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Mariyaya Chanviraya Hiremath Vs. Shantirappa Danappa Nelvigi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberLetters Patent Appeal No. 28 of 1937
Judge
Reported inAIR1939Bom338; (1939)41BOMLR575
AppellantMariyaya Chanviraya Hiremath
RespondentShantirappa Danappa Nelvigi
DispositionAppeal dismissed
Excerpt:
.....of costs-several defendants-each defendant having separate interest appearing by different pleader-suit dismissed with costs-each defendant en-titled to separate set of costs-bombay high court civil circulars, 1925, clause viii.;the expression 'suit dismissed with' in a decree means that the plaintiff is to pay the costs of the defendants. if there are more defendants than one, he pays the costs of all the defendants, since prima facie every defendant is entitled to defend the suit in such manner as he thinks fit and with the help of any pleader in whom he has confidence. where the order shows on the face of it that there are two defendants who have incurred separate costs, the matter is made additionally clear.;rustomjee heerjeebhoy v. cowasjee dadabhoy (1924) i.l.r. 48 bom. 348 : s.c...........arise. the substantive part of the decree in the suit concluded with the words 'plaintiff's suit is dismissed with costs'. then followed three columns of costs, (1) the costs of the plaintiff, (2) the costs of defendant no. 1 and (3) the costs of defendant no. 2; and the learned judge assessed those several costs at certain amounts, and then duly signed the order below the memorandum as to costs. the form of the order follows the forms nos. 1 and 2 of appendix d to the civil procedure code which contain columns for the costs both of the plaintiff and the defendant in the schedule to the order.2. the contention of the appellant is that the expression 'plaintiff's suit is dismissed with costs' only renders him liable for one set of costs in respect of both the defendants, and for.....
Judgment:

John Beaumont, Kt., C.J.

1. This is an appeal under the Letters Patent from a decision of Mr. Justice Sen dealing with a question as to costs which I should imagine must frequently arise. The substantive part of the decree in the suit concluded with the words 'Plaintiff's suit is dismissed with costs'. Then followed three columns of costs, (1) the costs of the plaintiff, (2) the costs of defendant No. 1 and (3) the costs of defendant No. 2; and the learned Judge assessed those several costs at certain amounts, and then duly signed the order below the memorandum as to costs. The form of the order follows the forms Nos. 1 and 2 of Appendix D to the Civil Procedure Code which contain columns for the costs both of the plaintiff and the defendant in the schedule to the order.

2. The contention of the appellant is that the expression 'Plaintiff's suit is dismissed with costs' only renders him liable for one set of costs in respect of both the defendants, and for that proposition he relies on the decision of this Court in Rustomjee Heerjeebhoy v. Cowasjee Dadabhoy I.L.R. (1924) 48 Bom. 348. Looking at the terms of the order apart from authority, I should have thought that the words 'Plaintiff's suit is dismissed with costs' must mean that the plaintiff is to pay the costs of the defendants, and if there is more than one defendant he would have to pay the costs of all the defendants, since prima facie every defendant is entitled to defend the suit in such manner as he thinks fit and with the help of any pleader in whom he has confidence. Where the order shows on its face that there are two defendants who have incurred separate costs, the matter is made additionally clear. In my opinion, therefore, in this case the order means that the plaintiff must pay the costs of both defendants as specified in the order. In Rustomjee Heerjeebhoy's case the Court did no doubt express an opinion that if a suit was dismissed with costs and there were more than one defendant, the defendants would get no more than one set of costs; but that decision was before the issue of the High Court Civil Circulars of 1925 which was referred to by Mr. Justice Sen in his judgment. The Circular in Chapter VIII expressly provides that when several defendants having substantially one defence to make employ several pleaders, they shall be allowed one set of costs only; and in such cases it will be for the plaintiff, at the time of hearing, to ask for a direction of the Court that separate costs be not allowed. Here the plaintiff did not ask for an order that separate costs be not allowed, and no such order was made, and in my opinion therefore plaintiff must pay a double set of costs. The judgment appealed from is right, and the appeal must be dismissed with costs.

Lokur J.

3. I agree.


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