Precious Blood Missionaries (represented by its President) and Fr. Varakumar and Fr. Sahayaroopan v Nishanth Luize

``` OP(C) NO. 2995 OF 2018 ``` ``` 1 ``` ## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 6[TH] DAY OF JULY 2022 / 15TH ASHADHA, 1944 ``` ## `OP(C) NO. 2995 OF 2018` ``` IN OS 35/2014 OF ADDITIONAL SUB COURT,NORTH PARAVUR ``` ## `PETITIONERS:` - `1 PRECIOUS BLOOD MISSIONARIES REG.NO.359/87-88, OFFICE, 'AARADHANA' HULIMAVU, BANGALORE, KARNATAKA STATE,` ``` PIN-560076 ``` ``` REPRESENTED BY ITS PRESIDENT ``` - `2 FR. VARAKUMAR, PRESIDENT, PRECIOUS BLOOD MISSIONARIES, RESIDING AT NO.260, 4TH MAIN,` - `5TH CROSS, 1ST BLOCK, KORAMANGALA, BANGALORE 34` ``` 3FR. SAHAYAROOPAN, SECRETARY, INDIAN VICARIATE HOUSE, ST. GASPERNAGAR, P.B. NO. 2905, DHARMARAM COLLEGE P.O., SG PALAYA, BANGALORE ``` ``` OP(C) NO. 2995 OF 2018 ``` ``` 2 ``` ``` BY ADVS.J.JULIAN XAVIER RAJU JOSEPH (SR.) SRI.FIROZ K.ROBIN ``` ``` RESPONDENT: ``` ``` NISHANTH LUIZE, S/O M.J.LUIZE, MUKKADAYIL HOUSE, METTALAX ROAD, ERNAKULAM, ``` ``` KOCHI-682018 ``` ``` BY ADVS.T.KRISHNANUNNI (SR.) MEENA.A. VINOD RAVINDRANATH M.R.MINI ASHWIN SATHYANATH K.C.KIRAN M.DEVESH THAREEQ ANVER K. ANISH ANTONY ANATHAZHATH ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 06.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` OP(C) NO. 2995 OF 2018 ``` ``` 3 ``` **==> picture [42 x 13] intentionally omitted <==** _Dated this the 6[th ] day of July, 2022_ ## **J U D G M E N T** How is Ext.P2 judgment to be interpreted to calculate costs, is the short question for consideration in this original petition? 2. The petitioners’ case, in a nutshell, relevant for the determination of the original petition is that they are the defendants in O.S.No.35/2014, filed by the respondent, before the Court of the Additional Subordinate Judge, North Paravur, for a decree to direct the petitioners to execute the registered sale deed in respect of the plaint schedule properties or alternatively to permit the respondent to recover from the petitioners an amount of Rs.6,36,00,000/- with interest. The respondent had filed Ext.P1 plaint, _inter alia,_ contending that the petitioners had agreed to sell their properties having an extent of 285.13 ares of land in Alangad ``` OP(C) NO. 2995 OF 2018 ``` ``` 4 ``` village, elaborately described in the schedule appended to the plaint, to the respondent for an amount for Rs.1,75,000/- per cent. Pursuant to the agreement of sale dated 15.04.2011 entered into between the parties, the respondent had paid the petitioners an advance sale consideration of Rs.1,00,00,000/- on different dates. Albeit the requests made by the respondent to the petitioners, they willfully refused to execute the sale deed. Hence, Ext.P-1 was instituted. The petitioners had filed Ext.P2 written statement refuting the allegations in the plaint. The court below, by Ext.P2 judgment, partly decreed the suit by Ext.P.3 decree, permitting the respondent to recover from the first petitioner the advance sale consideration of Rs.1,00,00,000/- with interest and costs. As per Ext.P3 decree, the petitioners are directed to pay the respondent an amount of Rs.1,11,94,848/- as costs. The costs awarded by the court below are contrary to the provisions of the Code of Civil Procedure, 1908 _(in short, ‘Code’)_ and the Rules ``` OP(C) NO. 2995 OF 2018 ``` ``` 5 ``` framed thereunder. Hence, the petitioners had filed Ext.P4 application to correct the decree. The respondent had objected to the application by filing Ext.P5 counter objection. The court below, on an erroneous appreciation of the facts and the law, by the impugned Ext.P6 order, has dismissed Ext.P4 application. Ext.P6 is _ex-facie_ illegal and unsustainable in law. Hence, the original petition. 3. Heard; Sri. Raju Joseph, the learned Senior Counsel appearing for the petitioners and Sri. T. Krishnanunni, the learned Senior Counsel appearing for the respondent. 