1. This is a Rule issued on an application under Section 152 of the Code of Civil Procedure for amendment of the decree for costs made in an appeal from original decree.
2. The plaintiffs instituted a suit for the establishment of their title to a half share of the lands of an Osat Taluk and for recovery of possession of their share on partition by metes and bounds. There were two sets of defendants, viz., the co-sharer defendants and the tenant defendants. As regards the tenant defendants, the question in controversy was, whether a nim howla (Ramkanai Gupta) was real or fictitious. If the tenure was real, the plaintiffs would not be entitled to actual possession. If it was fictitious, the plaintiffs would be entitled to possession, by ejectment of the alleged tenants. The plaintiffs who had acquired a share in this nim howla, instituted this Suit on the allegation that the nim howla was fictitious and had no real existence. The defendants who are the petitioners before us, had purchased another share in this nim howla; and before the institution of the suit they had maintained that the nima howla was real. They did not, however, enter appearance during the trial to contest the claim. The Court of first instance held that the nim howla was real and made a decree on that basis.
3. On appeal to this Court, it was held that the nim howla was fictitious and that the plaintiffs were consequently entitled to possession by removal of the tenants. The first two defendants ware parties to the appeal but they did not enter appearance and were not represented at the hearing. The decree for costs was made in these terms: 'The plaintiffs are entitled to the costs of this appeal.' When the decree was drawn up, the following clause was inserted thereto: ' It is further ordered and decreed that the defendants-respondents. do pay to the plaintiffs appellants the sum of Rs. 1,800-4 as.' This order, as drawn up, entitles the plaintiffs to realise the coats from all the defendants.
4. The first two defendants have now obtained this Rule on the ground that as they did not enter appearance to oppose the appeal, the Court could not have intended to make an order for costs as against them. This position has not been maintained at the hearing and in fact could not be seriously urged. There is no rule of law that because a suit or appeal lis heard exparte, the successful plaintiff for appellant is not entitled to costs against the absent defendant or respondent. The question, consequently, arises whether the first two defendants were properly included in the category of respondents liable to pay the costs of the plaintiffs-appellants.
5. There is no dispute as to the principle applicable to cases of this character. Section 35 of the Code of 1908 provides that costs of and incident to all suits shall be in the discretion of the Court, and the Court shall have full power to determine by whom or out of what property and to what extent such costs are to be paid and to give all necessary directions for the purposes aforesaid. It was stated by Mr. Justice Dwarkanath Mitter in the case of Sheo Dyal Tewaree v. Jadoonath Tewaree (1868) 9 W.R. 61, that the question of coats is the most general question to be determined in a suit. In fact, it is the only question over which the Court can exercise the largest discretion. This discretion, however, is to be exercised with special reference to all the circumstances of the case, including the conduct of the parties. The Judgment of Lord Russell, C.J., in Bostock v. Rumsay Urban Council (1900) 1 Q.B. 357 shows that the Court is not confined to the consideration of the defendants' conduct in the actual litigation itself, but may also take into consideration matters which led upto and were the occasion of that litigation; in other words, to look at the antecedent conduct of the defendants which led to the apparent necessity for the plaintiffs' instituting the suit. Tested from this point of view, the petitioners are in a situation of great difficulty. They acquired an interest in the tenure like the plaintiffs; but while the plaintiffs repudiated the tenure as fictitious, the defendants throughout conducted themselves as if the tenure was genuine; their conduct has thus lent support to the case of the tenant defendants. It was open to them to appear at the trial and to state that they had no interest in the litigation, that there was no cause of action as against them, that they did not dispute the allegations of the plaintiffs as to the fictitious character of the tenure and that they should consequently be discharged. That was not their attitude. Their conduct antecedent to the suit unquestionably encouraged and helped the tenants. We hold accordingly that the order for costs was properly made and that the petitioners were rightly included in the category of respondents liable for payment of costs to the plaintiffs-appellants.
6. The Rule is discharged with costs. We assess the hearing fee at two gold mohurs.