Delhi High Court
Smt. Prinda Punchi And Anr. vs Municipal Coporation Of Delhi And Ors. on 11 March, 2005
Author: Mukundakam Sharma
Bench: Mukundakam Sharma, Gita Mittal
JUDGMENT Mukundakam Sharma, J.
1. The present appeal is directed against the judgment and decree dated February 4, 2004 passed by the Additional District Judge, Delhi, in Suit No. 42/2001 (new) [Suit No. 1395/1992 (old)].
2. The aforesaid suit was instituted by the appellants 1 and 2 claiming themselves as owners in possession of the suit property measuring 441 square yards forming part of khasra No. 52/18/2, Village Kishangarh, Tehsil Mehrauli, New Delhi, also known as No 3, Bhawani Kunj, New Delhi. In paragraph 2 of the plaint filed by the appellants it was stated that the suit property is free from any acquisition proceedings and that no notifications had been issued under sections 4 and 6 of the Land Acquisition Act.
It was also stated in paragraph 3 of the plaint that the stand of the defendants, namely, Municipal Corporation of Delhi, Delhi Development Authority, Land Acquisition Collector and Delhi Administration, is that the land in dispute had been acquired under Award No. 80/E-70-71(Suppl.) dated January 9, 1981 and possession of the land was delivered to the D.D.A. by the Delhi Administration on September 23, 1981.
While disputing the aforesaid plea of the defendants it was stated in this paragraph of the plaint that what was acquired under the award was a tract of land of about 1000 ft. from Palam Road leading from Andheria Mor to Palam Airport.
It is, therefore, stated in the plaint that in view of the aforesaid position the plaint was filed as the officers of the defendants had threatened to demolish the suit property and were trying to take forcible possession of the same.
3. In the plaint, based on these averments a decree for declaration was sought in favor of the plaintiffs and against the defendants declaring that the suit premises was free from any acquisition proceedings and that the plaintiffs were the sole and absolute owners thereof. A decree for permanent prohibitory injunction is also sought for in favor of the plaintiffs and against the defendants restraining them from dispossessing, interfering in the possession of the plaintiffs and from demolishing and/or sealing any part of the existing structures on the said land. The prayers in suit read as under:-
Plaintiffs are the sole and absolute owners thereof;
(b)Grant a decree for permanent injunction in favor of the plaintiffs and against the defendants, their officers, servants, agents and representatives from dispossessing, interferring in the possession of the plaintiffs and from demolishing and/or sealing any part of the existing structures at Khasra No. 52/18/2, Village Kishan Garh, Tehsil Mehrauli, new Delhi, and also known as No. 3, Bhawani Kunj, Behind Sector-D, Pocket 2, Vasant Kunj, New Delhi, as shown `red' in the site plan attached to the plain;
(c) Allow costs of the suit;
(d) Pass such further orders as this Hon'ble Court deems just and proper in the facts and circumstances of the case."
The suit was filed in the year 1992. Subsequently, the suit was transferred to the District Courts and renumbered as Suit No. 42/2001.
4. In the aforesaid suit a written statement was also filed by the D.D.A-respondent No. 2/defendant No.2. A preliminary objection was taken by it regarding the maintainability of the suit and seeking dismissal of the suit under the provisions of Order VII Rule 11 of the Code of Civil Procedure on the ground of want of notice under section 80 of the C.P.C. and under section 53B of the Delhi Development Act contending inter alia that no such notice had been issued or served upon the defendant.
On merits it was stated that the land in village Mehrauli bearing the aforesaid khasra number came into existence after consolidation proceedings of village Mehrauli and the aforesaid particular khasra in respect of which the plaint was filed was land which was created over the original khasra Nos. 1128 and 1129 of village Mehrauli respectively which had already been acquired under Award No. 80-E/70-71(Suppl). It was further stated that its possession was also handed over to the D.D.A as vacant land by the Delhi Administration on September 23, 1981. It was also pleaded that a notification under section 22(1) of the D.D.Act was issued on November 30, 1981 vesting the land in the D.D.A. As such, it was contended that the possession of the land was handed over to the D.D.A. and the same is under the control of the D.D.A. It was stated specifically that the aforesaid disputed land should be treated as acquired land as khasra Nos. 1128 and 1129 respectively in place of which the aforesaid khasra No. 52/18/2 has been given, had already been acquired.