4. Sri. Raju Joseph argued that, even though the respondent had filed the suit for the specific performance of the contract with an alternative prayer for the refund of the advance sale consideration with damages and interest amounting to Rs.6,36,00,000/-, the court below by Ext.P2 judgment has only partly decreed ``` OP(C) NO. 2995 OF 2018 ``` ``` 6 ``` the suit by Ext.P3 decree, permitting the respondent to recover from the first petitioner an amount of Rs.1,00,00,000/- with interest and costs. But the court below, without any application of mind, has awarded costs on the total valuation of plaint relief No. ‘A’, i.e., Rs.12,32,93,100/-, which is patently wrong and unsustainable in law. Immediately, on noticing the error committed by the court below, the petitioners had filed Ext.P4 application to correct the decree. Nonetheless, the court below, by the impugned Ext.P6 order, rejected the application and repeated the mistake. The cost awarded by the court below is excessive and unconscionable and is liable to be set aside. Ext.P6 order may be set aside, Ext.P4 may be allowed, and Ext.P3 decree may be modified by ordering costs in tune with Ext.P2 judgment. 5. Sri. T.Krishnanunni defended Ext. P 3 decree and Ext.P6 order. He strenuously argued that the original ``` OP(C) NO. 2995 OF 2018 ``` ``` 7 ``` petition is not maintainable. The proper course to be adopted by the petitioners, if they are aggrieved by Ext.P3 decree, is to challenge the decree in appeal or seek review of the decree as contemplated under Section 114 of the Code and not resort to such experimental methods by seeking correction of the decree under Section 152 of the Code. Section 152 of the Code only enables the correction of clerical or arithmetical mistakes. The court below has consciously awarded costs on the whole plaint claim. The respondent is entitled to costs as provided under Rules 5, 6 and 9 of the Rules Fees Payable to Advocates formulated by this Court. There is no error or illegality in Ext.P6 order warranting interference by this Court under Article 227 of the Constitution of India. Hence, the original petition is only liable to be dismissed. 6. In the case on hand, the respondent had sought a decree to direct the petitioners to execute the ``` OP(C) NO. 2995 OF 2018 ``` ``` 8 ``` registered sale deed in respect of the plaint schedule property or, alternatively, to permit the respondent to realise from the petitioners an amount of Rs.6,36,00,000/- (i.e., to recover Rs.1,00,00,000/- (the advance sale consideration paid), Rs.5,00,00,000/(damages for breach of agreement) and Rs.36,00,000/(interest on the said amount)). The valuation in the plaint for relief ‘A’ is Rs.12,32,93,100/- and for relief ‘B’ is Rs.6,36,00,000/-. The respondent has paid the court fee on relief ‘A’ as provided under Section 42 of the Kerala Court Fees and Suits Valuation Act. 7. The court below, by Ext.P2 judgment, decreed the suit, in part, as follows:- **“In the result, the suit is decreed directing the 1[st] defendant to pay the plaintiff Rs.1,00,00,000/with interest at the rate of 9.5% per annum from 15.04.2011 till the date of decree and thereafter at the rate of 6% per annum till realisation and costs.”** ``` OP(C) NO. 2995 OF 2018 ``` ``` 9 ``` 8. To put it succinctly, the court below has rejected the respondent’s prayers for registration of the sale deed in his favour and damages; instead, has partly decreed the suit by directing the 1st petitioner to pay the - respondent an amount of Rs.1,00,00,000/ with interest and costs on the said amount of Rs.1,00,00,000/-. 