SUBRAMONIA IYER Vs. KURIAN

JUDGEMENT

(1.) Appellate in both the appeals is the same plaintiff. He filed two suits, O.S. Nos. 117 of 1978 and 439 of 1980. O. S. No. 117 of 1978 was against three defendants for amounts due under pronotes. O. S. No. 439 of 1980 was against one of them for loan amount evidenced by a letter. The suits were filed since the amounts were not paid after repeated demands and notice. Defendants raised false and frivolous contentions denying" liability, pleading want of consideration in part and claiming discharge also. All these contentions were negatived on the basis of the evidence and both the suits were decreed in full. The decrees have become final and conclusive as they were not taken up in appeal. In the cross examination of the appellant, a question was asked whether he is a money lender having licence. He said he was formerly a money lender having licence, but he stopped the business and surrendered the licence. In the written statement there was no such contention. He was also not called upon to produce the licence or any record evidencing surrender of licence or stoppage of money lending. That was not an issue in the case and these records were not necessary to prove the case of the appellant or maintain his suits. But the Trial Court disallowed him costs in both the suits for the sole reason that he did not produce records. These two appeals are directed only against the decrees to the extent cost was disallowed.

(2.) Costs and incidents to all suits shall be in the discretion of the court. Courts have full power to determine by whom or out of what property and to what extent such costs are to be paid, and to give all directions for that purpose. But that discretion is not an arbitrary or unfettered one. It is a judicial discretion to be exercised on sound judicial principles based on sound reasonings. As Sub-section (2) of S.35 of the Code of Civil Procedure indicates, the normal rule is that costs should follow the event and the successful party is entitled to his costs. When there is a deviation from this rule, the court is bound to assign sound judicial reasons. The exercise of the discretion is also subjected to such conditions and limitations, as may be prescribed and provisions of any law for the time being in force. The object of S.35 in awarding costs to a litigant is to secure to him the expense incurred by him in the litigation for which the responsibility does not lie on him and not to make anything in the way of gain of profit over and above the expenses for maintaining or defending the action, nor to give exemplary damages or smart money, by way of penalty or punishment on the opposite party. S.35 A and B are there in those areas. Apart from S.35, the High Court is having wide discretion in the exercise of its inherent powers to award or disallow costs in suitable cases, if it finds necessary to do so in the interest of justice.

(3.) The conditions and limitations 'prescribed' are those prescribed by rules and forms contained in the first schedule or made under S.122 or 125. Order XI R.3, Order XIII R.2 and 4, Order XIX R.3(2), O.21 R.72(3), O.23 R.1(3), Order XXIV R.4, Order XXVIIA R.3, Order XXXII R.4(4) and 5(2), Order XXXIII R.10, 11(2) and 16, Order XXXIV R.10 (3) and Order XXXV R.3 are some among the conditions and limitations, subject to which the discretion has to be exercised. Some of the provisions of law, subject to which the discretion has to be exercised, are Administrator General's Act III of 1913 S.40, S.27 of the Laud Acquisition Act 1 of 1894, S.22 of the Presidency Small Cause Courts Act XV of 1882 and S.13 (1) (d) of the Specific Relief Act 47 of 1963. Subject to these and other conditions and limitations and the provisions of any law for the time being in force, the discretion can be exercised on sound judicial principles bearing in mind that the normal rule is that cost should follow . the event and the contrary should be supported by recorded reasons. We have also to bear in mind that by way of costs what a party is getting is only negligible portion of what he spends on the whole for the litigation.