Patna High Court
Ramsaran Das Kashyap vs Kaviraj Basudevanand And Ors. on 8 February, 1957
Equivalent citations: AIR1957PAT498, AIR 1957 PATNA 498
JUDGMENT
1. This is an application under Section 151 of the Code of Civil Procedure for amendment of a decree passed by this Court in First Appeal No. 167 of 1947. The question substantially is one of construction of certain words in the decree which had reversed a decree of the lower court and directed that the plaintiff-appellant "is also entitled to his costs from them (defendants 1 and 3) of this Court as also of the Court below."
2. The circumstances giving rise to this application are as follows: First Appeal. No. 167 of 1947 arose out of a suit instituted by the petitioner on the 29th July 1945 for a declaration that a conveyance executed by defendant No. 1 (respondent No. 2) be adjudged to have been acquired for the benefit of the petitioner and defendant No. 3 (respondent No. 1) and that defendant No. 3 was a trustee of the petitioner in respect of the property in suit.
There were other reliefs of a consequential nature but they are not relevant for the purposes of this application. The subject-matter of the suit was some immovable property and the plaintiff's suit was based on a registered contract dated 12th June 1953 for the sale of the said property to the plaintiff and defendant No. 3 for Rs. 62,000/-. The suit was actually valued at Rs. 62,000/- and an ad valorem court-fee of Rs. 2,325/- was paid thereon.
The suit was dismissed with costs by the Additional Subordinate Judge of Hazaribagh on the 28th February 1947. In the decree which was prepared, plaintiff's costs were specified as Rs. 3,289/2/3. The costs of defendants Nos. 1, 3 and 4 were specified as Rs. 944/5/-, Rs. 1,016/10/9 and Rs. 926/9/6 respectively. Plaintiff's costs included inter alia Rs. 2,325/- which was the value of the court-fee paid and Rs. 910/- as pleader's fee on Rs. 62,000/-. The costs of the three sets of defendants also included the item of Rs. 910/- as pleader's fee in each case on the valuation of the suit.
Against this decree the plaintiff preferred an appeal in the High Court valuing it at Rs. 62,000/-. An ad valorem Court-fee of Rs. 2,325/- was paid on the memorandum of appeal. It appears that during the pendency of the appeal the zamindari property in the suit vested in the State of Bihar under the Bihar Land Reforms Act, in consequence of which the contract sued upon became impossible of performance.
The petitioner thereupon applied for amendment of the plaint deleting all the reliefs claimed in the original plaint and prayed for a decree against defendants Nos. 1 and 3 for recovery of Rs. 10,500/- being part of the consideration money paid under the contract. By an order dated 14th January, 1954, the amendment prayed for was allowed. As a result of the amendment the valuation of the suit was reduced to Rs. 10,500/-.
The petitioner-appellant thereafter applied for refund of the difference of the Court-fee paid on the memorandum of appeal and the Court-fee payable on the reduced valuation of the appeal and by an order dated 30th April 1954 passed by this Court a certificate was granted for refund of the amount of Rs. 1,425/-.
3. By the judgment and decree passed by this Court on 4th May 1954 the plaintiff's appeal was allowed and he was awarded costs of this Court as also of the court below. The order of the Court was as follows:
"Accordingly, the result of the appeal is that it is allowed to the extent that the plaintiff will be entitled to a decree for the recovery of the sum of Rs. 10,500/- with interest at 6 per cent per annum from the date of the institution of the suit as against defendant No. I, Goswami Narhari Giri, and defendant No. 3, Kaviraj Basudevanandji, jointly. The plaintiff is also entitled to his costs from them of this Court as also of the court below."
4. In the decree that was prepared the costs incurred by the plaintiff in the lower court were calculated at Rs. 1,314/2/3. It will be remembered that the amount of the plaintiffs costs entered in the decree of the trial court was Rs. 3,289/2/3. The reduction which was to the extent of Rs. 1,975/- was due to the fact that in the fresh calculation of the costs of the court below the court-fee actually paid on the plaint was ignored and a reduced Court-fee upon the reduced valuation of the plaint as amended was included. There was a corresponding reduction in the amount of pleader's fee calculated upon the reduced valuation.
