Kerala High Court
Precious Blood Missionaries vs Nishanth Luize on 6 July, 2022
OP(C) NO. 2995 OF 2018
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 6TH DAY OF JULY 2022 / 15TH ASHADHA,
1944
OP(C) NO. 2995 OF 2018
IN OS 35/2014 OF ADDITIONAL SUB COURT,NORTH PARAVUR
PETITIONERS:
1 PRECIOUS BLOOD MISSIONARIES
REG.NO.359/87-88,
OFFICE, 'AARADHANA' HULIMAVU,
BANGALORE, KARNATAKA STATE,
PIN-560076
REPRESENTED BY ITS PRESIDENT
2 FR. VARAKUMAR,
PRESIDENT,
PRECIOUS BLOOD MISSIONARIES,
RESIDING AT NO.260, 4TH MAIN,
5TH CROSS, 1ST BLOCK, KORAMANGALA,
BANGALORE 34
3 FR. SAHAYAROOPAN,
SECRETARY,
INDIAN VICARIATE HOUSE,
ST. GASPERNAGAR, P.B. NO. 2905,
DHARMARAM COLLEGE P.O.,
SG PALAYA, BANGALORE
OP(C) NO. 2995 OF 2018
2
BY ADVS. J.JULIAN XAVIER
RAJU JOSEPH (SR.)
SRI.FIROZ K.ROBIN
RESPONDENT:
NISHANTH LUIZE,
S/O M.J.LUIZE,
MUKKADAYIL HOUSE,
METTALAX ROAD, ERNAKULAM,
KOCHI-682018
BY ADVS. T.KRISHNANUNNI (SR.)
MEENA.A.
VINOD RAVINDRANATH
M.R.MINI
ASHWIN SATHYANATH
K.C.KIRAN
M.DEVESH
THAREEQ ANVER K.
ANISH ANTONY ANATHAZHATH
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
06.07.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(C) NO. 2995 OF 2018
3
"C.R"
Dated this the 6 day of July, 2022
th
JUDGMENT
How is Ext.P2 judgment to be interpreted to
calculate costs, is the short question for consideration in
this original petition?
2. The petitioners' case, in a nutshell, relevant for
the determination of the original petition is that they are
the defendants in O.S.No.35/2014, filed by the
respondent, before the Court of the Additional
Subordinate Judge, North Paravur, for a decree to direct
the petitioners to execute the registered sale deed in
respect of the plaint schedule properties or alternatively
to permit the respondent to recover from the petitioners
an amount of Rs.6,36,00,000/- with interest. The
respondent had filed Ext.P1 plaint, inter alia, contending
that the petitioners had agreed to sell their properties
having an extent of 285.13 ares of land in Alangad
OP(C) NO. 2995 OF 2018
village, elaborately described in the schedule appended
to the plaint, to the respondent for an amount for
Rs.1,75,000/- per cent. Pursuant to the agreement of
sale dated 15.04.2011 entered into between the parties,
the respondent had paid the petitioners an advance sale
consideration of Rs.1,00,00,000/- on different dates.
Albeit the requests made by the respondent to the
petitioners, they willfully refused to execute the sale
deed. Hence, Ext.P-1 was instituted. The petitioners had
filed Ext.P2 written statement refuting the allegations in
the plaint. The court below, by Ext.P2 judgment, partly
decreed the suit by Ext.P.3 decree, permitting the
respondent to recover from the first petitioner the
advance sale consideration of Rs.1,00,00,000/- with
interest and costs. As per Ext.P3 decree, the petitioners
are directed to pay the respondent an amount of
Rs.1,11,94,848/- as costs. The costs awarded by the
court below are contrary to the provisions of the Code of
Civil Procedure, 1908 (in short, 'Code') and the Rules
OP(C) NO. 2995 OF 2018
framed thereunder. Hence, the petitioners had filed
Ext.P4 application to correct the decree. The respondent
had objected to the application by filing Ext.P5 counter
objection. The court below, on an erroneous appreciation
of the facts and the law, by the impugned Ext.P6 order,
has dismissed Ext.P4 application. Ext.P6 is ex-facie
illegal and unsustainable in law. Hence, the original
petition.
3. Heard; Sri. Raju Joseph, the learned Senior
Counsel appearing for the petitioners and Sri. T.
Krishnanunni, the learned Senior Counsel appearing for
the respondent.
