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Judgment
Krishnaswami Nayudu, J.—The plaintiff is the appellant and his suit was for recovery of a sum of Rs. 1856-0 6 as damages for breach of
covenant of title. The following facts may be stated to appreciate the contentions of the parties. Three items of property described in the plaint
schedule belonged on Kanom kuzhikanom right to the tavazhi of defendants 1 and 2, one Kunhaliyumms, Assankutty and others. Defendants 3
and 4 are the legal representatives of Assankutty. Items 1 and 2 were in the possession of certain sub-tenants who held the same from the said
tavazhi. Item 3 was in the possession of the plaintiff as sub-tenant from the tavazhi. It may be mentioned here that Assankutty was the karnavan of
the tavazhi. As Karnavan of the tavazhi Assankutty assigned the kanom kuzhikanom rights of the tavazhi to the plaintiff for a consideration of Rs.
795, on 1st February 1943 by Ex. A. 2. To validate such an assignment as binding on the members of the tavazhi it was necessary in law that the
majority of the members of the tavazhi should be consenting parties to such a transaction. Apparently to provide for such a consent, Assankutti
obtained an affidavit from defendants 1 and 2 a day previous to the execution of Ex.A. 2 namely, on 3lst January 1943, consenting to the
proposed assignment and taking in the affidavit that it was beneficial to the tavazhi and that they had given their consent to Assankutty, the
karnavan and kjkaryakartha of the tavazhi to grant the assignment in favour of the plaintiff. The plaintiff''s brother''s son also held a melcharath from
the jenmi in respect of the suit properties. The plaintiff on the strength of his assignment instituted O. S. No. 680 of 1943 and in that suit the
question of the validity of the assignment was raised and it was found that the assignment obtained by him was not valid since defendants 1 and 2
retiled from the stand they book under the affidavit which they executed, namely. Ex.A. 1, dated 3lst January 1943. During the pendency of that
suit, the melcharthdar instituted a suit to recover possession of the property O. S. No. 14 of 1944. The plaintiff applied for a renewal on the
strength of his assignment under Ex. A, 2. the renewal application being R. 1. A. No, 651 of 1944. Since the majority of the adult members of the
tavazhi were found to have not given their consent to the assignment in favour of the plaintiff, the assignment was held not valid and O. S. No. 680
of 1943 was dismissed. An appeal, A. S. No. 429 of 1944, preferred by the plaintiff received the same fate and a second appeal, S. A. No, 1670
of 1945 to the High Court was also dismissed. The plaintiff''s application for renewal was also dismissed on the ground of his having not acquired a
valid title to the tenancy right. An appeal and second appeal against order were also filed and dismissed. The trial Court found that defendants 1
and 2 are not liable and as regards the damages claimed decreed the suit against defendants 3 and 4 only for Rs. 869 odd including the sum of Rs.
775 paid as consideration, for the assignment the trial Court allowing only the costs and expenses of O. S. No. 680 of 1943 and R. I. A. No. 65 I
of 1944 incurred in the trial Court, and disallowing the costs incurred in the Appellate Court and in the High Court on the ground that the damages
in respect of the costs was too remote to entitle the plaintiff to recover them. So far as this option of the case is concerned, the learned District
Judge in appeal confirmed it. As regards the claim against defendants 1 and 2, a plea of limitation was raised which however was not dealt with by
the trial Court but gone into in appeal and was found against the plaintiff, the learned District Judge holding that the proper Article of the Limitation
Act that would be applicable being Art. 36 and not Art. 97 or 116 as contended for by the plaintiff. I am of opinion that the view taken on the
question of limitation by the lower appellate Court is correct. What is now urged in support of the application of Art. 1 16 is that defendants 1 and
2 must be deemed to be parties to Ex. A. 2 which is a registered document and as such under Art. 116, six years period of limitation is available,
since it is compensation for breach of a contract in writing registered The liability of the defendants 1 and 2 arise only on the affidavit Bled by them
which is not registered, namely, Ex. A. 1, dated 31st January 1943 and they can in no way be deemed to be parties to the registered document
Ex. A.2, the registered document being by Assankutti with a representation by him that defendants 1 and 2 have consented to the assignment. In
that view the application of Art. 116 is not attracted to the facts of the present case. The result is that in so far as the appeal against defendants 1
and 2 is concerned, it will stand dismissed.
