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Ganesh Das Ram Gopal Vs. the Munsif, South Lucknow and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtAllahabad High Court
Decided On
Case NumberSpecial Appeal Nos. 343 and 499 of 1969
Judge
Reported inAIR1976All111
ActsConstitution of India - Article 226; Uttar Pradesh (Temporary) Control of Rent and Eviction Act, 1947 - Sections 7B and 7B(11); Code of Civil Procedure (CPC) , 1908 - Sections 35 and 35A
AppellantGanesh Das Ram Gopal
RespondentThe Munsif, South Lucknow and anr.
Appellant AdvocateVinod Swarup and ;J. Swarup, Advs.
Respondent AdvocateR.N. Bhalla, Adv. and ;S.N. Kakkar, Standing Counsel
DispositionAppeals dismissed
Excerpt:
(i) constitution - writ petition - article 226 of constitution of india - finding being based on proper appraisal of evidence is immune from being challenged in high court under article 226 of constitution of india. (ii) tenancy - special cost - section 7-b (11) of u. p. (temporary) control of rent and eviction act, 1947 - meaning of - 'special cost' - extra cost to meet the expenses of a successful litigant - not punitive in nature but compensatory - application for 'special costs to be made before proceedings are converted into suit - application for special cost made before proceedings quashed - held, application can be disposed off on merit. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v......k.c. agarwal, j.1. by this judgment special appeal no, 499 of 1969 and the connected special appeal no. 343 of 1969 are being disposed of which have been filed against the judgment of the learned single judge dated 27-3-1969. the learned single judge allowed the writ petition of messrs ganesh das ram gopal (briefly stated as the appellant) in part.2. the facts of the case, necessary for appreciation of the points involved, are as follows: the appellant admittedly is the owner of a building situate in lucknow known as 'halwasia court' hazratganj, lucknow. on 8-5-1962 die appellant tiled an application under section 7-b of the u. p. (temporary) control of rent and eviction act, hereinafter referred to as the 'act' against shamsher bahadur the appellant of special appeal no. 343 of 1969.....
Judgment:

K.C. Agarwal, J.

1. By this judgment Special Appeal No, 499 of 1969 and the connected Special Appeal No. 343 of 1969 are being disposed of which have been filed against the judgment of the learned Single Judge dated 27-3-1969. The learned Single Judge allowed the writ petition of Messrs Ganesh Das Ram Gopal (briefly stated as the appellant) in part.

2. The facts of the case, necessary for appreciation of the points involved, are as follows: The appellant admittedly is the owner of a building situate in Lucknow known as 'Halwasia Court' Hazratganj, Lucknow. On 8-5-1962 die appellant tiled an application under Section 7-B of the U. P. (Temporary) Control of Rent and Eviction Act, hereinafter referred to as the 'Act' against Shamsher Bahadur the appellant of Special Appeal No. 343 of 1969 (briefly stated as the respondent). The appellant alleged in the application under Section 7-B of the Act that the respondent was the tenant on a monthly rent of Rs. 1650/- under the allotment order dated 17th January, 1959 but as he had not paid the rent since 15th December 1958 to 15th April 1962, he was liable to pay the same in the present proceeding under Section 7-B. The total amount claimed by the appellant in this application was Rs. 66,000/- calculated @ Rs. 1650/-per month for the period mentioned above. The appellant also prayed that in case the respondent did not pay or did not deposit the amount claimed by him within the statutory period, an order for his ejectment may be passed and the same may be sent to the District Magistrate, Lucknow for execution. The respondent deposited a sum of Rupees 25,000/- in cash and furnished security for the balance. The details of the security furnished by him were as under:

(i) Security Bond of Rs. 25,000/- by oneAkhilesh Tewari;

(ii) Security Bond of Rs. 11,000/- by one Muzaffar Siddiquee;

(iii) Rs. 10,000/- security in the shape ofZ. A. L. R. Grant Bonds.

