100 Madras Vittal Shetty v. Par AMKsrcwuu (K nshnaswavii Naijudu J.) A-1- R.

1 ^
there is no question of defendant entering from them though she became manager on 19.2.
appearance. So proviso 2 would not apply 1918, and that therefore she had not been in a posi
and what would apply is the specific pro­ tion to maintain tlie plaintiffs, or herself from out of
the family income. Defendants 2 to 6 contested
vision contained in R. 37(f). (Para 1) the suit and defendant 2 filed a written statement A
Row and Reddy and G, Gopalakrishnan, for contending that the suit was filed in collusion with V 5
Petitioner. defendant 1 and to saddle the family with a )ar*e
liability, that as the plaintiffs were living with cfe. 6
ORDER: The Vakil’s fee originally was fixed fendant l who was maintaining them for the period A
at Rs. 118. The suit was for Rs. 5063 and was during which the claim was made, the plaintiffs &
filed under O. 37, Civil P. C. Subsequent to the were not entitled to separate maintenance, that t.
decree an application was made on behalf of the claim for maintenance was excessive. Issues J
the plaintiff to amend the decree by adding were framed. The first issue was whether the
Rs. 118 more towards the lawyer’s fee. Notice plaintiffs were not entitled to maintenance on the ^
of that application was taken to the advocate
for the defendant and as no counter statement ground that they had been maintained by defen-
dant 1 who was ejamanthi and the second issue ^
was filed, on 7-7-1949 the Court amended the was whether there was no justification for demand- of
decree as prayed for by the plaintiff. Then ing separate maintenance. These two issues arose *c
subsequently on 20-7-1949 the Court suo motu mainly on the written statement of defendants 2 fd
vacated the order dated 7-7-1949 and posted the to 6 and the plaintiffs had necessarily to go io
case for hearing. On 26-7-1949 the learned Judge trial. Documents were filed and witnesses were 1
passed an order as follows: examined. Eventually the learned Subordinate &
“The vakil’s fee allowed is correct in view of Judge granted a decree as prayed for by the plain- #
R. 37(f) read with R. 31(b) proviso. The tiffs for the amount claimed to be recovered from £
order passed on 7-7-1949 is not correct. This the properties of the family.
petition is dismissed.” (2) On the question of costs the learned Subor- cca
In my opinion, the learned Judge was in dinate Judge has allowed costs to the plaintiffs ijy
error. Rule 37(f) of the Legal Practitioners from defendants 2 to 6 and fixed a sum of Rs. 100
Rules prescribes for suits under O. 37, Civil being the costs arrived at the confessional scale. G
P. C. Where leave to defend has not been In dealing with the question of costs, while accept­
granted, the fee shall be half the fee prescribed ing the contention of the plaintiffs namely that CIS?
under R. 31 (b) subject to a maximum of Rs. they were entitled to costs on contested scale as
500. The reference to R. 31 (D) must be taken against defendants 2 to 6, as sound and holding AM,
as a reference to the fees allowed in ordinary that it was really frivolous on the part of the de- w '
cases and does not* in my opinion, have .refer­ 2 to 6 to have contended that the plain- fli
ence to the special class of cases dealt with in fendants
tills were not entitled to maintenance on the ground ill ,1
proviso 2, viz., to suits which are decided . ex
parte the defendant not entering appearance or that defendant l maintained them, still in view of j
id 1
having entered appearance not contesting. the fact that the defence put forward by them did
Obviously, in a suit filed under O. 37, in which not substantially delay the disposal of the suit, the id r
leave to defend has not been granted there is learned Subordinate Judge considered a sum of ffc. m,
no question of defendant entering appearance. 100 by way of costs as sufficient. '
He is in fact precluded from doing so. So the (3) It is not a case where costs on the confes­
proviso would not apply and what would apply sional scale as provided in the Civil Rules of Prac- & .
is the specific provision contained in R. 37 (f). tice could be awarded. The parties went to trial. **
The order of the learned Judge is set aside and Issues were framed, documents were filed and evi­ t*
his order dated 7-7-1949 is restored. dence was taken. Ordinarily costs must generally >1)
C/D.H. Revision allowed. be on the contested scale unless there are compel!'
" reasons for the Court to order otherwise. The &n
fact that the defence of the contesting defendants 5 ft
did not substantially delay the disposal of the suit ssj
A.I.K. 1954 MADRAS 100 (Vol. 41, C. N. 39) could not be a ground for denying costs to the 5a
KRISHNASWAMI NAYUDU J. plaintiffs which they would be otherwise entitled
Vittal Shetty and others, Appellants v. Para- to. When the learned Subordinate Judge concedes f
that the defence raised on behalf of the contesting
meshwari alias Ujjakke Shedthi and others. defendants were frivolous, he should have ordered ;
Respondents. costs on the contested scale and the delay in the j
Appeal No. 603 of 1949, D/- 17-9-1952, against disposal of the suit could not be considered to be i|«7.
decree of Sub. J., South Kanara, D/- 30-11-1948 taken into
taken mtn account
nrrnimf in
ir. arriving
---.“'J
at what reasonable ij{JJ
Civil P. C. (1908), S. 35 — Discretion of costs the plaintiffs would be entitled to. ;>Cj
Court — Contested suit — Award of confes­
sional costs to successful party — Interference the learned Subordinate Judge has exercised his 1!,£' 1
on behalf of the respondents that
in appeal is justified — (Madras Civil Rules discretion which he is entitled to do under Section \ ?
of Practice). (Para 4) T?™ Y, and that ordinarily such exercise of j. JL
Anno: Civil P. C., S. 35 N. 5. not be interfered with. law]-h
aware of the discretion that is given to Courts in ■ * fc
K. Y. Adiga and K. P. Adiga. for Appellants; ™Qn.S costs J>«t such discretion must be based on! $
S Ramayya Nayak, for Respondents. legal principles consistent with justice and reason . fe*
. JUDGMENT:
, . Zhls aPPeal relates only to the that the reason given Dyiiwj**
decree for costs. The plaintiffs are the appellants ffrdVn^ Judge is su^clent to deprive; ^
They as the junior members of an Aliyasanthana entitSS t,f.$L0f the,r costs to which they will be V
family sued to recover a sum of Rs. 15981 as the entitled. The appeal is allowed with costs. j V
arrears of maintenance due to them. Defendant C/M.K.& Appeal allowed j ^
1 is the present ejamantbi of the family. She filed
a written statement showing that she was not in &i.
possession of the family properties or the tncom* &