Andhra HC (Pre-Telangana)
Narayanam Venkata Chalamaji vs Bairundan Amarsingh on 10 October, 2006
Equivalent citations: 2007(1)ALD323, 2007(1)ALT199
ORDER V. Eswaraiah, J.
1. All these three civil revision petitions have been filed under Section 22 of Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act (hereinafter referred to as "the Act") by the same landlord namely Narayanam Venkata Chalamaji (hereinafter referred to as "the landlord") against his three tenants. The Rent Control Cases filed by the landlord in R.C.C. Nos. 34, 35 and 36 of 1996 on the file of the Principal Junior Civil Judge-cum-Rent Controller, Vizianagaram on same and similar grounds, seeking eviction of different tenants in occupation of three mulgies of the building bearing No. 8-1-46, M.G. Road, Vizianagaram under Sections 10(2)(i), 10(3)(c), 10(2)(v), 10(3)(a)(iii)(b) of the Act for the wilful default, the tenants secured alternative accommodation and bona fide requirement of the landlord to commence the business were allowed by separate orders dated 27-7-2000 only on the ground of bona fide requirement of the landlord for his personal use and occupation. Aggrieved by the said orders of the Rent Controller, the tenants filed Rent Control Appeals on the file of the Senior Civil Judge-cum-Rent Control Appellate Authority, Vizianagaram in R.C.A. Nos. 3, 4 and 5 of 2000 and the Rent Control Appellate Authority set-aside the orders of the Rent Controller, while allowing the appeals and dismissed the eviction petitions. Aggrieved by the said order, these three civil revision petitions have been filed by the landlord.
2. As the landlord is one and the same and though the three tenants are different persons who are in occupation of similar portions of the schedule premises in question and the grounds seeking eviction are also similar, the facts in one case i.e., R.C.C. No. 34 of 1996 are suffice to appreciate the rival contentions of both parties.
3. It is the case of the landlord that he is the absolute owner of the building bearing No. 8-1-46, M.G. Road, Vizianagaram and petition schedule shop is let out to the tenant on a monthly rent of Rs. 600/-per month and the tenant is a chronic defaulter in payment of rents and he committed wilful default of payment of rents. The landlord has no other non-residential building in Vizianagaram except the petition schedule building. The landlord is carrying on business in lodging namely Geetha Lodge in part of the building. The landlord requires the building for his personal use and occupation for the use of his son Seetharamayya Setty for establishing Computer Training Centre and also for doing business in Computers and Spare Parts. The portion occupied by the tenants is suitable for doing the said business and the landlord required the said three shop rooms. The landlord demanded the tenants to vacate and handover vacant possession of the shop rooms, but they did not vacate the premises. It is further alleged that the landlord is doing business of lodging in a portion and the said portion is not suitable for establishing a computer and training center and computer shop etc., therefore, the landlord requires the schedule premises for additional accommodation for the purpose of doing business in computer training center and computer sales counter and therefore, the landlord is entitled for possession of the premises. It is further alleged that the tenants shifted their business from the shops and doing business in some other place and as the tenants secured alternative accommodation and actually doing business there, therefore, they have been ceased to occupy and carry on the business in the schedule premises for more than a period of four months, they are not entitled to continue in the schedule premises. Therefore, they are liable to be evicted from the schedule premises. It is further alleged that the tenants have sublet part of the portion leased out to them and therefore, they are liable to be evicted on the ground of subletting also. It is further stated that the tenants are having their own buildings and they leased out the same to the tenants on higher rent and as they have got alternative accommodation, they are liable to be evicted.