The respondent thereafter filed an obejction contesting the application made by the appellant on the grounds inter alia, that a portion of the Halwasia Court was allotted to him by the Rent Control and Eviction Officer. He alleged that he thereafter filed an application under Section 3-A of the Act for determination of the reasonable rent of the accommodation. On 25-9-1959 the Rent Control and Eviction Officer determined the same at Rs- 362.50 n. p. The respondent contended that there was no agreement between the appellant and the respondent for payment of rent @ Rs. 1650/- and the application under Section 7-B of the Act had been filed by the appellant only to harass the respondent under the impression that the respondent would not be able to deposit the amount or furnish security in respect of the same within time and that the same would entitle the appellant to dispossess the respondent from the premises in his occupation as a tenant. On 31st July 1962, after the objection had been filed by the respondent, the learned Munsif called upon the appellant to pay the requisite court-fees so mat the proceedings may be converted into a suit for recovery of rent. The appellant obtained one month's time from the court for complying with its order to deposit the court-fees on the ground that the appellant did not have money in hand at that time to deposit the court-fees. The court thereafter took up the matter on the 8th August 1962 when the prayer for further time for payment of court-fees was reffused by the learned Munsif. On 9-8-1962 the court quashed the proceedings under Section 7-B of the Act. In the meantime the respondent had filed an application claiming special costs to the tune of Rs. 66,000/- on the assertion that the application under Section 7-B of the Act filed by the appellant was frivolous and vexatious and, therefore, the appellant was liable to pay special costs upto the amount claimed by him in the application under Section 7-B of the Act. As the appellant wanted time to contest the above application for award of special costs made by the respondent, the learned Munsif registered the said application as Miscellaneous Case No. 83 of 1962 for consideration of the question of awarding special costs. The appellant filed an-objection against the claim of special costs made by the respondent. In the application under Section 7-B the respondent had alleged that the landlord had filed the application under Section 7-B with ulterior motive and mala fide designs to disgrace and humiliate the respondent by suppressing the real and correct facts from the court. The respondent had alleged that the rent of the disputed accommodation had already been determined by the Rent Control and Eviction Officer and fixed at Rupees 362.50 per month. The appellant knew about this proceeding but deliberately and falsely, on incorrect facts, he alleged that the respondent was liable to pay monthly rent @ Rs. 1650/-.

3. By the order dated 5th March 1968, the learned Munsif allowed the application made by the respondent and ordered the appellant to pay a sum of Rs. 33,000/-as special costs under Sub-section (11) of Section 7-B of the Act on the finding that there was absolutely no agreement about the rate of rent between the appellant and the respondent. The proceedings under Section 7-B of the Act were frivolous and vexatious to the knowledge of the appellant and the same were aimed at only harassing the respondent. Aggrieved by the aforesaid order of the learned Munsif the appellant filed the writpetition No. 1431 of 1968 challenging the validity of the same. The writ petition was allowed in part by the learned Single Judge on 27th March 1969 and the order of the learned Munsif, awarding a sum of Rupees 33,000/- as special costs, was set aside, The learned Single Judge in its place directed the appellant to pay a sum of Rs. 4000/- as special costs. Dissatisfied with the aforesaid judgment of the learned Single Judge the appellant has filed Special Appeal No. 499 of 1969 whereas Special Appeal No. 343 of 1969 has been preferred by Shamsher Bahadur, the respondent.

