1. This second appeal relates to nothing but a question of costs and in my opinion no second appeal on a pure question of costs should be allowed to be maintained where two Courts below have expressed the same opinion.
2. In a suit brought against the present appellant, a pure declaratory decree was sought for, and, as appears from the judgment; of the first Court, at a somewhat late stage, the appellant took the plea that a purely declaratory suit was not maintainable. The Court of first instance sustained the plea and dismissed the suit, but on the ground that the pie had been taken late, ordered that the parties should pay their own costs. In other words, it deprived the successful defendants of their costs. An appeal was taken to the lower appellate Court and the learned District Judge said that he was not satisfied that sufficient cause had been made out to justify him is interfering with the direction of the lower Court.
3. A second appeal can lie if the decision be contrary to law, vide Section 100, Civil P.C. The law is laid down in Section 35, Civil P.C., and says that the question of costs 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. It is true that the same Section 35. lays down that it would be the duty of the Court to record its reasons in a case where it directs that the costs shall not follow the event. In England, ordinarily, a discretion as to costs is not interfered with unless the appeal succeeds on the merits also, vide Maddison v. Alderson (1883) 8 AC 467. It is true that in India an appeal has been entertained on a question of costs even after the passing of the Civil P.C. of 1908, in which the Section 35 quoted above occurs. But I am not aware of any case in which a question of costs has been allowed to be litigated in second appeal where the two Courts below have taken the same view and when no substantial point on the merits arises in the case. A matter that is in the entire discretion of a Court cannot be called a question of law, pure and simple, specially where, as in the case, it relates to costs only and the law gives full discretion to the Court to direct that the costs shall not follow the event. I consider that to allow a second appeal on a question of costs, pure and simple, would be disastrous in its result. I dismiss the appeal under Order 41, Rule 11, Civil P.C.