The General Manager, Southern Railway, Chennai & Divisional Personnel Officer, Southern Railway, Palghat v. N. Madhumathi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **TUESDAY, THE 23RD MARCH 2010 / 2ND CHAITHRA 1932** **RSA.NO. 323 OF 2010()** **----------------------------------** **AS.193/2008 OF IST ADDL.DISTRICT COURT, KOZHIKODE OS.538/2006 OF IST ADDL.MUNSIFF'S COURT, KOZHIKODE** **....................** ## **APPELLANTS – APPELLANTS – DEFENDANTS 1 AND 2** **------------------------------------------------------------------------** **1. THE GENERAL MANAGER, SOUTHERN RAILWAY, CHENNAI.** **2. THE DIVISIONAL PERSONNEL OFFICER, DIVISIONAL OFFICE, PERSONNEL BRANCH, SOUTHERN RAILWAY, PALGHAT.** **BY ADV. SRI.M.C.CHERIAN,SR.SC.,RAILWAYS** ## **RESPONDENT – RESPONDENT - PLAINTIFF:** **------------------------------------------------------------** **N.MADHUMATHI, D/O.NARAYANAN NAIR, REP. BY N.HYMAVATHY, NELLOLI HOUSE, EDAKKAD P.O., EDAKKAD AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE.** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 23/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **THOMAS P.JOSEPH, J.** = = = = = = = = = = = = = = = = = = = = = = = = **R.S.A. NO. 323 of 2010** = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 23[rd] day of March, 2010 ## **J U D G M E N T** --------------------- The Southern Railway on an issue regarding award of costs in the suit comes up with this Second Appeal against the respondent, mentally retarded lady and daughter of a former employee of it. Respondent's father, Narayanan Nair who was working in the Southern Railway died on 1.1.2002 thereby entitling her to get family pension being the mentally retarded daughter of deceased employee as per a beneficial scheme initiated under the Railway Service (Pension) Rules, 1993 (for short, “the Rules”). The lady (respondent) filed an application for pension and it was sanctioned with effect from 2.1.2002. But payment was to be effected only through a guardian appointed by a court as the Rules prescribed. Respondent approached the District Court, Kozhikode to appoint her sister - Hymavathy as her guardian invoking the provisions of the Mental Health Act. Learned District Judge was of the view that the said Act has no application since it is not a case of insanity but mental retardness which does not come within the scope of the said Act and leaving it open to the respondent to approach the civil ## **R.S.A. No.323 of 2010** ## -: 2 :- court for appropriate relief the application was dismissed. After some time respondent represented by the sister, Hymavathy approached the civil court with a suit for realisation of the pensionary benefits from the Southern Railway. In the suit respondent was represented by the said Hymavathy as her next friend. At the time of institution of the suit, learned Munsiff conducted an enquiry as required under Order XXXII Rule 15 of the Code of Civil Procedure (for short, “the Code”) and being satisfied of the inability of the respondent to protect her interest appointed Hymavathy as her next friend and summons was issued to the defendants who included the appellants. Appellants filed written statement contending among other things that the suit is time barred and is liable to be dismissed and denying the statement that Hymavathy is the guardian of the respondent and also contending that to enable the respondent get pension as per rule 75(6) of the Rules referred to above, certificate issued by a Railway Medical Officer not below the rank of Divisional Medical Officer is necessary, the Railway Medical Authority has to certify as to whether or not the handicap is to such an extent as to prevent her from earning her livelihood accordingly respondent was ## **R.S.A. No.323 of 2010** ## -: 3 :- referred to the Railway hospital for medical examination. After such medical examination on 26.12.2001, the Chief Medical Superintendent of the Hospital concerned issued a Medical Certificate dated 26.12.2001 certifying that respondent is unable to earn for her livelihood due to severe mental retradness. It was also contended by the appellants that the suit is not maintainable since all legal representatives of deceased father of respondent are not made parties. Appellants requested for accepting all their contentions and for dismissal of the suit. It was also pleaded that unless the suit is dismissed appellants will be put to irreparable loss and hardship. Consequent to the contention raised by the appellants, other legal representatives of deceased Narayanan Nair were also made parties and against some of them paper publication also had to be effected spending about Rs.6,000/- as learned counsel tells me. Suit came up for trial in the list in March, 2008. Appellants who still were nursing the thought that no