Karnataka High Court
K N Sathish Chandra vs Smt. Evline D Souza on 21 August, 2023
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NC: 2023:KHC:29649
RSA No. 2058 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 2058 OF 2016 (RES)
BETWEEN:
K N SATHISH CHANDRA
S/O NARAYANA RAO
AGED 64 YEARS
JANATHA COOL DRINKS
AGUMBE BUS STAND
TIRTHAHALLI-57732
...APPELLANT
(BY SRI. N K RAMESH, ADVOCATE)
AND:
1. SMT. EVLINE D'SOUZA
AGED 60 YEARS
W/O LATE DENNIS D'SOUZA
Digitally signed by
SUNITHA 2. EDWIN D'SOUZA
GANGARAJU AGED 37 YEARS
Location: High S/O LATE DENNIS D'SOUZA
Court of Karnataka
3. MRS ALWIN D'SOUZA
AGED 41 YEARS
D/O LATE DENNIS D'SOUZA
4. WILSON D'SOUZA
AGED 37 YEARS
W/O LATE DENNIS D'SOUZA
ALL ARE RESIDENTS OF SOPPUGUDDE
1ST CROSS
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NC: 2023:KHC:29649
RSA No. 2058 of 2016
THALAHALLI TOWN
SHIVAMOGGA DIST-577 432
...RESPONDENTS
(BY SRI. B K MOHAN, ADVOCATE FOR
SRI. ASHWATH C.M., ADVOCATE FOR R1, R3 & R4
VIDE ORDER DATED 12.03.2019 APPEAL AGAINST R2 IS
ABATED)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 02.08.2016 PASSED IN
RA NO.14/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND JMFC., THIRTHAHALLI, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 19.10.2013
PASSED IN OS NO.214/2011 ON THE FILE OF THE ADDL. CIVIL
JUDGE AND JMFC., THIRTHAHALLI.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This second appeal is filed by the appellant challenging the portion of judgment dated 02.08.2016 passed in R.A No.14/2014 by the Senior City Civil Judge and JMFC, Tirthahalli.
2. The parties are referred to as per their ranking before the trial Court. The appellant is the plaintiff and respondents are the defendants.
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NC: 2023:KHC:29649 RSA No. 2058 of 2016
3. Brief facts leading rise to filing of this appeal are as under:
Plaintiff filed a suit in O.S.No.28/2003 for ejection against the defendants in respect of a shop premises which the defendants were occupying as tenants. The suit came to be decreed and defendants were directed to handover the vacant possession of the premises within six months. The trial Court also directed payment of arrears of rent and future mense profits @ Rs.500/- p.m. till delivering possession of the premises. Aggrieved by the judgment and decree passed in O.S No.28/2003 filed an appeal in R.A No.170/2008 which came to be dismissed vide judgment dated 18.06.2011 directing the defendants to deliver the vacant possession of the premises within nine months from the date of the dismissal of the appeal.
The defendants have vacated and delivered the possession of the suit schedule property to the plaintiff on 27.09.2011. As there was no determination of mesne profits in the Original suit and only a sum of Rs.500/- p.m, was ordered without any enquiry on the mesne profits as -4- NC: 2023:KHC:29649 RSA No. 2058 of 2016 required under Order 21 Rule 12 of the Code of Civil Procedure and the suit premises would have fetched rent atleast Rs.3,000/- p.m. The plaintiff filed a suit for determination of mesne profits at the rate of Rs.3,000/-
p.m from 01.02.2003 to 27.09.2011. The trial Court partly decreed the suit and held that the plaintiff is entitled for recovery of mesne profits only at the rate of Rs.500/- p.m and not as claimed at the rate of Rs.3,000/- p.m. in the plaint. The plaintiff aggrieved by the judgment and decree passed in O.S No.214/2011 filed the appeal in R.A No.14/2014. The First Appellate Court dismissed the appeal with exemplary cost of Rs.20,000/-. The plaintiff aggrieved by the imposition of cost, filed this second appeal.
4. Heard the learned counsel for the plaintiff and also learned counsel for the defendants.
5. Learned counsel for the plaintiff submits that the First Appellate Court had committed an error in imposing exemplary cost of Rs.20,000/-. He submits that -5- NC: 2023:KHC:29649 RSA No. 2058 of 2016 First Appellate Court has not assigned any reasons for imposing the cost. Hence, he submits that the plaintiff has got right to prefer the appeal against the judgment and decree passed by the trial Court. The plaintiff by exercising his statutory right filed the appeal. Hence, he submits that First Appellate Court had committed an error by imposing additional exemplary cost of Rs.20,000/-. Hence, he prayed to allow the appeal.
6. Per contra, learned counsel for the defendants supports the impugned judgment and prayed to dismiss the appeal.
7. This court has admitted the appeal to consider the following substantial question of law :
'Whether the First Appellate Court was justified in imposing cost of Rs.20,000/- on the appellant?'