4. Sri Jagdhish Swarup appearing for the appellant challenged the findings of the learned Munsif recorded against the appellant that the claim for the recovery of arrears of rent made by it by means of the application under Section 7-B of the Act, was frivolous and vexatious. He alleged that the learned Munsif drew wrong and incorrect inference from the facts emerging from the record in holding that the application was filed by the appellant for the purpose of harassment of the respondent. It may be noticed that the learned Munsif had referred only to the oral and circumstantial evidence recording the finding that the application under Section 7-B was filed by the appellant with ulterior motive. A number of circumstances have been enumerated by him in his judgment for coming to the said conclusion. The learned Single Judge has summarised those circumstances in his judgment. Considering these circumstances, we find ourselves unable to sustain the submission of the appellant's learned counsel that the finding recorded by the learned Munsif about the claim of the appellant made under Section 7-B of the Act, being unfounced, was baselss. The evidence on the record established that the appellant knew about the alleged agreement for payment of rent @ Rs. 1650/- per month had been found to be void by the Rent Control and Eviction Officer under Section 3-A of the Act, hence the respondent was not liable to pay rent at that rate. But the appellant deliberately and knowingly concealed the relevant facts from the notice of the court by not mentioning the same in the application under Section 7-B and filed it with the motive of throwing out the respondent from the premises. In our opinion, therefore, the learned Munsif rightly concluded that the proceedings under Section 7-B were frivolous and vexatious to the knowledge of the appellant and were aimed at only harassing the respondent. As observed above, the said finding being based on an appraisal of evidence is immune from being challenged in the proceedings under Article 226 of the Constitution. It is well established that the High Court in guise of exercising its jurisdiction tinder Article 226 of the Constitution, cannot convert itself into an appellate court The jurisdiction exercised by the High Court is only supervisory. It cannot interfere win the findings of fact recorded by the subordinate tribunals- As in the instant case, learned counsel for the appellant failed to satisfy us that the learned Munsif committed any manifest error of law in recording the above finding. We are unable to accede to the argument addressed to us on the above point.

5. In this connection the learned counsel for the appellant also referred to the dictionary meanings of the words 'Frivolous' and 'Vexatious' for the purpose of showing that the findings given by the learned Munsif do not fulfil the above requirements. The word 'vexatious' means harassment by process of law'. The other meaning is 'lacking justification' or 'intended to harass'. The meaning of the word 'Frivolous' is 'having no basis in law or in fact.' We have already referred to the findings of the learned Munsif allowing the application against the appellant. The learned Munsif did find that the proceedings launched by the appellant were such that they could not be brought in expectation of getting any relief ana the same was based on unfounded claim. A look at the findings would indicate that he clearly found that the proceedings under Section 7-B were taken by the appellant for the harassment of the respondent by process of law having no justification to do that. Learned counsel for the appellant had referred to the Annual Practice 1961 page 576 where the following remarks made by a learned Judge in Young v. Holloway, (1895) P. 87 (90) have been quoted. The same is as under:

'The pleading must be 'so clearly frivolous that to put it forward would be an abuse of the process of the Court'.'

Relying upon the above observations counsel submitted that an action can be treated as frivolous and vexatious only when the same can be held to amount to an abuse of the process of the Court. He pointed out that there was nothing in the instant case which could bring the proceedings under Section 7-B initiated by the appellant to that standard so that the court below could not award special costs. The submission is unsustainable. We have already pointed out that the appellant had no justification for starting the proceedings and that he did so on false allegations. The motive which actuated him to launch the proceedings has also been stressed above. Taking all these things into account we are inclined to hold not the action had neither any basis in law nor in fact and was based on unfounded and unjustified allegations. Such action was certainly not maintainable and filing of the same was an abuse of the process of the Court. This was the harsh method adopted by the appellant for the purpose of ousting the respondent but unfortunately he did not succeed in ft.

5A. Counsel for the appellant there after urged that an order under Sub-section (11) of Section 7-B of the Act could be passed by the learned Munsif only after the proceedings had been converted into a suit. Inthe alternative he submitted that the learned Munsif had no jurisdiction to award costs after he had quashed the proceedings under Section 7-B on 8-8-1962. Both the submissions have no merit. Section 7-B of the Act provides for a special measure for eviction of tenants. It further confers upon a landlord a speedy remedy to recover rent as against a tenant who is in arrears of the same having come in occupation under an order of allotment, On a notice of an application under Section 7-B of the Act beipg issued and served on a tenant, two courses are open to him. To deposit the rent and to save his eviction. But a he disputes the claim for payment of rent he can file an objection provided he deposits in court the amount claimed by the landlord or furnishes security for that amount to the satisfaction of the Court. If the tenant files an objection, the learned Munsif has to call upon the landlord to pay the requisite court-fees so that the application may be converted into plaint for recovery of arrears of rent. Under Sub-section (8) of Section 7-B when the Court-fees has been paid, the proceedings are converted into a suit and the same is tried thereafter on merits. But if the court-fees is not paid the Munsif is required to quash the proceedings without prejudice to the right of the landlord to bring a separate suit for recovery of arrears of rent and ejectment of, tenant. Sub-section (11) of Section 7-B of the Act deals with the power of the Court to award special costs The same is as under:--

'Whenever the Munsif finds that the application by the landlord or the objection by the tenant was frivolous or vexatious, he shall award special costs to the tenant or the landlord as the case may be, upto the amount of the claim.'

