JUDGMENT

1. This is the defendant's appeal from the decree of the Subordinate Judge of Fyzabad, dated the 25th September, 1924. The appeal relates to the question of costs only.

2. The plaintiff-respondent brought a suit for pre-emption. The defendant-appellant was the vendee of the property in respect of which the suit for pre-emption was brought. The suit was re-instituted on the 26th of May, 1924. Summonses were issued to the defendants. Defendant No. 1 1 filed his written statement on the 27th of August, 1924. On the date fixed for framing the issues, that is, the 25th September, 1924, the plaintiff filed an application to withdraw the suit under Order 23, Rule 1, Sub-rule (1), of the Code of Civil Procedure. To this the defendant No. 1 took no objection but asked for his costs. The Court then recorded the statement of the plaintiff who said that he had filed the suit at the instance of the defendant No. 1 who was first providing him with the expenses of the suit and that he has now given up financing the case and therefore he wanted to withdraw the suit. Having recorded the above statement the Court passed the following order:

Plaintiff is allowed to withdraw from the suit. No costs are allowed, Order 23. Rule 1(3), Civil P. Code.

3. This order, in so far as it relates to the question of costs, is the subject-matter of this appeal.

4. It is argued on behalf of the defendant-appellant that tinder Sub-rule (3) of Rule 1 of Order 23 of the Code of Civil Procedure the Court was bound to award costs. The necessary portion of the Sub-rule (3) bearing on the question under consideration is as follows:

Where the plaintiff withdraws from a suit... he shall be liable for such costs as the Court may award.

5. We are of opinion that the rule does not impose an unavoidable obligation on the Court to award costs in all such cases. The word "shall," as used in the context, is merely directory and not mandatory. The general law as to costs is laid down in Section 35 of the Code of Civil Procedure. Under that section the Court is invested with a discretion in the matter of awarding costs, and we are of opinion that Sub-rule (3) of Rule 1 of Order 23 has not the effect of divesting the Court of that discretion. Sub-Section (2) of Section 35 prescribes the procedure of recording its reasons in writing where the Court directs that costs shall not follow the event. The statement made by the plaintiff in the present case immediately proceeds the order of the Court, and we think that the circumstance stated by the plaintiff was the reason which induced the Court to make the order as to costs. The order was therefore passed in the exercise of the discretion vested in the Court. In Bew v. Bew (1899) 2 Ch. 472 Lindley, J., laid down the rule in the following words: "that if the costs are in the direction of the Judge the Court of appeal will assume that the Judge exercised his discretion unless it is satisfied that he has not exercised his discretion." This rule was quoted and applied by Sir Lawrence Jenkins, C.J., in Parshram Bhawoo v. Dorabji Pestonji (1900) 2 Bom. L.R. 254. The decision of the learned Chief Justice is correctly stated in the head note of the report which we quote here: "A Court had absolute discretion in the matter of costs according to Section 220, Code of Civil Procedure. And an appellate Court will not interfere with an exercise of discretion of a lower Court unless it has proceeded on a manifestly wrong ground, such as the application of an erroneous principle or a misapprehension of the facts. So long as the discretion was in fact exercised, an appellate Court will not interfere simply because it would itself have exercised the discretion differently."

6. We are of opinion that no case is made out for an interference by this Court with the order of the Court below. The appeal fails and is dismissed with costs.