Tottenham and Agnew, JJ.
1. This appeal relates only to an order for costs.
2. The appellant is described in the plaint as defendant No. 2; and the Courts below, in giving the plaintiff a decree, have ordered that the costs be paid by both the defendants in equal shares.
3. For the respondents it is contended that no second appeal lies on a question of costs; and in support of this contention the vakeel refers to the cases of Futeek Parooee v. Mohender Nath Mozoomdar I.L.R. 1 Cal. 385 and Gridhari Lal Roy v. Sundar Bibi B.L.R. Sup. Vol. 496. Those cases, however, go to support the proposition that, when a question of costs is purely in the discretion of the lower Court no appeal will lie. A very recent case The Secretary of State for India in Council v. Marjum Hosein Khan I.L.R. 11 Cal. 359 shows that on a question of principle an appeal will lie against an order for costs; and the same view was in fact laid down in the Supplemental Volume to the Bengal Law Reports, Full Bench Rulings. Here the question of principle involved amounts to this, that as against the defendant No. 2, the appellant before us, the plaintiff had no cause of action and sought no relief against him in the plaint, and therefore could not receive costs from him. The suit was to get possession of a document executed in favour of the plaintiff by the father of the defendant No. 1, but of which delivery had been denied him. In connection with this matter, it seems that a criminal prosecution was had against the father bi the defendant No. 1, as also against the defendant No. 2, for abetting in the attempt to extort money from the plaintiff in connection with the delivery of the document. Both these individuals were punished. The father of the defendant No. 1 has since died. It appears to us on the plaint that the plaintiff's suit to recover the document was only against the defendant No. 1. The document was found to be under his control; and, although it is said that the withholding of the document by his deceased father was chiefly owing to the instigation of the defendant No. 2, we think there was no cause of action against the latter.
4. The appeal is allowed, and the order for costs as against the appellant must be set aside with costs in this Court and the lower Court.