5. The petitioner contends that the reduction in the court-fee was not justified for the reason that the amendment and the consequent reduction in the valuation of the suit could not affect the costs incurred in the Court below by the plaintiff and the pleader's fee payable upon the original valuation. According to the petitioner since the adjudication in the court below was obtained upon a valuation of Rs. 62,000/- the costs calculated by the court below in its decree could not be altered by reason of the amendment of the plaint to this Court.
It is urged that since the petitioner is entitled to Rs. 3,289/2/3 as costs of court below there is a manifest error in the calculation of the costs of the Court below in the decree prepared in this Court. It is, therefore, prayed that the decree be amended by substituting the words "Rupees Three Thousand two hundred and eighty-nine, two annas and three pies" in place of the words "Rupees One thousand three hundred and fourteen and annas two and pies three only" in the last paragraph of the decree.
6. During the pendency of this application the petitioner filed another application praying alternatively for the issue of a certificate to enable him to obtain refund of the difference between the court-fee paid on the plaint and the court-fee payable on the valuation of Rs. 10,500/-.
7. Mr. K.D. Chatterji, appearing for the petitioner, contends that when the appellate court grants a decree that decree is required only to state the amount of costs incurred In appeal and that so far as the costs in the suit are concerned the amount is taken to be the amount as stated in the decree of the lower court. This Court, if is urged, having allowed the appeal with costs of the court below without any modification, must be deemed to have allowed the entire amount of such costs as specified in the decree of the court below.
In support of his contention learned Counsel has relied upon Rule 35 of Order 41, Civil P. C., and three decisions of the Calcutta High Court, viz., Ram Chunder Sen v. Koomar Doorga Nath Roy, 2 Cal LR 152 (A); Mothoora Mohun Roy v. Hury Kishore Roy, 18 Suth WR 286 (B), and Raghu-nandan Lal v. Rajendra Prosad Narain Singh, 14 Cal WN 556 (C).
8. There is considerable force in the contention raised by learned counsel. Rule 35 (3) of Order 41 which relates to a decree in appeal provides as follows:
"The decree shall also state the amount of costs incurred in the appeal and by whom, or out of what property, and in what proportions such costs and the costs in the suit are to be paid."
Rule 6 of Order 20 lays down how decrees are to be drawn in the trial court. It provides:
"The decree shall also state the amount of costs incurred in the suit, and by whom or out of what property and in what proportions such costs are to be paid."
9. It will be, noticed that so far as the decree in appeal is concerned Rule 35 (3) does not state that the amount of costs in the suit are to be specified in it. In Ram Chunder Sen v. Koomar Doorga Nath Roy (A), their Lordships of the Calcutta High Court have laid down that where & decree of the High Court directed that the respondent (the plaintiff) should pay to the appellants (the defendants) 'the costs incurred by them in the lower court" the costs referred to were those which were specified in the decree appealed against as the costs incurred by the defendants.
It was pointed out that the words "the costs incurred by them in the lower court", although they had been the subject of animadversion in some quarters, happened to be the words that were universally used in the decrees pronouned on the appellate side of the High Court when it gave to the successful party his costs in the lower Court, Then follow these words:
"They are, moreover, the very words which are used in the Code of Civil Procedure when dealing with the Question of such costs. In construing the words we must give them a fair and reasonable meaning, and must not be led away by the hardship of the particular case now before us."
In Mothoora Mohun Boy v. Hury Kishore Roy (B), their Lordships made the following observations.
"Section 360, Code of Civil Procedure does not do more than require the Judge of the Appeal Court to state in his decision by what parties (and in what proportion if necessary) the costs of the original suit are to be paid. He is not bound to go into particulars, or append to his judgment a schedule setting forth the different items which make up the costs of the first Court.
He takes the amount of costs for granted indeed he could not do otherwise and decides who is to pay them. This the judge undoubtedly did, and on further consideration we think that this was all that the law bound him to do."
In Raghunandan Lal v. Rajendra Prosad Narain Singh (C)the question was dealt with thus:
".....The costs (incurred by the defendants) must be the costs as entered in the superseded decree of the first Court. It may be that this view of the law would work hardship on the respondent but they ought to have seen this when the decree of the High Court was prepared....."
10. As we have indicated before the real question in this case is as to the true construction of the words used in the decree of the Court. Neither the appellant nor the respondents raised the question of costs in this Court. The defendants-respondents never brought to the notice of the High Court during the hearing of the appeal that having regard to the amendment effected in the plaint at the appellate stage the amount of plaintiff's costs as specified in the decree of the lower court should be calculated afresh at the reduced rate.
