Karnataka High Court
Smt Geetha Dwarakanath vs K N Rajendrakumar on 22 February, 2022
Bench: M.G.S. Kamal
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE M.G.S.KAMAL
R.S.A.NO.370 OF 2015
BETWEEN:
SMT. GEETA DWARAKANATH
W/O M.N.DWARAKANATH
AGED ABOUT 70 YEARS
R/AT NO.103
MERIDIAN APARTMENT GITHA ROAD
CHAMARAJA MOHALLA
MYSORE - 570 004.
... APPELLANT
(BY SRI. JAGAN MOHAN M.T., ADVOCATE)
AND:
K.N. RAJENDRAKUMAR
S/O K.K. NANJAPPA
AGED ABOUT 56 YEARS
R/AT DOOR NO.62
HINKAL VILLAGE
KASABA HOBLI
MYSORE TALUK - 570 020.
... RESPONDENT
(BY SRI. ADITYA BHAT, ADVOCATE FOR R1)
THE REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC AGAINST THE JUDGEMENT AND
DECREE DATED 29.11.2014 PASSED IN R.A.NO. 190/2014
ON THE FILE OF THE V ADDITIONAL DISTRICT JUDGE,
MYSORE ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGEMENT AND DECREE DATED:27.07.2013 PASSED IN
O.S.NO.9/2007 ON THE FILE OF THE PRINCIPAL JUDGE,
2
SMALL CAUSES & ADDITIONAL SENIOR CIVIL JUDGE,
MYSORE.
THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Present regular second appeal is filed by the
defendant No.1 aggrieved by the judgment and order
dated 29.11.2014 passed in R.A.No.190/2014 on the file
of V Additional District Judge, Mysore (hereinafter
referred to as the 'first appellate Court'), in and by which,
the first appellate Court while setting aside the judgment
and decree dated 27.07.2013 passed in O.S.No.9/2007
on the file of the Principal Judge, Small Causes and
Additional Senior Civil Judge, Mysore (hereinafter
referred to as the 'trial Court') to the extent directing the
parties to bear their own costs and consequently decreed
that the plaintiff would be entitled for the cost of the suit
through out. Aggrieved by the same, appellant is before
this Court.
2. Parties are referred to by their ranking before
the trial Court.
3. It is the case of the plaintiff that;
(a) the defendant No.1 had entered into an
agreement dated 10.08.2006, agreed to sell two
residential sites for a sum of Rs.12,96,000/-. On the
same day, a sum Rs.2,00,000/- was paid by the plaintiff
to the defendant No.1 towards part payment of the sale
consideration. That the defendant No.1 had agreed to
execute and register the deed of sale conveying the said
properties within two months by receiving the balance
sale consideration.
(b) that though, the plaintiff was ready and
willing to perform his part of the contract, the defendant
No.1 protracted to perform his part of contract,
constraining the plaintiff to issue a notice. Defendant
No.1 instead of complying with the same issued
untenable reply.
(c) that the defendant No.1 had further directed the
plaintiff to receive the advance sale consideration by
deducting sum of Rs.5,000/-. Thus, the plaintiff was
constrained to file a suit for specific performance of the
aforesaid agreement of sale.
4. The defendant No.1 in his written statement
specifically contended that time was essence of contract.
That though defendant No.1 approached the plaintiff
personally and telephonically requesting him to pay the
balance sale consideration and obtained deed of sale, the
plaintiff did not comply with his requests. Therefore, the
defendant No.1 offered to return sale consideration by
deducting sum of Rs.5,000/- towards damages. Hence,
sought for dismissal of the suit.
5. Defendant Nos. 2 and 3 are the purchasers of
suit schedule property from the defendant No.1 under
deed of sale dated 03.01.2007 and that they are the
bonafide purchasers. Hence, sought for dismissal of the
suit.
6. The trial Court framed the issues and
recorded evidence and by its judgment and decree dated
27.07.2013 rejected the prayer of the plaintiff for specific
performance of the contract and decreed the suit
directing the defendant No.1 to pay Rs.2,00,000/- with
interest @ 18% p.a. from the date of the agreement of
sale till realization. The defendant No.1 was also directed
to deposit the said amount along with interest within one
month from the date of the decree. The trial Court
however, directed the parties to bear their own costs.
7. The plaintiff being aggrieved by the order
directing the parties to bear their own costs, preferred
the regular appeal in R.A.No.190/2014.
8. Based on the grounds urged in the appeal
memorandum, the first appellate court framed the
following points for its consideration;
"(1) Whether the appellant
proves that, he is entitled for cost of
the suit as mentioned in the grounds
of appeal and cost of appeal as prayed
for?
(2) Whether the judgment and
decree of the trial Court in respect of
non-awarding cost is opposed to law,
facts and circumstances of the case
and is liable to interfere by this Court
(3) What order?."
9. The first appellate Court by its judgment and
order dated 29.11.2014 allowed the appeal awarding the
cost to the plaintiff/appellant. Aggrieved by the same,
the defendant No.1 is before this Court in this appeal.
10. Learned counsel for the appellant reiterating
grounds urged in the memorandum of appeal submits;
(a) that since the suit of the plaintiff for specific
performance was dismissed, he was not entitled for the
cost.
(b) that in view of the trial Court directing to
refund of Rs.2,00,000/- with interest to the plaintiff,
awarding of cost would amount to exemplary cost giving
undue advantage and benefit to the plaintiff thereby
causing loss to the defendant.
