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Balkissen Dass Vs. Luchmeeput Singh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1882)ILR8Cal91
AppellantBalkissen Dass
RespondentLuchmeeput Singh
Cases ReferredBuldeo Narayan v. Scrymgeour
Excerpt:
appeal - costs--appealable order. - .....of discretion.10. we see no reason why the same principle should not properly be applied to the costs of appealable orders. if the order is itself appealable, as affecting the jurisdiction of the court or the merits of the case, there seems no reason why an appeal should not lie from that part of the order which relates to costs. there must, of course, be some limit to appeals against orders for costs; and it would seem only reasonable, as well as consistent with authority, to apply the same rule to orders, as to decrees, and to hold that, in those cases, and those cases only where the order is appealable, the direction as to costs which is ancillary to the order should be appealable also.11. in this case, as the order for adjournment was not appealable, we think we cannot entertain.....
Judgment:

Richard Garth, C.J.

1. Certain it is that, on the one hand, the plaintiff was mistaken in supposing that the Dobays owed no money to Luchmeeput at the time of the mortgage; and on the other, Luchmeeput was not aware of the true position of the plaintiff's family as regards the banking business. The consequence was, that when the trial had proceeded for some time, it transpired that the plaintiff, Byjonath, although professedly carrying on business in his own name was really doing so on behalf of the other members of his family, who were interested in the bank; and thereupon Mr. Kennedy took an objection, that all the persons so interested ought to be made parties to the suit.

2. This was resisted on the part of the plaintiff; but the learned Judge, after hearing both sides, thought it right to adjourn the case, giving the plaintiff's counsel an opportunity of applying to the Court within one month to add the other members of the firm as plaintiffs, or if he elected not to do so, giving the defendants leave to apply to the Court to dismiss the suit. Mean while the costs of the adjournment were ordered to be paid by the plaintiff.

3. No doubt the plaintiff's counsel were placed in some difficulty by this order. The learned Judge appeared to be of opinion, that the other parties ought to be joined, and if the plaintiff had declined to apply to make them parties within the specified time, he ran great risk of having his case dismissed.

4. Under these circumstances the plaintiff's counsel made the application to add the other members of the family with a strong protest, that they did so under compulsion, and after some time, during which the additional parties were placed on the record (not as plaintiffs, but defendants), the trial again proceeded.

5. A large amount of additional costs was thus thrown upon the plaintiff; and one of the grounds of appeal before us is, that the plaintiff ought not to have been made to pay the costs of the adjournment.

6. The only point, which remains to be considered, is with regard to the additional parties who were placed upon the record, and the long adjournment which took place in consequence of Mr. Kennedy's objection.

7. Whatever might have been our view as to the necessity for adding these parties, or the propriety of throwing the costs of the adjournment upon the plaintiff, we think that, in this instance, we have no power to entertain these questions in a Court of appeal.

8. It is very possible that, under special circumstances, either the addition of a party or the adjournment of a trial might be a matter affecting the merits of the cause. But here there seems no ground for such a contention; see the observations of Peacock, C.J., in Kumara Upendra Krishna Deb Bahadur v. Nabin Krishna Bose 3 B.L.R. O.J. 113; of. page 118.

9. It is said that the plaintiff was unjustly ordered to pay the costs of the adjournment. It is argued, that if the case was adjourned in consequence of Mr. Kennedy's objection, and if that objection was unfounded, then, upon the merits of the question, the plaintiff was right; and that as the costs of the cause can, undoubtedly, be made the subject of appeal, it is said that the plaintiff has a right to appeal against the order for costs in this instance: Gridharilall Roy v. Sundar Biby B.L.R. Full Bench 496; Buldeo Narayan v. Scrymgeour 6 B.L.R. 581. In both these cases, however, the subject of appeal was the costs of the decree; and the principle upon which the Full Bench apparently proceeded was this; that as the costs formed part of the decree, and the decree was appealable, that part of it which related to costs was appealable also, and to the same extent as the decree itself. Thus, in a special appeal, the only objection which could be taken to the decree as regards costs would be one upon some point of law; whereas in a regular appeal, the objection as to costs might be made either upon a point of law, or upon the ground of discretion.

10. We see no reason why the same principle should not properly be applied to the costs of appealable orders. If the order is itself appealable, as affecting the jurisdiction of the Court or the merits of the case, there seems no reason why an appeal should not lie from that part of the order which relates to costs. There must, of course, be some limit to appeals against orders for costs; and it would seem only reasonable, as well as consistent with authority, to apply the same rule to orders, as to decrees, and to hold that, in those cases, and those cases only where the order is appealable, the direction as to costs which is ancillary to the order should be appealable also.

11. In this case, as the order for adjournment was not appealable, we think we cannot entertain any objection against the order as to the costs.

12. The appeal will, therefore, be dismissed with costs on scale No. 2.


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