4. The tenants filed a counter before the Rent Controller. The title of the landlord is not disputed. The relationship of the landlord-tenant and the monthly rent payable is also not in dispute. It is stated that the tenants are not the defaulters and they never committed default in payment of rents. It is stated that the landlord collected rents even after receiving the notice and they have been regularly paying rents and there was no default, much less wilful default. It is stated that the landlord is not at all required the said building for his personal use and occupation for establishing computer training center of his son and also for the business in computers. The landlord does not bona fidely require the said building for his personal use and occupation for establishing the computer training center for his son and for business in computers. Eviction proceedings have been initiated only to enhance the rents. In fact, the landlord does not require the premises for commencement of business in computer training and computer sales. It is further stated that the landlord is doing business in lodging and the contention that the portion of building is no suitable for establishing computer training center and computer shop etc., and the landlord requires the petition schedule building for additional accommodation for the purpose of doing business in computer training center and computer sales counter is denied. It is stated that the two pleadings taken by the landlord are counter to each other as in one breath, the landlord says that he requires the petition schedule building as additional accommodation, while in other breath, he says that he requires the same for establishing computer training center and computer sale counter. The computer training center or computer sale counter can be established in the premises, where the landlord is carrying on business in lodging, which is in the upstair portion of the petition schedule building and other leased out premises in the same building. It is stated that if the tenants are vacated from the building, it would cause more hardship and they will be at more disadvantageous position and the relative hardship is more to the tenants than the requirement of the said premises for the personal occupation of the landlord. It is stated that the tenants never shifted their business and they have not secured any alternative accommodation. They have not sublet any of the portion leased out to them and they have been carrying on their business in the same leased out portions. Therefore, the tenants are not ceased to occupy the premises and the landlord is not entitled to seek eviction on any of the grounds.
5. Sri Vedula Venkataramana-the learned Counsel appearing for the landlord fairly submits that as both the Courts below concurrently held that there was no any wilful default in payment of rents and the tenants have not secured any alternative accommodation and they have not sublet and that they have not ceased to occupy the premises, therefore, the civil revision petitions are not pressed on those grounds and contended that the civil revision petitions have been filed mainly aggrieved by the orders of the Rent Control Appellate Authority in reversing the finding of the Rent Controller as the said premises are bona fidely required to commence the business of computer training center and computer sales counter under Section 10(3)(b)(iii)(b) of the Act.
6. Therefore, the only question that arise for consideration in all the three civil revision petitions as to whether the landlord requires the said non-residential shop for his bona fide purpose to commence the business?
7. The relevant provisions of Section 10(3)(a)(iii)(b) of the Act is as follows:
A landlord may subject to the provisions of Clause (d), apply to the Controller for an order directing the tenant to put the landlord in possession of the building;
in case it is any other non-residential building, if the landlord is not occupying a non-residential building in the city, town or village concerned which is his own or to the possession of which he is entitled whether under this Act or otherwise:
for the purpose of a business which in the opinion of the Controller, the landlord bona fide purposes to commence:....
Provided further that, where a landlord has obtained possession of a building under this clause he shall not be entitled to apply again under this Clause,....
in case he has obtained possession of a nonresidential building for possession of another non-residential building of his own.
8. The prima facie reading of Section 10(3)(a)(iii)(b) of the Act, goes to show that a landlord is entitled to apply to the Controller seeking eviction of the tenant in respect of a non-residential building if he is not occupying any nonresidential building of his own for the bona fide purpose of commencing business. Once he seeks eviction of a non-residential building, for the bona fide purpose to commence the business, he is not entitled to seek eviction of another non-residential building of his own. The difference between Section 10(3)(a)(iii)(b) and Section 10(3)(c) of the Act is that under Section 10(3)(c) of the Act, if the landlord is in occupation of only a part of the building whether residential or non-residential, he is entitled to seek eviction of the tenant in occupation of whole or any portion of the remaining part of the building, if he requires the said portion for his additional accommodation either for residential or for the purpose of a business which he is carrying on, as the case may be. If he is residing in a building and if the said building is not sufficient, he can seek the portion in occupation of the tenant for the additional requirement of his residential purpose and if he is carrying on the business, he can also seek the portion in occupation of the tenant for the additional accommodation of his business purpose.
9. Under Section 10(3)(c) of the Act, the building must be the same seeking for additional accommodation, but under Section 10(3)(a)(iii)(b), the condition precedent is that the landlord shall not have any other non-residential building of his own for the bona fide purpose to commence a business. The intendment of the said provision appears to be that the landlord is entitled to carry on the business in respect of one of his non-residential building. If he is already in occupation of a non-residential building and carrying on business, the question of bona fide purpose to commence fresh business does not arise. It appears that the intention of the Legislature is to give a right to the landlord to occupy his own building for carrying on the business or to commence any business in respect of one non-residential building of his own and a residential building for his self occupation. If the residential building is not sufficient, he can seek for additional accommodation. If any residential building in occupation of the landlord is not sufficient in which he is residing, he can seek another residential building for his own occupation. If the landlord is carrying on business and if the accommodation is not sufficient, he can seek the other portion of the building in occupation of the tenant for his additional requirement. But, the prima facie reading of the section goes to show that if the landlord is already in occupation of a non-residential building and carrying on lodging business and apart from the said lodging business, the landlord is not entitled to seek eviction of the tenant for the purpose of carrying on some other business. He can seek eviction either under Section 10(3)(a)(iii)(b) or under Section 10(3)(c) of the Act, but he cannot seek eviction on both grounds.
