Dismissed

Smt Geeta Dwarakanath v. K N Rajendrakumar

Karnataka HC22 Feb 2022RSA/370/2015

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed the second appeal filed by a defendant challenging the first appellate court's order awarding litigation costs to the plaintiff. The court held that the first appellate court acted within its discretionary power under Section 35 of the CPC.

What did the court decide?

The appeal was dismissed with no substantive relief granted regarding the underlying suit, the matter being limited to costs.

Smt Geeta Dwarakanath Vs K N Rajendrakumar — Specific Performance | Karnataka HC (2022)

¶1

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 22^ND DAY OF FEBRUARY, 2022

¶4

BEFORE

¶5

THE HON’BLE MR.JUSTICE M.G.S.KAMAL

¶6

R.S.A.NO.370 OF 2015

¶7

BETWEEN :

¶8

SMT. GEETA DWARAKANATH W/O M.N.DWARAKANATH AGED ABOUT 70 YEARS R/AT NO.103 MERIDIAN APARTMENT GITHA ROAD CHAMARAJA MOHALLA MYSORE - 570 004.

¶9

… APPELLANT

¶10

(BY SRI. JAGAN MOHAN M.T., ADVOCATE)

¶11

AND :

¶12

K.N. RAJENDRAKUMAR S/O K.K. NANJAPPA AGED ABOUT 56 YEARS R/AT DOOR NO.62 HINKAL VILLAGE KASABA HOBLI MYSORE TALUK - 570 020.

¶13

… RESPONDENT (BY SRI. ADITYA BHAT, ADVOCATE FOR R1)

¶14

THE REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGEMENT AND DECREE DATED 29.11.2014 PASSED IN R.A.NO. 190/2014 ON THE FILE OF THE V ADDITIONAL DISTRICT JUDGE, MYSORE ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DATED:27.07.2013 PASSED IN O.S.NO.9/2007 ON THE FILE OF THE PRINCIPAL JUDGE,

¶15

¶16

SMALL CAUSES & ADDITIONAL SENIOR CIVIL JUDGE, MYSORE.

¶17

THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

¶18

JUDGMENT

¶19

Present regular second appeal is filed by the defendant No.1 aggrieved by the judgment and order dated 29.11.2014 passed in R.A.No.190/2014 on the file of V Additional District Judge, Mysore (hereinafter referred to as the 'first appellate Court'), in and by which, the first appellate Court while setting aside the judgment and decree dated 27.07.2013 passed in O.S.No.9/2007 on the file of the Principal Judge, Small Causes and Additional Senior Civil Judge, Mysore (hereinafter referred to as the ‘trial Court’) to the extent directing the parties to bear their own costs and consequently decreed that the plaintiff would be entitled for the cost of the suit through out. Aggrieved by the same, appellant is before this Court.

¶20

¶21

Parties are referred to by their ranking before

¶22

the trial Court.

¶23

It is the case of the plaintiff that;

¶24

(a) the defendant No.1 had entered into an agreement dated 10.08.2006, agreed to sell two residential sites for a sum of Rs.12,96,000/-. On the same day, a sum Rs.2,00,000/- was paid by the plaintiff to the defendant No.1 towards part payment of the sale consideration. That the defendant No.1 had agreed to execute and register the deed of sale conveying the said properties within two months by receiving the balance sale consideration.

¶25

(b) that though, the plaintiff was ready and willing to perform his part of the contract, the defendant No.1 protracted to perform his part of contract, constraining the plaintiff to issue a notice. Defendant No.1 instead of complying with the same issued untenable reply.

¶26

¶27

¶28

deducting sum of Rs.5,000/-. Thus, the plaintiff was constrained to file a suit for specific performance of the aforesaid agreement of sale.