5. The Union of India through the Land Acquisition Collector and the Delhi Administration, who were arrayed as defendants 3 and 4 and who are also the respondents herein, also filed their written statements contending inter alia that the aforesaid land which is suit land stood acquired and compensation paid to the recorded owners. These defendants-respondents also submitted that the land stood acquired under the aforesaid award dated January 9, 1981. Therefore, the appellants/plaintiffs were stated to bencroachers of the government land as per their records.
6. On the pleadings of the parties, the following seven issues were framed on August 17, 2001:-
"1. Whether the suit of the petitioner is not maintainable for want of notice under section 53B of D.D. Act?
2. Whether the suit is not maintainable as alleged in para 2 of the written statement of defendant No.2?
3. Whether the suit is properly valued for the purpose of court fees and jurisdiction?
4. Whether the plaintiff has right, title or interest in the land in question, if so, its effect?
5. Whether the suit is barred under Order 7 Rule 11 CPC as alleged?
6. Whether the notice under section 80 CPC was served upon the defendants, if not, its effect?
7. Whether the plaintiff is entitled for a decree of declaration and permanent injunction, as prayed in the suit?"
7. Out of the aforesaid issues, issues pertaining to maintainability were treated as preliminary issues and it was so ordered on August 17, 2001. Consequently issues No. 1 and 6 were treated as preliminary issues and arguments were heard on the said issues by the learned trial court. After conclusion of the arguments, by his judgment and decree dated February 4, 2002, the learned Additional District Judge held that the aforesaid suit of the plaintiffs was not maintainable for want of mandatory notice both under section 80 of the CPC as also under section 53B of the D.D.Act. The suit was dismissed as such leaving the parties to bear their own costs.
In the said judgment the trial court held that not only a decree for injunction was sought for by the plaintiffs in the suit but also a relief of declaration is also claimed which cannot be accepted as urgent or immediate relief and, therefore, the plaintiffs were required to issue mandatory notice under section 80 CPC.
It was also held that notice under section 53B of the D.D. Act should have been issued as there is no provision of any waiver in respect of issue of such notice. In the light of the aforesaid conclusions arrived at by the learned trial court it was held that since no notice was issued both under section 80 C.P.C. and under section 53B of the D.D. Act as required to be served on the defendants/respondent. Therefore, the suit was held to be not maintainable being hit by the provisions of section 80 of the C.P.C. and section 53B of the D.D. Act and, therefore, the suit was dismissed.
8. The appellant has filed the present appeal aggrieved by this judgment and decree dated 4th February, 2002. After notice was issued on the appeal, an order was passed on 20th April, 1992 directing for maintenance of status quo in respect of the suit property. Subsequently, by an order passed by the Court, the name of the M.C.D. was struck off from the array of the respondents as it was held to be not a necessary party. It was held that the land did not fall within the jurisdiction of the Municipal corporation of Delhi and it fell within the jurisdiction of the D.D.A. who is also a respondent and, therefore, the name of the M.C.D. was struck off from the array of parties.
During the pendency of the aforesaid appeal, applications were also file for substitution of the name of appellant No.2 who died during the pendency of the appeal and also for amendment in memorandum of appeal.
9. The respondents have contested the appeal contending inter alia that the appeal is not maintainable and is required to be dismissed. At one stage a request for adjournment was made by one counsel appearing for the appellant No.2 without informing the counsel for the other side. On scrutiny of the record it was later on found that he had not filed any power of attorney. It is contended that the suit has been filed claiming that the appellant No.2 was the original owner of the suit property from whom the appellant No.1 had purchased the property through a power of attorney.
In this Court the present appeal is filed by appellant No.1 only. The affidavit is filed by her alone although the name of appellant No.2 is also shown in the memo of parties. Signature of appellant No.2 also does not appear on the takalatnama or any where else. Only the appellant No. 1 has signed and verified the plaint and the replication before the trial court. No such pleas as made here are forthcoming in the plaint.