A plain reading of Section 7-B would show that there is nothing in this Section which justifies the interpretation of the counsel for the appellant that an order for payment of special costs can be made only after the proceedings have been converted into a suit. It would rather be found that under Sub-section (11) of Section 7-B the right given to the Munsif is to allow special costs when be finds that either the application filed by the landlord or the objection taken by the tenant was frivolous and vexatious. It would, therefore, show that such a power has to be exercised by Munsif dealing with the case when the same is still an application under Section 7-B. As a matter or fact, if a proceeding under Section 7-B is finally converted into a suit, the Court seized of the suit will have jurisdiction to award special costs under Section 35-A of the Code of Civil Procedure. He would not thereafter exercise his power of awarding costs under Section 7-B (11). The stage to exercise this power is only uptill the time the proceedings have not been converted into a suit. The two eventualities mentioned in Sub-section (11) of Section 7-B which entitle the Munsif to award costs, in fact, occur prior to the conversion of the application into a suit.

6. Coming to the other argument of the learned counsel for the appellant that the power can be exercised only prior to the quashing of the proceedings, we do not find any substance in the same. It may bs recalled that the proceedings under Section 7-B were quashed by the Court on 9-8-1962 but before the quashing of the proceedings the application for special costs had already been filed by the respondent. The appellant wanted time to contest the same. The Court acceded to his request and decided to take up that application made by the respondent as a Miscellaneous Case. As a matter of fact, the appellant himself was responsible for the postponement of the application made by the respondent. He cannot be allowed to challenge the jurisdiction of the Court on the ground suggested by the counsel for the appellant. The application for award of special costs having been made before quashing the proceeding, the same could be decided on merits.

7. The other controversy which was rather the main issue of dispute between the appellant and the respondent in the instant case, was the quantum of the amount award-able to respondent under Section 7-B (11). As stated above, the respondent has also filed an appeal against the judgment of the learned Single Judge reducing the amount of Rs. 33,000/- awarded by the learned Munsif to Rs, 4,000/-. The learned Advocate General appearing for the respondent contended that the learned Single Judge committed an error in interfering with the discretion of the court below and holding that the respondent was entitled to get Rupees 4,000/- instead of Rs. 33,000/-. His submission was that the words 'special costs' used in Section 7-B (11) of the Act were not to be treated as compensatory cost contemplated by Section 35-A, C. P. C. He alleged that on a correct interpretation of Sub-section (11) of Section 7-B of the Act, the provision would be found to be punitive. It was meant to be a deterrent against the abuse of the aforeshid extremely harsh provision in Sub-section (11) of Section 7-B. The above submission of the learned Advocate-General calls upon us to consider the scope or ambit of special costs provided for by Section 7-B (11), Costs as understood under the civil law entitle a succeeding party to receive from the losing party the amount spent by him in prosecution of the litigation which is taxable in accordance with the provision of law applicable to that proceeding. So the term costs' in its literal sense is limited to statutory allowances to reimburse him for expenses incurred in defending or prosecuting the proceedings. Costs are, therefore, meant to be given to a successful party to mitigate to a greater or lesser extent, the necessary expenses incurred in the conduct of litigation. The word 'costs' has been defined in theAmerican Jurisprudence Second Edition Volume XX page 5 as under:

'Costs' are statutory allowance to a party to an action for his expenses incurred in the action. They are in the nature of inoidental damages allowed to the successful party to indemnify him against the expenses of asserting his rights in Court, when the necessity for so doing was caused by the other's breach of legal duty. Otherwise defined, costs are the sums prescribed by law as charges for the services enumerated in the fee bill. They have reference only to the parties and the amounts paid by them, and only those expenditures which are by statute taxable and to be included in the judgment fall within the term 'costs'.

