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1963 Supreme(Ker) 52
Judges : T.K.JOSEPH,K.K.MATHEW
RADHAKRISHNA PUNCHITHAYA - Appellant
Versus
SANJEEVA RAO - Respondent
Case No : A. S. No. 542 of 1961
Decided On : 02/15/1963
Advocates Appeared :
V. Rama Shenoi; B. Raya Shenoi; For Appellants K. S. Subramania Iyer; For Respondents
The court emphasized the importance of adjudging the rights and liabilities of the parties as on the date of institution of the suit, and declined to interfere with the decree for costs based on the defendants' status as agriculturists at the time of filing the suit.
Headnote:
This appeal concerns the question of costs in a suit for money under a simple mortgage. The appellants, defendants in the suit, argued that the Court erred in allowing the plaintiff his costs and disallowing the costs of the defendants, based on S.3(2) of the Kerala Agriculturists Debt Relief Act, XXXI of 1958, as amended by Act II of 1961. The court declined to interfere with the decree for costs, as the suit was filed before the amendment of the Act, and the defendants' status as agriculturists at the time of filing the suit was in question.
Fact of the Case:
The suit for money under a simple mortgage was filed by the plaintiff, and the defendants, who were agriculturists, contested the costs awarded to the plaintiff. The defendants' status as agriculturists at the time of filing the suit was in question due to subsequent amendments to the Kerala Agriculturists Debt Relief Act.
Finding of the Court:
The court found that the suit was filed before the amendment of the Act, and the defendants' status as agriculturists at the time of filing the suit was in question. The court declined to interfere with the decree for costs, dismissing the appeal without costs.
Issues: The main issue was whether the defendants, who were agriculturists, were entitled to costs under S.3(2) of the Kerala Agriculturists Debt Relief Act, XXXI of 1958, as amended by Act II of 1961, despite their status at the time of filing the suit being in question.
Ratio Decidendi: The court held that the suit was filed before the amendment of the Act, and the defendants' status as agriculturists at the time of filing the suit was in question. Therefore, the court declined to interfere with the decree for costs.
Final Decision: The appeal was dismissed without costs.
1. This appeal which is from the decree in a suit for money under a simple mortgage relates only to the question of costs. The appellants who were defendants in the suit contend that the Court below erred in allowing the plaintiff his costs and disallowing the costs of the defendants. The contention is based on S.3 (2) of the Kerala Agriculturists Debt Relief Act, XXXI of 1958, as amended by Act II of 1961. Act XXXI of 1958 came into force on 14 71958 and the suit was filed on 11111958, i. e., before the expiry of six months from the commencement of the Act. S.3 (2) provides:
"Where a creditor files a suit for recovery of a debt before the expiry of six months from the commencement of this Act or after the agriculturist has paid or deposited the sums and instalments specified in S.4 and, during the period when he is so entitled to pay, the Court shall in decreeing the suit direct the plaintiff to bear his own costs and to pay the costs of the defendant who is an agriculturist, except in cases where the claim would have been barred by limitation had no such suit been filed or when a debt is jointly due from an agriculturist and non-agriculturist:
Provided that nothing contained in this sub-section shall be a bar to the court passing any order as to costs as between the plaintiff and other defendants who are not agriculturists."
2. The principles governing appeals relating to costs have been summarised in Chitaley's Commentary on the Code of Civil Procedure thus:
"An appeal from a direction as to costs will, therefore, lie only
(a) where the court has not exercised any real discretion in making the direction, or
(b) where the exercise of discretion is not judicial, that is, based on sound and well established legal principles; in other words, where the direction as to costs involves a matter of principle, or
(c) where the direction as to costs is based on a misapprehension of fact or law."
3. The facts of this case are somewhat peculiar. The appellants came within the broad definition of agriculturist but as the Act originally stood there was a clause excluding persons liable to pay basic tax exceeding one hundred and fifty rupees per annum in any three years after 1950-51 and before the commencement of the Act. The explanation to this clause provided that:
"A person shall be deemed to be liable to pay basic tax exceeding hundred and fifty rupees per annum, if he would have been so liable had the Land Tax Act, 1955, been in force throughout the State of Kerala during the said period."
The extent of the property owned by the defendants' family as seen from the partition deed, Ext. P. 5, exceeded 75 acres, so that the defendants would have been liable for basic tax exceeding Rs. 150/- had the Land Tax Act been applicable to the region where the property is situate. This provision in Act XXXI of 1958 was deleted by the Amending Act of 1961. The position would have been simple but for the provision in S.1(2) of Act II of 1961 which provided that the Amending Act would be deemed to have come into force on the 14th day of July, 1958, i. e., the date of Act XXXI of 1958.
4. According to the appellants, the effect of Act II of 1961 is that they were agriculturists within the definition of the Act even in 1958 and the consequence of filing a suit against agriculturists before the expiry of six months from the commencement of the Act should follow. Thus it is argued that the court below should have given effect to S.3 (2) of Act XXXI of 1958 and directed the plaintiff to bear his costs and to pay the costs of the defendants, notwithstanding the fact that they were not agriculturists on the date of institution of the suit.
5. This is a case in which there was no legal impediment in instituting the suit on 11111958. The Debt Relief Act as it then stood contained no prohibition, against the institution of the suit. The plaintiff was justified in filing the suit as the defendants did not pay the mortgage money. The defendants raised several u
