013-NLR-NLR-V-57-RAJASEKARAM-Appellant-and-RAJARATNAM-Respondent.pdf
1955Present:de Silva, J., and Fernando, J.
RAJASEKERAM, Appellant, and RAJARATNAM, Respondent
S. C. 220—.D. C. PL Pedro, 4,323
Costs—Adjournment oj hearing of a case—Power of Court to order payment oj “ incurredcosts ’’—Civil Procedure Code, ss. 143, 214.
Vhcn n Judge, acting under section 113 of tho Civil Procedure Code, grant^*an- adjournment of the hearing of a cose, lie may order the party, at ivhose^request tho adjourmnent is granted, to pay “ incurred costs ”. But when homakes such an order he should state his estimate of the incurred costs V andthe grounds on which he bases that estimate.
/^LEPEAL. from a judgment of tho .District. Court, Point Pedro.
,9. A'adeemtt, Q.C., with C. Remjtinalhnu, for the defendant appellant.
II. V. Perera, Q.O., with T. Aruhnumdan, for the plaintiff respondent.
Cur. tide. ndl.
July 21, 1955. in: Sn.va, J.—
The plaintiff instituted this action on July 2Sth, 1952, against hisbrother, tho defendant, for a declaration that he was the owner of 2/3share of the business carried oil under the name of “ S. Yecragatht-hip-pillai & Sons ” at Jaffna and of the assets and goodwill thereof and foran order for an accounting. In the jdaint the subject matter of theaction was valued at Rs. G00,000. The defendant in his answer deniedtho claim of the plaintiff and sot up various defences. The ease firstcame up for trial on 25.6.’53 when issues wore framed and adopted.Thereafter the hearing was continued on 6.11.’53 and adjourned forthe 11th and 12th January, 1954. On 11.1.’54 in the course of cross-examining the plaintiff the Counsel for the defendant sought to add threenow issues to the fifty issues which had been adopted earlier. The Counselfoi t-hc plaintiff objected to the three now issues and tlio learned District
Judge mmlo order rejecting thorn. Thereupon the defendant's Counselmoved to amend tho answer to enablo him to raise the three issues inquestion. Tho plaintiff’s Counsel objected to that application also;on tho ground that it was an attempt to keep his client away froiu thebusiness, Tho learned District Judge, however, allowed the applicationto amend'tho answer but ordered the defendant to pay to tho plaintiffthe “ incurred costs ” of that day and tho following day. Later, on tliesuggestion of tho Counsel for tho plaintiff, tho three issues in questionwere adopted without the amendment of pleadings in order to obviatodelay. But the order for costs however already mado was retained.Puri her hoaring was refixed for 15th and 16th March, 1954. This appealis by the defendant against tho order for costs referred to above. Theorder appealed from was obviously made under Socticm 143 of tho CivilProcedure Code (heroin after referred to as the Code). Tho Sub-Section1 of that Section empowers the Court to adjourn the hearing of tho actionon the application of either party if sufficient causo is shown. Sub-section 2 of tho same Section enacts “in all such cases the Court shallfix a day for the further hoaring of the action, and may make suchorder as it thinks fit with respect to the costs occasioned by the adjourn-ment. ” Mr. Nadesan conceded that tho Court in granting an adjourn-ment of tho hearing, is ontitled to order tho party at whoso request theadjournment is granted, to pay costs as taxed by the Court or to pay aspecified amount fixed by it as costs. He however argued that therois no provision in tho Code which empowers the Court to order a partyto pay the “ incurred costs Provision is made in Section 214 to taxbills of costs. According to that Section a bill of costs in a District Courthas to bo taxed by tho Secretary, according to the rates specified in theSecond Schedule. Mr. Nadcsnn in support of this argument submittedthat there was no provision in the Code to tax bills in respoct of “ incurredcosts ”. But I do not think that there is any insurmountable difficultyin the matter of taxing such bills. Section 214 itself can be availed offor that purpose, subject to one variation, the variation being the substi-tution of the costs actually incurred in place of the rates specified in thoSocond Schedule. Of course, the party who is to receive “ incurredcosts ” would be entitled to recover such costs only in respect of itemstaxable under that Schedule. In other words he wotdd be entitled to gettho bill taxed in terms of the Second Schedulo, but free from the restric-tions sot out therein in regard to the amounts permitted under it. Suchamounts will bo limited to the sums actually incurred.–
The awarding of cosfe is a matter in tho discretion of the Judge. Butthat discretion must be exorcised judicially. The Judgo is not entitledto make an order in a vague or arbitrary manner. But he should beguided by rules of roason and justico—Sunderam v. Gonsalves'1. InYapu v. Don Davilk 2 Hcarnc J. stated, " It is true that a Court of Appealdoes not ordinarily interfere with tho discretion exercised by a Courtof trial as to costs but whero it is clear that a Court of trial has exercisedno discretion at all and has arbitrarily given costs against the partywho succeeded on tho issues beforo tho Court, it would bo contrary toall principles of justice if it did not interfere ”. As observed by
1 {I9JS) r.l N. L. P. /■;.* (19.17) 10 C. Tj. If. -25.
Basnayako J. in S underam v. Gonsalves (supra) the interference should notbo restricted to the instance referred to by Hoarnc J. if it is evident thattho Judge has not exorcised his discretion at all or if ho has used it arbit-rarily. There arc various factors to bo taken into consideration in fixingtho amount of costs whon tho hearing of a caso is adjourned on the appli-cation of a party. One such factor is tho amount involved in tho litiga-tion, and another is the extra expenditure that is incurred by tho otherparty as a result of tho postponement. Tho Judgo is also entitled totake into consideration tho stago of the c.vso at which tho postponementis granted, in fixing the costs. But in no caso should a Judge enhancetho amount of costs for the reason that tho party who is condemned topay tho same is in affluent circumstances. In this caso tho learnedDistrict Judgo in making the order for costs lias made tho observation“the defendant is not a poor person. ” That is indcod an unfortunatoremark to havo boon made. The fact that tho dofondant was not a poorperson appears to have influenced tho Judgo in ordoring him to payunusually heavy costs. Although I would not go so far as to say thata Judgo in no circumstances should order a party to pay “ incurredcosts ” I would however venture to observe that such an order is anundesirable one and should bo made only in cases where the Judgo isin a position to form a fairly accurato estimate of tho “ incurred costs ”.Where ho makes such an order tho record also should show that ho hadmaterial before him to arrive at tho estimate of “ incurred costs ”.Otherwise it would not bo possible for this Court to ascertain whetheror not the Judgo had exercised his discretion judicially. In this caseit is not possible to gather from tho Judge’s record even a very roughidea of tho amount of costs incurred by tho plaintiff and which thedefendant was ordered to pay. If tho Judge had no means of knowingwhat the plaintiff had spent it cannot bo said that he used his discretionjudicially in ordering the defendant to pay the “ incurred costs ”. Thelearned District Judgo should havo stated in his order his estimate of the“ incurred costs ” and tho grounds on which he based that ostimatebofore ho made tho order. In those circumstances 1 am not satisfiedthat tho Judgo usod his discretion judicially. If the learned DistrictJudgo felt that an ordor for taxed costs in favour of tho plaintiff wasinadequate it woiild havo beon desirable if ho fixed a specified amountas costs after consulting tho Counsel for both parties. Tho order topay “ incurred costs ” is set asido. Tho plaintiff however is ontitledto an ordor for costs. .1 would fix tho costs at Rs. 1000. There will beno costs of this appeal.■
Fernando, J.—I agree.
Order varied.