CHAPTER XVIII. Victus victori in expensis condemnatus est. THE first point that strikes the eye in this chapter is that the new Code is silent as to what expenses are to be considered as included in the term "costs." Act VIII. of 1959 divided such expenses into seven heads: (i) Stamps; costs of (ii) summonses to defendants and witnesses; (iii) of other processes; (iv) of procuring and filing* copies of documents; (v) pleaders fees; (vi) charges of witnesses; (vii) expenses of Commissioners in taking evidence, local investigations, and investigations of accounts (and arbitrators).* Under the first head may come an arzi navist fee for writing a plaint if the Court considers it to have been necessarily incurred. The stamps for plaint, and whole of pleaders' fees was held to be properly included in the costs of the second hearing in a case which, being reversed by the High Court on appeal, was remanded with orders allowing plaintiff to amend his plaint, and requiring him to pay the costs of the first two hearings. Madhub Chandar Bira v. R. L. Bira, S W. R., XIV, 143. With reference to the second head, the expenses of witnesses produced by a party without the intervention of the Court are legitimate expenses if bonâ fide* and of necessity. The rules by which pleaders' fees are to be calculated will be found in the appendix under that head. Careful examinations is to be directed to the item of pleaders' fees, especially in cases where more than one pleader has been employed. Thus in Madras the rule is that where parties on the same side retain each a separate pleader, the other side, if condemned in costs, will be charged with the fees of each of such pleaders if the interests of the parties retaining them were distinct, and with the fees of one only if their interests were identical. This principle runs through all the following rulings : An attorney who does any work jointly for several parties together can only make one charge for costs, and must be taken to represent them jointly. When he appears before the taxing officer for the taxation of costs, a taxing officer should not issue separate summonses to different parties who appear by one attorney. Henrietta Kenny v. Administrator General of Hengal, B. L. R., VII. App 50. Several defendants were sued in respect of the same matter, and their defences were identical : the defendants appeared separately. Held that the Judge below, in dismissing the suit, properly allowed to the defendants the costs of a joint defence only. Joykishen Mooherjee v. Hurrybungso Burràul, Marsh., 95. Ijmallee-holders, defendants, should be represented ijmallee by one pleader and one set of pleadings, and are not entitled to separate costs. Brindabun Chunder Chowdhry v. Ram Coomar Chowdhry, S. W. R., I. 139. Members of the same family, and living in the same place, when sued together on a common cause of action, are entitled to only one set of costs. Kashi Nauth Roy Chowdhry v. Hullodhur Roy, S. W. R., II, 60; but where the defences taken are distinct and different, two sets of costs ought to be given. Ram Chandar Gosain v Moti Lal Baghchi, S. W. R., 11. 19. In a suit for the recovery of property by a descendant of a vendee claiming as shebait of the idol, the zamindar and the patnidar, who were both compelled to appear for the protection of their interests, and whose defences were not necessarily identical, were entitled to separate costs. Gobind Nath Roy Bahadoor v. Ranee Lachmi Kumari and another, S. W. R., XI. 36. Where a plaint had been rejected as having been filed against several persons who had different defences, it was held to be within the discretion of the Judge, in appeal, to dismiss the suit and saddle the plaintiff with the costs of all the defendants, notwithstanding that all the latter, except one set, admitted the claim, and retired from the contest. Kossella Koer v. Behary Patuck, S. W. R., XII, 70. Upon the same principle, under a charge against several defendants for having jointly misappropriated property, one defendant is not bound to entrust his defence to the counsel for the others, but each has a right to defend himself, and is entitled to separate costs if successful. Nilkanth Surma and others v. Soosela Debia and others, S. W. R., VI. 324. When a defendant states in his defence that he has nothing to do with the case, and appearing by a separate pleader incurs a separate set of costs, and makes good his defence, he is entitled to a separate set of costs. See Ram Chandara Gosami v. Matilal Baghchi B. L. R., II. A. C. 168. This was a case for recovery of possession of land; the other defendants claimed a title and made it good. In the N.