enquiry was conducted under Order XXXII Rule 15 of the Code by then realised that such an enquiry had already been conducted, learned counsel for appellants in the trial court filed a statement on behalf appellants that pensionary benefits could be released to the ## **R.S.A. No.323 of 2010** ## -: 4 :- respondent. But as learned counsel for respondent says, contentions raised in the written statement were not withdrawn and hence trial court proceeded with the case as scheduled. Respondent examined P.W.1 on her side and marked relevant documents. The matter was heard by the learned Munsiff and as per judgment dated 26.3.2008 dispelled the contention of the appellants as to bar of limitation and holding that respondent is entitled to get family pension granted a decree. Learned Munsiff thought it fit to make the appellants liable for costs of the respondent. Accordingly such a decree also was granted. Aggrieved by the award of costs, appellants took up the matter in appeal. Learned Additional District Judge, Kozhikode referred to the relevant decisions on the point and said that appeal against costs is not the rule but an exception and that the question whether costs is to be awarded is within the discretion of the court to be exercised in accordance with sound judicial principles and having regard to the facts and circumstances of the case. Learned Additional District Judge was of the view that trial court was justified in making the appellants liable for the costs. Accordingly again with a direction for payment of costs appeal was dismissed. Hence this Second Appeal. ## **R.S.A. No.323 of 2010** ## -: 5 :- Substantial question of law urged in the memorandum of appeal relates to the discretion exercised by the courts below in awarding costs. Learned counsel for appellants would contend that it is not a case where the appellants had resisted the suit on untenable grounds, it had only helped the court to arrive at the correct decision by pointing out certain infirmities in the plaint one being that all legal representatives were not made parties in the suit. It is also the submission of learned counsel that though several other contentions were taken up in the written statement, on 13.3.2008 learned counsel for the appellants had filed statement in the trial court stating that pensionary benefits could be disbursed to the next friend of the respondent and in the circumstances trial court as well as the first appellate court were not legally correct in exercising the discretion to award costs in favour of the respondent. At any rate appellants need not have been burdened with the cost of paper publication as against the sisters of the respondent who were later impleaded in the suit. 2. 'Costs' as understood in law is the statutory allowance required to reimburse a successful party to the litigation for the expenses incurred in preventing or prosecuting the litigation. **R.S.A. No.323 of 2010** ## -: 6 :- Normally costs are meant to be given to a successful party so that he is reimbursed by the unsuccessful party for incurring the expenses in connection with the litigation which was instituted by the wrong or illegal conduct of the unsuccessful party (See **N.S.S.** ## **Medical Mission Hospital and Another v. Sulbeth** **Beevi** - 2009 (2) KLT 779). The Mysore High Court in **Parasamall v. Jalalakshma** (AIR 1962 Mysore 201) took the view that costs includes even the court fee payable by the successful party. The Gujrat High Court considered the issue regarding costs in **Anandji Haridas & Co. v. State** (AIR 1977 Gujrat 140) where the observation made by learned Judge Buckley, J., in **Gundry v. Sainsbury** (1910) 1 KB 645) is quoted: “This is a matter in respect of which I am entitled to get costs because I have been put to expenses, and the law as administered in this court allows me in that state of things to be indemnified by the defendant to the extent of party and party costs.” ## **R.S.A. No.323 of 2010** ## -: 7 :- ## This Court in **C.V. Subramanya Iyer v. Kodankulath** **Kurian** (1990(2) KLJ 738) has referred to the circumstances which should be considered by the court in the exercise of discretion before passing an order for payment of costs. It is held that even though no hard and fast rule could be laid down the exercise of the discretion must be depending on the circumstances of each particular case based on sound legal principles and not by caprice or chance or humour. The length of trial, the complicated questions involved and the conduct of the parties before court are some of the circumstances to be taken into account. When a plaintiff succeeds in a litigation for which he was not responsible and he was not guilty of misconduct he ought not to be deprived of his proportionate costs. A Division Bench of this Court in **Malabar Motor** **Transport Co-op. Society Ltd. v. Amu** (1985 KLT 107) states 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. Various factors like the total amount claimed, the total amount decreed, court fee payable, circumstances under which the claim was made and part thereof was rejected, capacity of the ## **R.S.A. No.323 of 2010** ## -: 8 :- victims of the deceased person who instituted the suit to pay court fee if that burden is cast on the plaintiffs and other material considerations should enter into the mind before the court passes an order with respect to costs. 