10. The following is the relevant evidence available on record:- The landlord was examined as PW. 1 and he stated that he is the owner of the building bearing Door No. 8-1-46, M.G. Road, Vizianagaram. The premises in occupation of the tenant is in the ground floor and he is running the lodging business in the first and second floors. The building in occupation of the tenant required for his computer training centre and also for business in computers. There are no buildings except the petition schedule building in M.G. Road, Vizianagaram. It is stated that the eviction petition has been filed on the ground that the building is required for his personal use and occupation. It is stated that rent has been enhanced from Rs. 500/- to Rs. 600/- per month in the year 1995 and he has taken Rs. 30,000/-from the tenant as loan under letter dated 1-8-1995, but the details of the amount have not been mentioned in the said letter and the rents are being paid regularly and there are no arrears of rents. After enhancing the rent in the month of August, 1995 eviction petition has been filed in the month of December, 1996. His second son joined in M.C.A., in Orissa in 1995 July and the duration of course is three years. His elder son is working in Hyderabad and his third son is prosecuting M.B.A., and also learning computers having joined in APTECH in October 1997. It is stated that he has displayed a board stating that he will be letting out the up-stair portion of the said building, but later, he removed the TO-LET board as the water facility is improved and he is continuing the lodging business. It is stated that the computer business does not require any water except for drinking purpose. The said business can be established in upstairs, but it will be difficult to the visiting students and therefore, it is feasible to establish the business in ground floor. It is stated that the amount of Rs. 30,000/-borrowed from the tenant will be discharged within five years from the date of its borrowing and he is prepared to refund the said balance amount to the tenant if the tenant vacates and hand over the vacant possession. He further admitted that the ground floor situated on the North-East corner was let out to N. Madhava Krishna and the size of the shop let out to him is 10 × 20 feet. The said shop was let out to said Madhava Krishna on a monthly rent of Rs. 2,250/- and the same has been enhanced to Rs. 3,250/- in the year 1995. It is stated that the said shop is not sufficient for his personal use and occupation and therefore, he leased out the said shop. He further admitted that the up-stair portion was also given to one Nooka Raju for his residential purpose temporarily, who is in occupation of the said portion since 14 months. The landlord is residing in another residential building purchased by his mother. The up-stair portion over the shop room is also let out to Madhava Krishna, which is a portion of Geetha Lodge, which is in occupation of the landlord. He (landlord) is only an adopted son to his mother. Up-stair portion of the petition schedule building, where he is doing lodging business is having 14 single rooms and four double rooms. It is not possible to carry on computer business in the up-stair portion without demolishing the rooms.
11. The son of the landlord was examined as PW. 3 on 11-8-1998. He stated that he is studying M.C.A., at Berhumpur University. He is studying final year and presently, he is doing project work at Bangalore and he will be completing studies in MCA., within three months and he is intending to establish a computer centre in Vizianagaram in three shops of the petition schedule building covered by R.C. Nos. 34 to 36 of 1995. It is stated that he do not know the size of Geetha Lodge run by his father and the actual size of the petition schedule building and all the three shops put together is sufficient to establish a computer centre. It is incorrect to state that the Eastern side portion of the ground floor building leased out to another tenant is sufficient to establish computer business.
12. The tenant is examined himself as RW. 1 and he stated that the petition schedule building is situated on the main road of Vizianagaram. Recently, the Eastern side portion of the building was fallen vacant and it was let out on a monthly rent of Rs. 3,000/- by the landlord. The landlord is having lodging business in up-stair portions, which is having two floors. Apart from the lodging business, the landlord also leased out ground floor portion and up-stair portion to a tenant. It is stated mat the landlord does not bona fidely require the petition schedule building for his personal use and occupation. Subsequent to the filing of the Rent Control Case, the up-stair portion of the building situated in Kotha Agraharam had fallen vacant, but the landlord is not occupying the same and if really he wants to establish computer business for his son, he can establish the same in the portion at Kotha Agraharam building, but the main object of the landlord is only to enhance the rents, but not for bona fide purpose to commence business by the landlord.
