KEUNEMAN J.—Abdul Caffoor and Municipal Council, Colombo.
1943Present: Keuneman and Wijeyewardene JJ.
ABDUL CAFFOOR, Appellant, and MUNICIPALCOUNCIL, COLOMBO, respondent.
181—D. C. Colombo, 11,761.
Costs—Action of plaintiff and defendant’s counterclaim both dismissed—Equitable order re costs.
Where both the plaintiffs action and defendant’s counterclaim aredismissed the equitable order as to costs would be that the plaintiff’saction and the defendant’s counterclaim should be both dismissed withcosts or that there should be no order for costs.
PPEAL from a judgment of the District Judge of Colombo.
T. Olegasegaram (with him A. H. M. Ismail), for the plaintiff, appellant.
J.E. M. Obeyesekere (with him H. W. Thambiah), for the defendant,respondent.
April 16, 1943. Keuneman J.—
The only point of substance that arises in this appeal is whether theDistrict Judge’s order with regard to costs is correct. The action wasbrought by the plaintiff claiming a sum of Rs. 9,339.96 as injury tobuildings and Rs. 3,937.50 as consequential damages arising from thefact that the defendant’s sewer had crumpled up or cracked and had causedthe damage described in the plaint. The defendant denied the alle-gations of the plaintiff^and counterclaimed in the sum of Rs. 21,515.98for damage caused to the sewer in consequence of the plaintiff’s buildinghaving been improperly put up in close proximity to the sewer and havingcaused damage to it. After a lengthy trial the learned District Judgedismissed both the plaintiff’s action and the defendant’s counterclaim,but for reasons which he had not set out ordered the plaintiff to pay tothe defendant one half of the taxed costs of this action.
It is difficult to understand why this order had been made. Eachvjside in this court has tried without success to convince us that thegreater part of the evidence was due to the claim of the other side. As
WUEYEWARDENE J.—Cassim and Natchia.
far as I can make out, che length of the trial was due not only to the claimof the plaintiff but also to the counterclaim of the defendant. I thinkthe equitable order would have been either that the plaintiff’s action andthe defendant’s counterclaim should have been both dismissed withcosts or that no order for costs should have been made in the court below.In the absence of any reason for the learned District Judge making thatorder, I now make order that there shall be no order for costs to eitherside in the Court below. I do not think that there should be any costsof appeal either. Subject to this variation the appeal is dismissed.
Wijeyewardene J.—I agree.