SHIV KUMAR Vs. RAJU SHARMA

JUDGEMENT

(1.) This Misc. Appeal has been filed by the appellant under the provisions of Order 43, Rule 1(w) of the Code of Civil Procedure, 1908 being aggrieved by order dated 6.7.2004 passed by 2nd Additional District Judge (FTC), Ganj Baosda, Distt. Vidisha, in MJC No. 1/2004, whereby the said Court reviewed its earlier judgment and decree dated 19th December, 2003 passed in civil suit No. 4- A/2003 awarding cost to the extent of direction to the defendant to bear all the expenses of the plaint.

(2.) Plaintiff's contention is that firstly if defendant was aggrieved by such judgment and decree, even to the extent of award of cost, then appeal should have been filed by such defendant and review petition was not maintainable and secondly he submits that conduct of the parties is to be seen. It has come on record in paras 20, 21 and 22 that plaintiff had entered into an agreement for purchase of the suit property but the trial Court adverted to the fact that defendant was not having total share and control in the ancestral property which was the subject matter of the suit and accordingly gave an offer to the plaintiff either to claim earnest money or to get the sale-deed executed up to the extent of share of the defendant in the Joint Hindu Family property by paying proportionate consideration to the extent of share of the defendant.

(3.) It is the case of the appellant that appellant/plaintiff had paid court fee on the total sale consideration of Rs. 3,50,000/- and was entitled to recover the same because due to the conduct of the defendant he could not get the decree of specific performance inasmuch as defendant without having share and control over the total property, which was the subject matter of the suit, entered into an agreement for sale as has been held by the trial Court. Once it has come on record that defendant had an intention to defraud the plaintiff by entering into an agreement for sale, for even that share of the property which was not his own, then the trial Court had rightly awarded costs and such costs are permissible not only in terms of the provisions contained in Rule 179 of the M.P. Civil Courts Rules framed under the M.P. Civil Courts Act, 1958, but also in terms of section 35 of CPC which permits awarding such cost as was originally awarded by the trial Court, but has been wrongfully reviewed and reduced to the extent of amount of earnest money paid by the plaintiff. He has drawn attention of this Court to the provisions contained in section 35 of CPC which reads that subject to such conditions and limitations as may be prescribed and to the provisions of any law for the time being in force, the costs of and incident of all suits shall be in the discretion of the Court and 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. Similarly, Rule 179 provides that the discretion vested in the Courts by section 35 of the Civil Procedure Code should be so exercised as to award to the successful party, as costs, a sum approximately equal to the amount which he has been compelled to spend. In view of such submissions, he assails the impugned order.