MUNSHI SINGH Vs. PEYARA SINGH

JUDGEMENT

(1.) IN these appeals the only question raised is as to the correctness of the order of the lower appellate Court with regard to costs reversing the decision on that point of the Munsif. The suits were rent suits brought by the plaintiff appellant against the tenants entered in his jamabandi as defendants first party. The plaintiff also impleaded as defendants second party under Section 148-A, Ben. Ten. Act, the co-sharer landlords. The tenants did not contest the suit, but the co- sharer landlords pleaded that they had acquired these holdings either at auction sale or private sale and that they were the persons liable to pay rent for the holdings. They alleged also that the rents of certain bhaoli holdings had been commuted into cash rents, and they raised a plea of payment by adjustment of account. The Munsif found that the second party defendants had in fact purchased the holdings, but found against them on the other points and found that they had not been recognized by the plaintiff as his tenants. Therefore the Munsif had passed decrees for the rents against the defendants first party in each case and directed that the costs of the suits should be paid by the defendants second party because the latter by reason of contest had caused the litigation to be disputed and expensive. On appeal the Additional District Judge entertained the appeals against the, order of costs only and reversed the decision of the Munsif observing: If the pro forma defendants are not liable for the payment of rent, as held by the lower Court, I do not see how they can be held liable for the payment of costs arising from the default made by the principal defendants against whom as already said the decrees have been passed.

(2.) THE principle on which the learned Additional District Judge acted would appear to be the principle which was laid down in Bunwari Lall V/s. Drup Nath Singh (1886) 12 Cal 179, when the order making defendant 2 liable for costs was set aside on the ground that there was no cause of action against the latter. At the hearing of this appeal it was first suggested that on a question of cost only an appeal does not lie. THE contention must be negatived; such an appeal lies where a question of principle is involved or where a wrong principle has been followed. Moreover in this particular case it appears from the judgment of the Additional District Judge that it had been decided by the Hon ble High Court that these appeals will lie against the order of costs only. Where there is a question of principle and an appeal lies, in such a case a second appeal also will lie and the question of principle can be entered into in second appeal. It seems to me it is not correct to say that there was no cause of action against the defendants second party. To begin with they are co-sharer landlords and necessary parties to a suit instituted under the provisions of Section 148-A, Ben. Ten. Act. A decree obtained in their absence would not be a rent decree whereas the effect of a rent decree being passed in their presence will be that such a decree will be effective against them in this sense that an execution sale based on it will pass the raiyats interest which they have acquired. That would result in the plaintiff eventually getting a very substantial relief from these second party defendants. This is a consideration arising on the pleadings and in addition it is to be considered that the defendants second party have by their action materially contributed to increasing the costs of the litigation. THE principle under which the learned Additional District Judge exempted these defendants from payment of costs appears therefore to be not applicable to the facts of this case. In my opinion the order of the Munsif was an order which it was within his discretion to pass and in passing which he exercised his discretion with propriety. THE order should not have been set aside on appeal and must now be restored. THE appeals will therefore be allowed with costs. THEre will be one set of hearing fee for the batch of appeals.