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Ahmed BIn Shaik Essa Kaliffa and ors. Vs. Shaik Essa BIn Kaliffa and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1889)ILR13Bom458
AppellantAhmed BIn Shaik Essa Kaliffa and ors.
RespondentShaik Essa BIn Kaliffa and ors.
Excerpt:
.....- appeal--security for coats--civil procedure code (act xiv of 1882), section 549--costs of the appeal--costs of court below--poverty of appellant--appellant not in contempt--rule 190, high court mules, 1885. - - before the court is asked to depart from the ordinary rule, something very exceptional should be shown. there is nothing so exceptional in this case; i may say, speaking for myself, that i cannot at this moment recollect any case of an appeal to this court in which the ordinary rule was departed from--appeals to the privy council are, of course, on a different footing--and though we do not for a moment say it would never be done, we think a very strong case ought to be made out before the court is asked to do it. here, as the cases show, the applicant must make out either..........rule observed in this court is to require security to the extent of rs. 500 for the respondent's costs of appeal. we are now asked to sanction further security to the extent of rs. 7,000, so as to cover the respondents' estimated costs of the appeal. wow, it is not the practice here to require security commensurate to the anticipated costs of this appeal. rs. 500 is, speaking generally, the rule for all cases, although we know of course, as a matter of fact, that that amount is rarely, if ever, a complete protection to a respondent. that being the established rule it is not lightly to be departed from. before the court is asked to depart from the ordinary rule, something very exceptional should be shown. there is nothing so exceptional in this case; the hearing may, it is said, last.....
Judgment:

Chareles Sargent, C.J.

1. This application raises the question, what is the construction to be given to Section 549 of the Code of Civil Procedure (Act XIV of 1882)? That section is somewhat general in its terms; and it is very desirable that, in applying it the Court should proceed on some definite general principles; otherwise litigants will be encouraged to make applications, under this section, in the great majority of cases.

2. The respondents' application is twofold. I will deal first with that portion of it which has reference to the costs of the appeal. The rule observed in this Court is to require security to the extent of Rs. 500 for the respondent's costs of appeal. We are now asked to sanction further security to the extent of Rs. 7,000, so as to cover the respondents' estimated costs of the appeal. Wow, it is not the practice here to require security commensurate to the anticipated costs of this appeal. Rs. 500 is, speaking generally, the rule for all cases, although we know of course, as a matter of fact, that that amount is rarely, if ever, a complete protection to a respondent. That being the established rule it is not lightly to be departed from. Before the Court is asked to depart from the ordinary rule, something very exceptional should be shown. There is nothing so exceptional in this case; the hearing may, it is said, last two days, or three days, or it may even last four days; but whether last the shorter period or the longer, we think, is immaterial. The period of hearing within such narrow limits affords no sufficient reason, in our opinion, for a departure from the ordinary rule. I may say, speaking for myself, that I cannot at this moment recollect any case of an appeal to this Court in which the ordinary rule was departed from--appeals to the Privy Council are, of course, on a different footing--and though we do not for a moment say it would never be done, we think a very strong case ought to be made out before the Court is asked to do it.

3. Then as regards the costs of the original hearing. Here, as the cases show, the applicant must make out either that the appellants are residing out of the jurisdiction, or that the conduct of the party complained of, in not paying the costs ordered to be paid, is vexatious--that is, such as indicates a wilful determination on his part not, to obey the order of the Court. In such a case as that this Court would not allow a party to proceed further while he was--as then he would be--in contempt of an order of the Court. There can be no doubt, for instance, that if a vexatious determination not to pay costs ordered to paid, were shown in any case, that would be a good ground on which to found such an application as the present. But that is far from being shown here. It seems that the plaintiffs are unable to pay the costs ordered; if so, there is nothing vexatious in their not obeying the order it is their misfortune, not their fault. Under neither head, therefore, do we think the present application should succeed, and it is accordingly refused with costs.


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