13. On the said evidence, the Rent Controller held that the landlord bona fidely required the said partitions in occupation of the tenants for establishing a computer center by his second son and also opening a computer sales counter and the tenants have failed to prove the hardship that will be caused to them in case the eviction is ordered, accordingly held that the landlord is entitled to vacate the tenants from the petition schedule shop rooms on the ground that the landlord bona fidely require the said premises for his personal use and occupation.
14. The Rent Appellate Court held that the second son of the landlord has not completed his M.C.A., and he was in first year only and the duration of the course is three years, therefore, the requirement of the landlord was only a desire to commence the business by his son and mere desire of the landlord is not sufficient to constitute the bona fide requirement and accordingly held that the landlord is not entitled to evict the tenants from the petition schedule premises on the ground of bona fide requirement and accordingly, allowed the appeals.
15. Sri Vedula Venkatarama-the learned Counsel appearing for the landlord submits that the Appellate Court should have seen that the bona fide personal requirement of establishing a computer centre for the benefit of the son of the landlord who was studying M.C.A., cannot be said to be mere desire of the landlord, but it is his bona fide personal requirement and the said requirement entitles him to evict the tenants. It is further stated that the landlord's bona fide personal requirement of a non-residential premises cannot be defeated merely because the landlord is having another non-residential premises if the building sought to be evicted is more suitable. It is further stated that the landlord is entitled to seek eviction of the tenant from a non-residential building even if he is already in occupation of another nonresidential building if the another nonresidential building is not suitable and the non-residential building in occupation of the tenant is more suitable.
16. The learned Counsel advanced the said arguments at the revisional level alone, but that was not the pleading or evidence adduced before the Rent Controller. No doubt, as per the judgment of the Supreme Court in the case of Boorgu Jagadeshwaraiah and Sons v. Pushpa Trading Co. 1998 (3) ALT 26 (SC), if the non-residential building in possession of the landlord is not suitable to his business needs, having regard to the aspects of quality, size and suitability of the building which have to be taken into consideration and if the non-residential portion in occupation of the landlord did not serve the purpose of his need of setting up of a new business, he is entitled to seek eviction of the tenant if the portion in occupation of the tenant is more suitable, convenient and sufficient in order to carry on the business, but that is not the pleading at all in the instant case. The averments made in the eviction petition by the landlord is that he is already in occupation of a non-residential building consisting of 14 single rooms and 4 double rooms in Geetha Lodge and in addition to the said business, he wants to commence a new business for his son. Though there is no bar for seeking eviction of a non-residential building in occupation of the tenant, even if the landlord is in occupation of a portion of the nonresidential building if it is not sufficient or suitable, but it is not the case of the landlord that the non-residential portion of the building in occupation of the tenant is not suitable, convenient or sufficient and that the portions in occupation of the tenants are more suitable, convenient and sufficient to commence the business, but it is the case of the landlord that he want to set up another business in addition to the lodging business.
17. I am of the opinion that it is not the intendment of the Act to seek eviction of the tenants to commence any number of businesses by the landlord. Of course, if the non-residential portion in occupation of the landlord is not suitable, convenient or sufficient, but the non-residential building let out to the tenants is more suitable, convenient and sufficient, taking into the aspects of quality, size and suitability etc., then the landlord is entitled to seek eviction of the tenants as per the principle laid down by the Apex Court in the aforesaid judgment, but that is not the plea of the landlord.
