1944 Present: Soertsz and Wijeyewardene JJ.

FERNANDO, Appellant and PERERA,
Respondent.

169-D. C. Chilaw, 11,785.

Costs-Order for costs in the class of action-Amount awarded in lower class- Jurisdiction of District Court-Powers of Supreme Court.

An order for costs in the class in which an action is instituted may be made when the amount actually awarded to the plaintiff is one in a lower class.

It is desirable that a trial Judge should state his reasons for such an order. On his failure to do so, it is open to the Court of Appeal to examine the merits of the order.

APPEAL from a judgment of the District Judge of Chilaw.

L. A. Rajapakse, for substituted defendant, appellant.

J. Fernando Pulle, for the plaintiff, respondent.

Cur. adv. vult.

May 12, 1944. SOERTSZ J.-

The short but not unimportant point that arises on the only submission made to us on behalf of the appellant is whether an order for costs in the class in which an action is instituted is justified when the sum actually awarded to the plaintiff is a sum in a lower class.

Counsel for the appellant did not contend, and I do not think he could have contended successfully, that costs must invariably be awarded in the class in which the sum actually found for a plaintiff occurs. But he did submit that an order for costs in the original class, accompanying an award for a sum in a lower class, ought to be set aside in a case such as the one before us in which the Trial Judge has given no reasons for allowing costs in the higher class.

The submission appears to me to be too wide. It is undoubtedly extremely desirable that a Trial Judge should state his reasons for such an order, but his failure to do so cannot result in the manner suggested for the appellant. It would surely be open to an appeal Court to examine the merits of the order.

The question then is how that matter should be examined. Over a hundred years ago this Court answered a similar question submitted to it by a District Judge thus: " The general rule is that costs are awarded in the class in which judgment is given unless special circumstances appear to take the case out of the rule ". Austin's Reports 1833-1853, page 5.

If, for instance, a party is found to have unduly exaggerated his claim, our law reports show that in appropriate cases, not only has he been awarded costs in the class in which he obtained judgment, but also that he has been ordered to pay the difference in costs to the other party. Goonesekera v. Senaratne [1 5 N. L. R. 242.], Meera Saibo v. Omer Lebbe [2 4N.L. R. 319.]. Mohamado Lebbe v. Veerappa Chetty [3Cur. L.R.137], De Silva v. Babunhamy [4 1.S.C.D.1].

But this question whether a claim has been unduly exaggerated or not is not susceptible of easy answer in every kind of case. It is a difficult question in a case such as this where the plaintiff is suing for damages for malicious prosecution. The Trial Judge found, and found correctly, that the defendant acted maliciously in preferring a charge as serious 89 that of housebreaking and robbery against his son-in-law, the defendant, with whom he had fallen out and yet he has seen fit to reduce the damages claimed, -the modest sum of Rs.1,000 to Rs.300. This appears to me have been done quite arbitrarily.

Every element that the Judge appears to have considered in fixing damages is an element not of mitigation but of aggrevation. In this connection, I would only refer to two English cases:-Hewlett v. Cruchley [5 5 Taunt. 277.] and Leith v. Pope cited in Mayne on damages p. 588. In the former case an Attorney charged his clerk for felony after taking legal advice, but without a full disclosure of the facts to his advisers. The clerk was discharged and sued for damages and obtained a verdict for £2,000. Upon a plea in appeal that the damages awarded were excessive Mansifield C.J. observed " Could any one say that any rational man of character would for £2,000