S. Vaidyanathan, J.

1. The matter is being listed today under the caption For Reporting Compliance.

2. Mr.A.N.Thambidurai, Learned Special Government Pleader for the respondents stated that even though a communication has been sent to the respondents, they have not contacted him.

3. It is very unfortunate to note that when the matter is posted by this Court for reporting compliance, the respondents are sleeping over the matter, in order to make them to wakeup from the slumber, a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) is imposed as Costs on the person, who is responsible for not complying with the order dated 20.03.2018 and the concerned Deputy Collector shall ensure that the said amount is paid to the parents of the recent sexual assault victim of Ayanavaram, Chennai within a period of one week from the date of receipt of a copy of this order. The said sum may be utilised by her parents for treatment and welfare. Moreover, the amount of Rs.25,000/- shall be deducted from the salary of the official concerned in five equal monthly instalments beginning from July, 2018 (who is very much responsible for not complying with the order dated 20.03.2018 in true letter and spirit).

4. It is to be pertinently pointed out that the aspect of Costs is within the discretionary domain of the Court of Law, ordinarily, the Costs must follow the event unless the concerned Court for good and sufficient reasons, otherwise orders. It cannot be gainsaid that such reasons must be in writing.

5. Further, in the decision of this Court between P.V.Rajaraman and four others V. S.T.Subramanian reported in 1995 (2) Law Weekly at Page 134, it is held that the prime requirement for applying Section 35-A of Civil Procedure Code and awarding exemplary cost is that the case put forward by the party against whom it is ordered should be vexatious one.

6. To lend support to the principle of first Pay and Recover based on personal liability, at this stage, this Court refers to the decision of Honble Supreme Court reported in (1993) 3 Supreme Court Cases at page 214 between Central Cooperative Consumers Store Ltd., Through its General Manager V. Labour Court, H.P. and Another at Shimla wherein at Paragraph No.5 it is mentioned as follows:

5. Public money has been wasted due to adamant behaviour not only of the officer who terminated the services but also due to cantankerous attitude adopted by those responsible for pursuing the litigation before one or the other authority. They have literally persecuted her. Despite unequal strength the opposite-party has managed to survive. We are informed that the opposite-party has been reinstated. This was put forward as bonafide conduct of petitioner to persuade us to modify the order in respect of back wages. Facts speak otherwise. Working life of opportunity-party has been lost in this tortious and painful litigation of more than twenty years. That for such thoughtless acts of its officers the petitioner-society has to suffer and pay an amount exceeding three lakhs is indeed pitiable. But considering the agony and suffering of the opposite-party that amount cannot be a proper recompense. We, therefore, dismiss this petition as devoid of any merit and direct the petitioner to comply with the directions of the High Court within the time granted by it. We however leave it open to the society to replenish itself and recover the amount of back wages paid by it to the opposite-party from the personal salary of the officers of the society who have been responsible for this endless litigation including the officer who have been responsible for this endless litigation including the officer who was responsible for terminating the services of the opposite-party. We may clarify that the permission given shall have nothing to do with the direction to pay the respondent her back wages. Step if any to recover the amount shall be taken only after payment is made to the opposite-party as directed by the High Court.

7. Also, this Court worth recalls and recollects the decision of Honble Supreme Court between Salem Advocate Bar Association, T.N. V. Union of India reported in (2005) 6 Supreme Court Cases at Page 344 at Special Page 369, wherein at Paragraph Nos.36 under the Caption Costs and 37, it is observed as under:

Costs

36. Section 35 of the Code deals with the award of cost and Section 35A with award of compensatory costs in respect of false or vexatious claims or defences. Section 95 deals with grant of compensation for obtaining arrest, attachment or injunction on insufficient grounds. These three sections deal with three different aspects of award of cost and compensation. Under Section 95 cost can be awarded upto Rs.50,000/- and under Section 35A, the costs awardable are upto Rs.3,000/-. Section 35B provides for award of cost for causing delay where a party fails to take the step which he was required by or under the Code to take or obtains an adjournment for taking such step or for producing evidence or on any other ground. In circumstances mentioned in Section 35-B an order may be made requiring the defaulting party to pay to other party such costs as would, in the opinion of the court, be reasonably sufficient to reimburse the other party in respect of the expenses incurred by him in attending the court on that date, and payment of such costs, on the date next following the date of such order, shall be a condition precedent to the further prosecution of the suit or the defence. Section 35 postulates that the cost shall follow the event and if not, reasons thereof shall be stated. The award of the cost of the suit is in the discretion of the Court. In Sections 35 and 35B, there is no upper limit of amount of cost awardable.

