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Vittal Shetty and ors. Vs. Parameshwari Alias Ujjakke Shedthi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberAppeal No. 603 of 1949
Judge
Reported inAIR1954Mad100; (1952)IIMLJ932
ActsCode of Civil Procedure (CPC) , 1908 - Sections 35; Madras Practice Civil Rules
AppellantVittal Shetty and ors.
RespondentParameshwari Alias Ujjakke Shedthi and ors.
Appellant AdvocateK.Y. Adiga and ;K.P. Adiga, Advs.
Respondent AdvocateS. Ramayya Nayak, Adv.
DispositionAppeal allowed
Excerpt:
- .....defendants did not substantially delay the disposal of the suit could not be a ground for denying costs to the plaintiffs which they would be otherwise entitled to. when the learned subordinate judge concedes that the defence raised on behalf of the contesting defendants were frivolous, he should have ordered costs on the contested scale and the delay in the disposal of the suit could not be considered to be taken into account in arriving at what reasonable costs the plaintiffs would be entitled to.4. it is urged on behalf of the respondents thatthe learned subordinate judge has exercised hisdiscretion which he is entitled to do under section35, c. p. c. and that ordinarily such exercise ofdiscretion should not be interfered, with. i amaware of the discretion that is given to courts.....
Judgment:

1. This appeal relates only to the decree for costs. The plaintiffs are the appellants. They as the Junior members of an Aliyasanthana family sued to recover a sum of Rs. 15981 as the arrears of maintenance due to them. Defendant 1 is the present ejamanthi of the family. She filed a written statement showing that she was not in possession of the family properties or the incomefrom them though she became manager on 19-2-1948, and that therefore she had not been in a position to maintain the plaintiffs, or herself from out of the family income. Defendants 2 to 6 contestedthe suit and defendant 2 filed a written statement contending that the suit was filed in collusion with defendant 1 and to saddle the family with a large liability, that as the plaintiffs were living with defendant l who was maintaining them for the period during which the claim was made, the plaintiffs were not entitled to separate maintenance, that the claim for maintenance was excessive. Issues were framed. The first issue was whether the plaintiffs were not entitled to maintenance on the ground that they had been maintained by defendant 1 who was ejamanthi and the second issue was whether there was no justification for demanding separate maintenance. These two issues arose mainly on the written statement of defendants 2 to 6 and the plaintiffs had necessarily to go to trial. Documents were filed and witnesses were examined. Eventually the learned Subordinate Judge granted a decree as prayed for by the plaintiffs for the amount claimed to be recovered from the properties of the family.

2. On the question of costs the learned Subordinate Judge has allowed costs to the plaintiffs from defendants 2 to 6 and fixed a sum of Rs. 100 being the costs arrived at the confessional scale. In dealing with the question of costs, while accepting the contention of the plaintiffs namely that they were entitled to costs on contested scale as against defendants 2 to 6, as sound and holding that it was really frivolous on the part of the defendants 2 to 6 to have contended that the plaintiffs were not entitled to maintenance on the ground that defendant l maintained them, still in view of the fact that the defence put forward by them did not substantially delay the disposal of the suit, the learned Subordinate Judge considered a sum of Rs. 100 by way of costs as sufficient.

3. It is not a case where costs on the confessional scale as provided in the Civil Rules of Practice could be awarded. The parties went to trial. Issues were framed, documents were filed and evidence was taken. Ordinarily costs must generally be on the contested scale unless there are compell-if reasons for the Court to order otherwise. The fact that the defence of the contesting defendants did not substantially delay the disposal of the suit could not be a ground for denying costs to the plaintiffs which they would be otherwise entitled to. When the learned Subordinate Judge concedes that the defence raised on behalf of the contesting defendants were frivolous, he should have ordered costs on the contested scale and the delay in the disposal of the suit could not be considered to be taken into account in arriving at what reasonable costs the plaintiffs would be entitled to.

4. It is urged on behalf of the respondents thatthe learned Subordinate Judge has exercised hisdiscretion which he is entitled to do under Section35, C. P. C. and that ordinarily such exercise ofdiscretion should not be interfered, with. I amaware of the discretion that is given to Courts infixing costs but such discretion must be based onlegal principles consistent with justice and reason.I do not consider that the reason given by thelearned Subordinate Judge is sufficient to deprivethe plaintiffs of their costs to which they will beentitled. The appeal is allowed with costs.


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