Propriety of interference by appellate Court with discretion of trial Court.

This is an appeal under the Letters Patent against the judgment of Satyanarayana Rao, J. The plaintiff is the appellant, and the dispute relates only to the liability of the defendant to pay costs. The facts necessary for the purpose of this appeal are these: The second defendant, Vallabha Anandar alias Subbier, was carrying on business in the name and style of Sri Varalakslimi Stores. On 8th March, 1943, he borrowed a sum of Rs.5,000 from the father of the plaintiff on a promissory note. There was a partition in the family of the plaintiff, and in that partition this promissory note fell to the share of the plaintiff. On 15th September, 1945, the promissory note was endorsed in favour of the plaintiff. On 1st January, 1946, the second defendant renewed the promissory note in favour of the plaintiff. It is on this promissory note that the present suit was filed on 17th September, 1946. The first defendant in the suit was the Varalakshrni Stores which became a partnership firm from 1944, the partners being the second defendant and one Narasimhachari, and the second defendant was Vallabha Anandar alias Subbier the maker of the promissory note. Along with the plaint, an application for attachment before judgment was filed and it was served on the second defendant on 6th October, 1946. The summons in the suit was served also on the same date and 17th October was the date fixed for the hearing of the suit. On that date, the second defendant paid the plaintiff’s advocate a sum of Rs.5,223-15-4, being the entire amount of principal and interest due on the promissory note upto that date; and contended that he was not liable to pay the costs of the suit. The only point for decision in the suit thereafter was whether the second defendant should be made liable for costs of the action. The Subordinate Judge held that the plaintiff was entitled to costs and granted a decree thereafter. Against that, the second defendant preferred an appeal A.S.No.304 of 1947 to this Court. That was heard by Satyanarayana Rao, J., who held on a consideration of the facts that the second defendant should not be made liable for the costs of the suit. He accordingly reversed the judgment of the court below with reference to costs. It is against this judgment that the plaintiff has preferred this appeal.

Mr.A. Viswanatha Iyer, learned counsel for the appellant, argues that costs are in the discretion of the first court and that it was beyond the province of the appellate court to interfere with the exercise of that discretion unless a question of principle was involved and that therefore the decree of reversal passed by Satyanarayana Rao, J., was erroneous. He quoted a number of authorities in support of the position that when the court of first instance exercised a discretion with reference to costs in a particular way, that should not be interfered with in appeal, even though the court of appeal might feel that it would have exercised its discretion differently. He relied in support of this position on the authorities in Raghavachariar v. Ponnuswami Mudali1, Kozhuvammal Ahmed v. Paru Amma2, Narayana Reddi v. Gopala Reddi3and Prokash Krishna v. Radha Madan Gopal4. To the general proposition as thus stated, there could be no demur. But the point here is something different. It is whether it is not open to the appellate court to come to a different conclusion on the facts on which the court below exercised its discretion. It is one tiling to say that when discretion is exercised in one way on particular facts it should not be interfered with by a Court of Appeal; it is quite a different thing to say that even when the Court of Appeal differs on its view of the facts, it could not interfere with the order for costs made by the court below. In Civil Service Co-operative Society v. General Steam Navigation5, the principles were thus stated by the Earl of Halsbury, L.C.:

“No doubt, where a Judge has exercised his discretion upon certain materials