9. Immediately after the suit was decreed, the respondent had filed his statement of costs, as provided under Rule 196 of the Civil Rules of Practice, Kerala, for the following amounts: (i) Court fee - Rs.19,51,331/- (ii) Vakkalath fee – Rs.5/- (iii) Exhibits - Rs.10/- (iv) Petition fee – Rs.30/- (v) Petition fee – Rs.140/- (vi) Sr. Adv fee - Rs.61,62,155/- (vii) Jr. Adv fee – Rs.30,81,077/- (viii) Writing fee - Rs.100/-, thus totalling to Rs.1,11,94,848/- 10. The court below accepted the statement of costs filed by the respondent and drew Ext.P3 decree as follows: ``` OP(C) NO. 2995 OF 2018 ``` ``` 10 ``` ## “DECREE The suit is decreed directing the 1[st] defendant to pay the plaintiff Rs.1,00,00,000/- with interest at the rate of 9.5.% per annum from 15.04.2011 till the date of decree and thereafter at the rate of 6% per annum till realisation and costs”. 11. The particulars of costs, annexed to Ext.P.3 decree, are prepared as prayed for by the respondent in the statement of costs for Rs.1,11,94,848/-. Thus, for a decree amount of Rs.1,00,00,000/-, the court below has ordered an amount of Rs.1,11,94,848/- as costs, which is obviously more than the decree amount. 12. A literal interpretation of Ext.P2 judgment leads one to only one inference that the court below has directed the 1[st] petitioner to pay the respondent an amount of Rs.1,00,00,000/- with interest and costs. The word **‘and’** has to be read conjunctively with Rs.1,00,00,000/- and not distinctively, to mean that costs are on the whole plaint claim of Rs.12,32,93,100/-, as interpreted by the respondent in the statement of costs. If that was the case, the court below was bound to ``` OP(C) NO. 2995 OF 2018 ``` ``` 11 ``` expressly state, in unambiguous terms, that the suit is decreed for Rs.1,00,00,000/-, but interest and costs on the plaint amount. It would be absurd and ridiculous to state so because, although the respondent had sought a decree of Rs.12,32,93,100/- in respect of relief ‘A’ and Rs.6,36,00,000/- in respect of relief ‘B’, the court below, after a full-fledged trial, arrived at a conclusion that the respondent is only entitled to a decree of Rs.1,00,00,000/-. So, therefore, the respondent's entitlment is found to be only Rs.1,00,000/- and not anything more. It is trite, costs should follow the event, and should be in proportion to the success or failure of the parties. By stating that the suit is decreed for Rs.1,00,00,000/- with interest and costs, it can only mean that the costs are only for Rs.1,00,00,000/-; otherwise, it would lead to unrealistic and disproportionate costs, i.e., where the costs exceed the decree amount. Also, if such an irrational interpretation is given, it can also be argued that the interest quotient ``` OP(C) NO. 2995 OF 2018 ``` ``` 12 ``` is on the plaint valuation and not on the decree amount. Therefore, I am of the definite view that the court below in Ext.P2 judgment has only allowed costs on the decree amount of Rs.1,00,00,000/- and not on the plaint claim of Rs.12,32,93,100/-. Unfortunately, the court below has failed to interpret the judgment as per the mandate under sub-rule (2) of Rule 196 of the Civil Rules of Practice, Kerala. 13. Even otherwise, Section 35 and Order XXA of the Code of Civil Procedure, 1908 deals with costs to be imposed in suits. ## 14. Section 35 reads thus:- “35 Costs .- (1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incident to all suits shall be in the discretion of the Court, and the Court shall have full power to determine by whom or out of what property and to what extent such costs are to be paid, and to give all necessary directions for purposes aforesaid. The fact that the Court has no jurisdiction to try the suit shall be no bar to the exercise of such powers. (2) Where the Court directs that any costs shall not follow the event, the Court shall state its reasons in writing. ``` OP(C) NO. 2995 OF 2018 ``` ``` 13 ``` ## 15. Interpreting Section 35 of the Code, this Court ## in _**Malabar Motor