1. These are two second appeals from decrees of the District Judge of Nellore ordering the plaintiffs to pay the costs of defendants Nos. 13 to 16 in a mortgage suit. The Subordinate Judge had originally ordered those defendants to bear their own costs. Four points are taken in these appeals.
2. The first is that no appeal lay against the order of the Subordinate Judge as it was not a decree. That objection has now been amplified by the learned Vakil in reply by an argument that under Order XXIII of the Civil Procedure Code costs can be ordered to be paid in the circumstances of this case and that, therefore, it is not a decree. I express no opinion as to the question whether, if the suit had been entirely withdrawn against all the defendants, and no order other than that contemplated under Order XXIII had been made, it would have been a decree. But as undoubtedly a decree was passed in this case, I have no hesitation in holding that these defendants could appeal against that decree.
3. The next point taken was that the costs in a case where a suit is withdrawn against any defendant are in the discretion of the Court under Section 35 of the Code just as in any other case, and alternatively, in reply, that Section 35 does not apply. Assuming that Section 35 did apply, the learned Vakil argues that the discretion is absolute provided that it is purported to be exercised, and relies on a decision of the English Court of Appeal in Bew v. Bew (1899) 2 Ch. 467, where the learned Lords Justices say that the Appellate Court will assume the exercise of discretion unless it is satisfied that the Judge has not exercised it. He then points out that Sir Lawrence Jenkins, Chief Justice of Bombay, has adopted that view in Parshram Bhawro v. Dorabji Pestonji 2 Bom L.R. 254. It is true that the learned Chief Justice does adopt those words, but the case shows that he subsequently proceeded to consider whether it was shown that the absolute discretion had been exercised properly by the learned Judge on the original side of the Court. With the greatest deference to a Judge of the eminence of the late Chief Justice of Calcutta, I am unable to see how a discretion can be absolute subject to a proviso. That case was considered by the late Chief Justice of this Court in the case of Boo Saheb T. Numberumal Chettiar v. Krishnajee 22 Ind. Cas. 919, and reliance is placed on the language used by him where he says: 'I do not want to suggest that I am not prepared to accept the proposition as laid down by Sir Lawrence Jenkins.' But the proposition there referred to is not the statement that the discretion is absolute, but the statement that an Appellate Court will not interfere with the exercise of discretion unless it has proceeded on a manifestly wrong ground, etc. In my view it is not an absolute discretion. I can find nothing in the language of Section 35 specifically providing that the discretion is absolute, and I find a strong indication in Sub-section (2) to the contrary. 'Where the Court directs that any costs shall not follow the event, the Court shall state its reasons in writing.' It is a recognised canon of construction that where a Court is directed to give its reasons, it is so directed for the purpose of assisting the Court that has to consider that decision either in appeal or revision. And I am satisfied that the same rule applies here, and that this sub-section indicates clearly that the discretion is not absolute. I entirely agree with what is stated by Sadasiva Aiyar, J., in Vadlamaunati Bala Tripura Sundaramma v. Dada Sahib 19 Ind. Cas. 474 where in dealing with the main words of the section, and not the subsection, he says: I think the lower Court's discretion as to costs (which discretion, I admit, is a very large discretion not to be lightly interfered with) has been exercised almost arbitrarily in this case,' and then proceeds to modify it. The second point, therefore, fails.
4. The next point is that the Vakil's fee in cases withdrawn can only be allowed under Rule 279 of the Civil Rules of Practice, the words of which are: In suits withdrawn or compromised (a) before any defence is put in, (A) before the settlement of issues but after defence is put in, etc,' the argument being that the words to be found in Clauses (a) and (b) do not apply to the word 'withdrawn.' In my view that suggestion is unarguable, as the language is perfectly clear, and everything contained in Clauses (a) and (b) must apply equally to the word withdrawn' as to the word compromised'. Therefore, the rule does not apply.
5. It is than argued that if it does not come within Rule 279, there is no provision for it and that Rule 278(a) does not apply. Rule 278(a) is as follows:
6. 'When such suits or appeals are decided on the merits after contest, etc.' Now the facts of this case are as follows. The defendants Nos. 13 to 16 pleaded discharge and want of notice. The Subordinate Judge very properly framed issues on those pleas and required the defendants to prove them. They called their evidence and filed a, number of documents. The plaintiffs called two witnesses and filed four documents. The case on these issues was argued, and at that stage, the plaintiffs withdrew their suit. I have very grave doubt whether in those circumstances, it can be said that the suit has not been decided on the merits after contest. There is no limit to the power of a-plaintiff to withdraw his suit, (vide Order XXIII). He may do so at any time until judgment is delivered. It seems to me that the rule should if necessary be given a wide construction so as to cover cases where the plaintiff, realizing that the judgment of the Court will be against him, withdraws his suit. But at the last moment the power to give costs can be supported on 'the words of Order XXIII, Rule 1, Sub-clause (3): Where the plaintiff withdraws from a suit...he shall be liable for such costs. as the Court t may award.' I see no reason why there should be any limit to the power of the Court to fix these costs, if Rule 278(a) of the Civil Rules of Practice does not apply. The Subordinate Judge ordered the defendants to bear their own costs. The lower Appellate Court has ordered the plaintiffs to pay the defendants' costs which have been fixed on the ordinary scale. In my opinion the lower Appellate Court had power to make this order, assuming of course that it rightly interfered with the discretion of the first Court.
7. The last point of law taken is that there was no power to order two sets of costs, Rule 284 of the Civil Rules of Practice providing that if several defendants who have separate interests, set up separate and distinct defences and succeed thereon, a fee for one Legal Practitioner for each of the defendants may be allowed irrespective of his separate interest.' It is argued that they have not succeeded on those issues, because they could not pleas that those issues are res judicata in another suit. I do not think it necessary to decide this point either; for I think the powers given under Order XXIII, Rule 1(3), are wide enough to authorize the Court to award two sets of costs.
8. The sole remaining question is whether the lower Appellate Court has acted properly in interfering with the discretion of the first Court, assuming that the case is covered by Section 35. I have examined the reasons given by the first Court, and, agreeing with the lower Appellate Court, can only describe them as incomprehensible. I think the lower Appellate Court's decision to vary that order by making the plaintiffs pay these defendants' costs, was right.
9. The result will be that these two appeals will be dismissed with costs.