8. Perused the records and considered the submissions of learned counsel for the parties. -6-
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9. It is not in dispute that the plaintiff is the owner of the suit schedule property and the defendants were in possession of the suit schedule property as a tenant. The plaintiff filed the suit for ejectment in O.S No.28/2003. The said suit came to be decreed and the defendants aggrieved by the judgment and decree passed in O.S No.28/2003 preferred the appeal in R.A No.170/2008 on the file of Additional Senior Civil Judge (Sr.Dn.), Shimoga which came to be dismissed on 18.06.2011 and granted 9 months time to the defendants to quit and deliver the vacant possession of the suit schedule property. There were no specific order passed by the trial Court in O.S No.28/2003 in regard to the mesne profits. The plaintiff filed a suit in O.S No.214/2011 for determination of mesne profits under Order 21 Rule 12 of CPC. The plaintiff claiming mesne profits after the determination of lease @ Rs.3,000/- p.m. The trial Court after recording the evidence of the parties held that the plaintiff is not entitled for mesne profits as claimed in the plaint @ Rs.3,000/- p.m. The plaintiff is entitled for mesne profit @ Rs.500/- -7-
NC: 2023:KHC:29649 RSA No. 2058 of 2016 p.m. The plaintiff aggrieved by the judgment and decree passed by the trial Court preferred the appeal in R.A No.14/2014. The First Appellate Court after re- appreciating the evidence on record, dismissed the appeal and confirmed the judgment and decree passed by the trial Court, while confirming the judgment and decree passed by the trial Court imposed additional exemplary cost of Rs.20,000/- only on the ground that the plaintiff has unnecessarily prosecuted the appeal inspite of filing the execution petition. Section 35 of CPC provides for imposition of cost & Section 35A of CPC provides for compensatory cost which reads as under:
"35. Costs. - (1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incident to all suits shall be in the discretion of the Court, and the Court shall have full power to determine by whom are out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid. The fact that the Court has no jurisdiction to try -8- NC: 2023:KHC:29649 RSA No. 2058 of 2016 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.
35A. Compensatory costs in respect of false or vexatious claims or defences. - (1) If in any suit or other proceedings, including an execution proceeding but excluding an appeal or a revision any party objects to the claim or defence on the ground that the claim or defence or any part of it is, as against the objector, false or vexatious to the knowledge of the party by whom it has been put forward, and if, thereafter, as against the objector, such claim or defence is disallowed, abandoned or withdrawn in whole or in part, the Court, if it so thinks fit may, after recording its reasons the holdings such claim or defence to the false or vexatious, make an order for the payment for the objector by the party by whom such claim or defence has been put forward, of cost by way of compensation.
(2) No Court shall make any such order for the payment of an amount exceeding three -9- NC: 2023:KHC:29649 RSA No. 2058 of 2016 thousand rupees or exceeding the limits of its pecuniary jurisdiction, whichever amount is less:
Provided that where the pecuniary limits of the jurisdiction of any Court exercising the jurisdiction of a Court of Small Causes under the Provincial Small Cause Courts Act, 1887 (9 of 1887) or under a corresponding law in force in any part of India to which the said Act does not extend and not being a Court constituted under such Act or Law, are less than two hundred and fifty rupees, the High Court may empower such Court to award as costs under this Section any amount not exceeding two hundred and fifty rupees and not exceeding those limits by more than one hundred rupees:
Provided, further, that the High Court may limit the amount which any Court or class of Courts is empowered to award as costs under this Section.
(3) No person against whom an order has been made under this section shall, by reason thereof , be exempted from any criminal liability in respect of any claim or defence made by him.
(4) The amount of any compensation awarded under this Section in respect of a false or vexatious claim or defence shall be taken into
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NC: 2023:KHC:29649 RSA No. 2058 of 2016 account in any subsequent suit for damages or compensation in respect of such claim or defence.
10. Under Section 35 of the code, award of costs is discretionary, but subject to the conditions and limitations as may be prescribed and the provisions of any law for the time being in force. Under Section 35A, compensatory costs for vexatious claims and defences may not exceed Rs.3,000/-. Further, the primary object of levying costs under Sections 35 & 35A of CPC is to recompense a litigant for the expense incurred by him in litigation to vindicate or defend his right. It is therefore payable by a losing litigant to his successful opponent. The awarding of costs is within the discretion of the Court, it is subject to such conditions and limitations as may be prescribed and subject to the provisions of any law for the time being in force; and where the issue is governed and regulated by Sections 35 and 35A of the CPC, there is no question of exercising inherent power contrary to the specific provisions of the CPC.
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11. The Court while awarding exemplary cost shall state its reasons in writing. The impugned order passed by the First Appellate Court is without application of mind. The said portion of the order of First Appellate Court is arbitrary and erroneous. In view of the above discussion, I answer the substantial question of law in the affirmative.
12. In view of the aforesaid facts and circumstances, I proceed to pass the following:
ORDER
1. The appeal is allowed in part.
2. The judgment and decree passed by the First Appellate Court imposing additional exemplary cost of Rs.20,000/- is set aside.
3. Rest of the judgments passed by the Courts below are maintained.
SD/-
JUDGE SKS