RANGNATH KHEMRAJ Vs. BAI THAKOREBAI

JUDGEMENT

(1.) THIS is a notice of motion taken out by respondent 6 requiring the appellant to deposit in Court the sum of Rs. 2,750 being the amount of the costs of the original suit as settled and paid by the Official Assignee of Bombay respondent 6, to his attorneys, and such further amount as to this Hon'ble Court may seem adequate for the costs of the Official Assignee of this appeal. It appears that the suit from which this appeal is preferred was dismissed by Shah J. on 3-8-1950. The learned Judge directed the appellant, who-was the plff. in the suit, to pay the costs of respondent 6 who is the assignee of his estate. From that judgment the appellant has come in appeal.

(2.) THE order for costs made by the learned Judge was that the plff. should pay the taxed costs of respondent 6. The costs have not yet been taxed, and needless to say, as the costs have not been taxed, no attempt has been made or could be made by respondent 6 to execute that order against, the appellant. Therefore, it cannot be said in this case that the appellant has failed to comply with the order of costs passed against him or is in any way in contempt in not carrying out that order of costs. What is urged against the appellant is that he is an undischarged insolvent, that if this appeal is prosecuted he will not be able to pay the costs of the suit, and that even the costs of the appeal which he has deposited, viz. Rs. 500, under the High Court Rules are not adequate and therefore further security for the costs of the appeal should be ordered against the appellant.

(3.) NOW, a very salutary rule was laid down as far back as 1888 by Chief Justice Sargent in Ahmed v. Shaik Essa Kaliffa, 13 Bom. 458 There also an application was made for further security for costs of the appeal and also the costs of the original hearing. Mr. Inverarity, who appeared for the appellants pointed out to the Court that as for security for the costs of the trial Court the application was unprecedented. We have asked Mr. Maneksha who appears for the appellant in this case and who is a very senior member of the Bar whether he has any recollection of any such application having been made to the Court of Appeal, and Mr. Maneksha very fairly concedes that he is not aware of any such application. Neither I nor my brother is aware also of any such application having been made to this Court, or, if made having resulted in an order being made for security for costs of the hearing in the lower Court. Now, the principle that the learned Chief Justice laid down was that while accepting the fact that under Order XLI, Rule 10 it is entirely in the discretion of the Court to order the appellant to give security for the coats of the lower Court, that discretion should only be exercised provided the Court of Appeal was satisfied that there was a vexatious determination on the part of the appellant not to pay the costs of the suit already ordered. The learned Chief Justice thought that that was a very exceptional circumstance which indicated a wilful determination on the part of the appellant not to obey the order of the Court. In that particular case the learned Chief Justice came to the conclusion that the plffs.-appellants were unable to pay the costs ordered. If so, according to the learned Chief Justice, there was nothing vexatious in their not obeying the order; it was their misfortune, not their fault; and therefore he refused to order security for the costs of the Court below. In this case we have not even reached the stage of the appellant refusing or failing to pay the costs ordered. As I just pointed out, as the costs have not been taxed, no question at this stage arises of a failure on the part of the appellant to pay the costs ordered. With regard to the further costs of appeal, the learned Chief Justice held that the sum of Rs. 500 fixed by the High Court Rules as security for costs of the appeal should be the only security which should ordinarily be ordered. Only in exceptional cases that rule should be departed from and the learned Chief Justice said that as far as he was concerned he had never departed from that ordinary rule. We do not see anything exceptional in this particular appeal which would induce us to depart from that rule.