18. A per the law laid down by the Supreme Court, no doubt, there is no prohibition under Section 10(3)(a)(iii)(b) of the Act, seeking eviction of the tenant from a non-residential portion even if he is carrying on a business in his nonresidential building, but as per the principle laid down by the Apex Court, the landlord is entitled to seek eviction of the tenant from the non-residential building only on the ground that if the non-residential building owned by the landlord in which he is carrying on the business is not suitable, convenient or sufficient taking into the aspects of quality, size and suitability, then only he can seek eviction of the tenant if it is more suitable, convenient and sufficient, but here is the case of the landlord that he wants to have another business to be commenced in addition to the existing lodging business. Therefore, I am of the opinion that the landlord is not entitled to seek eviction in the instant case for the bona fide purpose of commencing the business of computer centre, computer sales counter in addition to the lodging business. Of course, if the landlord wanted to have additional accommodation for the purpose of lodging and if he establishes that the building in occupation of the landlord is not sufficient and he requires additional accommodation for the lodging purpose, but it is not the case of the landlord in the instant case and though, the application is also filed under Section 10(3)(c) of the Act, seeking for his additional accommodation in respect of the lodging business he has not taken any plea of adduced any evidence that he requires the portion in occupation of the tenants for the additional accommodation of lodging business. However, I am of the opinion that the Rent Appellate Court also has rightly taken the other aspects into consideration that the landlord has let out another similar portion in the ground floor and portion in the first floor of the lodging premises to a tenant on a higher rent and therefore, there was no bona fide purpose to commence the business.
19. If the landlord is having four nonresidential buildings and if he is having four sons, it cannot be said that the landlord is entitled to seek eviction of four nonresidential buildings in occupation of four different tenants even though he is in occupation of a non-residential building of his own and carrying on the business. There is a limit to seek eviction of a non-residential building in respect of one business only, not more than one business. Therefore, I am of the opinion that there is a bar for seeking eviction of a non-residential building in occupation of the tenants if the landlord is already in occupation of a non-residential building of his own and in which he is carrying on the business and that non-residential building in which he is carrying on the business is suitable, convenient and sufficient having regard to the aspects of quality, size and suitability etc.
20. The learned Counsel appearing for the landlord advanced arguments based on the principle laid down by the Supreme Court in the case of Kailash Chand and Anr. v. Dharam Dass , that there is no bar for the landlord to seek eviction of the tenant in respect of a nonresidential building even though he is occupying a non-residential building of his own and carrying on a business. The case arose under Himachal Pradesh Urban Rent Control Act, 1987. The relevant provision that fell for consideration was Section 14(3)(a)(i) of the Act, which reads as follows:
(a) in the case of a residential building, if-
(i) he requires it for his own occupation:
Provided that he is not occupying another residential building owned by him, in the urban area concerned:
Provided further that he has not vacated such a building without sufficient cause within five years of the filing of the application, in the said urban area;
x x x Provided further that where the landlord has obtained possession of any building or rented land under the provisions of Clause (a) or Clause (b), he shall not be entitled to apply again under the said clause for the possession of any other building of the same class or rented land.
The relevant facts in the said case are that two brother purchased a house in Simla consisting of ground floor and first floor and the ground floor was in occupation of the vendor, but vacated at the time when the said two brothers purchased and the first floor was in occupation of the tenant. The landlords filed eviction petition against the tenant who was in occupation of the first floor, which was ordered, but during the pendency of the appeal before the Appellate Court, there was a compromise. According to the compromise, the tenant agreed to occupy the ground floor as a new tenant and landlords occupied the first floor for their residence. Thereafter, one of the younger brother was also married and as the first floor was not sufficient for their residential accommodation, another eviction petition was filed, seeking eviction of the tenant from the ground floor also. Though the Rent Controller decreed the suit, but the High Court set aside the same, against which, the landlord filed appeal before the Supreme Court and the Supreme Court while considering the said provision, held that the building in occupation of the landlord was not enough and suitable to satisfy the proven requirement of the landlords and therefore, the proviso to the said section that the landlord was not occupying another residential building owned by him would not come into play as the building occupied by the landlord is not another building and the second proviso that the landlord has not vacated the said building within five years of filing of the application also has no application and the said proviso also do not disentitle the landlords from seeking eviction of the tenant, as it cannot be said that the landlords have vacated the residential building. The landlords were earlier litigating for eviction of the tenant from the upper floor. In the first round of litigation, they succeeded and yet the fruits of the decree were denied to them on account of pendency of the appeal. They thought it proper to shift the tenant from the first floor to the second floor so as to satisfy their own requirement as it existed on that date. The tenant also agreed to occupy the ground floor for residence as he was in dire need of some space to live though the premises were not fit for human residence and could not be termed "residential". This is "sufficient cause" within the meaning of the second proviso. Circumstances changed. Subsequent events took place. The family of the landlords enlarged. A new requirement came into existence, which did not exist earlier. The bona fides of such requirement of the landlords cannot be doubted. The upper floor was not sufficient for the big family of the landlords and in view of the peculiar circumstances of the case, the Apex Court held that the first and second provisos do not come in the way of the landlords and their case of requirement within the meaning of Section 14(3)(a)(i) of the Act is fully made out.
