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Manmotha Kinkur Bose Vs. Abu Japer Mahomed HashIn Ali - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in116Ind.Cas.736
AppellantManmotha Kinkur Bose
RespondentAbu Japer Mahomed HashIn Ali
Excerpt:
civil procedure code (act v of 1908), order xxxvii, rule 2 - presidency small cause courts act (xv of 1882), section 22--summary suit on negotiable instrument--suit triable by small cause court instituted in high court--costs--order as to costs--interference in appeal. - .....suit was for recovery of a sum of rs. 705 and it was instituted under order xxxvii of the code of civil procedure. the claim arose on a promissory note executed by the defendant on the 23rd december, 1926, for rs. 600 with interest thereon at 24 per cent. per annum. mr. justice pearson made a decree on the 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 to the words used in order xxxvii, rule 2, sub-clause (2), civil procedure code, the plaintiff was entitled as a matter of right to a decree for costs on the prescribed scale, i.e., costs on scale no. 1. the plaintiff argues that order xxxvii, civil procedure code, does not apply to the small cause court and that,.....
Judgment:

George Claus Rankin, C.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 recognised 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 XXXVII of the Code of Civil Procedure. The claim arose on a promissory note executed by the defendant on the 23rd December, 1926, for Rs. 600 with interest thereon at 24 per cent. per annum. Mr. Justice Pearson made a decree on the 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 to the words used in Order XXXVII, Rule 2, Sub-clause (2), Civil Procedure Code, the plaintiff was entitled as a matter of right to a decree for costs on the prescribed scale, i.e., costs on Scale No. 1. The plaintiff argues that Order XXXVII, Civil Procedure Code, 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 XXXVII, Civil Procedure Code, 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 XXXVII, in the event of Order XXXVII, 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 a. 22 of the Presidency Small Cause Courts Act are attracted. In cases governed by the last mentioned section, no coats 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 of the 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 XXXVII, Civil Procedure Code, 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 of the 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 Mr. Justice Pearson 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 of the Presidency Small Cause Courts Act.

5. 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.

6. I agree.


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