Important Point – Compensatory cost under Section 35A of CPC has to be followed.

ASHUTOSH KUMAR, J.

1. Bikramjit Ahluwalia, appellant/defendant no.1, has challenged the order dated 21.04.2016 passed in I.A No. 1360/2012 in CS (OS) No. 2202/2011 whereby the application preferred by him under Order VII rule 11 CPC for rejection of the plaint of the minor plaintiff (Avnija Ahluwalia through her mother) has been rejected. Though the challenge, initially, was against the entire order whereby the application for rejection of plaint was dismissed with actual costs; the actual cost being what had been incurred by the plaintiff from the date of filing of the application under Order VII Rule 11 CPC till the date of its dismissal, but finding no fault with the order dismissing the prayer for rejecting the plaint, a limited notice to the respondent was issued on the question of imposition of “actual cost”.

2. The appellant/defendant No.1 is the grandfather of the minor plaintiff and he, by the aforesaid application under Order VII Rule 11 CPC, sought to deny/refute the assertion of the plaintiff that an HUF was created by the father of the appellant around the year 1968.

3. It would be relevant here in this context to state that the suit by the minor plaintiff had been filed for partition, declaration with respect to joint family properties purchased from the nucleus of joint family funds being suit properties (detailed in the Schedule A to the plaint) and rendition of accounts of the joint family businesses (detailed in Schedule B to the plaint).

4. The appellant states that since there was no pleading about the father of appellant having any ancestral property prior to the creation of the HUF in 1968, no cause of action could be shown and therefore the plaint was liable to be rejected.

5. The learned Single Judge after examining various paragraphs of the plaint viz. 1, 2, 14, 15, 15A to 15E, 15G, 15 H and 16, came to the conclusion that even thought the averments in the plaint are vague but the pleadings do make out that HUF was created by the father of the appellant and the Income Tax returns also reflected the HUF business and other properties. However, the Learned Single Judge appears to have been peeved by the fact that the suit was filed in the year 2011 and despite there being no caveat against appearance and filing of written statement, no written statement was filed by the appellant/defendant till the date of disposal of the application under Order VII Rule 11 CPC. Taking into account the fact the plaintiff is a minor who had preferred the suit in forma pauperis whereas the defendants were rich persons, application under Order VII Rule 11 CPC was dismissed but with “actual costs”.

6. What is in controversy now and what we have been called upon to decide is whether actual costs could have been ordered by the learned single Judge in the absence of any corresponding provision in the Delhi High Court Rules and whether resort could be had to Section 151 of the CPC for imposing actual costs on the appellant/defendant No.1.

7. The contention of the petitioner is that the issue with regard to imposition of the actual costs has been conclusively decided by Supreme court in Sanjeev Kr. Jain v. Raghubir Saran Charitable Trust & Ors, 2012 (1) SCC 455 wherein it has been held that if the law does not permit award of actual costs, the Courts cannot award such actual costs and that the observation of the Supreme Court in favour of award of actual realistic costs in Salem Advocate Bar Association (2) v. Union of India (2005) 6 SCC 344 only meant that the relevant rules should be amended to provide for actual realistic costs. Since there is no provision for award of actual costs at present, such award of costs will have to be within the parameters/limitations prescribed by Section 35 of the Code of Civil Procedure, 1908.

8. The learned counsel for the appellant submitted that though Section 35 of CPC is open worded but the restrictions are imposed by the rules made by the High Court. The Delhi High Court Rules permits cost