10. We have heard the learned counsel appearing for the parties on the application as also on the appeal. We have been taken through the records of the case. Counsel appearing for the appellants has drawn our specific attention to a judgment of this court in Yashod Kumari and Anr. v. MCD and Ors., . The said decision, according to the counsel, fully covers the present appeal, as according to learned counsel, the same issue which arises for consideration herein, namely, that the suit was not maintainable in the absence of notices under sections 80 CPC and 53B of the D.D. Act., was also the plea which was raised and decided in the said case.
11. Counsel appearing for the respondents have, however, drawn our attention to the specific provisions of section 80 CPC and also to the provisions of section 53B of the D.D. Act. The counsel has also taken us through the documents placed on record and the application dated April 16, 1992 filed by the appellant under section 80(2) of the C.P.C. Perusal thereof shows that the appellant was aware of the requirement of law. It is stated therein that the Union of India is a formal party and leave is sought to institute a suit without service of the statutory notice. There is no provision for such leave under section 53B of the Delhi Development Act with which we are concerned.
12. A copy of the Award No. 80-E/70-71(Suppl) dated January 9, 1981 is placed on record. We have perused the said document as reliance was placed on the said document by counsel appearing for both the parties. According to the counsel appearing for the appellants, the aforesaid khasra number covering the suit property does not find mention in the award wherein the khasra numbers and the area of land are specifically mentioned. Having carefully perused the said document, we find that khasra No. 1128 and khasra No. 1129 find mention in the said award. The respondents' specific case is that the suit property is covered by the aforesaid khasra No. 1128 and khasra No. 1129. It is also the specific case of the respondents/defendants and also proved from the records that khasra No. 52/18/2 was created over the original khasra No. 1128 and 1129 of the village Mehrauli and the same came into existence after consolidation proceedings of village Mehrauli. The aforesaid award was passed in respect of land measuring 4820 bighas of village Mehrauli.
13. We find that a notification under section 4 of the Land Acquisition Act was issued in respect of the said land by the Delhi Administration on January 23, 1965 and a notification under section 6 of the Land Acquisition Act was issued on December 7, 196 for an area of land measuring 4615 bighas and 2 biswas. The aforesaid land was acquired by the Government for the public purposes, namely, for the planned development of Delhi. The aforesaid award was passed on January 9, 1981 and possession of the said land was taken over by the State Government and handed over to the D.D.A. through the Land and Building Department on September 23, 1981.
The suit came to be filed in the year 1992 seeking for a decree of declaration and also for permanent injunction.
14. It is also clear and apparent from prayer (a) of the plaint that the plaintiffs were aware of the acquisition proceedings by which the suit property stood acquired and, therefore, they are in a manner challenging the said acquisition proceedings and the award passed therein in the present suit which cannot be done which is the settled position of law in terms of the decisions of the Supreme Court to which references are made and observations made therein are extracted hereinbelow.
15. The legal position in respect of taking possession by the acquiring authority and re-entry by the owner or occupancy by the owner thereafter is no longer res integra. This Bench in an earlier judgment dated December 17, 2004 rendered in R.F.A. No. 58 of 2004, entitled Om Prakash and Anr. v. Delhi Development Authority, has observed and held as under:-
"14. In view of the challenge by the appellant to the possession report of the defendant, it would be useful at this stage to advert to the manner in which possession is taken by the authorities pursuant to Awards made under the Land Acquisition Act, 1894. It has been held by the Supreme Court as well as this Court that drawing up of a panchnama/possession report would be a valid method of taking possession. In a judgment entitled Balwant Narayan Bhagde v. M.D. Bhagvat and Ors., the Apex Court has stated 22 as under:
"22. It would thus be seen that a symbolical or formal delivery of possession as understood in law has the effect of dispossessing the judgment-debtor from his right or interest in the property. It does not dispossess the unactual possession in his own right not liable to be evicted under the decree or in pursuance of the auction sale. A symbolical or formal delivery of possession against the judgment-debtor is giving of actual possession of the property in the eye of law and has effect of dispossessing him although as matter of fact he may have succeeded in resuming back possession as before shortly after dispossession.
"25.Unless possession is taken by the written agreement of the party concerned the mode of taking possession obviously would be for the authority to go upon the land and to do some act which would indicate that the authority has taken possession of the land. It may be in the form of a declaration by beat of drum or otherwise or by handing a written declaration on the spot that the authority has taken possession of the land. The presence of the owner or the occupant of the land to effectuate the taking of possession is not necessary. No further notice beyond that under Section 9(1) of the Act is required., When possession has been taken, the owner or the occupant of the land is dispossessed. Once possession has been taken the land vests in the government."
