B SRI KISHNA KUMAR Vs. SARLA DEVI

JUDGEMENT

(1.) This is a revision against the order passed by the learned Civil Judge of Faizabad dismissing the defendant's appeal relating to costs.

(2.) It appears that a suit was filed by the respondent No. 1 which was found to be under valued. The plaint was ordered to be returned by the Munsif for presentation to the proper court having jurisdiction in the matter. The operative portion of the order passed by the learned Munsif was asfollows:

(3.) Section 35 C. P. C. provides- that subject to such conditions and limitations as may be prescribed, and subject to the provisions of any law that may be in force the costs of and incidental to all suits shall be in the discretion of the court and the court shall 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 necessary directions for the purposes aforesaid. The section goes on to say that the fact that the court has no jurisdiction to try the Suit shall be no bar to the exercise of such powers. The powers of the court] therefore are very wide and they may be exercised according to the discretion of the court. The statute expressly lays down that the court has the power to determine by whom, out of what property and to what extent costs are to be paid. In the instant case the court in its discretion did not consider it proper to award costs to the defendant when returning the plaint. This intention of the learned Munsif is absolutely clear from the order passed by him. The extent to which he considered that the plaintiff should be saddled with costs is indicated by the direction given by him "that the costs incurred in this court shall be costs in the suit." It means that the costs incurred by the parties may be treated as costs in the subsequent litigation. If the plaint, after being returned, was presented to a court having jurisdiction the order passed by the learned Munsif would enable such court, when disposing of the suit, to treat the costs incurred by the parties in the earlier litigation as costs incurred in the suit. The party by whom such costs would be payable was not decided by the learned Munsif. He evidently did not consider it proper to award costs to the defendant. What he thought proper was that if the plaint was presented again to a court having jurisdiction that court may consider the question of awarding costs. This cannot be said to be a direction given to a Superior court.