37. Judicial notice can be taken of the fact that many unscrupulous parties take advantage of the fact that either the costs are not awarded or nominal costs are awarded on the unsuccessful party. Unfortunately, it has become a practice to direct parties to bear their own costs. In large number of cases, such an order is passed despite Section 35(2) of the Code. Such a practice also encourages filing of frivolous suits. It also leads to taking up of frivolous defences. Further wherever costs are awarded, ordinarily the same are not realistic and are nominal. When Section 35(2) provides for cost to follow the event, it is implicit that the costs have to be those which are reasonably incurred by a successful party except in those cases where the Court in its discretion may direct otherwise by recording reasons thereof. The costs have to be actual reasonable costs including the cost of the time spent by the successful party, the transportation and lodging, if any, or any other incidental cost besides the payment of the court fee, lawyers fee, typing and other cost in relation to the litigation. It is for the High Courts to examine these aspects and wherever necessary make requisite rules, regulations or practice direction so as to provide appropriate guidelines for the subordinate courts to follow.

8. Added further, this Court to prevent an aberration of justice and to promote substantial cause of justice refers to the decision of Honble Supreme Court between State of U.P. and Others V. Vijay Dutt and Others reported in (2005) 12 Supreme Court Cases at Page 174 and at Special Page 175 wherein it is observed and held as under:

The order passed by the learned Single Judge of the High Court in Writ Petition No.6922 of 2003 on 31.03.2003 is under challenge in this Special Leave petition. The said order passed against the State on a statement made by the learned Additional Advocate General. This order was challenged before the Division Bench of the High Court in Special Appeal No.489 of 2003, which was dismissed on 16-9-2003. It was, however, directed that it will be open to the state to apply for recall of the impugned order before the learned Single Judge in accordance with law. The petitioner State has not challenged the order dated 16-9-2003 passed by the Division Bench of the High Court. It is elementary that without challenging the order dated 16-9-2003, passed in appeal, the State could not challenge the order passed by the learned Single Judge. Not only this, after the order of the Division Bench dated 16-9-2003, an application for recall was filed in the writ petition. The said application for recall was, admittedly, dismissed, though a copy of that order has not been placed on record of this special leave petition. Another application was filed by the State which is said to be pending before the High Court. In this state of affairs, there could be no question of challenging the order of the learned Single Judge before this Court. In fact, the special leave petition had to be adjourned from time to time on the request of the learned counsel for the State since the relevant orders were not placed on record of this special leave petition, including the order dated 16-9-2003. The said order dated 16-9-2003 has not been placed on record. In this view, while dismissing this misplaced special leave petition, we direct the State to recover the cost of filing of this special leave petition from the officer concerned who took decision to file the special leave petition against order dated 31-3-2003 and impose on the petition State the costs in the sum of rupees twenty thousand for unnecessarily wasting the time of this court, which shall be deposited in the Supreme Court Legal Services Committee within four weeks.

9. At this juncture, this Court aptly points out the decision of Bombay High Court between Ahmed Abdul Azis Bengali V. Mohammed Hanif M.Mulla and others reported in 2001 All India High Court at page 3500, at special pages 3507 and 3508 wherein at Paragraph No.11, it is observed as under:

11. Mr. Anturkar has rightly referred to host of decisions to contend that if the Court is satisfied that the proceedings filed by the petitioner was inspired by fictitious motive and was altogether groundless, then it is the duty of the Court to impose exemplary costs. He has referred to the following decisions of the Apex Court in support of his submissions:

(1) (1977) 4 SCC 469 : (AIR 1977 SC 421)

(2) (2000) 6 SCC 120 [LQ/SC/2000/950] : (AIR 2000 SC 2108 [LQ/SC/2000/950] )

