Gopal Rao Ekbote, J.
1. Both the Courts below have found that the date of birth given by the appellant to the University, i.e. 15-2-1913 is correct and also refused to rely upon the evidence adduced by the plaintiff. The plaintiff sought alteration of the date in the University record from 15-2-1913 to 7-7-1915. The appellant is a graduate of the Andhra University. The defendant is the Andhra University. It was, therefore, clear that the date which the plaintiff himself had given to the University was sought to be amended styling if as a mistake. It was once remanded by the appellate Court, Nevertheless the concurrent opinion is that the date of birth as originally given is correct and the evidence adduced in support of the case was disbelieved. Consequently, both the Courts below have dismissed the plaintiff's suit. The second appeal was admitted only on the ground of special costs. It was specifically mentioned in the admission order that the appeal so far as it relates to the question of special costs alone forms the ground for admission. It is true as held by the Supreme Court that at the time of admission no such restriction can be placed and it will be permissible to canvass any point which the appellant thinks that it should be canvassed. Even then I do not find any strength in the contention that the two Courts below have erred in holding that the age given by the plaintiff and now entered in the University record is not correct. The date to which he wanted the record to be altered has not been proved to the the date of his birth. I see, therefore, no reason to disagree with the conclusion of the Courts below.
2. Now in connection with the costs, the defendant-University would certainly be entitled to have the normal costs both of the trial court as well as the Court of first appeal. The lower appellate Court, however, awarded Rs. 100 towards the special costs, which admittedly is not the normal costs. The Court can award such costs only under Section 35-A of the Code of Civil Procedure. Under Section 35-A. C.P.C., any party who objects to the claim on the ground that the claim is false or vexatious to the knowledge of the party by whom it has been put forward and if thereafter the plaintiff insists on such claim which is ultimately disallowed, the Court in its discretion, sifter recording the reasons for holding such claim to be false on vexations to the knowledge of the plaintiff, can make an order for the payment to the defendant some costs by way of compensation within the limit prescribed by that section. It would thus be clear that the Court was entitled to award costs by way of compensation only in a case where the defendant objects that the claim is false or vexatious to the knowledge of the plaintiff and the same was ultimately found to be so false or vexatious. Then at the discretion of the Court the defendant can claim costs by way of compensation. The costs that arc awarded thus arc compensatory and not penal. Every dismissal of the suit need not necessarily be false or vexations to the knowledge of the plaintiff. It has to be specifically found on the material placed before the Court, and by assigning reasons that the claim was raise of vexations to the knowledge of the plaintiff and that in spite of the objection of the defendant he persisted in that and ultimately the Court found that the claim was to the knowledge of the plaintiff vexatious on false.
It is admitted that there is no such 'inding in this case that the claim was false or vexations to the knowledge of the plaintiff or that the defendant had so objected and in spite of that the plaintiff persisted. It may be that the suit is dismissed for want of evidence or that the Court did not believe the evidence adduced by the plaintiff. That is very much different than saying that the plaintiff's claim, to his knowledge, is false or vexatious. It is one thing for a court, having heard all the evidence, to come to the conclusion that the claim is untenable in spite of the insistence of the plaintiff and quite another to establish as a positive fact that the claim is false or vexatious to the knowledge of the plaintiff. As no such finding exists in this case, I am of the opinion that the appellate Court was not entitled to exercise the discretion vested in it under Section 35-A, C. P. C., and award costs by way of compensation.
It is also doubtful whether that section is applicable to appeals. Although, of course I accept the principle that the discretion of the court in these matters is unfettered and that, that discretion having been exercised, it is not the function of this Court to interfere unless it is satisfied that the Court has acted on a wrong principle, it still appears to me, reading the lower Courts judgment that this was not a case in which the discretion could have been exercised as it did. The respondent nevertheless will be entitled to the normal costs usually taxed. I would, therefore, allow the second appeal to the extent of the costs which are allowed by the appellate Court by way of compensation and hold that the respondent will be entitled to get costs throughout including the costs of this Court. In other respects, this second appeal stands dismissed with costs. The plaintiff-appellant will not be entitled to any costs of this Court.