. Muthu Koundan and Others, , we hold that this Second

Appeal fails and dismiss it. The learned Advocate-General who appeared for the appellants did not argue the Second Appeal, but contended that

as it was filed after the Privy Council decision--Sakhu Ram Chandra v. Bhup Singh ILR (1917) All. 437 and on the strength of Badagala Jogi

Nayudu v. Bandalam Papiah Nayudu in which Spencer and Krishnan, JJ., interpreted the Privy Council ruling to mean that a deed of mortgage

cannot be relied on as an antecedent debt, this Court should not direct the appellant to pay the respondents'' costs. Mr. K. Srinivasa Ayyangar, on

the other hand, contended that unless there was misconduct on the part of the successful party or unless it would be manifestly unjust on the merits

of the case to visit the defeated party with costs, costs should follow the event. There can be no doubt that the rule enunciated in Section 35 of the

CPC as to costs is wider than the English Rule (Order LXV, Rule 1) as to actions tried by a jury which enables the Judge to withhold costs for the

successful party only for good cause shown. Even under the English rule, Bowen, L.J., pointed out that in order to deprive the successful party of

his costs it is not necessary to prove that the opposite party has been guilty of misconduct--see Forster v. Farquhar (1893) 1 Q.B., 564. Mr.

Justice North in Walter v. Steinkoof (1892) 3 Ch., 489 said that the discretion of the presiding Judge is not taken away because he has to decide a

bare legal question. The strict rule which was enunciated by Jessel, M.r., in Cooper v. Whittingham (1880) 15 Ch. D. 501, has been practically

abandoned in these two cases. Mr. Justice Subrahmanla Ayyar in Kuppusami Chetty v. Raja of Kalahasti ILR (1904) Mad. 341 has based his

judgment on the dictum of the Master of the rolls which is no longer law in England. Further, for the present case, there is the direct authority of

Robinson v. Rosher (1841) I Y. & C. Ch. Cas. 7 and Sutton Harbour Improvement Company v. Hitchens (1852) 15 Beav. 161, where in it has

been pointed out that it would be a sound exercise of discretion to refuse costs where a suit was based on a state of law, which has since been

overruled either by an Act of Parliament or by a superior tribunal. In our opinion, the above principles are deducible a fortiori from the language of

Section 35 of the Civil Procedure Code.

Under the Indian Law, it can safely be stated that the discretion of the Court as to the award of costs, so long as it is judicially exercised, should

not be bound down by any artificial rules. A. great deal must depend upon the facts of each case and upon its presentation by the party and upon

circumstances and authorities which were pre-existing before the suit was launched. In the present case, the first defendant has been responsible

for the whole of the litigation; neither the plaintiffs nor the other defendants have been guilty of any act of commission or omission which can be

charged against them. If the judgment of the Divisional Bench had stood, the appellants might have succeeded. That is a consideration which

cannot altogether be ignored in apportioning costs. Taking all these circumstances into consideration, we think the appellants should not be made

to pay the costs of defendants. We further think the first defendant who is the fono et origo of all the trouble should be directed to pay the costs of

the other defendants in this Court.