-W. P. C. O. 14 of 1865 decrees are to specify distinctly that the order for charging vakil's fees is such as has been considered necessary with reference to the circumstances of the case, Panj. C, O, 36, 37, † Cen, Prov. I. 485. ‡ Cen. Prov, B C. VII, 1875. § Mad, 31, N.-W, P, C, O, II, 6, Special reference in calculating pleaders' fees is directed to Raja Kanth Bahadur v. Ramdin Holdar, S. D. A. L. P. Feb., 4848, and Collector of Dacca v. G. Lamb, ib p. 43. A Court is bound to award as costs to a defendant his pleader's fees calculated according to rules laid down. The plaintiff cannot take advantage of any private arrangement between the defendant and his vakil. Umirtonath Jha v. Roghoonath Parshad Roy, S W. R., VI. 25. Other expenses, when deemed necessary, can also be allowed. Thus in a suit to set aside a settlement, two accountants were employed at the plaintiff's instance, and not by order of Court, to examine the settler's books and give evidence. Held that the investigation being most useful to the Court, and adapted to the ends of justice, the taxing-master was right in allowing their expenses. MacNair v. Hogg, II. Hyde's Rep., 89; and where in a mortgage-deed the mortgagee covenanted to re-convey, on being paid principal and interest and "all costs" and charges as between "attorney and client," and the mortgagee, in default of repayment of the mortgage-money, obtained an ex parte decree for sale, the Court should award him costs as between attorney and client. Chunder Kumar Chatterjee v. E. C. Chatterjee, Ind. Jur. N. S., I. 222, In Madras, sums paid for printing charges, and stamp fees levied for authenticated copies of decrees and judgments appealed against, and for a vakalatnamah, may also be included. So also costs of searching for records when it is necessary to refer to the public records of another Court. When execution is taken out, the amount so paid should be credited to Government. The general rule to guide officers in taxation is that none but necessary costs will be allowed; all unnecessary costs will be borne by the party incurring them; such are those of petitions recklessly presented during trial, unnecessarily prolix, of copying and filing irrelevant documents, and punitive costs. Costs of appeal will follow the same rules, but a successful appellant will not as a matter of course be entitled to costs of proceedings in lower Court except by special order of Court. accepting appeal. Appellate Courts should use a sound discretion in awarding costs ab initio The general principle to guide a Court in awarding costs is that they abide the event of the action; but this is qualified by another rule which, though not expressly laid down in the Code, is an established rule of practice, viz., that if the plaintiff recover a less sum than the amount sued for, the defendant is not liable to pay more than his proportion of costs. The Judge, however, has a discretion to over-ride both these rules; and while awarding judgment in favour of plaintiff or defendant, as the case may be, to direct that he do not recover costs. It is impossible to define what circumstances will justify a Judge in refusing the successful party his costs, but it may be laid down as a general rule that when the plaintiff sues for a debt on account, or for goods purchased, of the exact amount of which the defendant may reasonably be considered ignorant, he is not entitled to recover costs unless he has, before urging his suit, sent a written account of his claim to the defendant. Further, whenever costs are disallowed, the reason should be specially stated on the record. Costs must be taxed by the deciding officer, and entered in the decree, which should also state by what parties and in what proportions they are to be paid. It is recommended that a running account of costs be kept up on a separate sheet of paper in the form prescribed. This might be done by the native reader who, under the system of English