4. Sri. Raju Joseph argued that, even though the
respondent had filed the suit for the specific
performance of the contract with an alternative prayer
for the refund of the advance sale consideration with
damages and interest amounting to Rs.6,36,00,000/-, the
court below by Ext.P2 judgment has only partly decreed
OP(C) NO. 2995 OF 2018
the suit by Ext.P3 decree, permitting the respondent to
recover from the first petitioner an amount of
Rs.1,00,00,000/- with interest and costs. But the court
below, without any application of mind, has awarded
costs on the total valuation of plaint relief No. 'A', i.e.,
Rs.12,32,93,100/-, which is patently wrong and
unsustainable in law. Immediately, on noticing the error
committed by the court below, the petitioners had filed
Ext.P4 application to correct the decree. Nonetheless,
the court below, by the impugned Ext.P6 order, rejected
the application and repeated the mistake. The cost
awarded by the court below is excessive and
unconscionable and is liable to be set aside. Ext.P6 order
may be set aside, Ext.P4 may be allowed, and Ext.P3
decree may be modified by ordering costs in tune with
Ext.P2 judgment.
5. Sri. T.Krishnanunni defended Ext. P 3 decree and
Ext.P6 order. He strenuously argued that the original
OP(C) NO. 2995 OF 2018
petition is not maintainable. The proper course to be
adopted by the petitioners, if they are aggrieved by
Ext.P3 decree, is to challenge the decree in appeal or
seek review of the decree as contemplated under
Section 114 of the Code and not resort to such
experimental methods by seeking correction of the
decree under Section 152 of the Code. Section 152 of
the Code only enables the correction of clerical or
arithmetical mistakes. The court below has consciously
awarded costs on the whole plaint claim. The respondent
is entitled to costs as provided under Rules 5, 6 and 9 of
the Rules Fees Payable to Advocates formulated by this
Court. There is no error or illegality in Ext.P6 order
warranting interference by this Court under Article 227
of the Constitution of India. Hence, the original petition
is only liable to be dismissed.
6. In the case on hand, the respondent had sought
a decree to direct the petitioners to execute the
OP(C) NO. 2995 OF 2018
registered sale deed in respect of the plaint schedule
property or, alternatively, to permit the respondent to
realise from the petitioners an amount of
Rs.6,36,00,000/- (i.e., to recover Rs.1,00,00,000/- (the
advance sale consideration paid), Rs.5,00,00,000/-
(damages for breach of agreement) and Rs.36,00,000/-
(interest on the said amount)). The valuation in the plaint
for relief 'A' is Rs.12,32,93,100/- and for relief 'B' is
Rs.6,36,00,000/-. The respondent has paid the court fee
on relief 'A' as provided under Section 42 of the Kerala
Court Fees and Suits Valuation Act.
7. The court below, by Ext.P2 judgment, decreed the
suit, in part, as follows:-
"In the result, the suit is decreed directing the
1st defendant to pay the plaintiff Rs.1,00,00,000/-
with interest at the rate of 9.5% per annum from
15.04.2011 till the date of decree and thereafter at
the rate of 6% per annum till realisation and costs."
OP(C) NO. 2995 OF 2018
8. To put it succinctly, the court below has rejected
the respondent's prayers for registration of the sale deed
in his favour and damages; instead, has partly decreed
the suit by directing the 1st petitioner to pay the
respondent an amount of Rs.1,00,00,000/- with interest
and costs on the said amount of Rs.1,00,00,000/-.
9. Immediately after the suit was decreed, the
respondent had filed his statement of costs, as provided
under Rule 196 of the Civil Rules of Practice, Kerala, for
the following amounts:
(i) Court fee - Rs.19,51,331/- (ii) Vakkalath fee - Rs.5/- (iii) Exhibits -
Rs.10/-
(iv) Petition fee - Rs.30/- (v) Petition fee - Rs.140/- (vi) Sr. Adv fee -
Rs.61,62,155/-
(vii) Jr. Adv fee - Rs.30,81,077/- (viii) Writing fee - Rs.100/-, thus totalling
to Rs.1,11,94,848/-
10. The court below accepted the statement of costs
filed by the respondent and drew Ext.P3 decree as
follows:
OP(C) NO. 2995 OF 2018
"DECREE
The suit is decreed directing the 1st defendant to pay the plaintiff
Rs.1,00,00,000/- with interest at the rate of 9.5.% per annum from
15.04.2011 till the date of decree and thereafter at the rate of 6% per
annum till realisation and costs".
11. The particulars of costs, annexed to Ext.P.3
decree, are prepared as prayed for by the respondent in
the statement of costs for Rs.1,11,94,848/-. Thus, for a
decree amount of Rs.1,00,00,000/-, the court below has
ordered an amount of Rs.1,11,94,848/- as costs, which is
obviously more than the decree amount.
12. A literal interpretation of Ext.P2 judgment leads
one to only one inference that the court below has
directed the 1st petitioner to pay the respondent an
amount of Rs.1,00,00,000/- with interest and costs. The
word 'and' has to be read conjunctively with
Rs.1,00,00,000/- and not distinctively, to mean that costs
are on the whole plaint claim of Rs.12,32,93,100/-, as
interpreted by the respondent in the statement of costs.
