HIRA Vs. GAYA

JUDGEMENT

(1.) A suit for a declaration of their rights to fish was filed by the plaintiffs and among the reliefs claimed in the plaint was one for the costs of the suit. On 3rd August 1927 the parties agreed to refer the whole case to the arbitration of five arbitrators. It was not a reference of specific points but of the whole case. There can be no doubt that the dispute in the case included one relating to costs of the litigation and that dispute also was referred to arbitration. The arbitrators delivered an award in favour of the plaintiffs decreeing their claim, but in the award they made no mention of any costs.

(2.) Objections were filed to the award by the defendants, but the plaintiffs did not object to the award on the ground that it was defective inasmuch as it omitted to give them costs. The learned Munsif overruled the objection and directed that a decree should be prepared in terms of the award. He however ordered that the plaintiffs should get 2/3rds of their entire costs from the defendants who should receive one-third of their costs from the plaintiffs. On appeal to the lower appellate Court by the defendants it was held that the learned Munsif had no jurisdiction to award costs when the arbitrators had failed to do so. The learned Judge disallowed all costs to the plaintiffs. On appeal to this Court a learned Judge came to the conclusion that the plaintiffs were entitled to costs because the Munsif had power to grant them costs. The learned Judge pointed out that when the Court had been given an express power to grant costs of arbitration under para. 13, Schedule 2, it would be manifestly inequitable that the Court should have no power to give costs actually incurred in its own Court. He also relied on Section 35, Civil P.C, which gives the discretion to the Court in the matter of costs. The observations made on general grounds have great force, but we are bound by the language of the Code.

(3.) There arc three stages in the suit. Costs were incurred by the plaintiffs upto the time of the reference to arbitration. We have already pointed out that having regard to the language of the agreement of reference, it included the dispute as to costs which had been expressly claimed in the plaint. The next stage was the proceeding before the arbitrators and the costs were incurred in that proceeding. [There can be no doubt that under para. 13 Section 2, the Court has full power to grant costs of arbitration when the award contains no sufficient provision concerning them. The third stage was when the objections to the award were filed and they were disallowed. The Court had undoubtedly power to grant costs of this proceeding to the plaintiffs.