(c) He further submits that there is no provision
for grant of cost in an appeal when the trial Court has
declined to grant cost.
11. He relies upon the judgment of the Apex
Court in the case of ASHOK KUMAR MITTAL VS. RAM
KUMAR GUPTA AND ANOTHER reported in 2009 AIR
SCW 621 and N.S.S.MEDICAL MISSION HOSPITAL
VS. SULBETH BEEVI reported in 2009 (2) KHC 111.
Hence, he submits appeal gives raise to substantial
question of law.
12. Per contra, learned counsel for the
respondent drawing attention of the Court to paragraph
22 of the judgment in R.A.No.190/2014 submits that first
appellate Court has given sound and justifiable reason to
grant the cost. He further submits that award of cost
under Section 35 of CPC is the discretionary power and
reasoning given by the first appellate Court being
judicious does not warrant any interference. Hence,
seeks for dismissal of the appeal.
13. Heard learned counsel for the parties.
Perused the records.
14. It is not in dispute that relief of specific
performance of contract was rejected by the trial Court.
However, the trial Court decreed the suit of the plaintiff
for refund of advance amount and directed the defendant
No.1 to refund of Rs.2,00,000/- with interest @ 18%
from the date of the agreement till realization and further
directed to deposit the same within one month from the
date of the decree. The trial Court had neither assigned
any reason nor awarded cost but had merely ordered
parties to bear their own costs.
15. The defendant No.1 has not challenged the
decree passed by the trial Court for refund of advance
amount with interest @ 18% p.a.. The defendant No.1
has also not deposited the said amount within one month
from the date of judgment and decree as directed.
Aggrieved by the order of trial Court declined to award
cost, plaintiff preferred the regular appeal in
R.A.No.190/2014.
16. The first appellate Court by its reasons
recorded at paragraphs 21 and 22 of its judgment
decreed that the plaintiff is entitled for cost of the suit
through out. The first appellate Court has taken into
consideration of the fact that suit of the plaintiff was
partly decreed by directing the defendant No.1 to refund
advance consideration together with interest and also
taken into consideration of the fact that plaintiff had paid
Court Fee of Rs.76,625/- and pleader's fee of
Rs.21,975/-.
17. Section 35 of CPC reads as under;
"35. Costs.- (1) Subject to such
conditions and limitations as may be
prescribed, and to the provisions of any law
for the time being in force, the costs of and
incident to all suits shall be in the discretion
of the Court, and the Court shall have full
power to determine by whom or out of what
property and to what extent such costs are
to be paid, and to give all necessary
directions for the purposes aforesaid. The
fact that the Court has no jurisdiction to try
the suit shall be no bar to the exercise of
such powers.
(2) Where the Court directs that any
costs shall not follow the event, the Court
shall state its reasons in writing."
Thus, in terms of the aforesaid provisions the Court
has discretionary power to award cost. In the instant
case, the first appellate Court while exercising its
discretionary power has assigned reasons in paragraphs
21 and 22 of its judgment as noted above. Since, the
order of the first appellate Court is an exercise of
discretion with a reason assigned thereto, the same does
not call for interference.
18. Learned counsel for the appellant relied upon
the judgment of the Apex Court in the case of the Ashok
Kumar Mittal (supra), wherein the Apex Court was
dealing with an order passed by the High Court imposing
exemplary cost of Rs.1,00,000/- each on the petitioner
and the respondent therein and further directed the said
amount to be deposited with the Delhi High Court Legal
Service Committee, it was under the facts and
circumstances of the said case. The Apex Court had held
that though the award of cost is within the discretion of
the Court, it is subject to such conditions, limitations as
prescribed and subject to provision of any law for the
time being in force; and where the issue is governed and
regulated by Sections 35 and 35A of CPC, there is no
question of exercising inherent power contrary to specific
provisions of Code. The facts and circumstances of the
present case is distinct and different, as such the said
judgment of no avail to the appellant.
19. Learned counsel for the appellant also relied
upon the judgment of the Kerala High Court in the case
of N.S.S.Medical Mission Hospital (supra) and
submitted that the cost can be awarded only to a party
who is successful in his suit. Para 6 of the said judgment
reads as under;
"6. "Cost" means the statutory
allowances required to reimburse the
successful party to the litigation for
expenses incurred in defending or
prosecuting the proceedings. Normally,
costs are meant to be given to a successful
party so that he is reimbursed by the
unsuccessful party for incurring the
expenses in connection with the litigation
which was instituted by the wrong or illegal
conduct of the unsuccessful party. Costs
includes the court fee payable."
20. There cannot be any dispute with regard to
the aforesaid judgments regarding awarding of costs. In
the instant case, the first appellate Court has proceeded
to award the cost taking into consideration the suit of the
plaintiff having been decreed in part in directing the
defendant No.1 to refund the advance sale consideration
with interest. The first appellate Court has noted that the
trial Court has not assigned any reason in declining to
award the costs despite partly decreeing the suit. As
already noted, the order of the first appellate Court is in
exercise of its discretionary power as under Section 35 of
CPC.
For the aforesaid reasons, no infirmity or illegality
can be found with the reasoning of the first appellate
Court. No substantial question of law would arise. Hence,
the appeal is dismissed.
<,
Sd/-
JUDGE
RU
