Henry Thoby Princep, J.

1. In a suit for partition brought by one co-sharer againsttwo others, one of the defendants, amongst other objections, pleaded that thesuit which had been instituted on a plaint bearing a stamp of Rs. 10 wasundervalued, because the plaintiff had included amongst the joint properties certainvaluable properties held exclusively by that defendant as her own, and it wasstated that the object of the suit was to bring a suit for possession of thatproperty on an inadequately stamped plaint and thus to defraud the Governmentrevenue.

2. This was accordingly made the subject-matter of one ofthe issues, and on this issue the Subordinate Judge rejected the plaint.

3. On appeal this order was set aside, and the SubordinateJudge was directed to register and try the suit. The learned Judges, however,differed in their order as to costs, the learned Chief Justice holding that thecost should form portion of the costs in the suit and be divided between theparties to the partition. Mr. Justice NORRIS, on the other hand, thought thatthe ordinary rule should be followed under which the unsuccessful party shouldpay the costs incurred in the appeal.

4. I am of opinion that this is not a case in which theparties to the partition should bear the costs rateably, for the matter out ofwhich the appeal has arisen does not necessarily form part of that partition,and it was concerning an objection raised by only one of the parties which hasbeen decided against him, (sic.) It would therefore not be right to charge theother respondent with costs in a matter not raised by him and to which he wasindifferent.

5. The sole question therefore is whether this is a case inwhich the usual rule should not be followed and costs follow the decision ofthe appeal. The matter raised and decided does not, in my opinion, necessarilyrelate to the decision of the merits of the suit. If it should so happen thatthe defendant should succeed in retaining the properties which she maintains asher own private properties, and therefore not subject to partition, she will nodoubt be properly indemnified in costs. The fact remains that she has got theSubordinate Judge to stop the trial of the suit and to reject the plaint on anobjection that the plaint did not comply with the law, and on appeal it hasbeen found that her objection was untenable. She has consequently put theplaintiff to unnecessary expense and delay in the trial of his suit, and he istherefore, in my opinion, entitled to claim reimbursement of the costs incurredin obtaining a trial. I am therefore of opinion that the appellant shouldobtain the costs of this appeal and also of the appeal from the order of theSubordinate Judge.

James Quain Pigot, J.

6. I agree with the other members of the Court, and for thesame reasons, that the order as to costs proposed by the Chief Justice is onewhich ought not to be made.

7. I do not, however, think that the appellant should havethe costs of the preliminary issue, and of the appeal upon it, in any event.The order which I think ought to be made is that respondent should in any eventpay her own costs of the preliminary issue and of the appeal: but that as tothe plaintiffs costs of that issue and of the appeal, they should be in thediscretion of the Court, as between the parties to this appeal, such costsbeing in no case to form part of the costs of the partition. I think that inthis case, if the plaintiff should wholly fail upon the merits of the questionsraised between him and the defendant who is respondent in this appeal, it maywell be that he ought not to have the costs of this appeal. That would, Ithink, depend upon the nature of the case made at the hearing, and I shouldleave this in the discretion of the Court which will try the case upon themerits.

Trevelyan, J.

8. The only question before us is one of costs. The suit wasbrought for partition. Amongst other objections taken by the second defendant,there was one as to the stamp on the plaint, viz., that a stamp of Rs. 10 wasinsufficient. The Subordinate Judge before trying the rest of the case, triedthe question as to the sufficiency of the stamp. He required the plaintiff toget into the box to show that his claim in respect of the properties, the titleto which was denied by the defendant, was a bond fide one. On the plaintiffdeclining to give evidence in this respect, the Subordinate Judge rejected theplaint with costs. On appeal to this Court the learned Chief Justice and Mr.Justice NORRIS held that the plaint ought not to have been rejected, but thatthe case ought to be tried on its merits according to law. They, however,differed as to the costs of the appeal. The Chief Justice thought these oughtto be costs in the cause. Mr. Justice NORRIS thought that the appellant wasentitled to his costs.

9. I think that the view taken by Mr. Justice NORRIS is thecorrect one. It is true that a partition suit, like some other classes ofsuits, is brought frequently for the benefit of all the parties to it, and forthat reason it would generally be unfair to require any one party to pay thecosts of the litigation; but that principle does not apply where one party hasbeen successful in a matter, the costs of which are severable from the generalcosts of the suit. In that case the ordinary principle that the successfulparty is entitled to his costs is applicable. For instance, it has been heldthat where an agreement not to partition is set up in answer to a claim forpartition, the costs of the trial of that question should be paid by theunsuccessful party. It also frequently happens that an issue is raised as towhether a particular property is joint or separate. So far as the costs of thisissue can be separated from the costs of the suit, it is usual to allow them tothe party who is successful on that issue, whether he may or may not ultimatelysucceed in the suit. Where the defendant raises an objection of a technicalcharacter as to the continuance of the suit, and that objection is separatelytried and the costs of it are in no way part of the costs of the suit, I thinkthe only right course is to make the unsuccessful party pay the costs. On suchan objection he runs the chance either of winning or tossing. If he wins hegets the costs of the suit and is relieved of the litigation; and if he loses,he must run the chance of paying the costs. It seems to me that to adopt anyother course would have the effect of inviting defendants to raise all sorts ofobjections, technical or otherwise, in order to impede or defeat the trial onthe merits of the case. Unless there is the attendant risk of paying the costs,a defendant would be at no disadvantage when putting forward obstructions ofthis nature. I think that, acting on the ordinary principle that anunsuccessful litigant should pay the costs of the litigation, we ought to orderthe second defendant to pay the costs of the appeal. They are in no sense costsof the cause, and therefore I do not agree with the Chief Justice that theyshould be treated as such. I do not think that they ought to be reserved. Ithink that it is desirable that the Court should, as far as possible avoidreserving the question of costs. The Court that determines a question is bestable to determine the costs, and reserving the costs in this case may amount togiving the Judge who eventually tries the case an opportunity of reconsideringwhat has been finally determined by the Chief Justice and Mr. Justice Norris.Even if it turns out that the plaintiff is unsuccessful in this case I do notsee why he should pay the second defendant the costs which he incurred by whathas been held to be a wrong objection to the trial of the suit on its merits,or why he should not get the costs which the action of the defendant has forcedhim to incur. The proper penalty for losing a suit on the merits is to be madeliable to pay the costs of the trial on the merits, not the costs of a separatetrial on a matter unconnected with the merits in which the plaintiff issuccessful.

10. In my opinion this appeal should be allowed and theappellant before us should get the costs of the appeal to this Court and alsoof the appeal under Section 15 of the Letters Patent.

11. The order requiring him to pay the costs in the Courtbelow has been set aside, as the case is to be tried on its merits, It does notappear that any portion of these costs will be otherwise than useful for thepurpose of the trial on the merits.

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Mohendro Chandra Ganguli vs. Ashutosh Ganguli and Ors.(11.05.1893 - CALHC)