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Manmotha Kumar Bose Vs. Abu Jafer Mahomed HashIn Ali - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1929Cal560
AppellantManmotha Kumar Bose
RespondentAbu Jafer Mahomed HashIn Ali
Excerpt:
- c.c. ghose, j.1. this appeal relates to a question of costs. it is settled law that the court of appeal will never interfere with the order of the judge in the trial court as to costs, unless the order offends against some well recognized principle or unless the court of appeal feels that it would be unjust to the party against whom it is made if the order be allowed to stand.2. in this case, the plaintiff's suit was for recovery of a sum of rs. 705 and it was instituted under order 37, civil p.c. the claim arose on a promissory note executed by the defendant on 23rd december 1926, for rs. 600 with interest thereon at 24 per cent per annum. pearson, j., made a decree on 9th january 1928, for the amount claimed, but he did not allow any costs to the plaintiff.3. on appeal it is contended.....
Judgment:

C.C. Ghose, J.

1. This appeal relates to a question of costs. It is settled law that the Court of Appeal will never interfere with the order of the Judge in the trial Court as to costs, unless the order offends against some well recognized principle or unless the Court of Appeal feels that it would be unjust to the party against whom it is made if the order be allowed to stand.

2. In this case, the plaintiff's suit was for recovery of a sum of Rs. 705 and it was instituted under Order 37, Civil P.C. The claim arose on a promissory note executed by the defendant on 23rd December 1926, for Rs. 600 with interest thereon at 24 per cent per annum. Pearson, J., made a decree on 9th January 1928, for the amount claimed, but he did not allow any costs to the plaintiff.

3. On appeal it is contended on behalf of the plaintiff that, having regard eo the words used in Order 37, Rule 2, Sub-clause (2), Civil P.C., the plaintiff was entitled, as a matter of right, to a decree for costs on the prescribed scale, i.e., costs on scale 1. The plaintiff argues that Order 37, Civil P.C., does not apply to the Small Cause Court and that, therefore, he, having instituted the suit in the High Court, ought not to be held disentitled to costs. 4. The question of procedure under Order 37, Civil P.C., and the question of the right to institute a suit for the recovery of a sum of Rs. 705 in the Small Cause Court are entirely different. Ordinarily, the plaintiff who avails himself of the procedure indicated in Order 37. in the event of Order 37, Rule 2, Sub-clause (2), being held applicable, is entitled to his costs ; but where the suit is cognizable in the Small Cause Court and where it is instituted in the High Court, the provisions of Section 22, Presidency Small Cause Courts Act, are attracted. In cases governed by the last mentioned section, no costs are allowable to the plaintiff, unless the Judge who tries the suit certifies that it was one fit to be brought in the High Court. I am unable to see why the provisions of Section 22, Presidency Small Cause Courts Act, should not be held applicable to this case. The plaintiff was not bound to avail himself of the procedure indicated in Order 37, Civil P.C., but he having chosen to avail himself of that procedure in a suit for the recovery of a sum less than the amounts mentioned in Section 22, Presidency Small Cause Courts Act, took the risk of having no costs allowed to him unless he could induce the Judge to certify that it was a fit and proper case to be brought in the High Court. In this case, it would appear from the minutes of the trial before Pearson, J., that the learned Judge considered the matter of costs and being apparently of opinion that the case was not one fit to be brought in the High Court, disallowed costs to the plaintiff. It may be that in some instances of like nature costs have been allowed to the plaintiff, but, on fuller consideration, I am of opinion that the question of costs in a case of this description is regulated by the provisions of Section 22, Presidency Small Cause Courts Act.

4. The result is that this appeal fails and must be dismissed. As the respondent does not appear, there will be no order for costs.

Rankin, C.J.

5. I agree.


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