The only other question is as to disallowance of the claim in so far as damage in respect of costs incur'' red by the plaintiff in the appellate and
second appellate Courts, both in respect of O. S. No. 680 of 1943 and R. I. A. No. 651 of 1944. The view taken by the lower Courts is that
costs in the appeal and the second appeal must be disallowed as they must be considered to be remote damages. Mr. Nambiar relied on a
decision of our High Court in Sarvothama Rao v. Chinnasami Pillai 42 Mad. 507 = 9 L. W. 379. (1). where the question of inclusion in the
damages of the costs incurred in appeal and in the second appellate Court and also in proceedings taken for review of the second appellate
Court''s judgment were the subject matter of consideration and it was held that the litigation expenses incurred must be regarded as having been
legitimately incurred except in so far as the unsuccessful attempt to have the decision of the Court reviewed which was considered to be a luxury
indulged in for which the defendant in that case was held not to be liable. With reference to an argument that the damages are remote, the learned
Judges referred to the decisions in Subbaraya v. Rajagopala 38 Mad. 887. (2) and Digambar Dasv. Nishabala Devi 8 I C 91. (3), and following
the decisions held that in case of damages claimed for costs incurred, the appellate Court and second appellate Court costs must be considered to
be legitimate, and therefore allowed them. Mr. Viswanatha Aiyar however referred me to a decision in Maxwell v. British Thomson Huston Co.,
(1904) 2 K.B. 342. (4), where on the facts of that case Kennedy, J., observed that the costs of the appeal could not be allowed to be included on
the ground that there was no sanction or co-operation on their part for the appeal. He further observed that he did not find any authority for
holding that in the absence of special circumstances an indemnity against loss incurred through negligence includes an indemnity against costs of an
appeal from the decision of the Court which tries the case and it was held that the defendants in that case were not entitled to succeed on the part
of the case. Reliance is therefore placed on this observation that unless there are some special circumstances there is no reason to allow a party the
costs of appeal. Further a passage from Mayne on Damages 11th Edn., page 125 is cited, namely, that as the defendant is only liable for the
plaintiff''s costs properly incurred, he is not liable for the costs of an appeal unsuccessfully brought in the former proceedings by the plaintiff unless
the defendant authorised it. While referring to the case in Vogan v. Quiton (1899) 81 L.T. 435 (1), it is stated that the plaintiff was held entitled to
recover damages and costs of trial paid in the County Court but nothing in respect of the costs of the appeal. But in one exceptional case it was
held reasonable for an appeal to be brought, viz,, where there was a difference of opinion among the Judges below. The case relied upon is Sutton
v. Baillie. (3) 65 L.T. 528.
The question for consideration is whether the lower appellate Court exercised its discretion promptly in refusing to allow the plaintiff his claim for
costs of the appeal and second appeal. No hard and fast rule can be laid down in such cases. The merits of the case in O. S. No. 680 of 1943 not
being placed before this Court, it is not possible to decide whether the plaintiff should necessarily have filed an appeal and after the appeal WSB
dismissed whether he had a fair case to justify the filing of a further second appeal. These are matters which should have been raised in the trial
Court and gone into. In the absence of such material, I do not consider it necessary in the Second appellate stage to interfere with the exercise of
discretion by the lower Courts, though it cannot be laid down as a general proposition that in no case would the plaintiff in such circumstances be
entitled to the costs incurred in the first and second appellate Courts. In the result, the appeal fails and is dismissed. But in the circumstances of the
case, these will be no order as to costs. No leave