HAKIM ZAHUR AHMAD Vs. FATEH ULLAH

JUDGEMENT

(1.) THIS is an appeal against an order with regard to costs. The order is a somewhat remarkable one, as I shall point out in a moment. I will first deal with the question whether I have any power to interfere in second appeal. Mr. Haider for the respondent says that the case is a trivial one. The amount claimed is undoubtedly small, but the measure of the triviality, from Mr. Haider's point of view, may be estimated from the fact that he has quoted something like four authorities, including Madras, Bombay and a Full Bench of this Court. The section dealing with costs is Section 35. That section vests costs in the discretion of the Court, with full power to determine by whom and to what extent such costs are to be paid. It further provides that when the Court directs that any costs shall not follow the event, the Court shall state its reasons in writing, a clear indication that the Legislature intended that the Court in exercising its discretion should state the principles upon which that discretion has been exercised. The authorities in India seem to establish that the discretion of the lower Court may be interfered with where there has been violation of established principles, misapprehension of fasts, or no real exercise of discretion. THIS is much the same as the established principle in England where under Order LXV, Rule 1, Rules of the Supreme Courts, costs are in the discretion of the Court and the Court will only interfere with that discretion, and even then very rarely, where the discretion has not bean exercised according to fixed principles, or according to rule, or reason and justice. THIS being a second appeal, I have to be satisfied that the decision which is appealed against in this case is contrary to law within the meaning of Section 100. I am satisfied that the discretion in this case by which the defendant has been deprived of the costs of an important witness has been wrongly exercised, The reasoning shows that the Judge has acted according to no principle and he has misapprehended the facts. It is to be borne in mind that he was not the Trial Judge, and in interfering at all which he did, even though the point was not raised in the notice of appeal to him, he was interfering with the discretion of the First Court. If it is not a case in which I can interfere with his discretion, it would seem to follow that it is a case in which he could not interfere with the discretion of the First Court and that in itself would be a ground for interference under Section 100.

(2.) I will, however, examine the reasons which he has given. The plaintiff brought a trumpery suit, which both Courts have held had no foundation in fact. The First Court held that it was brought to trouble and vex the defendant without any truth in it. The first rule upon which the defendant is entitled to rely is that he is entitled to call the best evidence which he has. The next rule which may be applied as a test is, that it is not what appears to somebody else to be necessary after the event has been decided, but what would appear to be necessary after the event has been decided and what would appear to be necessary to a reasonable person before the day of the trial. If a Judge is in favour of the defendant and stops the defendant's Counsel from calling any further witnesses, it would obviously be an error in law to hold that the remaining witnesses were unnecessary because they were not called. The third rule is that the necessities of the defendant must be judged by the nature of the defenae and not by the magnitude of the claim. The defendant is entitled to take as much troube to win a trumpery claim of a small amount as a difficult case of large amount. The learned Judge has deprived the defendant entirely of all the costs of summoning one witness, namely, Sarjoo Prasad, a Court Inspector who happened to have been transferred to another place and whose costs amounted, no doubt, to the fairly substantial sum of Rs. 78-1, that is to say, substantial in proportion to the value of the suit, which was only Rs. 20. This witness was called, and the First Court, which decided the ease, placed reliance upon his evidence, and described him together with three others as repeatable and reliable and as having testified that the defendant had been in possession for more than 12 years. It would be an error in law to lay down that the defendant had not the right to summon such a witness. The learned Judge has gone on to suggest that this witness was not a local witness. This is a misdirection. It so happened that the witness had been transferred and was, therefore, an expensive witness to summon, but he was in fact a local witness. I have heard his evidence read. He gave evidence within his knowledge of facts when he was a resident in the locality, and it is a mere accident that he was away at the time of the trial, and it is a misdirection to describe him as other than a local witness. If the learned Judge had merely dealt with the quantum either of this man's expenses or of the general costs of the defendant, it would probably have been impossible for me to have interfered. But he has deprived the defendant entirely of the whole of this witness's expenses on grounds which, to my mind, are irrelevant and contrary to law. The appeal must be allowed with costs and the decree of the First Court with regard to the costs of this witness restored.