3. In the above backdrop I shall consider whether trial court was justified in awarding costs and first appellate court was justified in negativing the contention of appellants regarding the same and awarding costs. 4. Here is a case where as I stated a daughter of the deceased employee of the appellants and who is mentally retarded, even after the certification made by the Medical Board of the appellants sought disbursement of the pensionary benefits in the suit filed by her through her next friend. Even as the learned counsel would say, court conducted an enquiry under Order XXXII Rule 15 of the Code though according to learned counsel it was before appellants made their appearance. Assuming that appellants were under the impression that such an enquiry was not conducted, it is relevant and pertinent to note the contentions appellants raised. One can understand if a contention is raised for a proper adjudication of the dispute and of course to protect the ## **R.S.A. No.323 of 2010** ## -: 9 :- interest of the appellants that all the legal representatives of the deceased employee ought to have made parties. Here is a case where appellants went a step further and raised a contention that “at the very outset it is submitted that the suit is time barred and is liable to be dismissed”. All other contentions followed that plea and the ultimate prayer is that contentions raised may be accepted and suit be dismissed, otherwise, appellants will be put to irreparable loss and injury. Trial court rightly found that plea of limitation would not stand. Decisions on the point say that State or its instrumentalities shall not take technical pleas like limitation. Here is a case where a mentally retarded lady, hapless, her father not alive and had no avocation for life had approached the Railway for family pension and the Railway was keen in sanctioning pension to be disbursed through a guardian appointed by a court of law as its Rules said, the lady filed the suit through a next friend seeking disbursement of the amount but the appellants chose to contend that suit is barred by limitation and if the suit is not dismissed it will be put to irreparable loss and injury. This contention is something which appellants could not factually or legally raise. Contentions raised by the appellants necessitated pendency of the suit though ## **R.S.A. No.323 of 2010** ## -: 10 :- in the meantime necessary parties were also to be impleaded and it is certain that it is after the case was posted for trial that appellants stated that the amount could be disbursed to the next friend of the respondent. I must bear in mind that even though appellants had all resources at their hands, they did not withdraw the contentions raised in the written statement. In the above circumstances parties were put on trial and respondent had to incur expenses in conducting the trial. Trail was conducted, P.W1 was examined and ultimately suit was decided in favour of the respondent which appellants have not chosen to challenge. Appellants have raised unnecessary contentions in the written statement and sought for dismissal of the suit which also resulted in prolonging the trial of the case resulting in expenses for the respondent. In these circumstances respondent was entitled to costs. That was necessary to reimburse the respondent who is poor mentally retarded lady for the expenses she had to incur. Learned Munsiff has not stated reasons for awarding costs but as pointed out by the Division Bench of this Court in the decision cited supra costs must follow the suit. In the factual circumstances the mere fact that reason for awarding costs is not mentioned in the judgment is not a ## **R.S.A. No.323 of 2010** ## -: 11 :- ground to interfere as if a substantial question of law is involved in the matter. First appellate court on the factual and legal position refused not only to interfere in appeal but also awarded costs in the appeal as well. I find no reason to interfere with that finding also. But I am not awarding costs in this appeal since I have not admitted the appeal. Second Appeal is dismissed in limine. Interlocutory Application No.814 of 2010 shall stand dismissed. **THOMAS P.JOSEPH, JUDGE.** vsv