Nizamuddin vs Shakoor Ahmad

Rakesh Tiwah, J.

Heard counsel for the patties and perused (he record.

Brief facts of the case are that the petitioner filed suit No.407 of 1992, Nizamuddin v. Shakoor Ahmad, restraining the respondent not to interfere in the possession of the residential accommodation of the petitioner as he is tenant of the house of the respondent situate at village Chadhaury Sarain Nai Basti, Budaun.

It appears from the record that the suit was fraudently filed by the petitioner stating that he apprehends that he will be evicted in unlawful manner from the accommodation in dispute, which is under the tenancy of the defendant.

The case of the petitioner was that he was tenant in the aforesaid accommodation on monthly rent of Rs.100/ per month whereas the case of the respondent was that the petitioner was given only three rooms on monthly rent of Rs.500/ per month. The petitioner has not paid arrears of rent from 1.1.86 up to the date of filing of the suit at the rate of Rs.500/ per month in addition to water tax and water charges etc. A specific case was taken by the respondent in the Court below that no specific relief prayed for in the suit and when notice was given to him terminating his tenancy on the ground of arrears of rent the petitioner filed suit as an afterthought.

It may be noted that notice was given to the petitioner on 3.7.92 and he instituted the suit on 4.8.92 after a month as an afterthought. It also appears from the record that J.S.C.C.Suit No.13 of 1992 has also been filed by the landlord in this regard and the petitioner is depositing the admitted rent at the rate of Rs.100/ per month. From the aforesaid facts the Court below came to the conclusion that there was no foundation or reasonable basis for the petitioner to apprehend that the landlord would not proceed in accordance with law and would throw him out of the disputed accommodation without following due process of law. Per contra the Court below concluded that from the facts it is apparent that the plaintiff has failed to establish that there was no reasonable basis which would give rise the apprehension of the petition and he has utterly failed to establish such apprehension particularly in view of the fact that the landlord has not proceeded in accordance with law.

A categorical finding of fact has been recorded that the petitioner was having only three rooms on rent and not five room as alleged by the respondent and that he has failed to give any evidence from which it would be established that he was given any threat to vacate the disputed house. The findings of the Court below in this regard is as under:

Aggrieved by the aforesaid findings of facts of the Court below the petitioner filed appeal No.61 of 1 999 before the appellate Court which too was dismissed by the appellate Court vide order dated 16.5.2006. The appellate Court has confirmed the findings of facts recorded in the suit by the trial Court holding that there is variance in the statement and claim of the petitioner before this Court regarding the threats given by the landlord. The operative portion of the findings of the lower appellate Court are as under:

It is admitted that the, case regarding eviction of the petitioner from the disputed accommodation is pending in the Court below and notice for terminating tenancy was given to him as has been admitted by the petitioner. In the facts and circumstances of the case it cannot be said that the respondent is not proceeding in accordance with law. This petition is a frivolous one. The record shows that ever during the pendency of J.S.C.C.Suit No. 13 of 1992 it has been prayed by the petitioner in the petition that the respondent be directed not to proceed except in accordance with law. In case if there was any such apprehension the petitioner could have moved an application before the Judge Small Causes Court, hence in the facts and circumstances of the case, the petition is liable to be dismissed with heavy and deterrent cost.

The Apex Court in Salem Advocate Bar Association. Tamil Nadu v. Union of India. AIR 2005 SC 3353 had held that

"So far as awarding of costs at the time of judgment is concerned, awarding of costs must be treated generally as mandatory inasmuch as the liberal attitude of the Courts in directing the parties to bear their own costs had lod the parties to file a number of frivolous cases in the Courts or to raise frivolous and unnecessary issues. Costs should invariably follow the event. Where a party succeeds ultimately on one issue or point but loses on number of other issues or points which were unnecessarily raised. Costs must be appropriately apportioned. Special reasons must be assigned if costs are not being awarded. Costs should be assessed according to rule in force If any of the parties has unreasonably protracted the proceedings, the judge should consider exercising discretion to impose exemplary costs after taking into account the expense incurred for the purpose of attendance on the adjourned dates."