More or less the same is the definition given in Corpus Juris Secundum at Page 419. It is, therefore, not necessary for us to reproduce the same in our judgment.

8. Thus, the definition extracted above lucidly gives the correct picture of the idea behind the term 'costs'. So far as 'special costs' are concerned the same has been described in Section 35-A Code of Civil Procedure as 'compensatory costs.' 'Special costs' are, therefore, something as extra costs to meet the expenses of a litigant incurred by him in an action which is not otherwise taxable. It is intended to be a compensation for the successful party, not either a punishment for the unsuccessful party or deterrent against a punitive litigation. They are not further imposed as punishment on the party who pays them nor given as compensation to the party who receives them. The concept of 'compensatory costs' also embraces damages. But the damages are not those which are either given for a civil liability as an amount payable in tort nor for breach of contract under the Indian Contract Act.

9. Sri Jagdish Swarup, learned counsel for the appellant contended, in our opinion rightly, that Section 7-B (11) neither contemplates a case of contractual liability nor the liability in tort. It is only statutory liability. The effect of such a liability would be that a person claiming special costs will have to establish the compensation to which he is entitled on account of the frivolity of the claim of the other side. He will, therefore, be required to prove that he is entitled to something that will make up for the loss suffered on account of the action of the other side.

10. Section 35-A of the Code of Civil Procedure which provides for compensatory costs in respect of a false or vexatious claim or defence, was inserted in the Code of Civil Procedure by means of an amendment in 1922. The Section was the subject-matter of interpretation in a number of decisions by various High Courts. They have been rather unanimous in taking the view that this section is intended to be applied to cases in which the exercise of the ordinary discretion of the Court under Section 35 would not afford sufficient compensation but at the same time have also found that the costs that can be awarded under this section are compensatory and not penal. In our opinion, the words 'sepcial costs' used in Section 7-B (11) should be understood in the same sense in which they had been interpreted previously with reference to Section 35-A Civil P. C.

11. The submission made on behalf of the appellant that the words 'special costs' have not been used in the same sense as in Section 35-A, C. P. C. does not appeal to us. It may be correct that Act No. 3 of 1947 is not in pari materia with the Civil P. C. But the purpose of awarding special costs in both the statutes is to discourage persons From making false and frivolous pleas in prosecution or defence of the proceedings. As stated above, Section 35-A was inserted by the Civil P. C. (Amendment) Act 1922. Since then a number of cases determining its scope had been decided by various, courts when Section 7-B was added by Section 9 of the Amending Act XLIV of 1948. The legislature can be presumed to know its interpretation. The setting of Sub-section (11) of Section 7-B is also such that ft gives an impression that these words were bodily lifted from Section 35-A, C. P. C. and were written in this statute. The difference pointed out by the learned Advocate General that Section 35-A puts the upper limit of compensatory costs at Rs. 1000/- whereas Sub-section (11) permits a court to award the same upto the amount of the claim, is insignificant. The difference in the upper limits provided in the two Acts does not destory or affect the essential character of these provisions laying down the power of awarding special costs. In this background, we have sufficient basis to presume that if the legislature really intended to provide for some other thing than compensatory costs, it would have carried out the same by using different language. The legislature in repeating these words must be taken to have adopted the meaning put upon them by the courts earlier.

12. It is a settled rule of construction that assistance in ascertaining the meaning of the words used in the later Act can be taken by comparing its language with that used in the earlier Act. Likewise where words used in prior Acts have received judicial construction, the courts can presume that the legislature has adopted the judicial interpretation by using those very words in the subsequent enactments. In Barlow v, Teal (1885-15 QBD 403 (404 and 405)) Coleridge C. J. said that:

'Where cases have been decided on particular forms of words in Courts, and Acts of Parliament use those forms of words, which have received judicial construction, in the absence of anything in the Acts showing that the legislature did not mean to use the words in the sense attributed to them by the Courts, the presumption is that Parliament did so use them.'