record, must have a good many leisure moments. At the conclusion of the case the detail of the costs should be read over to the presiding officer, who can cause any special order regarding costs to be recorded in the appropriate column. As before, the proportion in which and the persons by whom costs are to be paid is left to the discretion of the Court. Only where they do not follow the event, reasons for such departure are to be given in writing. Interest may be added to costs at a rate not exceed. ing six p. c. per annum. (a) Thus, when a suit is dismissed for want of jurisdiction, Punchanun Ghose v. Brojendro Narain Deb, I. Ind. Jur, N. S. 38. An application which is considered as a regular suit should have costs calculated upon it as though it were a regular suit. Koy Priyanath Chaudhri v. Prosanna Chandra Roy Chaudhri, B. L. R., II. A. C. 249. (b) The specification of costs without allotment is wrong. Janki Nath Mukarji v. J. K. Mukarji, S. W. R., XV. 4. * C. O. 31, 98. (c) Costs of a suit for effecting partition + Panj. C. O., I. 36, 37. (d) When a person makes a fictitious sale in order that another person may be sued instead of himself, or that he may come in and defend a suit under that other name, the Court ought to give an order that such person should pay the costs incurred by a successful plaintiff. Srimati Bamasundri Dasi v. Ramnarayan Mitter, B. L. R., VIII. App. 67. Can a Court travel beyond the record? In Bamasundari Dasi v. Anando Lall Dass, Bourke 44, 96, and Jageshar Konwar v. Prosonno Kumar Ghose, I. J. N. S., 1. 282, a defendant succeeded in showing, and secur ed costs, against a fictitious plaintiff. The practice obtains in English law, see Hayward v. Giffard, M. and W., IV. 194, and Evans v. Reece, Q. B. II. 334, Hutchinson v. Greenwood, E. and B., IV. 324, and Anstey v. Edwards, C. B., XVI. 212. In these last a third party was made to pay costs, but he was also a defendant. But in the case quoted above, the defendant was not on the record at all. The case of Ramnidhi Koondoo v. Rajah A. Khan, B. L. R., App. XI. 37, shows that this power is considered to be confined to the High Courts, and that they can do it under the power they have to punish contempt of Court. But if the defendant is a real and not a sham one, and himself did the wrongful action on which the suit is brought, and the plaintiff before the trial knew the circumstances under which he afterwards Bought to make a third person responsible for the costs, and might have added him as a party to the suit, the Court will not order such stranger, not on the record, to pay_costs decreed against a defendant. S. M. Prankumari Dasi v. A, C. Mukarji, B. L. R., IX. 210. A defendant who colludes with the plaintiff, and induces him to bring a suit for his benefit, may be ordered to pay the costs of his codefendants in the Court below. It seems that he may also be ordered to pay the costs of an appeal by the plaintiff. Bhyroo Raoot v. Baboo Anooroodep Deo Narain Singh and others, Marsh. 608. When a defendant has made admissions which might have induced a plaintiff to bring him into the category of defendants, although the claim against him may be dismissed, he is ordinarily not entitled to costs. Srinath Roy v. G. C. Sen., S. W. R., XV. 348. (See also Lala Bugwan Dass v. Syad Akbar, Ind. Jur, N. S., I. 390). Parties who have no interest in the suit, and have been unnecessarily joined, should get their costs. Collector of Dacca v. Kamalakant Mukarji, S. W. R., II. 33; Anando Chandar Chaudhri v. Roy Mothooranath Chaudhri. Sev, VIII. 15. See also Syad Afzul Hussain v. Hira Lal, S. W. R., II, 152. One of several judgment-debtors jointly liable having paid more than was due between him and his co-defendants, sued for the excess, among others, a defendant who also had paid more than his share. To such defendant costs were allowed. Such plaintiff cannot call upon his co-debtors to contribute in respect of costs when he has been compelled alone to satisfy the debt. Panjab v. Pitam Singh, N.