Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.8610 OF 2011

[Arising out of SLP(C) No.6285 of 2010]

Sanjeev Kumar Jain

.......Appellant

Versus

Raghubir Saran Charitable Trust & Ors.

.....Respondents

O R D E R

R.V. Raveendran, J.

Notice had been issued limited to the question whether a sum of `

45,28,000/- could be awarded as costs in an appeal against a vacating

temporary injunction in an injunction suit. Leave is granted in regard to that

aspect only.

2.

The appellant is a tenant under the respondents in regard to a first

floor unit bearing No.E-67, Connaught Place, New Delhi. He was also a

tenant under the respondents in respect of a mezzanine floor unit bearing

No.E-11 of the said building situated below the first floor tenement. When

he was a tenant of both these portions, the respondents granted permission

on 4.7.1986 to the appellant to put up an internal staircase connecting the

mezzanine floor with the first floor. The respondents initiated proceedings

for eviction of the appellant in regard to mezzanine floor unit and obtained

vacant possession thereof. Even after vacating the mezzanine floor unit, the

appellant claimed a right to use the staircase which had been constructed in

the mezzanine floor unit to reach the first floor unit. In that behalf, he filed a

suit for permanent injunction to restrain the respondents from obstructing

him from using the said staircase to reach the first floor unit. Interim

protection was given in favour of appellant on 30.12.2003. The said interim

order was vacated on 8.11.2004. Feeling aggrieved, the appellant filed an

appeal. The appeal was pending for nearly six years. During the final

hearing of the appeal, the Division Bench appears to have suggested to the

parties that as the dispute was purely a commercial dispute, the party

succeeding in the appeal should be entitled to the litigation expenses from

the party who did not succeed. Both counsel, agreed to the said proposal in

principle and the court made the following order on 21.12.2009:

“Arguments heard. Order reserved.

Learned counsel for the parties should give to the Court Master, statement

of the total litigation expenses incurred in this appeal only, within two

days.”

In pursuance of it, the parties filed memos indicating the respective

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expenses incurred in the appeal. The appellant filed a memo dated

22.12.2009 stating that `25,50,000/- was incurred as advocates’ fees in the

appeal. The respondents filed an affidavit dated 23.12.2009 stating that

`45,28,000/- was spent as advocates’ fees in regard to the appeal. By the

impugned judgment dated 20.1.2010, the Division Bench of the High Court,

dismissed the appeal by the appellant. Taking note of the said memos

regarding fees, the High Court awarded to the respondents `45,28,000/- as

costs in respect of the appeal to be paid by the appellant within six months.

The appellant has challenged the said order both on merits and costs. But

leave is restricted only to the question of costs.

3.

The only question for consideration is the legality and validity of the

order of the High Court directing the appellant to pay costs of `45,28,000/-

to the respondents.

4.

The appellant contended that award of such costs by the High Court

was erroneous and contrary to law. The respondents drew our attention to

para 20 of the order of the High Court in which it has been observed that the

learned counsel for the parties had agreed for the suggestion of the Court for

litigation costs being payable to the succeeding party by the losing party.

The respondents contended that the award of actual costs incurred in the

appeal was by consent of parties; and the same being a consent order, there

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was no question of the matter being challenged by the appellant.

5.

On a careful consideration, we find that the impugned order,

including the portion regarding costs,