YADAV VISHVANATH GANDRE Vs. BACHOO ABRAHAM DAVID AWASKAR

JUDGEMENT

(1.) THIS is a second appeal from a decision of the District Judge of Thana, in which the learned Judge held that where this Court dismissed an appeal with costs, it only meant that the appellant was not to get his costs. " Appeal dismissed with costs " is the ordinary expression which the Judge uses, when he means that the appellant has to pay costs having failed in the appeal. When the order comes to be drawn up, it is usually framed in such a way as to direct the appellant to pay the respondent's costs when taxed, but if in drawing up the order, the same expression is used as the Judge normally uses, " Appeal dismissed with costs," it can only have one meaning, and that is, that the appellant has to pay the costs of the respondent of the appeal. It is somewhat astonishing to find that the learned District Judge could take any other view of the matter.

(2.) APRIL 13 A further point as to costs is also raised. The order I propose to make is to allow the appeal with costs throughout. But Mr. Joshi says that, inasmuch as his opponents' first appeal to the District Judge was dismissed summarily, the respondents ought not to be ordered to pay the costs of that appeal, because Mr. Joshi says that as they had not been given notice of the appeal, the lower appellate Court could not have directed them to pay costs. That, no doubt, is true. But the lower appellate Court having dismissed the appeal summarily, and that decision having now been reversed by this Court, it seems to me that it is open to this Court, on hearing the respondents, to make a proper order as to the costs in the lower appellate Court. In my opinion, in cases of this sort, where an appeal against a summary dismissal of an appeal succeeds, it is the general practice to allow costs throughout, and those costs include the costs of the appeal in the lower Court which was summarily dismissed. It is very undesirable to interfere with general practice, and in any case I think that the practice is fair, because there is no real hardship upon the respondent ; if he does not intend to contest the appeal in the lower Court, he can give notice of that fact to his opponent and avoid any costs being incurred. If he does not adopt that course, and in the result an appeal has to be brought to this Court against a summary dismissal of the appeal by the lower Court, I think that the ordinary rule, that "costs follow the event" should apply.