(3) (1994) 6 SCC 68 [LQ/SC/1994/746] : (AIR 1994 SC 2694 [LQ/SC/1994/746] )

(4) (1996) 8 SCC 285 [LQ/SC/1996/731] : (AIR 1996 SC 1733 [LQ/SC/1996/731] )

(5) (1994) 6 SCC 9 [LQ/SC/1994/788] : (1994 AIR SCW 3971)

(6) 1995 Supp. (2) SCC 449: (AIR 1994 SC 1488 [LQ/SC/1993/415] )

(7) (1999) 6 SCC 532 [LQ/SC/1996/1314]

Besides the abovesaid decisions of the Apex Court, he has also adverted to two decisions of this Court in Dattugir s/o Ratangir Tondchirkar v. State of Maharashtra and others, and SNP Shipping Services Pvt.Ltd. and others v. World Tanker Carrier Corporation. All these decisions have been pressed into service to urge that, if the litigation is found to be vexatious and abuse of the process of the Court and if such decision is reached by the Court it is the duty of the Court to impose exemplary and punitive costs. From the decisions of the Apex Court referred to above the trend seems to be that the Apex Court has imposed exemplary and punitive costs in such matters ranging between Rs.10,000/- to Rs.1,00,000/- depending on the facts and circumstances of the case. Even in the present case, since I have already found that the original suit filed by the petitioner as well as subsequent proceedings resorted to against the respondent No. 2 are false and frivolous and altogether groundless, therefore, I have no option but to award exemplary and punitive costs. Such an approach is the need of the hour. This Court would only remind the members of the Bar that they have an important role to play to dissuade such litigation. Such a service will go a long way to make the justice delivery system efficient, effective and credible, There can be no manner of doubt that but for their complicity no litigant would dare to walk into the portals of the Courts with frivolous of vexatious claim. In this context the observations made by the Apex Court in T. Arivandandam v.T.V. Satyapal and another, would be apposite, which reads thus:

The pathology of litigative addiction ruins the poor of this country and the Bar has a role to cure this deleterious tendency of parties to launch frivolous and vexatious cases."

In the same decision the Apex Court has observed that the Trial Court is duty bound to impose exemplary costs under Section 35A of C.P.C. and take deterrent action if it is satisfied that the litigation is inspired by fictitious motive and altogether groundless. It is therefore well settled that, when abuse of the process is clearly established before the Court, it is not suffice to merely dismiss the action, but it is the bounden duty of the Court to express its disapproval to the course adopted by the parties and to ensure that the corrective action is taken against such litigation which is inspired by vexatious motives. In the present case, there can be no doubt that the petitioner has abused the process of law and misused legal system for which he has incurred the liability of suffering punitive costs. The next question therefore is about the quantum of exemplary costs. In this context it would be appropriate to advert to the provisions of Order XXI Rules 98 and 100 which clearly Indicates that the Executing Court if satisfied that the obstruction was unjustified the obstructionist could be directed to be sent to civil prison or in addition to pay reasonable costs to the decree holder. Taking clue from the purport of Rules 98 and 100 of Order XXI it would be possible to hold that the Executing Court can pass such order which may include imposing of punitive costs on the decree holder if it is satisfied that the proceedings against the third party resorted to by the decree holder were vaxatious and if such satisfaction is reached by the Executing Court, then it is duty of the Executing Court to award appropriate compensation to the affected party. Such order could be passed in exercise of power to award costs under Section 35 and compensatory costs under Section 35A of the Code of Civil Procedure. However, from the plain language of Section 35A it would be evident that the maximum compensatory costs that can be awarded by the subordinate Court cannot exceed amount of Rs.3,000/-. No doubt Section 35A of the Code of Civil Procedure would be relevant, but as rightly contended by Mr. Anturkar, since the petitioner has invoked writ jurisdiction of this Court, this Court can award appropriate exemplary and punitive costs against the petitioner and not limit it to the quantum indicated in Section 35A of the Code of Civil Procedure.

The Office of the Registry is directed to post the Writ Petition under the Caption For Reporting Compliance on 17.08.2018 at 2.15 p.m. without fail.