INDOOR SUBBARAMI REDDI Vs. NELATUR SUNDARARAJA AIYANGAR

JUDGEMENT

(1.) These are two second appeals from decrees of the District Judge of Nellore ordering the plaintiffs to pay the costs of defendants Nos. 13 to 16 in a mortgage suit. The Subordinate Judge had originally ordered those defendants to bear their own costs. Four points are taken in these appeals.

(2.) The first is that no appeal lay against the order of the Subordinate Judge as it was not a decree. That objection has now been amplified by the learned Vakil in reply by an argument that under Order XXIII of the Civil Procedure Code costs can be ordered to be paid in the circumstances of this case and that, therefore, it is not a decree. I express no opinion as to the question whether, if the suit had been entirely withdrawn against all the defendants, and no order other than that contemplated under Order XXIII had been made, it would have been a decree. But as undoubtedly a decree was passed in this case, I have no hesitation in holding that these defendants could appeal against that decree.

(3.) The next point taken was that the costs in a case where a suit is withdrawn against any defendant are in the discretion of the Court under Section 35 of the Code just as in any other case, and alternatively, in reply, that Section 35 does not apply. Assuming that Section 35 did apply, the learned Vakil argues that the discretion is absolute provided that it is purported to be exercised, and relies on a decision of the English Court of Appeal in Bew v. Bew (1899) 2 Ch. 467 : 68 L.J. Ch. 657 : 81 L.T. 284 : 48 W.R. 124, where the learned Lords Justices say that the Appellate Court will assume the exercise of discretion unless it is satisfied that the Judge has not exercised it. He then points out that Sir Lawrence Jenkins, Chief Justice of Bombay, has adopted that view in Parshram Bhawro v. Dorabji Pestonji 2 Bom L.R. 254. It is true that the learned Chief Justice does adopt those words, but the case shows that he subsequently proceeded to consider whether it was shown that the absolute discretion had been exercised properly by the learned Judge on the original side of the Court. With the greatest deference to a Judge of the eminence of the late Chief Justice of Calcutta, I am unable to see how a discretion can be absolute subject to a proviso. That case was considered by the late Chief Justice of this Court in the case of Boo Saheb T. Numberumal Chettiar v. Krishnajee 22 Ind. Cas. 919 : 26 M.L.J. 356 : 15 M.L.T. 263 : (1914) M.W.N. 310, and reliance is placed on the language used by him where he says: "I do not want to suggest that I am not prepared to accept the proposition as laid down by Sir Lawrence Jenkins." But the proposition there referred to is not the statement that the discretion is absolute, but the statement that an Appellate Court will not interfere with the exercise of discretion unless it has proceeded on a manifestly wrong ground, etc. In my view it is not an absolute discretion. I can find nothing in the language of Section 35 specifically providing that the discretion is absolute, and I find a strong indication in Sub-section (2) to the contrary. "Where the Court directs that any costs shall not follow the event, the Court shall state its reasons in writing." It is a recognised canon of construction that where a Court is directed to give its reasons, it is so directed for the purpose of assisting the Court that has to consider that decision either in appeal or revision. And I am satisfied that the same rule applies here, and that this sub-section indicates clearly that the discretion is not absolute. I entirely agree with what is stated by Sadasiva Aiyar, J., in Vadlamaunati Bala Tripura Sundaramma v. Dada Sahib 19 Ind. Cas. 474 : (1913) M.W.N. 334 where in dealing with the main words of the section, and not the subsection, he says: I think the lower Court s discretion as to costs (which discretion, I admit, is a very large discretion not to be lightly interfered with) has been exercised almost arbitrarily in this case," and then proceeds to modify it. The second point, therefore, fails.