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Present: Fisher C.J. and Drieberg J..
VELAN v. KATNASINGHAM.254—D. C. Jaffna, 23,045.
Costs—Successful defendant deprived of costs—Principle applicable—Conduct ofdefendant—Discretion of Court.
A Court may be justified in refusing costs to a successfuldefendant, where the latter has done something wrongful in thecourse of the transaction of which the plaintiff complains.
PPEAL from an order of the District Judge of Jaffna.
H. V. Perera, for first to sixth, ninth, eleventh, and twelfthdefendants, appellants.
Soertsz, for plaintiffs, respondents.
R. Ramachandra, for seventh, eighth, and tenth defendants,respondents.
February 10, 1930. Fisher C.J.—
In this case the appellants are members of a Village Committeeand were defendants to an action in winch the important questionwas whether a resolution passed by the Committee on July 23, 1927,
1 17 N. L. R, m.
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was bad. Certain other persons who pleaded that the resolutionmentioned justified their doing what the plaintiff complained ofwere also defendants to the action, and judgment was entered infavour of the plaintiff's against them, the learned Judge holdingthat the resolution referred to was ultra vires and contrary to law.These defendants have not appealed. The. action against theappellants was dismissed, on the ground of mis-joinder, withoutcosts, the learned Judge saying: “ I award no costs to first totwelfth defendants as it is clear that the conduct of village life andwelfare is in their hands, and it is their duty to settle matters ofthis kind amicably—a duty in which in this instance they havesignaly failed.’’
Against that order the appellants appealed* praying |; that thejudgment of the learned District Judge holding the said resolutionas ultra vires be set aside with costs ….” The petition of
appeal arises a number of questions which were decided againstthe defendants who have not appealed, and it is clear that theappellants sought an opportunity of showing that the judgment ofthe learned Judge against the other defendants is wrong. Theappeal must, however, be treated solely as an appeal against therefusal to make an order for costs in their favour against tht?plaintiffs.
Apart from any statutory provisions it may I think be acceptedas a cardinal rule that a successful party is primd jade entitled tothe costs of the proceedings which have ended in his favour, andsection 211 of the Civil Procedure Code seems to recognize such arule. The second paragraph of that section enacts: “ Providedthat if the Court directs that the costs of any application or actionshall not follow the event, the Court shall state its reasons-inwriting.”
The grounds on which a Court is justified in refusing an order forcosts to a successful defendant seem to be those set out by LordJustice Atkin in his judgment in Bitter v. Godfrey,1 where he says:“ In the case of a wholly successful defendant, in my opinion,the Judge must give the defendant his costs unless there is evidencethat the defendant (1) brought about the litigation, or (2) has donesomething connected with the institution or the conduct of the suitcalculated to occasion unnecessary litigation and expense, or (3)has done some wrongful act in the course of the transaction of whichthe plaintiff complains.” That case was overruled by DonaldCampbell & Co. v. Poliak,2 but on a ground which does not impairthe authority of the passage set out.
The question for us to consider, therefore, is whether in deprivingthe appellant of costs to which he was prima facie entitled thelearned; Judge exercised his discretion judicially. The whole of
1 Q920) 2;K. B.t p. 60.2 (1927) A. C. 733.
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the merits have been considered and decided, as between theplaintiffs and the other defendants, in the Court below, and X donot thinlr that the appellants, who were absolved from liabilityon a technical ground, can require this Court to reconsider tbedecision on the merits for the purpose of deciding the questionbefore us. In the case of the Metropolitan Asylum District Managersv. Hitt,1 Lord Selborne said:* “ The rule, subject to certainexceptions, is established, that an appeal is not to be allowed in respectof costs only; which means that when the merits of a questionhave been determined and when a Court has thought fit to give orrefuse costs, in the exercise of its discretion, and in the absence ofany settled principle upon the subject, the Courts of appeal mustgive so much credit to the exercise of that discretion as not to allowthe merits, when they are no longer in controversy, to be againgone over with great expenditure, not only of money but also ofjudicial time, for the mere purpose of reviewing that discretion. "That epxression of opinion seems to me to be in point here.
The test of whether discretion has been exercised judically or notdepends, in my opinion, on whether it can be said that the learnedJudge based his order on something which was foreign to thematter before him. The whole history of the origin of the. disputewhich led to this action was before the learned Judge. He tookexception to the terms of the resolution which the appellants wereinstrumental in passing. He says in his judgment: “The resolu-tion makes an invidious distinction and leaves a bad taste in themouth, ” and he yrenfc on to point out how a resolution could havebeen framed to which no exception could* have been taken. Therecord in the case shows that the appellants identified themselveswith the other defendants in seeking to uphold the efficacy of theresolution, and their petition of appeal entirely emphasises thatposition. The gist of the learned Judge’s judgment is that in amatter directly affecting and connected with the cause of actionthe defendants acted improperly and .displayed a partiality which isinconsistent with their duty as members of a public body, and evenhad .he been of opinion that the resolution was not ultra vires itis to be inferred that he would have held the same view of theappellant’s conduct.
. Jin my opinion it cannot be said that the Judge wrongly exercisedhis direction in declining to allow the judgment in favour of theappellant to carry costs against the plaintiff. The appeal must bedismissed with costs.
Drieberg J.—I agree.
1 5 App. Case, at p. 584.
Velan v.Batna•sing ham
VELAN v. RATNASINGHAM