If that was the case, the court below was bound to
OP(C) NO. 2995 OF 2018
expressly state, in unambiguous terms, that the suit is
decreed for Rs.1,00,00,000/-, but interest and costs on
the plaint amount. It would be absurd and ridiculous to
state so because, although the respondent had sought a
decree of Rs.12,32,93,100/- in respect of relief 'A' and
Rs.6,36,00,000/- in respect of relief 'B', the court below,
after a full-fledged trial, arrived at a conclusion that the
respondent is only entitled to a decree of
Rs.1,00,00,000/-. So, therefore, the respondent's
entitlment is found to be only Rs.1,00,000/- and not
anything more. It is trite, costs should follow the event,
and should be in proportion to the success or failure of
the parties. By stating that the suit is decreed for
Rs.1,00,00,000/- with interest and costs, it can only
mean that the costs are only for Rs.1,00,00,000/-;
otherwise, it would lead to unrealistic and
disproportionate costs, i.e., where the costs exceed the
decree amount. Also, if such an irrational interpretation
is given, it can also be argued that the interest quotient
OP(C) NO. 2995 OF 2018
is on the plaint valuation and not on the decree amount.
Therefore, I am of the definite view that the court below
in Ext.P2 judgment has only allowed costs on the decree
amount of Rs.1,00,00,000/- and not on the plaint claim of
Rs.12,32,93,100/-. Unfortunately, the court below has
failed to interpret the judgment as per the mandate
under sub-rule (2) of Rule 196 of the Civil Rules of
Practice, Kerala.
13. Even otherwise, Section 35 and Order XXA of
the Code of Civil Procedure, 1908 deals with costs to be
imposed in suits.
14. Section 35 reads thus:-
"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 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.
OP(C) NO. 2995 OF 2018
15. Interpreting Section 35 of the Code, this Court
in Malabar Motor Transport Co-operative Society
Ltd. v. Amu [1985 KLT 107] held thus:
"2.The counsel for the appellant submitted that the direction in the
judgment as to costs is patently erroneous. According to him, normally, as a rule,
costs should follow the cause, and the costs received or given should be in
proportion to the success or failure in respect of the suit claim by the respective
parties. In support of this contention he relied on the decision of the Supreme
Court in S.P. Majoo v. Ganga Dbar (AIR 1969 SC 600) where in Para 6, at page
604 of the report, the Supreme Court observed as follows:
"We accordingly allow this appeal to the extent indicated above
and modify the decree of the Calcutta High Court. The plaintiff
respondent will be awarded costs proportionate to his success in
the present suit as between attorney and client." He also cited
the decision of the Nagpur High Court in Jamshed Karimuddin
v. Kunjital Harsukh (AIR 1938 Nag 530). In that decision arising
out of a suit for damages for breach of the contract, it was
observed.
"I therefore set aside the decree of the lower Appellate Court so
far as the cost are concerned and direct that costs shall be
proportionate to success and failure throughout."
That normally the costs should follow cause and it should be in proportion to the
success or failure of the parties is a well accepted principle. That does not,
however, mean that this is an invariable rule, and the court has no discretion in
the matter. In fact, according to us, the acceptance of such a rigid principle would
run counter to the provisions contained in S.35 of the Code of Civil Procedure
which vest in the Court a discretion in the matter. No doubt, that discretion could
not be exercised capriciously, arbitrarily, unfairly and unreasonably. All the same,
when, on the facts and in the circumstances of the case, the court finds where the
OP(C) NO. 2995 OF 2018
plaintiff in a suit does not succeed fully, some equitable directions in regard to the
burden with respect to the court fee between the parties have to be given by the
Court; it should not be considered to be powerless to do so."
16. In Subramonia Iyer v. Kurian [1990 KHC
558] this Court has observed as follows:
"2. Costs and incidents to all suits shall be in the discretion of the court.
Courts 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 directions for that purpose. But that
discretion is not an arbitrary or unfettered one. It is a judicial discretion to be
exercised on sound judicial principles based on sound reasonings. As Sub-section
(2) of S.35 of the Code of Civil Procedure indicates, the normal rule is that costs
should follow the event and the successful party is entitled to his costs. When there
is a deviation from this rule, the court is bound to assign sound judicial reasons.