¶29

The defendant No.1 in his written statement specifically contended that time was essence of contract. That though defendant No.1 approached the plaintiff personally and telephonically requesting him to pay the balance sale consideration and obtained deed of sale, the plaintiff did not comply with his requests. Therefore, the defendant No.1 offered to return sale consideration by deducting sum of Rs.5,000/- towards damages. Hence, sought for dismissal of the suit.

¶30

Defendant Nos. 2 and 3 are the purchasers of

¶31

suit schedule property from the defendant No.1 under deed of sale dated 03.01.2007 and that they are the bonafide purchasers. Hence, sought for dismissal of the suit.

¶32

The trial Court framed the issues and recorded evidence and by its judgment and decree dated

¶33

¶34

27.07.2013 rejected the prayer of the plaintiff for specific performance of the contract and decreed the suit directing the defendant No.1 to pay Rs.2,00,000/- with interest @ 18% p.a. from the date of the agreement of sale till realization. The defendant No.1 was also directed to deposit the said amount along with interest within one month from the date of the decree. The trial Court however, directed the parties to bear their own costs.

¶35

The plaintiff being aggrieved by the order directing the parties to bear their own costs, preferred the regular appeal in R.A.No.190/2014.

¶36

Based on the grounds urged in the appeal memorandum, the first appellate court framed the following points for its consideration;

¶37

“(1) Whether the appellant proves that, he is entitled for cost of the suit as mentioned in the grounds of appeal and cost of appeal as prayed for?

¶38

(2) Whether the judgment and decree of the trial Court in respect of non-awarding cost is opposed to law, facts and circumstances of the case and is liable to interfere by this Court

¶39

¶40

(3) What order?.”

¶41

The first appellate Court by its judgment and order dated 29.11.2014 allowed the appeal awarding the cost to the plaintiff/appellant. Aggrieved by the same, the defendant No.1 is before this Court in this appeal.

¶42

Learned counsel for the appellant reiterating grounds urged in the memorandum of appeal submits;

¶43

(a) that since the suit of the plaintiff for specific performance was dismissed, he was not entitled for the cost.

¶44

(b) that in view of the trial Court directing to refund of Rs.2,00,000/- with interest to the plaintiff, awarding of cost would amount to exemplary cost giving undue advantage and benefit to the plaintiff thereby causing loss to the defendant.

¶45

(c) He further submits that there is no provision for grant of cost in an appeal when the trial Court has declined to grant cost.

¶46

¶47

He relies upon the judgment of the Apex

¶48

Court in the case of ASHOK KUMAR MITTAL VS. RAM KUMAR GUPTA AND ANOTHER reported in 2009 AIR SCW 621 and N.S.S.MEDICAL MISSION HOSPITAL VS. SULBETH BEEVI reported in 2009 (2) KHC 111 .

¶49

Hence, he submits appeal gives raise to substantial question of law.

¶50

Per contra, learned counsel for the respondent drawing attention of the Court to paragraph 22 of the judgment in R.A.No.190/2014 submits that first appellate Court has given sound and justifiable reason to grant the cost. He further submits that award of cost under Section 35 of CPC is the discretionary power and reasoning given by the first appellate Court being judicious does not warrant any interference. Hence, seeks for dismissal of the appeal.

¶51

Heard learned counsel for the parties. Perused the records.

¶52

¶53

It is not in dispute that relief of specific performance of contract was rejected by the trial Court. However, the trial Court decreed the suit of the plaintiff for refund of advance amount and directed the defendant No.1 to refund of Rs.2,00,000/- with interest @ 18% from the date of the agreement till realization and further directed to deposit the same within one month from the date of the decree. The trial Court had neither assigned any reason nor awarded cost but had merely ordered parties to bear their own costs.

¶54

The defendant No.1 has not challenged the decree passed by the trial Court for refund of advance amount with interest @ 18% p.a.. The defendant No.1 has also not deposited the said amount within one month from the date of judgment and decree as directed. Aggrieved by the order of trial Court declined to award cost, plaintiff preferred the regular appeal in R.A.No.190/2014.