-W. P. 1874, 192. A person needlessly made a party in a suit is entitled to costs on the usual scale, on the amount of the suit. Kashinath Sen, v. Chandar Mani Deb., S. W. R., IX. 289. When a plaint contained allegations of express malice and want of bona fides on the part of the trustees in passing and publishing the libellous resolution complained of, which allegations obliged the trustees to plead justification, on which plea also they were successful, it was held the plaintiff must pay costs. Shepherd v. Trustees, Port of Bombay, I. L. R. Bom., I. 477. A plaintiff who chose to make charges of misconduct, profligacy, &c., against a defendant unsupported by evidence, and when no attempt was made to support them, was disallowed his costs. Biswanath Chandar V. S. M. Khantamani Dasi, B. L. R., IX. 76 (see also Gopal Narain Mozumdar v. M. Guptu and another, B. L. R., XIV. 21.) A Hindu childless widow consented to a decree for partition which directed that the parties should bear their own costs respectively; after partition, without showing any necessity for the suit, she asked that her costs should be paid by sale of the portion allotted to her, and not out of the life interest to which alone she was entitled; in other words, that they should be paid by the defendant, who was her immediate reversioner. This was refused. Costs in such a case could only be granted according to her applica tion if she had made out a distinct case of necessity, and proved that she was driven to sue to protect herself and her husband's estate. Kistokaminy Dasi v. Mirtoonjoy Datt, B. L. R., XI. App. 36. No order was made as to costs in a case where the objection that a plaint disclosed no cause of action was not taken in the lower Court. Pran Bandhu Chatterjee v. Madhu Sudan Patra, B. L. R., XIII. App. 13. Similarly, when the objection that a case has been improperly remanded by the lower appellate Court was taken in special appeal from the decree passed upon a remand, instead of its being taken from the order of remand, appellants were held not entitled to costs. Majoram Ojha v. Raja N. S. Deo, B. L. R., XIII. 198. A respondent who had not delivered paper books as allowed by rule 49, Cal, H. C., in default of appellant's doing so, was refused costs, even though appellant did not appear at hearing. Hurro Sundri Dasi v. Kalipaddo Datt, B. L. R., XIV. App. 11. A plaintiff held disentitled to costs on account of laches. Mir Tuki Ali v. M. S. Ali, N., W. P. 1873, 137. Costs should not be allowed when the case has been brought simply to annoy or inflict injury. Where an ill-conditioned person files a plaint for partition solely for the purpose of inflicting injury upon his joint holders, the Court will, in the exercise of the power conferred by section 219, mulet him in the entire costs. Bhubanmohan Dey v. Dinonath Dey, I. Hyde's Rep., 122. A suit may be dismissed by reason of the defendant's conduct without costs. Muhammad Ibrahim v. Lauder, Cor. Rep., 42. Persons guilty of barratry or maintenance, and setting in motion the Court for improper motives, will be made to pay the costs of the proceeding. Jageshar Kumar v. Prosunno Kumar Ghose, In. Jur. N. S., I. 282. To assess the defendant in a suit with the plaintiff's costs, when plaintiff's suit is dismissed for want of any cause of action, is irregular and unreasonable. Sri Dantuluri Narayana v Surup a Raju, Mad, Rep., III. A. C. 113. Where a party is made a defendant without a cause of action being alleged, his co-defendant should not be made to pay his costs; they should be paid by the plaintiff. Ram Chandra Mittra v. Kisto Comaree Dasi, S. W. Ra, X. 194. When all matters in difference are referred to arbitration under an order of Court, the arbitrators have power to deal with the costs of reference and the award. Mohan Lal v. Nathu Ram. B. L. R. O. C., I. 144. The plaintiff should pay defendant's costs when a suit is dismissed for misjoinder. Mattra Parshad v. Bandu Rai, N.-W. P. 1873, 20. In a suit against representatives, a Court should ordinarily direct payment of costs, not against defendants personally, but out of estate. Madho Ram v. Dilbar Mahul N.