Transport Co-operative Society Ltd. v. Amu**_ [1985 KLT 107] held thus: “2.The counsel for the appellant submitted that the direction in the judgment as to costs is patently erroneous. According to him, normally, as a rule, costs should follow the cause, and the costs received or given should be in proportion to the success or failure in respect of the suit claim by the respective parties. In support of this contention he relied on the decision of the Supreme Court in S.P. Majoo v. Ganga Dbar (AIR 1969 SC 600) where in Para 6, at page 604 of the report, the Supreme Courtobserved as follows: “We accordingly allow this appeal to the extent indicated above and modify the decree of the Calcutta High Court. The plaintiff respondent will be awarded costs proportionate to his success in the present suit as between attorney and client." He also cited the decision of the Nagpur High Court in Jamshed Karimuddin v. Kunjital Harsukh (AIR 1938 Nag 530). In that decision arising out of a suit for damages for breach of the contract, it was observed. “I therefore set aside the decree of the lower Appellate Court so far as the cost are concerned and direct that costs shall be proportionate to success and failure throughout.” That normally the costs should follow cause and it should be in proportion to the success or failure of the parties is a well accepted principle. That does not, however, mean that this is an invariable rule, and the court has no discretion in the matter. In fact, according to us, the acceptance of such a rigid principle would run counter to the provisions contained in S.35 of the Code of Civil Procedure which vest in the Court a discretion in the matter. No doubt, that discretion could not be exercised capriciously, arbitrarily, unfairly and unreasonably. All the same, when, on the facts and in the circumstances of the case, the court finds where the ``` OP(C) NO. 2995 OF 2018 ``` ``` 14 ``` plaintiff in a suit does not succeed fully, some equitable directions in regard to the burden with respect to the court fee between the parties have to be given by the Court; it should not be considered to be powerless to do so.” ## 16. In _**Subramonia Iyer v. Kurian**_ [1990 KHC 558] this Court has observed as follows: “2. Costs and incidents to all suits shall be in the discretion of the court. Courts have full power to determine by whom or out of what property and to what extent such costs are to be paid, and to give all directions for that purpose. Butthat discretion is not an arbitrary or unfettered one. It is a judicial discretion to be exercised on sound judicial principles based on sound reasonings. As Sub-section (2) of S.35 of the Code of Civil Procedure indicates, the normal rule is that costs should follow the event and the successful party is entitled to his costs. When there is a deviation from this rule, the court is bound to assign sound judicial reasons. The exercise of the discretion is also subjected to such conditions and limitations, as may be prescribed and provisions of any law for the time being in force. The object of S.35 in awarding costs to a litigant is to secure to him the expense incurred by him in the litigation for which the responsibility does not lie on him and not to make anything in the way of gain of profit over and above the expenses for maintaining or defending the action, nor to give exemplary damages or smart money, by way of penalty or punishment on the opposite party. S.35 A and B are there in those areas. Apart from S.35, the High Court is having wide discretion in the exercise of its inherent powers to award or disallow costs in suitable cases, if it finds necessary to do so in the interest of justice”. ## 17. Again in _**Sanjeev Kumar Jain v. Raghubir**_ _**Saran Charitable Trust and Others**_ [2011(4) KLT 966], the Hon’ble Supreme Court has held thus: ``` OP(C) NO. 2995 OF 2018 ``` ``` 15 ``` “11. xxx xxx The actual realistic cost should have a correlation to costs which are realistic and practical. It cannot obviously refer to fanciful and whimsical expenditure by parties who have the luxury of engaging a battery of high-charging lawyers. If the logic adopted by the High Court is to be accepted, then the losing party should pay the costs, not with reference to the sub matter of the suit, but with reference to the fee paying capacity of the other side”. 