Thus from the law laid down by the Hon''ble Apex Court in the aforesaid case of Salem Advocate Bar Association (supra) it is apparent that nonpayment of cost is an exception for which special reasons have to be given by the Court and that in normal circumstances cost has to be awarded on the party according to the issue decided in favour of the party which were unnecessarily raised. The cost so imposed should be in accordance with rules and if the proceedings are unnecessarily protracted or adjournments have been sought it is upon the discretion of the Judge to impose exemplary cost taking also into account the circumstances etc. for the purpose of adjournment.

In so far as imposition of cost in the writ petition is concerned, provision has been made in the Allahabad High Court Rules, 1951. Chapter XXI Rule 11 of the Rules provides for cost in Writ in the nature of Habeas Corpus under Article 220 (sic226) of the Constitution whereas Rule 9 of Chapter XXII of the said Rules provides costs in respect of Direction, Order or Writ under Article 226 of the Constitution other than a Writ in the nature of Habeas Corpus. In so far as Writ of Habeas Corpus is concerned, provision for cost is given in Rule 11 of Chapter XXI.

Rule 9 of Chapter XXII of the Rules is as under:

"Rule 9: Costs In disposing of an application under this Chapter the Court may make such order as to costs as it may consider just."

Rule 11 of Chapter XXI of the Rules is as under:

"Rule 11: Costs In disposing of an application under this Chapter the Court may make such order as to costs as it may consider just."

From the aforesaid rule it is evident that the Court can make such order as to costs as it may consider just. It is discretionary power of the Court to impose cost, hence it cannot be said to be illegal or perverse. The Court should award cost for judicious approach taking into consideration the whole set of facts and circumstances and not award cost arbitrarily or capriciously.

As regards cost to be awarded in suit, Sections 35A and 35B of the Code of Civil Procedure take care of it. Section 35A and 35B of the CPC are 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 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.

(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 proceeding (including an execution 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 for holding such claim or defence to be false or vexatious, make an order for the payment to the objector by the party by whom such claim or defence has been put forward, of costs by way of compensation.

(2) No Court shall make any such order for the payment of an amount exceeding (three thousand rupees) or exceeding the limits of its pecuniary jurisdiction, whichever amounts 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 account in any subsequent suit for damages or compensation in respect of such claim or defence.

35B. Costs for causing delay (1) If, on any date fixed for the hearing of a suit or for taking any step therein, a party to the suit

(a) fails to take the step which he was required by or under this Code to take on that date, or

(b) obtains an adjournment for taking such step or for producing evidence or on any other ground, the Court may, for reasons to be recorded, make an order requiring such party to pay to the other party such costs as would, in the opinion of the Court, be reasonably sufficient to reimburse the other party in respect of the expenses incurred by him in attending the Court on that date, and payment of such costs, on the date next following the date of such order, shall be a condition precedent to the further prosecution of

(a) the suit by the plaintiff, where the plaintiff was ordered to pay such costs,

(b) the defence by the defendant, where the defendant was ordered to pay such costs.

Explanation Where separate defences have been raised by the defendants or groups of defendants, payment of such costs shall be a condition precedent to the further prosecution of the defence by such defendants or groups of defendants as have been ordered by the Court to pay such costs.

(2) The costs, ordered to be paid under subsection (1), shall not, if paid, be included in the costs awarded in the decree passed in the suit; but, if such costs are not paid, a separate order shall be drawn up indicating the amount of such costs and the names and addresses of the persons by whom such costs are payable and the order so drawn up shall be executable against such persons."

Section 34 of the CPC also provides for interest.

In my opinion while awarding interest on a party by nonpayment of principal amount or any dues should also be considered by the Court and not only interest but penal interest may also be awarded.

The counsel for the petitioner states that the petition may be dismissed by taking a lenient view by imposition of cost of Rs.5,000/.

Since it is a frivolous petition, the cost is to be deterrent and exemplary. In the facts and circumstances of the case, the petition is dismissed with cost of Rs.10,000/which shall be deposited by the petitioner before the Court of Judge Small Causes Court, Budaunin J.S.C.C. Suit No.13 of 1992. The cost so deposited can be withdrawn by the respondent without furnishing any security within two months from today.

A certified copy of this order shall be submitted before the Court of Judge Small Causes, Budaun by the petitioner within a period of two weeks from today.

(Petition dismissed)