21. But, whereas the similar provision under A.P. Act, Section 10(3)(a)(i) reads as follows:
Section 10(3)(a) :-A landlord may subject to the provisions of Clause (d), apply to the Controller for an order directing the tenant to put the landlord in possession of the building-
(i) in case it is a residential building-
(a) if the landlord is not occupying a residential building of his own in the city, town or village concerned and he requires it for his own occupation;
(b) if the landlord who has more buildings than one in the city, town or village concerned is in occupation of one such building and he bona fide requires another building instead for his own occupation;
(ii) ___________________________________
(iii) __________________________________ First proviso___________________________ Second proviso: Provided further that, where a landlord has obtained possession of a building under this clause he shall not be entitled to apply again under this Clause,-
(i) in case he has obtained possession of a residential building, for possession of another residential building of his own;
22. Under the aforesaid provision, if the landlord is not occupying a residential building of his own, he is entitled to seek eviction of the residential building in occupation of the tenant. Section 10(3)(a)(i)(b) of the Act provides that if the residential building is in occupation of the landlord owned by him is not sufficient and he requires another building for his own occupation, he can apply for eviction of the tenant if his requirement to occupy another building is bona fide.
23. In the instant case, the provision that falls for consideration in respect of a non-residential building is under Section 10(3)(a)(iii)(b). There is a similar bar seeking eviction of the tenant if he is already in occupation of a non-residential building of his own, which he is carrying on, on the date of application for commencement of a new business. No doubt, under Section 10(3)(c) of the Act, it is open for the landlord to seek eviction of the tenant for additional accommodation, if the building is not sufficient in respect of a business, which he is carrying on. As already stated, it is not the case of the landlord that the said three shops are required for the additional accommodation of lodging purpose which is the business the landlord carried on by him, but it is the case of the landlord that he requires the said three shops for commencement of another business by his son under Section 10(3)(a)(iii)(b) of the Act. No doubt as the interpretation and the law laid down by the Apex Court, if the non-residential building in occupation of the landlord is not sufficient to commence a new business, it is for the landlord that he can as well seek eviction, but it is not the case of the landlord in the instant case that the non-residential portion in which he is carrying on lodging business is not convenient, suitable or sufficient. Therefore, in view of the admitted facts n the instant case, the aforesaid two judgments have no application to the facts of the case.
24. Therefore, I am of the opinion that the landlord is not entitled to seek eviction of the tenants for another new business in addition to the business, which the landlord is already carrying on. If the landlord is not carrying on any business, it is open for the landlord to seek eviction of the tenant for commencement of business by his son or by his any other family member. Eviction petition can be filed either for carrying on business which they are already carrying on or for commencement of a new business. Therefore, I am of the opinion that there are no bona fides on the part of the landlord seeking eviction of the three tenants from their small shops, in which they are carrying on their business.
25. In the instant case, no doubt, it is only one contiguous building having one Municipal number, but admittedly, there are four shops in the ground floor and two upper floors, in which the landlord is already carrying on the lodging business in the first and second floors. In addition to three shops, which are let out to three tenants, the landlord has also let out the 4th shop and a portion in the first floor and it is not the case of the landlord that he requires the said portions let out to the tenants for the purpose of additional accommodation, in which he is carrying on the business i.e., for lodging purpose, but, it is the case of the landlord that he requires the building for some other business i.e., for running computer centre and computer sales. Therefore, I am of the opinion that there is a bar under the Act for seeking eviction of the non-residential portions which are in occupation of the tenants if the said portions are not more suitable, convenient and sufficient, then the nonresidential portion in occupation and owned by the landlord in which the landlord is carrying on the business.
26. For the aforesaid reasons, I do not see any illegality, irregularity or impropriety in dismissing the eviction petition of the landlord by the Rent Appellate Authority and order of the Appellate Authority is confirmed for the aforesaid reasons and grounds.
27. The civil revision petitions are accordingly dismissed. No order as to costs.