If the respondents had been vigilant it may be that the High Court would have considered this aspect of the matter, although, having regard to the fact that the plaintiff had actually incurred costs on the higher valuation in the Court below, what direction it would have given in the matter is somewhat difficult to speculate.
The fact remains that the matter having not, been expressly brought to the notice of the Court it allowed a decree in the ordinary form. All that the office was required to do was to give full and proper effect to the words used in the Court's direction. This has not been done in the present case and consequently there is a manifest error in the decree as drawn up by the office.
11. A question may arise as to whether the amendment of the plaint allowed by the appellate court has any bearing upon the question. In Surendra Vikram Singh v. Munia Kunwar, AIR 1944 Oudh 65 (D), the suit was at first a declaratory suit and was brought in respect of the entire estate valued at some eleven lacs.
The plaint was subsequently amended in the lower court and it became a suit for possession of property valued at only Rs. 1,66,180/- odd. The application for amendment was not opposed and was allowed unconditionally. In appeal it was contended on behalf of the appellant that as the suit for the whole estate was withdrawn the costs should have been awarded proportionately to success and failure.
It was held that all that happened by reason of the amendment was that the suit ceased to be a suit in respect of the property valued at eleven lacs of rupees and became a suit for property valued at Rs. 1,66,180 odd and consequently the costs were not based on the original valuation of the suit but on the amended valuation. In Raghunath Dass v. Bhagwan Dass, AIR 1946 Lah 6 (E), plaintiff instituted a suit claiming a certain amount on the foot of two mortgage deeds.
After the institution of the suit Act 12 (XII) of 1940 was passed by reason of which the plaintiff became entitled to interest at a rate much lower than that originally claimed in the plaint. In appeal it was contended on behalf of the plaintiff-appellant that he should have been given costs calculated on the claim as originally made on the ground that when he brought his suit, Act No. 12 (XII) of 1940 had not been enacted and therefore he could not be blamed. if he sued for the amount claimed by him in the plaint.
This argument, however, did not find favour with their Lordships and it was hold that the plaintiff could not be awarded costs on a higher claim than was eventually decreed in his favour. Neither of these two authorities is of any assistance to us. As has been pointed out before, this was a matter which could be taker into consideration when the appeal was heard in the High Court.
Since the matter was not agitated and the court gave to the petitioner a decree with a direction that he was to" get his costs of the court below the only thing that was required to be done was to give effect to that direction and the only way in which the office could give effect to that direction was to take the amount of the plaintiff's costs in the court below as stated in the decree of the lower court itself. The decree in so far as it calculates afresh the plaintiff's costs in the lower court on the basis of the reduced valuation is not therefore in accordance with the judgment.
12. Mr. S.C. Sinha, appearing for the opposite party, sought to repel the claim of the petitioner on a different ground altogether. His contention was that in appeal the plaintiff gave up all his original reliefs and introduced a wholly different case by means of the amendment. That being the position, it was argued, the plaintiff now could not be heard to say that he was entitled to" get his costs on the value of the original reliefs.
We are not impressed with this contention. The fact that the amendment was allowed at the appellate stage carried with it a finding by implication that the amendment sought did not have the effect of altering the nature of the claim.
13. In the result, the application must succeed and is allowed. Let the decree be amended by substituting the words "Rupees three thousand two hundred and eighty-nine, two annas and three pies" in place of the words "Rupees one thousand three hundred and fourteen and annas two and pies three only."
14. In view of the order that We have passed the second application filed by the petitioner for the issue of a certificate for refund of the difference between the court-fee paid °n the plaint and the court-fee payable on the reduced valuation becomes infructuous. Nor is there any merit in this application. In paragraph 10 of the original petition the petitioner himself has stated as follows:
"That although the plaint was amended on the 14th of January, 1954, as the adjudication in the trial court was obtained at a time when the value of the subject-matter of the dispute was Rs. 82,000/- on which requisite ad valorem court-fee had been paid, the petitioner could not and did not pray for a refund of any portion of the court-fee paid upon the plaint."
Quite apart from that this Court having already pronounced its judgment in F. A. 167 of 1947 no certificate for refund of the court-fee can now be issued.