( 4B8 ).
Present: Pereira J. and De Sampayo A. J.
SILYA v. BABUHAMY.
46—D. C. Chile, 9,918.
Coats—Partition action brought in lower doss—Land sold at six timesthe declared value—Motion by plaintiff to tax costs in the higherclass—Stamps.
Plaintiff in a partition action valued the land at'Rg. 4,500. Thedefendants tacitly accepted this valuation. The land was soldunder a decree for sale and realized a sum of Bs. 26,280. Plaintiffthen moved to furnish the additional stamp duty required for a caseof that value and to tax costs according to that class.
Held, that the costs should be taxed in the class in which theaction was instituted and decided.
Da Sampayo A.J.—To tax costs now as in a case of a higherclass would be to give hiyn expenses to which he has not been put,and allow him in effect to make an extra profit out of the litigation
It will be time enough to consider (the motion as to stamps),
if some one representing the public revenue moves in the matterupon proper evidence that the case was' originally undervalued.The Attorney-General may even sue for the recovery of thedeficiency of stamps.
^HE facts appear from the judgment.
A. St. V. Jayewardene, for appellants.
H. J. C. Pereira (with him Canekeratne), for respondent.
Cur. adv. vult.
June 10, 1913. Db Sampayo A.J.—
This is an action instituted by the plaintiff-respondent in Decem-ber, 1909; for the partition of a land which the plaintiff in his plaintvalued at Bs. 4,500. The defendants tacitly accepted this valuation,and the case was proceeded with on-that footing. On September 9,1910, the Court entered a decree for the partition of the land, whichwas subsequently varied into a decree for sale, and ordered the coststo be paid pro rata, The Commissioner appointed to carry out thesale submitted a report, in which he appraised the land at Bs. 9,450.The land was ultimately sold in November, 1911, and realized asum of Bs. 26,280.
In view of the price for which the land was so sold, the plaintiffon November 12, 1912, moved “ to furnish the additional stampduty required for a case of that value and to tax costs according tothat class/’ The Court allowed this motion ex parte. Thereupon
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the appellants, who were some of the defendants in the ease, movedthat this order be vacated and a date be fixed for inquiry. On theday appointed on inquiry was made into the value of the land,except that the appellants put in an extract from the kaehcherirecords showing the official valuation for assessment purposes tobe Rs. 4,750. The Court, however, in view of the partition commis-sioner’s appraisement and the price realized at the sale, held thatthe case belonged to the over Rs. 10,000 class, and by its order ofFebruary 3, 1913, disallowed the appellants’ motion with costs.
The question is whether the order of November 12, 1912, allowingthe plaintiff’s motion is correct. I shall first deal with the matterof taxation of costs. From the view I take of the case, it is notnecessary to consider whether the price realized at the sale shouldbe taken as the test of the true value of the land at the time whenthe action was brought, or whether there is sufficient material inthe case to show that the valuation given by the plaintiff in hisplaint is wholly wrong. The question is: Should the plaintiff beallowed to go behind his own estimate of the value of the subject-matter of the action so as to enable him to tax costs in a higherclass? He had a large interest in the land in comparison with mostof the defendants; he as plaintiff had the conduct of the case, andwould necessarily have more items of costs to charge than the others;and he also had separate orders for costs against some defendantsin respect of certain special contests. It is therefore to his advantageif the costs are taxed in the higher class, and unless the law is clearlyin his favour, I do not think he ought to benefit by the litigationin that way. Now, what are costs? They are the sum of moneywhich the Court orders “ an unsuccessful litigant to pay to hisopponent to compensate the latter for the expense to which he hasbeen put by the litigation ” (The Encyclopedia- of Laws, vol. IV.,p. 42).“ The expenses to which parties are put in the prosecution
and defence of actions are commonly called costs ” (Marshall’sJudgments 70). Now, this action was commenced, proceeded with,and concluded on the basis of the value of the land being Rs. 4,500,and presumably the plaintiff has already incurred all the necessaryexpenses of the actual litigation. To tax costs now as in a caseof a higher class would be to give him expenses to which he has notbeen put, and to allow him in effect to make an extra profit out. ofthe litigation. This is all the more to be deprecated in partitioncases which are really brought in the common interest of all theco-owners. The District Judge has referred to certain cases, fromwhich he has concluded that it is the practice of the District Courtof Galle in similar circumstances to allow costs to be taxed in thehigher scale. If there is such a practice, I think it is a bad andunauthorized practice. No decision of this Court has been citedto us,and I know of none,which has recognized the practice of taxingcosts in a higher class than that in which the action is brought.
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There are undoubtedly eases in which, where the plaintiff has over-valued his claim, this Court has laid down the rule that in general heshould be given costB only in the class in which he obtains judgment,and may even be muloted in the difference between the two scalesof costs for putting the other party to unnecessary expenses- Theconverse of this, however, does not appear- to be just or in accordancewith principle.- Counsel for plaintiff referred to section 46 of theCivil Procedure Code, which provides for the rejection of a plainton its presentment to Court where the relief sought is undervalued;and also to Silva v. Fernando,1 in which, in the course of an action,the plaintiff was ordered to supply deficiency of stamps where theclaim was for damages, but where the case had not been valued withreference to the land itself, the title to which was in dispute. Butthese references do not furnish any authority for saying that, wherethe case had not been duly raised to a higher class, a party has theright at the end to tax costs as if it had been, and as if he had onthat account been obliged to incur extra expense. What authoritythere is appears rather to be the other way. For in Appuhamy v.Corea,2 where the facts were almost parallel to those of this case,and where the plaintiff sought to appeal to the Privy Council byverifying by affidavit the true value of the subject of the action,
. Bonser C.J. refused leave to appeal; remarking, “ Both the partieshave proceeded upon the footing that the subject-matter of this
action did not exceed Bs. 5,000 In my opinion it is not
competent for either of the parties now to turn round and say thatthe value of the property is greater than that which it has beenstated by the plaintiff in the proceedings to be.” Similarly, I thinkit is not competent for the plaintiff to go behind his own valuationof the land for the mere purpose of taxing his costs' in a higher class.
As regards stamps, the proceedings in a partition action beingexempted from stamp duty, the reference in the plaintiff’s motionto additional stamp duty can only be to the schedule stamps onprocesses. The inclusion of it in his motion is only incidental tothe substantial application as to taxation of costs. It will be timeenough to consider it if some one representing the public revenuemoves in the matter, upon proper evidence that the case wasoriginally undervalued. The Attorney-General may even sue forthe recovery of the deficiency of stamps, if any. Attorney-Generalv. Kanappa Chetty.*
In my opinion the appeal should be allowed, and the orders ofNovember 12, 1912, and February 3, 1913, should be set aside, withcosts in both Courts.
Pereira J.—I. agree.
* (1908) 11 N. L. B. 376.
*0908)3 A. C.R.U8.
2 0900) 1 Bt. 186.
SILVA v. BABUHAMY