" It is seen that the entire gamut of the acquisition proceedings stood completed by 17.4.1976 by which date possession of the land had been taken. No doubt, Shri Parekh has contended that the appellant still retained their possession. It is now well settled legal position that it is difficult to take physical possession of the land under compulsory acquisition. The normal mode of taking possession is drafting the panchnama in the presence of the panchas and taking possession and giving delivery to the beneficiaries is the accepted mode of taking possession of the land. Subsequent thereto, the retention of possession would tantamount only to illegal or unlawful possession."
16. The aforesaid decisions were followed by a Division Bench of this Court in Puran Singh and Ors. v. Lt.. Governor, Delhi, (1999) 78 DLT 412.
" In such a case when the land has been acquired, award made, compensation given and thereafter physical possession of the land has been taken, it would not be permissible for the respondents herein to find fault with the process of taking possession, that too in collateral proceedings, on the alleged ground of non-completion of certain formalities. Even if we assume that there were any irregularities or non-completion of any formality, no right would vest in favor of the respondents herein. Non-compliance of any technicality would not render the factual physical possession as illegal when the respondents herein had accepted the physical possession of the DDA. In so far as legal possession is concerned, as per the mandate of Section 16 of the Land Acquisition Act once award is passed the land vests in the State free from all circumstances. In the present case the award No.205/86-87 was passed in respect of the land in question, and therefore, the legal possession in any case, vests in the State absolutely free from all encumbrances. This is the legal position as conclusively been held by the Supreme Court in the cases of: (1) Satinder Prasad and Ors. v. State of UP, , (2) H.M. Kelogirao v. Government of AP, , (3UP Jal Nigam v. Kalra Properties, . So much so as even the sumbolic possession is sufficient compliance in the eyes of law. [Refer: Brahm Sarup and Ors. v. The State of Haryana and Ors., , and M/s Paramount Food corporation v. Delhi Development Authority and Ors., . was any specific provisions connected as to how the possession has to be taken. Under the Code of Civil Procedure specific provisions have been enacted for taking possession. If no provision is made for the mode of taking possession, non-compliance with maintenance of record by the Halqua Patwari under Section 110 of the Delhi Land Revenue Rules can hardly be ground to vitiate the legitimate exercise undertaken by the acquisition authority. The records maintained by the Halqua patwari only for the purpose of revenue.
We find force in the aforesaid arguments. In view of the aforesaid legal position, specious plea of the respondents herein to the effect that the possession of the land was not taken in a legal manner in the present case, is either available not accepted."
18. The Apex Court in the case of Executive Engineer Jal Nigam Central Stores Division U.P. V. Suresha Nand Juyal, , also considered the question of symbolic possession taken by the Officers."
16. As a result of taking of possession, the land in question statutorily vests in the acquiring authority.
17. We may also appropriately refer to be decision of the Supreme Court in S.P. Subramanya Shetty and Ors. v. Karnataka State Road Transport Corporation and Ors., . In paragraph 4 of the said judgment the Supreme Court observed as follows:-
" In view of the settled legal position that the notification had become final and the proceedings had attained finality, the civil suit was not maintainable. This Court has repeatedly held that a civil suit relating to acquisition proceedings is no maintainable and by implication, cognizance under Section 9 CPC is barred. The Court cannot issue mandatory injunction against the State to denotify the acquisition under Section 48. Therefore, the question of granting an injunction against the authority from proceedings in accordance with the law does not arise. The High Court, therefore, was right in refusing to grant injunction. The Court cannot compel the Government to withdraw the notification under section 4(1) of the Act. It is for the covernment to consider the same on merits keeping in mind subservience of public interest. In view of the fact that notification was upheld by this Court and has become final, the Government cannot retract from the steps taken."