¶55

The first appellate Court by its reasons recorded at paragraphs 21 and 22 of its judgment

¶56

¶57

decreed that the plaintiff is entitled for cost of the suit through out. The first appellate Court has taken into consideration of the fact that suit of the plaintiff was partly decreed by directing the defendant No.1 to refund advance consideration together with interest and also taken into consideration of the fact that plaintiff had paid Court Fee of Rs.76,625/and pleader’s fee of Rs.21,975/-.

¶58

Section 35 of CPC reads as under;

¶59

“35. Costs.- (1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incident to all suits shall be in the discretion of the Court, and the Court shall have full power to determine by whom or out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid. The fact that the Court has no jurisdiction to try the suit shall be no bar to the exercise of such powers.

¶60

(2) Where the Court directs that any costs shall not follow the event, the Court shall state its reasons in writing.”

¶61

Thus, in terms of the aforesaid provisions the Court

¶62

has discretionary power to award cost. In the instant

¶63

¶64

case, the first appellate Court while exercising its discretionary power has assigned reasons in paragraphs 21 and 22 of its judgment as noted above. Since, the order of the first appellate Court is an exercise of discretion with a reason assigned thereto, the same does not call for interference.

¶65

Learned counsel for the appellant relied upon the judgment of the Apex Court in the case of the Ashok Kumar Mittal (supra), wherein the Apex Court was dealing with an order passed by the High Court imposing exemplary cost of Rs.1,00,000/- each on the petitioner and the respondent therein and further directed the said amount to be deposited with the Delhi High Court Legal Service Committee, it was under the facts and circumstances of the said case. The Apex Court had held that though the award of cost is within the discretion of the Court, it is subject to such conditions, limitations as prescribed and subject to provision of any law for the time being in force; and where the issue is governed and regulated by Sections 35 and 35A of CPC, there is no

¶66

¶67

question of exercising inherent power contrary to specific provisions of Code. The facts and circumstances of the present case is distinct and different, as such the said judgment of no avail to the appellant.

¶68

Learned counsel for the appellant also relied upon the judgment of the Kerala High Court in the case of N.S.S.Medical Mission Hospital (supra) and submitted that the cost can be awarded only to a party who is successful in his suit. Para 6 of the said judgment

¶69

reads as under;

¶70

"6. "Cost" means the statutory allowances required to reimburse the successful party to the litigation for expenses incurred in defending or prosecuting the proceedings. Normally, costs are meant to be given to a successful party so that he is reimbursed by the unsuccessful party for incurring the expenses in connection with the litigation which was instituted by the wrong or illegal conduct of the unsuccessful party. Costs includes the court fee payable."

¶71

There cannot be any dispute with regard to

¶72

the aforesaid judgments regarding awarding of costs. In the instant case, the first appellate Court has proceeded

¶73

¶74

to award the cost taking into consideration the suit of the plaintiff having been decreed in part in directing the defendant No.1 to refund the advance sale consideration with interest. The first appellate Court has noted that the trial Court has not assigned any reason in declining to award the costs despite partly decreeing the suit. As already noted, the order of the first appellate Court is in exercise of its discretionary power as under Section 35 of CPC.

¶75

For the aforesaid reasons, no infirmity or illegality can be found with the reasoning of the first appellate Court. No substantial question of law would arise. Hence, the appeal is dismissed.

¶76

Sd/JUDGE

¶77

Smt Geeta Dwarakanath v. K N Rajendrakumar

Case brief

What is this about?

What did the court decide?

Smt Geeta Dwarakanath v. K N Rajendrakumar

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Mohammed K a Vs Abbas

Sri P Jayaprakasha Babu Vs Gajananya Pattasali Sanga (R)

Munigurappa Vs Sri Munianjinappa

Mariyappa Dead by Lrs Vs Sri Dasappa

Smt Hemavathi Vs Smt Saraswathi

Smt Lalitha Vs B.M. Abdul Rahiman