Back
1927 Supreme(Nagpur) 180
HIGH COURT OF NAGPUR
Macnair
YESHWANT AND ORS – Appellant
Versus
GANGADHAR AND ANR – Respondent
Decided on : 01-09-1927
The court's discretion in awarding costs under Order 23, Rule 1(3) Schedule 1, Civil P.C. is not subject to the rule that costs should ordinarily follow the event, in cases of withdrawal from a suit without permission to institute a fresh suit.
Headnote:
The respondents sued on a mortgage impleading both sets of appellants. The plaintiffs withdrew their suit without leave to sue again, citing little hope of success. The court dismissed the appeals, stating that the costs awarded under Order 23, Rule 1(3) Schedule 1, Civil P.C. were incidental to the withdrawal from the suit and there is no provision for an appeal against such costs. The court found that the rule that costs should ordinarily follow the event has no application in cases of withdrawal from a suit without permission to institute a fresh suit. The issues were the adequacy of costs awarded and the applicability of the rule regarding costs. The ratio decidendi was that costs awarded under Order 23, Rule 1(3) Schedule 1, Civil P.C. are incidental to the withdrawal from the suit and there is no provision for an appeal against such costs. The final decision was to dismiss the appeals.
Macnair, A J C—The judgment in this appeal will govern the disposal of First Appeal No. 99 of 1926 (Mt. Bhagirathi Bai v. Gangadhar and Anr.).
2. The respondents sued on a mortgage impleading both the sets of appellants along with another person. . At a late stage of the case after each set of appellants had incurred considerable costs, the plaintiffs as against the appellants withdrew their suit without leave to sue again. A statement for the plaintiffs indicates that the reason was that they had little hope of success. The learned Judge allowed defendants 1 to 6 (the appellants before me) Rs. 50 as consolidated costs. Before me it is urged that the full costs incurred by the appellants should have been allowed.
3. It is first urged that the Court should have stated its reasons in writing for not allowing full costs. I am referred to Meghraj v. Johnson,1915 11 NLR 189. But the order for costs was passed under Order 23, Rule 1(3) Schedule 1, Civil P.C.. This rule states that when a plaintiff withdraws from a suit without permission to institute . a fresh suit, he shall be liable for such costs as the Court may award. The rule that costs should ordinarily follow the event has clearly no application to such a case. There is no provision for an appeal against an order regarding costs passed under Order 23, Rule 1, Civil P.C., such an order is incidental to the withdrawal from the suit. The appeals therefore do not lie. I have not been asked to treat them as applications for revision and it is possible that other considerations might have arisen, had I been asked to do so. I, therefore, dismiss the appeals. It does appear that the costs granted were inadequate, and I direct that costs in this Court will be borne as incurred.
Final Result : Dismissed