18. Reference may also be made to the decision of the Supreme Court in Laxmi Chand and Ors. v. Gram Panchayat, Kararia and Ors., . In the said decision it was observed by the Supreme Court as follows:-
"..... The procedure contemplated under the Act is a special procedure envisaged to effectuate public purpose, compulsorily acquiring the land for use of public purpose. The notification under Section 4 and declaration under Section 6 of the Act are required to be published in the manner contemplated there under. The inference gives conclusiveness to the public purpose and the extent of the land mentioned therein. The award should be made under Section 11 as envisaged there under. The dissatisfied claimant is provided with the remedy of reference under Section 18 and a further appeal under Section 54 of the Act. If the Government intends to withdraw from the acquisition before taking possession of the land, procedure contemplated under Section 8 requires to be adhered to. If possession is taken, it stands vested under Section 16 in the State with absolute title free from all encumbrances and the Government has no power to withdraw from acquisition.
It would thus be clear that the scheme of the Act is complete in itself and thereby the jurisdiction of the civil court to take cognizance of the cases arising under the Act, by necessary implication, stood barred. The civil court thereby is devoid of jurisdiction to give declaration on the invalidity of the procedure contemplated under the Act...."
19. We may also appropriately refer to the afore stated decision in Om Prakash's case (supra) wherein this Court had also observed as under:-
"22. Possession having been taken, as per section 16 of the Land Acquisition Act, land vests in the authorities free from all encumbrances. This question has been considered in several decisions of this Court which we hereby discuss.
23. The Court has held that in such a situation the legal position is that the land owner had no right in the land after acquisition is complete. The role and right of a beneficiary of acquisition proceedings is settled law: [Ref: (1998) 4 Shis being the position in law, the land stood vested in the respondents to the exclusion of all persons claiming title thereto.
20. Since the aforesaid suit came to be filed after the issuance of the notifications under sections 4 and 6 of the Land Acquisition Act and after passing of the award and also after taking over possession of the suit property by the State Government and the Delhi Development Authority, no civil suit could have been filed by the appellants seeking for the reliefs as claimed in the present suit in respect of the land which is the subject matter of the acquisition in view of the provisions of the Land Acquisition Act and the position of law stated above.
21. It would be useful to place a comparison of the statutory provisions under different enactments wherein an obligation to serve a prior notice has been imposed against a person seeking filing of suit against the statutory authorities.
Section 80 of CPC Section 53 of DD Act Section 478 of DMC Act
80. Notice.- (1) (Save as otherwise provided in sub-section (2), no suit (shall be instituted) against the Government (including the Government of the State of Jammu and Kashmir) or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been (delivered to, or left at the office of-
2. A suit to obtain an urgent or immediate relief against the Government (including the Government of the State of Jammu and Kashmir) or any public officer in respect of any act purporting to be done by such public officer in his official capacity, may be instituted, with the leave of the Court, without serving any notice as required by sub-section (1); but the Court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit:
53-B Notice to be given of suits- (1) No suit shall be instituted against the Authority, or any member thereof, or any of its officers or other employees, or any person acting under the directions of the Authority or any member or any officer or other employee of the Authority in respect of any act done or purporting to have been done in pursuance of this Act or any rule or regulation made there under until the expiration of two months after notice in writing has been, in the case of the Authority, left at its office, and in any other case, delivered to, or left at the office or place of abode of, the person to be sued and unless such notice states explicitly the cause of action, the nature of relief sought, the amount of compensation claimed and the name and place of residence of the intending plaintiff and unless the plaintiff contains a statement that such notice has been so left or delivered.
2. No suit such as is described in sub-section (1) shall, unless it is a suit for recovery 478. Notice to be given of suits.- (1) No suit shall be instituted against the Corporation or against any municipal authority or against any municipal officer or other municipal employee or against any person acting under the order or direction of any municipal authority or any municipal officer or other municipal employee, in respect of any act done, or purporting to have been done, in pursuance of this Act or any rule, regulation or bye-law made there under until the expiration of two months after notice in writing has been left at the municipal office and, in the case of such officer, employee or person, unless notice in writing has also been delivered to him or left at his office or place of residence, and unless such notice states explicitly the cause of action, the nature of the relief sought, the amount of compensation claimed, and the name and place of residence of the intending plaintiff, and unless the plaint contains a statement that such notice has been so left or delivered.
Provided that the Court shall, if it is satisfied, after hearing the parties, that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with the requirements of sub-section (1).of immovable property or for a declaration of title thereto, be instituted after the expiry of six months from the date on which the cause of action arises.
