AI Structured Summary
Not yet generated for this judgment
Judgment
G. Satapathy, J.
This present Second Appeal was admitted with only substantial question of law as extracted under: -
“Whether the learned lower appellate Court has acted illegally in directing the appellant to pay an exemplary cost of Rs.10,000/- to the plaintiff, while dismissing the appeal being devoid of merit by observing that “without any semblance of right, the defendant No.1 has preferred the appeal for which, he is liable to pay the exemplary cost of Rs.10,000/- to the plaintiff so that others will not dare to infringe on the personal right and liberty of others.”?
Heard Mr.Pragya Sarita Mohanty, learned proxy counsel appearing on behalf of Mr.Jagajiban Pradhan, learned counsel for the appellants and Mr.Dwarika Prasad Mohanty, learned counsel for the respondents and perused the record.
In the course of hearing, Ms. Pragya Sarita Mohanty by taking this Court through the order sheet dated 12.04.2013 submits that this Court while hearing the matter for modification of order dated 02.12.2011 has observed that though any other substantial question of law has not been framed, but the same shall be raised by the Appellants at the time of hearing of the appeal and accordingly, the Appellants urge the following question as taken in Ground No. B(ii) of the Appeal Memo, to be taken as substantial question of law for answer by this Court:-
“When the report of the Commissioner which is an admissible piece of evidence, shows that the suit wall stands over Plot No. 284 i.e. the land of the appellant, whether the finding to the contrary arrived at by the courts below is sustainable in law?”
On the other hand, Mr.Dwarika Prasad Mohanty, learned counsel for the respondents submits that the above question as taken in the Grounds of Appeal Memo, which is sought to be admitted as a substantial question of law is a pure question of fact only and thereby, the aforesaid question of fact cannot be considered as a substantial question of law in this present Second Appeal, but he, however, submits that the present appeal, since being admitted on the solitary substantial question of law vide order dated 02.12.2011 that needs to be considered and the respondents have got no objection, if the cost as imposed on the Defendant No.1 is waived out since the original Defendant No.1 in the suit has already expired.
After having considered the rival submissions upon perusal of record, it appears that this Court vide order dated 02.12.2011 has admitted this Second Appeal with solitary substantial question law as indicated in the 1st paragraph of this judgment, but Appellants right now advancing a case for framing of another substantial question law, but such question as raised and indicated to be considered as substantial question law in paragraph no.3 of this judgment is a pure question of fact inasmuch as, whether the suit wall falls in the land of the plaintiff or not is purely a question of fact and thereby, the same cannot be treated as substantial question of law. On the other hand, the Appellants who were Defendants have every right to approach the civil Court in Appellate jurisdiction since they were litigating with the plaintiff in the suit with regard to declaration of Plaintiff’s right, title & interest over the suit land and recovery of possession thereof as well as permanent injunction against them (Defendants), but the learned 1st Appellate Court while disposing of the First Appeal of the Appellants has passed order without realizing the death of Defendant No.1 by directing the Defendant No.1 to pay exemplary cost of Rs.10,000/- to the Plaintiff on the ground that it will act as an example for others not to dare to infringe on the personal right and liberty of others. No doubt, awarding cost is the discretion of the Court, but same must be considered by taking into account the facts available on record with some precise reasonable reason, however, in this case, the awarding of cost does not find favour of this 2nd Appellate Court for bereft of any reason since the same is not recoverable being imposed against dead person, nevertheless the solitary question as taken while admitting this 2nd Appeal cannot be considered as a substantial question of law.
In the result, the Second Appeal being devoid of merit stands dismissed and the confirming judgment & decree of the learned 1st Appellate Court as well as that of the learned trial Court stand affirmed, but the cost of Rs.10,000/- as imposed by the learned 1st Appellate court on the Defendant No.1 to pay it to the Plaintiff is hereby waived out. There is no order as to cost.