Vythianada Tambiran vs Mayandi Chetty

Subrahmania Ayyar, J.—The facts of the case are these: The Magistrate passed the order u/s 115 of the Criminal Procedure Code as to

possession in favour of the counter-petitioner on the 30th June. On the 3rd July the counter-petitioner applied for costs. The petitioner accepted

notice and objected to any order being passed in the matter. On the 7th idem the Magistrate passed the order now sought to be revised directing

the petitioner to pay Rs. 250 as costs to the counter-petitioner. Mr. Ramachandra Ayyar contends that the order was passed without jurisdiction

as it was not passed at the time the matter of possession was decided. I cannot accept the construction suggested by Mr. Ramachandra Ayyar that

Section 148(3) which empowers a Magistrate to award costs in proceedings under chapter XII of the Code of Criminal Procedure permits him in

a case like this to award costs only simultaneously with the decision as to possession. The word ''passing'' which follows the term ''Magistrate'' in

the said provision as I understand it, means no more than that the Magistrate who may award costs, is the officer holding the proceeding under the

chapter or his successor entitled to discharge his functions in connection with the matter. Even if this would be going too far, and the right

construction were that the award of costs should be made by the same Magistrate that deals with the main question in the proceeding, the order

here cannot be held to be void or illegal in as such in fact was the case here. The view as to the section thus taken by me is not only not opposed

to the cases of Queen-Empress v. Tomijudain ILR Cale. 757, Giridhar Chaterjee v. Eradullah Naukar ILR Cale. 385 and Binoda Sundari

Chowdhurani v. Kali Kristo Pal Chowdahary ILR Cale. 387, to which ray attention has been drawn but is more or less supported by them. It is

scarcely necessary to add that though I hold the circumstance that the award of costs is not made at the very time the substantial question in the

proceeding is disposed of, does not necessarily render the award invalid, I should not be understood as implying that the length of the interval is

immaterial. In the usual course the award should almost invariably be contemporaneous with the decision as to the main question. A different

course should be pursued only when the circumstances of the case really require the postponement of the disposal of the question of costs and no

order in the matter should be passed except within a reasonable time after the disposal of the principal subject of the proceeding and in the

presence of both the parties. Upon the facts of this case no objection on the score of long delay exists and in the view of the section I take, it is not

open to mo to go into the question as to whether the amount awarded is proper. I dismiss the petition.