High Court of Punjab and Haryana, Chandigarh
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Brij Mohan Aggarwal v. Ramesh Chand LR of Durga Pershad - CR-2351-2002  RD-P&H 1375 (14 February 2007)
Civil Revision No.2351 of 2002(O&M)
Date of decision:9.2.2007
Brij Mohan Aggarwal
Ramesh Chand LR of Durga Pershad
Present: Mr. R.K. Jain, Advocate for the petitioner.
Mr. Arvind Rajotia, Advocate for the respondent.
S.S. Saron, J.
This revision petition has been filed by the plaintiff-decree holder (`DH' for short) against the order dated 1.8.2001 passed by the learned Additional Civil Judge (Senior Division), Hisar whereby the application dated 20.5.1998 for amendment of the judgment and preliminary decree dated 13.5.1998 had been declined.
Necessary facts for disposal of the present revision petition are that the suit of the DH for possession by way of redemption of mortgage of house was decreed in his favour by the trial Court on 13.5.1998. Appeal against that decree was dismissed by the first appellate Court on 9.6.1999.
Thereafter, RSA No.3139 of 1999 of the defendant judgment debtor (`JD' for short) was dismissed by this Court on 4.2.2000. The plaintiff sought C.R. No.2351/2002 (O&M)
amendment of the decree for including in the decree sheet certain costs that had been incurred. It is submitted that the suit filed by the DH was decreed with costs of the suit and, therefore, he is entitled to the costs of the suit that he had incurred. The said application having been declined by the Executing Court, he has approached this Court.
Shri R.K. Jain, learned counsel appearing for the petitioner-DH has submitted that the amendment of the decree as claimed in the application dated 20.5.1998 was liable to be allowed as suit had been decreed with costs and Order 20-A of the Code of Civil Procedure (`CPC' for short) relates to the grant of costs.
Shri Arvind Rajotia, Advocate, learned counsel appearing for the defendant-JD has, however, opposed the petition and submitted that the petitioner is unnecessarily seeking enlargement of the decree which was never passed and, in any case, the items of costs have been inflated to which the DH is not at all entitled to.
I have given my thoughtful consideration to the matter. It is not in dispute that the suit of the plaintiff was decreed with costs of the suit on 13.5.1998. The said decree was upheld till this Court and is now final between the parties. It may also be noticed that the DH filed a suit for possession by redemption of the mortgaged property on 11.12.1984 which was dismissed by the trial Court on 1.2.1989. The DH then filed First Appeal No.89 of 1989 before the first appellate Court which was dismissed on 3.9.1993. The DH then filed RSA No.1733 of 1994 which was allowed by this Court on 11.10.1995 and the case was remanded to the trial Court for adjudication. Thereafter, the suit of the DH was decreed in his favour by C.R. No.2351/2002 (O&M)
the learned trial Court on 13.5.1998. The DH, in fact, had submitted an application dated 15.4.1998 before the trial Court indicating the various costs that had been incurred. A gist of the claim that had been made by the DH has been itemized by the Executing Court in its impugned order dated 1.8.2001 as items No.1 to 14. In the application dated 15.4.1998, the various items for which costs have been claimed are mentioned. However, the same do not spell out any clear cut costs which could have been incurred for under various items like pleader's fees when certificate has not been filed. The dates for which the DH had appeared in person before the trial Court and before other Courts is a matter of record and is not clearly discernible from the application. In any case, the provisions of Order 20-A Rule 1 CPC relating to the costs may be noticed, which read as under:- "1. Provisions relating to certain items.- Without prejudice to the generality of the provisions of this Code relating to costs, the Court may award costs in respect of,- (a) expenditure incurred for the giving of any notice required to be given by law before the institution of the suit; (b) expenditure incurred on any notice which, though not required to be given by law, has been given by any party to the suit to any other party before the institution of the suit; (c) expenditure incurred on the typing, writing or printing of pleadings filed by any party;
(d) charges paid by a party for inspection of the records of the Court for the purposes of the suit;
(e) expenditure incurred by a party for producing witnesses, C.R. No.2351/2002 (O&M)
even though not summoned through Court; and (f) in the case of appeals, charges incurred by a party for obtaining any copies of judgments and decrees which are required to be filed along with the memorandum of appeal." The trial Court in its judgment and decree dated 13.5.1998 has awarded costs for the plaint at Rs.570/-, subsistence to witnesses of Rs.180/-, process fee of Rs.6.75/- and misc. expenses of Rs.40/- i.e.
Rs.796.75 in all. However, the various further items as given at serial No.1 to 14 in the impugned order dated 1.8.2001 of the trial Court have not been considered. In the decree passed by the trial Court on 13.5.1998 it was ordered that; "It is ordered that the plaintiff succeeds and the suit of the plaintiff is decreed with costs of the suit". Therefore, evidently the suit of the plaintiff was decreed with costs. This would mean all costs incurred in the suit till 13.5.1998 as the appeals filed against the earlier decree passed on 1.2.1989 were a continuation of the suit. Therefore, the plaintiff-DH would be entitled to all costs that have been incurred in the suit. After considering the matter and going through the various items of costs as given in the said order dated 1.8.2001 and the provisions of Order 20-A Rule 1 CPC, I am of the view that the DH would be entitled for costs in respect of items No.1 to 11 as indicated and given in the order dated 1.8.2001. The said items No.1 to 11 are clearly discernible. Learned counsel appearing for the petitioner has submitted that costs in respect of item No.11 that is diet money of witnesses amounting to Rs.705/- and Court fee on suit plaint amounting to Rs.570/- has already been awarded. Therefore, the other items i.e. 1-A, 2 to 8 and 10 to 11 as given in the order dated 1.8.2001 are also C.R. No.2351/2002 (O&M)
awarded to the petitioner-DH. The costs in respect of items No.12, 13 and 14 of the order dated 1.8.2001 have not been indicated and even otherwise are found to be not made out as no clear averment in regard thereto has been made. It would be futile to hold an inquiry in respect of the costs at this stage so as as to ascertain as to what are the actual costs incurred on the Xerox copies of the affidavit and other incidental expenditure which may have been incurred. Consequently, all other costs as claimed by the DH in his application dated 15.4.1998 are declined and he would be entitled to the costs in respect of items No.1-A, 2 to 8 and 10 to 11 as given and recorded in the order of the Executing Court dated 1.8.2001 in addition to the costs that have already been awarded.
Consequently, the revision petition is partly allowed. The petitioner-DH is also held entitled for costs in respect of items No.1-A, 2 to 8 and 10 to 11 as mentioned in the impugned order dated 1.8.2001 in addition to the costs awarded and all other costs are declined.
February 9, 2007. (S.S. Saron)
NOTE: Whether to be referred to the Reporter or not:Yes/No
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