1. This appeal is preferred by the second defendant against the judgment and the decree passed by the learned Subordinats Judge, Narasaraopet on 29th July 1959 in O. S. No. 31 of 1958 making him liable along with the plaintiff to pay the costs of defendants 1 and 3.
2. The facts have been fully set out in the judgment in A. S. 156 of 1961 which I delivered yesterday. It is clear from the evidence that the second defendant is also one of the legatees under the will, Ex. A. 1 dated 9-6-1934 alleged to have been executed by Padam Rangaiah. In fact she gave evidence in support of the plaintiff's case to the effect that she brought the scribe and the attestors to the will and that she was present at that time. The will has been found to be a fabrication by the learned Subordinate Judge, which finding I have accepted. The entire conduct of the second defendant shows that she was very much interested in putting forward the will and establishing its genuineness to the detriment of the lawful rights of the first defendant. She was also impleaded as the second defendant though she remained ex parte.
3. The learned Subordinate Judge held that the second defendant was mainly responsible for the sail and conduct of it and in the circumstances be directed the plaintiff and the second defendant to pay the costs of the defendants 1 mid 3 in one set,
4. The contention of Mr. Subba Rao, the learned counsel for the appellant is that the second defendant did not contest the suit and cannot therefore be made liable to pay the costs.
5. In order to fully appreciate the force of this contention it is necessary to advert to Section 35 of the Code of Civil Procedure which is in the following terms:
'35 (1). Subject in such conditions and limitations as may be prescribed, and to the pro-visions of any law for the time being in force, the costs of and incident to all suits shall be in the discretion of the Court, and the Court shall have full power to determine by whom or out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid. The fact that the Court has no jurisdiction to try the suit shall be no bar to the exercise of such powers.
(2) Where the Court directs that any costs shall not follow the event, the Court shall state its reasons in writing;
(3) The Court may give interest on costs at any rule not exceeding six per cent per annum, and such interest shall be added to the costs and shall be recoverable its such.'
6. It is manifest that this section confers wide discretion on the Courts in the matter of awarding costs. Of course such discretion must be a judicial discretion to he exercised on legal principles and not by caprice. It is also well settled that in the exercise of this discretion, the Court is not confined to the consideration of the conduct of the parties in the actual litigation itself, but may Also take into consideration matters which led up to and were the occasion for that litigation. Though under the Code of 1882 an order for costs could not be made against a person, who is not a party to the suit under the Code of 1908. Courts can award costs even against the persons who are not parties to the suit, it is also established that a defendant who remains ex parte is as much hound by the decree as the defendant who contests the suit,
7. In Upendra Narain v. Bisweswar Roy, AIR 1925 Cal 569 a Bench of the Calcutta High Court ruled that the discretion, however, is to be exercised with special reference to all the circumstances of the case, including the conduct of the parties. Their Lordships observed as follows:
'The judgment of Lord Russell, C. J., in Bostock v. Ramsay Urban Council, (1900) l QB 357 shows that the Court is not confined to the consideration of the defendants' conduct in the actual litigation itself, but may also lake into consideration matters which led up to and were the occasion of that litigation, in other words, to look at the antecedent conduct of the defendants which led to the apparent necessity for the plaintiffs' instituting the suit. Tested from this point of view, the petitioners are in a situation of great difficulty. They acquired an interest in the tenure like the plaintiffs, but while the plaintiffs repudiated the tenure as fictitious, the defendants throughout conducted themselves as if the tenure was genuine, their conduct has thus lent support to the case of the tenant defendants. It was open to them to appear at the trial and to state that they had no interest in the litigation, that there was no cause of action as against them, that they did not dispute the allegations of the plaintiffs as to the fictitious character of the tenure and that they should consequently be discharged. That was not their attitude. Their conduct antecedent to the suit unquestionably encouraged and helped the tenants. We hold accordingly that the order for costs was properly made and that the petitioners were rightly included in the category of respondents liable for payment of costs to the plaintiffs-appellants'
8. In Marotirao Deshmukh v. Secy. Municipal Committee Balaghat, AIR 1934 Nag 250(1) the facts were that the suit was instituted by two minor zamindars represented by their mother as their next friend against the Municipal Committee of Balaghat. The plaintiffs failed to make out any case and the suit was dismissed. The two lower Courts held that Marotirao, who was the manager of the zamindar's estate and who conducted suit was responsible for that unnecessary litigation and directed that he should be personally liable for the defendant's coats. Pollock J. held that under Section 35 of the Code of Civil Procedure the Courts have power to make persons who are not parties to the suit liable for costs and followed the decision in Santhanand Gir v. Basudevanand Gir, AIR 1930 All 225 (FB) to that effect, and affirmed the order as to costs passed against Marutirao,
9. The principle that costs can be awarded in exceptional cases even against a stranger to the litigation was affirmed by a Full Bench of the Allahabad High Court in Chandra Shekhar v. Manohar Lal, AIR 1942 All 233 (FB).
10. In Sree Sreedhar Jew v. Kauta Mohan, AIR 1947 Cal 213 at p. 221 Gentle J. held that the defendants 3, 4 and 5 before him in substance were the plaintiffs and have used the name of defendant 3's wife Rani Moni Dassi merely as machinery to institute the proceedings most likely with a hope that in the event of the suit being unsuccessful, they would he able to avoid the ordinary liability as to costs which follow such an event. On that finding, the learned Judge held that there should be an order in favour of defendant I with certificate for two counsel and in favour of defendant 2 for costs to be paid by defendants 3, 4 and 5.
11. It is therefore clear from these authorities that the Court has ample discretion to award costs even against the persons who were not parties to the suit if the Court considers that their conduct warrants it. It is also plain that if some of the parties interested in the litigation choose I to be impleaded as defendants, but set up one having a right similar to theirs as a plaintiff in the hope that the litigation proves successful they shall have the benefit of the decree, such defendants can also be made liable for costs. The Court, in making an order as to costs, can consider the conduct of that party both antecedent to the suit as well as in the suit itself.
12. Applying these principles to the instant case, it is clear that the second defendant was very much interested in obtaining a declaration that the will was genuine, as she is also one of the legatees under that will. She admittedly played a considerable part in setting up the will which has been found by the lower Court as well as by me to be a fabrication. If really she wanted to disassociate herself from the will, she should have filed a statement to that effect and should not have given evidence in support of the plaintiffs case. The fact that she remained ex parte is therefore more that over weighed by the other circumstances in the case. Having regard to all the circumstances, I cannot say that the learned Subordinate Judge was wrong in the exercise of his discretion when he directed that the second defendant along with the plaintiff, should he made liable to pay the ousts to defendants 1 and 3. He has not committed any error in principle in awarding costs against the second defendant.
13. The appeal therefore fails and is dismissed; but in the circumstances I make no orderas to cost.