B. Upadhya, J.
1. This is a revision against the order passed by the learned Civil Judge of Faizabad dismissing the defendant's appeal relating to costs.
2. It appears that a suit was filed by the respondent No. 1 which was found to be under valued.
The plaint was ordered to be returned by the Munsif for presentation to the proper court having jurisdiction in the matter. The operative portion of the order passed by the learned Munsif was as follows: 'Let the plaint be returned for presentation to the proper court. Costs in this court shall be costs in the suit.'
The contesting defendant preferred an appeal and urged before the lower appellate court that the order passed by the learned Munsif relating to costs was illegal. The learned Civil Judge did not accept this contention and dismissed the appeal. Learned counsel appearing for the defendant-applicant urged that having regard to the; provisions of Section 35 of the Code of Civil Procedure the learned Munsif should have exercised his discretion judicially in the matter and should have passed some final order relating to costs. It is argued that it was not open to the learned Munsif to direct the court in which the suit might be filed later by the plaintiffs to award costs incurred in the present litigation. Learned counsel relied upon two decisions of the Madras High Court. The first case is Gopalakrishnayya v. V. Subba Naidu AIR 1945 Mad 168. That was a case where a Small Cause Court Judge returned the plaint for presentation to the proper court in the following terms :
'It is ordered that the plaint be returned for presentation to the proper Court and the costs of this suit shall abide the result of the suit.'
The learned Single Judge who decided the case made certain observations to the effect that a court returning a plaint could not give directions so as to bind a court of equal jurisdiction or a court in which the plaint may be subsequently filed in the matter of costs. But the learned Judge found after making these observations that it was not a case where he would interfere in revision. The other case is again of tho same High Court reported in K. B. G. Bhandaram v. Thaniappa : AIR1946Mad345 . A suit was filed in the court of the District Munsif of Mangalore and that court found that the suit was in fact a suit for possession of a property and that as the value of the property was beyond the jurisdiction of the court the plaint would have to be returned for presentation to a superior court. The learned Munsif passed the following order:
'It follows from the above finding that the suit is not cognizable by this Court. The plaint is therefore returned for presentation to a proper Court. Costs will be costs, in the cause.'
The plaintiffs in that suit did not amend their plaint and did not present it again in the superior court which had jurisdiction to entertain it, and the defendants in that suit filed a suit for the recovery of costs incurred in the litigation, which had proved abortive. The learned judge found that such a suit was not maintainable. There were undoubtedly certain observations made to the effect that the learned Munsif had no jurisdiction to give any directions binding on a superior court which might have entertained the subsequent litigation, but these observations were evidently obiter dicta.
3. Section 35 C. P. C. provides- that subject to such conditions and limitations as may be prescribed, and subject to the provisions of any law that may be in force the costs of and incidental 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 section goes on to say that the fact that the court has no jurisdiction to try the Suit shall be no bar to the exercise of such powers. The powers of the court] therefore are very wide and they may be exercised according to the discretion of the court. The statute expressly lays down that the court has the power to determine by whom, out of what property and to what extent costs are to be paid.
In the instant case the court in its discretion did not consider it proper to award costs to the defendant when returning the plaint. This intention of the learned Munsif is absolutely clear from the order passed by him. The extent to which he considered that the plaintiff should be saddled with costs is indicated by the direction given by him 'that the costs incurred in this court shall be costs in the suit.' It means that the costs incurred by the parties may be treated as costs in the subsequent litigation. If the plaint, after being returned, was presented to a court having jurisdiction the order passed by the learned Munsif would enable such court, when disposing of the suit, to treat the costs incurred by the parties in the earlier litigation as costs incurred in the suit. The party by whom such costs would be payable was not decided by the learned Munsif. He evidently did not consider it proper to award costs to the defendant. What he thought proper was that if the plaint was presented again to a court having jurisdiction that court may consider the question of awarding costs. This cannot be said to be a direction given to a Superior court.
4. The question whether the court to which the plaint is subsequently presented had or did not have jurisdiction to include in the costs that it would award' when disposing of the suit the costs incurred in the litigation before the learned Munsif, Cannot be pertinently raised in this revision. The only question that has to be considered is as to whether the learned Munsif did or did not have the jurisdiction to pass the order which he has done. After hearing learned counsel, I am unable to answer this question in the negative. Having regard to the nature of the litigation, I do not think the order, passed by the learned Munsif was in any way capricious or arbitrary, and in deciding the question of costs in the manner that he did the learned Munsif did exercise his discretion and I do not think that in doing so he acted wrongly.
5. In the result this revision fails and is dismissed with costs.