1. The point for consideration in ;this civil revision petition relates to costs.
2. The petitioner as plaintiff filed O. S. No. 46 of 1970 in the Lower Court to recover a sum of Rs. 18,504/- on the foot of a mortgage. Issues were framed and the suit was posed for trial. After some adjournments it came up before the Court on 8th April, 1971. On that day both sides reported not ready and sought an adjournment. While granting the adjournment to 17th June, 1971 the Court directed that 'both sides to Loss costs irrespective of the result of the suit'. It s this direction about costs that is sought to be revised in the revision petition.
3. It is argued that while acceding to the request of the parties and granting an adjournment of the suit, the Court can award costs of the adjournment alone and it has no jurisdiction t issue a direction as to the costs in the suit at that stage. This contention seems to be well founded. Order 17, Rule (1), C. P. C. empowers the Court to adjourn the hearing of the suit from time to time if sufficient cause is shown. Sub-rule (2) requires the Court to fix a day for further hearing of the suit when such adjournment is granted and further enables it. to make such order as it thinks fit it respect to the costs occasioned by the adjournment. It is thus manifest that what the Court can award, while granting an adjournment, are only cots occasioned by the adjournment. That means, it can grant all such costs that would be incurred by the other party on account of the adjournment. For instance, if witnesses were summoned and battas were paid to them he witnesses will have to be summoned and battas will have to be paid to them again for the next day of hearing if an adjournment is granted. Those cots occasioned by granting the adjournment may be granted by the Court. But, there is no provision in the Civil Procedure Code which empowers the Court to make an order as to the costs of the suit while dealing with the request for an adjournment. If a direction is made as to the costs of the suit while granting an adjournment it is clearly a case of imposing a penalty. The Court is not empowered to impose such penalties. The costs occasioned by the adjournment are only intended to compensate the other party for the expenses it has incurred for that day fixed for the haring of the suit. The discretionary power as to costs conferred on the Courts by Section 35, C. P. C., has to be exercised when the suit is disposed of That power of discretion has to be exercised having regard to the circumstances, facts, contentions and result of the suit and not earlier. It doers not empowers the Court to make a direction as to costs at an intermediary stage before the disposal of the suit. It is thus clear that the lower Court has acted without jurisdiction in making a direction as to the costs of the suit while granting an adjournment.
4. I draw support for this view from Ramanathan Chettiar v. Alagappa Chettiar, AIR 1938 Mad 711. Pandrang Row, J., held that decision that Order 17, Rule 1 does not entitled the Court to demand payment of the entire costs of the suit incurred up to the date on which the adjournment is asked for, because the power given to the Court to make such order as it thinks fit is only with respect to the costs occasioned by the adjournment and not the costs of the suit generally.
5. A Division Bench of the Bombay High Court in Jadavbai Narayandas v. Shrikisan, AIR 1946 Bom 113, also construed the expression 'occasioned by he adjournment' as costs which might reasonable compensate the other party for the expense incurred by reason of the adjournment. Of course, the condition imposed should not be in the nature of a penalty or punishment to the party asking for adjournment and hence the costs awarded should in no case exceed the sum commensurate with the expense, which, in the opinion of the Court, the party ready to proceed reasonably incurs as a result of the adjournment.
6. It follows that the order of the Court making a direction as to the costs of the suit while granting an adjournment is without jurisdiction and liable to be set aside.
7. It is, however, brought to my notice that on 12-7-1971 the suit has been disposed of by passing an ex parte decree and by reason of the impugned order, without costs. I am also informed that the defendant has filed a petition to set the ex parte decree aside. Learned counsel on both sides are, however, unable to tell me whether that sitting aside petition has been disposed of or not. After filing the present revision petition, it appears an order of stay was passed on 9-7-71. staying the delivery of the judgment. But by the time the order of stay was communicated to the Court below the ex parte decree was passed on 12-7-71. It has thus come to pass that disallowing costs of the suit has become part of a decree. Despite the same, learned counsel for the petitioner argues, relying on Mulraj v. Murti Raghunathji, : 3SCR84 , that I can undo any possible injustice that might have been caused to the party in whose favour the stay order was passed. But, I am afraid I cannot, in this revision petition, sit in appeal against the ex parte decree and correct it. undoubtedly there are enough and other remedies open to the petitioner to have the decree corrected. If the ex parte decree is not set aside at the instance of the defendant, it will certainly be open to the petitioner to take appropriate step to have the decree corrected in regard to costs in the light of my decision. If, on the other hand, the ex parte decree I set aside and the suit itself has been restored to file, then the consequence of this order of mine is the impugned direction as to the costs of the suit will be set aside and the Court will have to decide the question of cots at the time of the disposal of the suit.
8. In the result, the revision is allowed. In the circumstances of the case I direct the parties to bear their own costs.
9. Revision allowed.