13. For these reasons we find ourselves unable to accept the contention of the learned Advocate General discussed above.

14. Linked with the above was the submission made by the learned Advocate General that special costs awardable under Section 7-B (11) are punitive. We have given our careful consideration to the above submission of the learned Advocate General but find ourselves unable to sustain the same. Damages are known as exemplary or punitive when the object of allowing them is to deter others offending in like cases. This does not appear to be the intention of the legislature providing for special costs in Sub-section (11) of Section 7-B, inasmuch as proceedings under Section 7-B (11) are not of a category fulfilling the requirements of penal action. We, therefore, repel the contention of the learned Advocate General on the above point.

15. The learned Advocate General also contended that the learned Single Judge committed an error in reducing the amount from Rs. 33.000/- to Rs. 4.000/- inasmuch Sub-section (11) of Section 7-B entitled the learned Munsif to award 'special costs' to him upto the amount of the claim, He urged that as the learned Munsif had awarded less than the amount which he could award under the aforesaid provision, the learned Single Judge was not right in reducing the same. We do not find any merit in this contention. An upper limit has been provided by Subsection (11) of Section 7-B for the purpose of restricting the limit to which the Munsif can go in awarding special costs. The upper limit does not mean that an award of special costs can be made irrespective of the loss which might have been suffered by a person on account of the frivolous proceedings launched against him. The essential characterstic of the said provision is that it empowers the court to award special costs which must be compensatory and, therefore, the court awarding exorbitant amount divorced from the above consideration would be unjustified. The word 'special costs' has to be understood with objective consideration as under this provision. An award of a huge amount as compensatory cost cannot be justified simply because or the enormity of the amount claimed by the landlord in the application. As observed, it must not lose its character of being special cost in any view of the matter. We are, therefore, not prepared to accept the submission of the learned Advocate General that simply because the appellant claimed Rs. 66,000/- in the application under Section 7-B that was sufficient to entitle the respondent to get a sum of Rs. 33,000/- as special damages. The argument of the learned Advocate General that the learned Single Judge could not interfere with the amount of damages as award of the same was discretionary with the learned Munsif is also not acceptable to us. It is well settled that if the compensation had been awarded on a wrong principle of law the same could not bs sustained. As a matter of fact the learned Munsif awarded Rupees 33,000/- to the respondent without considering the true nature of jurisdiction which he was exercising in doing so. He was led away by the consideration that as the respondent had claimed Rs, 66,000/- and had been troubled by the appellant, the same justified the award of a sum of Rs. 33,000/- to him as special costs. The relevant considerations which were required to be taken into account while awarding the special costs were lost sight of. The mistake committed by the learned Munsif was, therefore, manifest and justified interference by the learned Single Judge under Article 226 of the Constitution.

16. The submission of the learned Advocate General that the High Court could not reduce the cost itself and had to send the case back to the learned Munsif for a fresh decision, has also not impressed us. While exercising the power under Article 226 of the Constitution, the High Court exercises the same power which was exercised by the learned Munsif under Section 7-B (11) of the Act. What the learned Munsif could do under Section 7-B (11), the same can be done by the High Court in writ proceedings. A similar contention raised by an assessee in an income-tax proceeding was repelled by the Supreme Court in the Director of Inspection of Income-tax (Investigation) New Delhi v. M/s. Pooranmall and Sons (Civil Appeal No. 1118 of 1974 decided on 20-9-1974) = (reported in : [1974]96ITR390(SC) ). Dealing with the following observations 'What notified authority could do under Section 132(12) the Court could do in writ proceedings' made in C. I. T. v. Ramesh Chander the Supreme Court remarked: 'Though the observation was obiter we consider that it is correct'.

