1. A suit was filed in the Court of the District Munsif of Mangalore; and that Court found that the suit was in reality a suit for possession of 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 in the superior Court. The District Munsif accordingly passed this order:
It follows from the above finding that the suit is not cognizable by this Court. The plaint is therefore returned for presentation to proper Court. Costs will be costs in the cause.
2. The plaintiffs in that suit in fact, did not amend their plaint and represent it in the superior Court; and so the defendant in that suit filed the suit with which we are here concerned for the recovery of his costs. The lower Court found that the costs were not recoverable. I may say at the outset that the order passed by the District Munsif in the prior suit was one without jurisdiction. He had no jurisdiction to direct a superior Court, in case another plaint were presented in that Court, to make provision in its decree for the costs of the earlier suit before the District Munsif. It is not however necessary to emphasise this; because even if one assumes that the order was with jurisdiction, the plaintiff cannot file a suit for the costs. The order 'costs will be costs in the cause' does not mean that the plaintiffs were entitled to the costs absolutely, whatever might be the result of the subsequent proceedings. The learned advocate for the petitioner has cited American Trading Co. v. Bird & Co. to show that if such an order is passed, then the plaintiff, if successful in the subsequent litigation, would be entitled to his costs. That decision, however, is really an authority in favour of the respondent; for in more than one place it says that 'costs in the cause' means that the costs should follow the general course of the action. If the plaintiff had succeeded in the subsequent litigation, he would have been entitled to the costs of the earlier suit, too. On the other hand, if he had failed and costs had been awarded to the other side, then the other side would also have been awarded the costs of the earlier suit. If both sides had been ordered to bear their own costs, then presumably, neither side would have received any costs with regard to the earlier suit. So in the absence of a later litigation, it is impossible to say to whom the costs should be given. The petitioner could only receive costs in the earlier litigation if there were a subsequent litigation, and he were successful in it. As there has been no subsequent suit, he is not entitled to his costs. Finally, if the plaintiff was entitled to costs under this order, his proper remedy was to execute the order and not to file an independent suit. The petition is dismissed with costs.