JAGANNATH PRASAD Vs. BHAGWANDAS

JUDGEMENT

(1.) IN this appeal the question only is in regard to costs. The plaintiff -appellant brought a suit for pre -emption as seems to be common in these parts, the parties went on moving up and down urging this or that point. The defendant had urged that he was going to show that the Gwalior Pre -emption Act was ultra vires of the Constitution and that this point should be decided as a preliminary issue so that the parties could save costs. The Plaintiff, however, insisted that the entire suit should be heard through, including of course the issue of repugnancy of the Gwalior Pre -emption Act. The hearing was continued on the entire suit. Meanwhile, the Madhya Bharat High Court held that the Gwalior Preemption Act was ulra vires of the Constitution and that suit was accordingly dismissed. The defendant urged that costs should be awarded in his favour following the result. But the trial Court gave what it considered to be the special reasons against it and decreed that the results notwithstanding the parties should bear their own costs. The defendant went up in appeal and the first appellate court took another view. According to it the reasons were not satisfactory and the costs should follow the results. Accordingly, costs were awarded to the defendant. The plaintiff has thereupon come up in second appeal. The defendant has resisted both on the merits of the order and on the ground that no appeal lies.

(2.) IN my opinion, an appeal does lie under S. 100/ - the question being whether the trial court exercised its discretion in this regard correctly and in a case like this the exercise of discretion could be a point of law. It is of course, another question whether the particular appeal should at all have been admitted for hearing and not dismissed summarily, to the present instance it was admitted for hearing.

(3.) IN the result, the second appeal is dismissed with costs and pleader's fee to the defendant -respondent on minimum contested scale. Appeal dismissed.