State of MP Now CG and Others vs Dilip Kumar Dubey

Abhay Manohar Sapre, J.—Heard. This is an appeal filed by the respondents/State of W.P. (S) No. 1407 of 2005 u/s 2 of the Chhattisgarh High Court (Appeal to Division Bench) Act 2006 against order dt 25.10.2010 passed in aforementioned writ petition.

By impugned order, the learned Single Judge (writ Court) allowed the writ petition filed by the respondent herein (writ petitioner) and while so allowing the writ petition, proceeded to impose a cost of Rs. 20,000/- on the State.

In this appeal filed by the State (respondent of writ petition), the only challenge now confined at the time of argument of the appeal by the learned counsel for the appellant in support of this appeal is against the imposition of cost of Rs. 20,000/- on the State.

So the short question that arises for consideration in this appeal is whether the writ Court was justified in imposing a cost of Rs. 20,000/- on the State for being paid to the writ petitioner while partly allowing the writ petition of the writ petitioner?

This is what the learned Single Judge held while imposing a cost of Rs. 20,000/- on the State, who was respondent in the writ petition.

However, keeping in view the peculiar facts and circumstances of the case, this Court feels it proper to impose cot of Rs. 20,000/- on the respondents to be payable to the petitioner.

Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal in part and set aside that part of the order by which the writ Court had imposed a cost of Rs. 20,000/- on the State.

At the out set, we may take note of the fact that whenever cost is imposed on the party by the Court while deciding civil proceedings, it is always by taking recourse to the provisions of Section 35 or Section 35A of CPC and while deciding other proceedings to which the provisions of Code have no application then by taking into account the principle underlying these two provisions of Civil Procedure Code. The usual cost for prosecuting the proceedings is governed by Section 35 of the Code whereas, imposition of compensatory cost is governed by Section 35A ibid. Therefore, there lies a distinction between the criteria for imposing the cost u/s 35 and the one to be imposed u/s 35A ibid. If the former is the usual incidence of imposition which follows due to success of the party in the case against his adversary, the latter is imposed as a penal one for filing false, or vexatious suit or proceedings against the party or taking such kind of defence in the proceedings. Once the Court comes to a conclusion and record a categorical finding that the plaintiff/writ petitioner or the defendant/respondent as the case may be, has filed a false or vexatious suit/proceedings or defence which has either no cause of action to file such suit/proceedings or defence or has no triable issue or has suppressed some material facts which are well within his knowledge from the Court and by resorting to such process, abused the remedies provided in law by wasting the time and energy of not only the Court but also of his adversary, a case for imposition of compensatory cost is made out against such party. Depending upon the facts of each case, the Court is empowered to exercise its judicial discretion for determining the extent of amount for such imposition by assigning reasons to make the order of imposing cost a judicious one.

Coming now to the facts of the case, the writ petitioner, a State employee had challenged certain departmental proceedings, which resulted in his removal from service. The writ Court on contest directed his reinstatement but without payment of back wages and at the same time also directed the State to hold fresh inquiry. While passing such order the writ Court proceeded to impose a cost of Rs. 20,000/- observing that due to peculiar facts and circumstances of the case, such cost is imposed on the State.

With respect, we can not concur with such imposition of cost by the writ Court on the State. In the first place, it was not a case which could be termed as false, or vexatious, or based on suppression of facts or false documents in so far as State is concerned but it was a case where writ petitioner was granted partial relief and not the full one. Secondly, no finding was recorded by the writ Court against the State of the nature contemplated u/s 35A ibid. except to say "peculiar facts and circumstances of the case" and lastly what are those peculiar facts and circumstances were not mentioned while imposing the cost of Rs. 20,000/- and no finding much less categorical one on this issue was recorded.

In our opinion, though provisions of CPC in terms may not apply to the writ proceedings filed under Article 226 of the Constitution, yet as observed supra, principles under lined in twin Sections 35 and 35A should always be kept in consideration while imposing cost by the Courts.

In our opinion, there does not appear to be any justifiable reasons in this case for imposing a heavy cost of Rs. 20,000/- on the State by the writ Court and hence, interference to that extent in the impugned order is called for.

It is for all these reasons, we are inclined to allow the appeal in part and set aside only that part of the impugned order by which a cost of Rs. 20,000/- was imposed on the State. No Cost.