-W. P. 1870, 449. The estate, and not the manager thereof, is held liable for the costs of a suit instituted in perfect good faith by the manager for the benefit of the property. Ram Kishore Acharji Chaudhri v. Luckee Dabea Chaudhrain, S. W. R., I. Mis. 1. (e) The question of costs is the most general question to be determined in a suit; in fact, it is the only question over which the Court can exercise the widest discretion. The discretion, however, is to be exercised with special reference to all the circumstances of the case, including the conduct of the parties. It is not correct in law or justice to say that costs must invariably be awarded in proportion to the amounts decreed and dismissed. If, for instance, as in the case Sheodhyal Tewari v. Jadonath Tewari, S. W. R., IX. 61, it is found that a plaintiff has mainly succeeded in his claim; that his suit was an honest and bond fide one; that the portion dismissed has been lost more in consequence of the misconduct of his opponents than on account of any fault of his own, it would be injustice to refuse him his full costs. Although, however, the question of costs is within the discretion of a Court, yet the Court is bound to give some reason for the exercise of that discretion. Shunt Bakhsh v. Lalla Nand Ram. S. W. R., XI. 43. Again, a Judge ought not to apportion costs contrary to the terms of the decretal order; nor is he at liberty to put his own interpretation upon a decretal order which is unambiguous in its terms. Manick Chunder Lushkur v. Haro Parshad Rai Chaudhri and others, S. W. R., VI. Mis. 30. For a long time under the old Code it was held that an order for costs was not in any way open to appeal, nor is there in the new Code any particular provision about appeals on this head, still sec. 219 makes the order on costs part of a judgment, and sec. 206 makes it a part of a decree; while sec. 540 provides that an appeal shall lie from any part of a decree, and sec. 584 makes ample provision for special appeals. Still, looking to the wide terms of sec. 220, it may be inferred that, as under the old Code, so now under the new, in such cases Courts should exercise very great discretion, and only interfere when the discretionary power allowed to the lower Courts seems to have been exercised in violation of usage, and to have inflicted marked injustice. Kuppusvamian Nunnoyyan, M. H. C., I. 74; Girdhari Lal Dai v. Sundar Bibi, S. W. R., VI., 187; Amirasahar Hafiz-ullah v. Jamshedji Rustamji, and Desaji Lakmiji v. B. D. Narotam Das, Bom, H. C., VIII. 100. When a plaintiff has asked for a sum which is in excess of what the Court holds him entitled to, and to which a lower rate of pleader's fee or of stamp duty applies than to the rest of the claim, the defendant who succeeds in that part of the case is entitled to recover the costs applicable to that particular part of the subject-matter (Bayley, J. dissenting). Bamasoondery Debia v. G. Rogers, S. W. R., VII. 127. An order for full costs was disallowed in a case where the parties were only entitled to costs in proportion to the value of their separate interests in the suit. Luchmun Chandra Geer Gossain and others v. Ramjoy Mozoomdar and others, S. W. R., VII. 159. A. sued B., C., and D. for possession, and obtained a joint decree, and in satisfaction of his costs attached B,'s property. B., in order to save her estate, paid the demand in full, and sued C. and D. for contribution. Held that, though the decree was jointly and equally against all three, yet C. and D. were liable to B. for a rateable amount of costs in proportion to what was their interest in the property decreed to A. Kisto Kumar Chaudhri v. Anund Moyee Chaudhrain, S. W. R., VII. 300. A Judge is not bound to give costs at a In a suit against 34 defendants to recover An attorney, without whose intervention or knowledge, a suit, after filing of the plaint, was compromised out of Court by the parties, was allowed costs in the case. Iswar Chandra Datt v. I, C. Ghose, B. L. R., IX. App. 19. In estimating the value of a suit, costs must not be included. Nilmadab Dass v. Biswambhar Dass, B. L. R., III. P. C. 27. After defendants have been summoned, an order allowing the suit to be withdrawn should not be passed without notice to the defendants; nor, again, should an order after that, charging plaintiffs with costs, be passed without notice given to plaintiffs, at request of defendant's pleaders. Misr Debi Parshad v. Baldeo Parshad, N.-W. P. 1873 116. A plaintiff's case should not be dismissed in Costs are not consequential upon partial of costs accompanied by a prayer that In decreeing mesne profits, Court cannot (h) It should be distinctly specified that Mr. Bell, the Legal Remembrancer for Bengal, For P. C. Rulings see App. "Costs." |