The exercise of the discretion is also subjected to such conditions and limitations,
as may be prescribed and provisions of any law for the time being in force. The
object of S.35 in awarding costs to a litigant is to secure to him the expense
incurred by him in the litigation for which the responsibility does not lie on him
and not to make anything in the way of gain of profit over and above the expenses
for maintaining or defending the action, nor to give exemplary damages or smart
money, by way of penalty or punishment on the opposite party. S.35 A and B are
there in those areas. Apart from S.35, the High Court is having wide discretion in
the exercise of its inherent powers to award or disallow costs in suitable cases, if it
finds necessary to do so in the interest of justice".
17. Again in Sanjeev Kumar Jain v. Raghubir
Saran Charitable Trust and Others [2011(4) KLT
966], the Hon'ble Supreme Court has held thus:
OP(C) NO. 2995 OF 2018
"11. xxx xxx The actual realistic cost should have a correlation to costs
which are realistic and practical. It cannot obviously refer to fanciful and
whimsical expenditure by parties who have the luxury of engaging a battery of
high-charging lawyers. If the logic adopted by the High Court is to be accepted,
then the losing party should pay the costs, not with reference to the sub matter of
the suit, but with reference to the fee paying capacity of the other side".
18. On a consideration of Section 35 of the Code of
Civil Procedure and the law laid down in the afore-cited
decisions, it is beyond any pale of doubt that awarding
of cost is the absolute discretion and power of the court,
that too in a realistic and practical manner based on
sound judicial principles and reasonings, and in
proportion to the success and failure and not in a
fanciful and whimsical manner, except in exceptional
circumstances.
19. As already discussed, notwithstanding the court
below partly decreeing the suit for Rs.1,00,00,000/- with
interest and costs, the court below has not considered
the statement of costs filed by the respondents in its
OP(C) NO. 2995 OF 2018
proper perspective, instead has accepted the same in a
mechanical and casual manner, without any application
of mind, and has drawn the particulars of costs in Ext.P3
decree on the plaint valuation, which is erroneous and
unsustainable in law. I hold that the amount ordered as
costs in Ext.P3 is unconscionable, unrealistic and
disproportionate. I am of the definite view that Ext.P2
judgment has been wrongly interpreted by the court
below. There is a clerical error in Ext.P3 decree as
regards the particulars of cost, which is liable to be
corrected under Section 152 of the Code of Civil
Procedure and Article 227 of the Constitution of India.
Hence the original petition is to be allowed.
In the result, the original petition is allowed in the
following manner:
(i) Ext.P6 order is set aside.
(ii) Ext.P4 application is allowed.
OP(C) NO. 2995 OF 2018
(iii) Ext.P.3 decree is modified by directing the 1 st
defendant to pay the plaintiff an amount of
Rs.1,00,00,000/- with interest on the said amount at the
rate of 9.5.% per annum from 15.04.2011 till the date of
decree and thereafter at the rate of 6% per annum till
realisation and proportionate cost on Rs.1,00,00,000/-.
(iv) The Court of the Additional Subordinate Judge,
North Paravur is directed to correct and redraw Ext.P.3
decree, as directed in relief No.(iii) of this judgment and
issue the corrected decree to the parties.
(v) The parties shall bear their respective costs of
this proceeding.
Sd/-
C.S.DIAS,JUDGE
DST/06.07.22 //True copy/
P.A.To Judge
OP(C) NO. 2995 OF 2018
APPENDIX
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE PLAINT IN OS NO.
35/2014 FILED BY THE RESPONDENT
BEFORE THE HONBLE SUB COURT, NORTH
PARAVUR DATED 8.3.2014
EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED
27.8.2016 IN OS NO. 35/2014 OF THE
HONBLE ADDITIONAL SUB COURT, NORTH
PARAVUR
EXHIBIT P3 TRUE COPY OF THE DECREE DATED
27.8.2016 IN OS NO. 35/2014
EXHIBIT P4 TRUE COPY OF THE IA NO. 54/2018 IN
OS NO. 35/2014
EXHIBIT P5 TRUE COPY OF THE OBJECTION DATED
13.3.2018 IN IA NO. 54/2018 IN OS
NO. 35/2014
EXHIBIT P6 TRUE COPY OF THE ORDER DATED
22.3.2018 IN IA NO. 54/2018 IN OS
NO. 35/2014
EXHIBIT P7 COPY OF THE DECREE DATED 3.9.2019
ISSUED BY CONGREGATIO PRO
INSTITUTIS VATAE CONSECRETAE ET
SOCIETATIBUS VITAE APOSTOLICAE.
OP(C) NO. 2995 OF 2018
EXHIBIT P8 TRUE COPY OF THE WORK MEM0 ALONG
WITH THE AFFIDAVIT DATED 13.11.2019
IN EP.NO.190/2016 IN OS NO.35/2014
OF THE HON'BLE ADDITIONAL SUB COURT
NORTH PARAVUR.
RESPONDENTS' EXHIBITS: NIL