17. This takes us to the last aspect of the case whether the learned Single Judge was right in reducing the amount of special costs from Rs. 33,000/- to Rs. 4,000/-. As mentioned above, both the parties are aggrieved by the aforesaid judgment, The appellant asserts that it was not liable to pay even Rs. 4,000/- while the respondent claims that he should have been given Rs. 33,000/-. We have already pointed out that the learned Munsif has not given any reason for awarding Rs. 33,000/- to the respondent. The learned Single Judge examined the claim of the respondent and found that the same was unsustainable as the respondent had not given satisfactory evidence to prove the same. According to the finding of the learned Single Judge the claim of the respondent was unfounded and baseless. He held that costs of litigation could reasonably form part of the 'special costs', He held that the respondent could establish on evidence that he suffered some mental worry and humiliation and made some effort and spent money in procuringthe cash and the securities On these findings the learned Single judge awarded the sum of Rs. 4,000/- to the respondent and the details of the same is as under:

i) Rs. 1,000/- as costs of litigation,

ii) Rs. 1,000/- as costs causing mental worry and shock,

iii) Rs. 1,000/- as expenses incurred in procuring cash and securities, and

iv) Rs. 1,000/- as exemplary damages.

18. The learned Advocate General Could not point out any error in the judgment of the learned Single Judge reducing the amount from Rs. 33,000/- to Rs. 4,000/-except pointing out that the upper limit provided by Section 7-B (11) being upto the amount of claim the same was justified. We have already discussed and dealt with the above argument of the learned Advocate General. It is not necessary to encumber this judgment with the discussion of the same by repeating it. For the reasons given there, we do not find any substance in this argument of the learned Advocate General.

19. Coming to the submission of Sri Jagdish Swarup: His argument was that the appellant could not have also been directed to pay a sum of Rs, 4,000/- to the respondent. We alleged that as compensatory cost partook the nature of damages, therefore, the considerations relevant for awarding damages in tort should have been taken into account while awarding damages in the instant case as well. On this argument he challenged the award of Rs. 1,000/- given under the head of 'mental shock'. It appears that the respondent could not recover in tort for mental suffering which was unaccompanied by physical injury. But we are not impressed by the submission of the counsel for the appellant that the principle for awarding damages in tort should be strictly applied for awarding compensatory or special costs as well. 'Special cost' is a statutory cost. It is neither a contractual nor tortious liability. We, therefore, do not think that the learned counsel for the appellant is right in submitting that the mental suffering has to be excluded altogether. He had referred to and relied upon a passage from the book of H. L. A. Hard and A. M. Honore Causation in the law. At page 274 it reads:--

'Courts will, indeed allow a plaintiff who has suffered physically through defendant's wrong to recover up to a point, the consequent economic loss, but they step short when plaintiff's lack of funds is a contributing factor,'

20. Similar observations made in Clark's Book of Tort was were also referred to by him. We have already indicated above that the strict compliance of the principles applicable to tort cannot be adhered to in awarding special costs It may or may not be true that mental shock is not a cause sufficient by itself to award damages in tort. But mental suffering is no more difficult to estimate in financial terms. In a matter of a false and frivolous action brought by a person recklessly, it is not difficult to imagine mental suffering of a man against whom such action is brought. Mental suffering is not less a real injury than physical pain. Such an injury being the result of negligence or deliberate act of the defaulting party, he must be made liable to compensate the aggrieved for his mental shock We, therefore, think that mental shock cannot be excluded from being taken into account in calculating special costs.

21. The other aspect of the argument of Sri Jagdish Swarup that the learned Single Judge committed an error in awarding exemplary costs by way of deterrent to the landlord, is well founded. We have already given reasons for taking the view that special costs awardable under Section 7-B (11), cannot be exemplary damages by way of deterrent. We are, therefore, unable to share the opinion of the learned Single Judge that the respondent was entitled to Rs. 1,000/-as exemplary damages. But considering the entire circumstances of the case, we, however, think that the sum of the Rs. l,000/-as exemplary damages could be justified under the head of causing mental worry and shock to the respondent. We accordingly find that the learned Single Judge was fully justified in awarding the sum of Rs 4,000/-as special cost to the respondent against the appellant. Furthermore, the fact that the application under Section 7-B was dismissed within a period of two months, is also a relevant consideration for holding that the award of Rs. 4,000/- to the respondent will meet the requirement of compensation. This compensatory cost, as emphasised above, has a limited purpose and could not be given to him by way of bonus or wind fall.

22. For the reasons stated above, we dismiss both the appeals. In view of the divided success the parties will pay and receive their own costs.


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