1. In a suit for partition brought by one co-sharer against two others, one of the defendants, amongst other objections, pleaded that the suit which had been instituted on a plaint bearing a stamp of Rs. 10 was undervalued, because the plaintiff had included amongst the joint properties certain valuable properties held exclusively by that defendant as her own, and it was stated that the object of the suit was to bring a suit for possession of that property on an inadequately stamped plaint and thus to defraud the Government revenue.
2. This was accordingly made the subject-matter of one of the issues, and on this issue the Subordinate Judge rejected the plaint.
3. On appeal this order was set aside, and the Subordinate Judge was directed to register and try the suit. The learned Judges, however, differed in their order as to costs, the learned Chief Justice holding that the cost should form portion of the costs in the suit and be divided between the parties to the partition. Mr. Justice NORRIS, on the other hand, thought that the ordinary rule should be followed under which the unsuccessful party should pay the costs incurred in the appeal.
4. I am of opinion that this is not a case in which the parties to the partition should bear the costs rateably, for the matter out of which the appeal has arisen does not necessarily form part of that partition, and it was concerning an objection raised by only one of the parties which has been decided against him, (sic.) It would therefore not be right to charge the other respondent with costs in a matter not raised by him and to which he was indifferent.
5. The sole question therefore is whether this is a case in which the usual rule should not be followed and costs follow the decision of the appeal. The matter raised and decided does not, in my opinion, necessarily relate to the decision of the merits of the suit. If it should so happen that the defendant should succeed in retaining the properties which she maintains as her own private properties, and therefore not subject to partition, she will no doubt be properly indemnified in costs. The fact remains that she has got the Subordinate Judge to stop the trial of the suit and to reject the plaint on an objection that the plaint did not comply with the law, and on appeal it has been found that her objection was untenable. She has consequently put the plaintiff to unnecessary expense and delay in the trial of his suit, and he is therefore, in my opinion, entitled to claim reimbursement of the costs incurred in obtaining a trial. I am therefore of opinion that the appellant should obtain the costs of this appeal and also of the appeal from the order of the Subordinate Judge.
6. I agree with the other members of the Court, and for the same reasons, that the order as to costs proposed by the Chief Justice is one which ought not to be made.
7. I do not, however, think that the appellant should have the costs of the preliminary issue, and of the appeal upon it, in any event. The order which I think ought to be made is that respondent should in any event pay her own costs of the preliminary issue and of the appeal: but that as to the plaintiff's costs of that issue and of the appeal, they should be in the discretion of the Court, as between the parties to this appeal, such costs being in no case to form part of the costs of the partition. I think that in this case, if the plaintiff should wholly fail upon the merits of the questions raised between him and the defendant who is respondent in this appeal, it may well be that he ought not to have the costs of this appeal. That would, I think, depend upon the nature of the case made at the hearing, and I should leave this in the discretion of the Court which will try the case upon the merits.
8. The only question before us is one of costs. The suit was brought for partition. Amongst other objections taken by the second defendant, there was one as to the stamp on the plaint, viz., that a stamp of Rs. 10 was insufficient. The Subordinate Judge before trying the rest of the case, tried the question as to the sufficiency of the stamp. He required the plaintiff to get into the box to show that his claim in respect of the properties, the title to which was denied by the defendant, was a bond fide one. On the plaintiff declining to give evidence in this respect, the Subordinate Judge rejected the plaint with costs. On appeal to this Court the learned Chief Justice and Mr. Justice NORRIS held that the plaint ought not to have been rejected, but that the case ought to be tried on its merits according to law. They, however, differed as to the costs of the appeal. The Chief Justice thought these ought to be costs in the cause. Mr. Justice NORRIS thought that the appellant was entitled to his costs.
9. I think that the view taken by Mr. Justice NORRIS is the correct one. It is true that a partition suit, like some other classes of suits, is brought frequently for the benefit of all the parties to it, and for that reason it would generally be unfair to require any one party to pay the costs of the litigation; but that principle does not apply where one party has been successful in a matter, the costs of which are severable from the general costs of the suit. In that case the ordinary principle that the successful party is entitled to his costs is applicable. For instance, it has been held that where an agreement not to partition is set up in answer to a claim for partition, the costs of the trial of that question should be paid by the unsuccessful party. It also frequently happens that an issue is raised as to whether a particular property is joint or separate. So far as the costs of this issue can be separated from the costs of the suit, it is usual to allow them to the party who is successful on that issue, whether he may or may not ultimately succeed in the suit. Where the defendant raises an objection of a technical character as to the continuance of the suit, and that objection is separately tried and the costs of it are in no way part of the costs of the suit, I think the only right course is to make the unsuccessful party pay the costs. On such an objection he runs the chance either of winning or tossing. If he wins he gets the costs of the suit and is relieved of the litigation; and if he loses, he must run the chance of paying the costs. It seems to me that to adopt any other course would have the effect of inviting defendants to raise all sorts of objections, technical or otherwise, in order to impede or defeat the trial on the merits of the case. Unless there is the attendant risk of paying the costs, a defendant would be at no disadvantage when putting forward obstructions of this nature. I think that, acting on the ordinary principle that an unsuccessful litigant should pay the costs of the litigation, we ought to order the second defendant to pay the costs of the appeal. They are in no sense costs of the cause, and therefore I do not agree with the Chief Justice that they should be treated as such. I do not think that they ought to be reserved. I think that it is desirable that the Court should, as far as possible avoid reserving the question of costs. The Court that determines a question is best able to determine the costs, and reserving the costs in this case may amount to giving the Judge who eventually tries the case an opportunity of reconsidering what has been finally determined by the Chief Justice and Mr. Justice Norris. Even if it turns out that the plaintiff is unsuccessful in this case I do not see why he should pay the second defendant the costs which he incurred by what has been held to be a wrong objection to the trial of the suit on its merits, or why he should not get the costs which the action of the defendant has forced him to incur. The proper penalty for losing a suit on the merits is to be made liable to pay the costs of the trial on the merits, not the costs of a separate trial on a matter unconnected with the merits in which the plaintiff is successful.
10. In my opinion this appeal should be allowed and the appellant before us should get the costs of the appeal to this Court and also of the appeal under Section 15 of the Letters Patent.
11. The order requiring him to pay the costs in the Court below has been set aside, as the case is to be tried on its merits, It does not appear that any portion of these costs will be otherwise than useful for the purpose of the trial on the merits.