18. On a consideration of Section 35 of the Code of Civil Procedure and the law laid down in the afore-cited decisions, it is beyond any pale of doubt that awarding of cost is the absolute discretion and power of the court, that too in a realistic and practical manner based on sound judicial principles and reasonings, and in proportion to the success and failure and not in a fanciful and whimsical manner, except in exceptional circumstances. 19. As already discussed, notwithstanding the court below partly decreeing the suit for Rs.1,00,00,000/- with interest and costs, the court below has not considered the statement of costs filed by the respondents in its ``` OP(C) NO. 2995 OF 2018 ``` ``` 16 ``` proper perspective, instead has accepted the same in a mechanical and casual manner, without any application of mind, and has drawn the particulars of costs in Ext.P3 decree on the plaint valuation, which is erroneous and unsustainable in law. I hold that the amount ordered as costs in Ext.P3 is unconscionable, unrealistic and disproportionate. I am of the definite view that Ext.P2 judgment has been wrongly interpreted by the court below. There is a clerical error in Ext.P3 decree as regards the particulars of cost, which is liable to be corrected under Section 152 of the Code of Civil Procedure and Article 227 of the Constitution of India. Hence the original petition is to be allowed. In the result, the original petition is allowed in the following manner: - (i) Ext.P6 order is set aside. - (ii) Ext.P4 application is allowed. ``` OP(C) NO. 2995 OF 2018 ``` ``` 17 ``` (iii) Ext.P.3 decree is modified by directing the 1[st] defendant to the an amount of pay plaintiff Rs.1,00,00,000/- with interest on the said amount at the rate of 9.5.% per annum from 15.04.2011 till the date of decree and thereafter at the rate of 6% per annum till realisation and proportionate cost on Rs.1,00,00,000/-. (iv) The Court of the Additional Subordinate Judge, North Paravur is directed to correct and redraw Ext.P.3 decree, as directed in relief No.(iii) of this judgment and issue the corrected decree to the parties. (v) The parties shall bear their respective costs of this proceeding. Sd/- ## **C.S.DIAS,JUDGE** DST/06.07.22 //True copy/ ``` OP(C) NO. 2995 OF 2018 ``` ``` 18 ``` ## `APPENDIX` ``` PETITIONER EXHIBITS EXHIBIT P1TRUE COPY OF THE PLAINT IN OS NO. 35/2014 FILED BY THE RESPONDENT BEFORE THE HONBLE SUB COURT, NORTH PARAVUR DATED 8.3.2014 ``` - `EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 27.8.2016 IN OS NO. 35/2014 OF THE HONBLE ADDITIONAL SUB COURT, NORTH PARAVUR` - `EXHIBIT P3 TRUE COPY OF THE DECREE DATED 27.8.2016 IN OS NO. 35/2014` - `EXHIBIT P4 TRUE COPY OF THE IA NO. 54/2018 IN OS NO. 35/2014` - `EXHIBIT P5 TRUE COPY OF THE OBJECTION DATED 13.3.2018 IN IA NO. 54/2018 IN OS NO. 35/2014` - `EXHIBIT P6 TRUE COPY OF THE ORDER DATED 22.3.2018 IN IA NO. 54/2018 IN OS NO. 35/2014` - `EXHIBIT P7 COPY OF THE DECREE DATED 3.9.2019 ISSUED BY CONGREGATIO PRO INSTITUTIS VATAE CONSECRETAE ET SOCIETATIBUS VITAE APOSTOLICAE.` ``` OP(C) NO. 2995 OF 2018 ``` ``` 19 ``` ``` EXHIBIT P8 ``` ``` TRUE COPY OF THE WORK MEM0 ALONG WITH THE AFFIDAVIT DATED 13.11.2019 IN EP.NO.190/2016 IN OS NO.35/2014 OF THE HON'BLE ADDITIONAL SUB COURT NORTH PARAVUR. ``` ``` RESPONDENTS’ EXHIBITS: NIL ```