2. Nothing contained in sub-section (1) shall be deemed to apply to a suit in which the only relief claimed is an injunction of which the object would be defeated by the giving of the notice or the postponement of the institution of the suit.
2. No suit, such as is described in sub-section (1), shall unless it is a suit for the recovery of immovable property or for a declaration of title thereto, be instituted after the expiry of six months from the date on which the cause of action arises.
(3) Nothing in sub-section (1) shall be deemed to apply to a suit in which the only relief claimed is an injunction of which the object would be defeated by the giving of the notice or the postponement of the institution of the suit.
22. A bare perusal of the statutory provisions shows that the legislature had carefully worded the statutory provisions keeping in view the spirit, indentment and purpose of the discretion conferred to waive the requirement of the statutory notice Keeping in view the exigencies of the matter, Section 53B of the Delhi Development Act knows of no exemptions or waiver. The aforesaid provision of section 53B was enacted long after enactment of the provision of sub-section (2) of section 80 of the CPC. The legislature was aware of the said provision of sub-section (2) of section 80 CPC when section 53B of the Delhi Development Act was enacted. Consciously the legislature did not incorporate in section 53B of the Delhi Development Act any exception as that of sub-section (2) of section 80 CPC. Therefore, it would not be appropriate to include and add such provision as that of sub-section (2) of section 80 CPC into the provision of section 53B of the Delhi Development Act. On the contrary the legislature has consciously referred to a suit for declaration of title in Section 53B(2) of the statute. It is settled law that a statute has to be enforced as it exists. No words can be imported into the specific language used by the legislature.
23.The law of interpretation of statutes clearly provides that there can be no addition or subtraction to the language of a statute when the same is clear and unambiguous. There is no unambiguity or uncertainty in the language of section 53B and, therefore, there is no scope of adding any words to the said existing provision in the statute.
24. Section 80(1) CPC provides that where a suit is filed against the Government, then it is mandatory to issue and serve a notice under section 80 CPC before filing of the suit. There is, however, an exception provided to the aforesaid general provision which is provided under sub-section (2) of section 80 CPC that if any person is claiming any urgent or immediate relief against the Government, he or she could institute the said suit with the leave of the court and without serving a notice as required under sub-section (1). Therefore, what is required to be proved is an urgent or immediate relief.
The appellants herein have sought for a declaration and also have challenged, in an oblique manner, the acquisition proceedings and the award passed in the year 1981. Therefore, there was no urgent or immediate relief sought for by the appellants in the plaint which was filed in the year 1992.
In the instant case both the parties are asserting conflicting claims with regard to title of the land and as such the declaration which the plaintiff has sought is a pre-requisite to the grant of any injunction in the plaintiff's favor.
25. As per statutes, before the filing of any suit, notices to the Union of India under section 80 of the Code of Civil Procedure and to the Delhi Development Authority under section 53B of the Delhi Development Act were required to be issued. The appellant has admittedly not done so.
26. We find that decision in Yashod Kumari's case (supra), which is relied upon by the counsel appearing for the appellants in support of the aforesaid contention, is distinguishable on the facts of the present case. Here is a case where the land already stood acquired by the Government and possession also taken over. In law, the land stood vested in the statutory authorities. The appellant was disputing title and therefore had to bring a suit for declaration. Besides, there is no provision in section 53B of the Delhi Development Act for leave of court to bring a suit without any notice like that of under section 80(2) of the C.P.C. The suit which was filed was seeking a decree of declaration as also mandatory injunction. When a suit seeking a decree of declaration is instituted, notice has to be given under section 80 CPC as also under section 53B of the Delhi Development Act. Furthermore, in the instant case the defendants had raised a specific objection with regard to want of the statutory notice. Issue No.1 was framed by the trial court on this issue which was also directed to be treated as a preliminary issue. As such, there could be no plea of waiver of a notice.
27. In the facts of the present case it cannot be said that there could be waiver of any such notice as provided for under section 53B of the Delhi Development Act. Objection was taken and issue was framed thereon.
28. In the light of the aforesaid discussion, we hold that the learned Additional District Judge was justified in holding that the suit was not maintainable and he rightly dismissed the suit. We accordingly find no merit in this appeal and the same is dismissed with costs.