P.B.Suresh Kumar, J.
This appeal by the plaintiff is against the direction issued by the court as to costs in a suit for specific performance.
2. Shorn of details, the facts of the case are the following : The plaintiff entered into an agreement with the defendant for purchase of the plaint schedule property and paid a portion of the sale consideration as advance. According to the plaintiff, though he approached the defendant with the balance sale consideration within the time stipulated in the agreement, with a view to deceive the plaintiff, the defendant was delaying the execution of the sale deed for one or other reason and while the matters stood thus, the defendant issued a notice to him stating falsely that the plaintiff had not approached him with the balance sale consideration within the time and that therefore, he has rescinded the contract.
3. The defendant filed written statement, contending that the time was very much the essence of the contract entered into by him with the plaintiff and that the plaintiff did not come forward to get the sale deed executed within the time stipulated in the agreement. It was also contended by the defendant that on the basis of the agreement entered into with the plaintiff, he had entered into another agreement with one Hemalatha for purchase of another property and paid a sum of Rs.1.5 lakhs to her and on account of the breach committed by the plaintiff, he could not purchase the said property and consequently the advance paid by him was forfeited by the seller. In other words, according to the defendant, the defendant sustained loss on account of the breach of the contract committed by the plaintiff and therefore, the plaintiff is not even entitled to a decree for the advance sale consideration.
4. The court below found that the plaintiff had been and was willing to perform his part of the contract; that the defendant had committed breach of the terms of the contract and that therefore, the plaintiff is entitled to the decree for specific performance sought for by him in the suit. Accordingly, a decree for specific performance was passed in the suit as sought for by the plaintiff. However, having regard to the facts of the case, the court held that the defendant need not be burdened with the costs of the suit and accordingly, the parties were directed to suffer their respective costs. It is against the said finding that this appeal is preferred.
5. The learned counsel for the appellant contended that as per the provision contained in Section 35 (2) of the Code of Civil Procedure, where the court directs that the costs shall not follow the event, the court shall state the reasons in writing. According to the learned counsel, the court below has not given any reasons for declining the costs of the plaintiff, though the costs of the plaintiff was certified in the decree at Rs.98,735/-. He has also contended that out of the total costs certified in the decree, the sum of Rs.86,150/- represents the court fees paid by the plaintiff and there is, therefore, no reason whatsoever to decline costs of the plaintiff.
6. For a proper understanding of the scope of the provision in Section 35(2)of the Code, Section 35(1) of the Code also has to be seen. Section 35 of the Code reads thus :
“(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 the 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.”
The object of Section 35 in awarding costs to a litigant is to secure to him the expenses incurred by him for the litigation, and not to enable him to make anything, in the way of gain or profit, or over and above the expenses incurred for maintaining or defending the action. It is provided in sub-section (1) of Section 35 of the Code itself that the costs of the suit shall be in the discretion of the court and the court shall have full power to determine to what extent such costs are to be ordered. It is apparent from Section 35 that the general rule is that the costs shall follow the event, which means that the successful party is entitled to costs. The requirement of law in sub-section (2) of Section 35 that the court shall state its reasons in writing when it directs that the court shall not follow the event, has to be understood in the light of the said principles.
7. It is settled that since the award of costs is in the discretion of the court, an appeal lies for costs only where the order as to costs involves a question of principle. [See K.S.E.Board v. Varkey sebastian (1984 KLJ 899)]. When the successful party in a suit is deprived of his costs, without there being a real exercise of discretion in making the order as to costs, the case can be described as a case involving a question of principle, so that an appeal can be preferred against such decrees for costs only. On the other hand, if discretion is exercised to decline costs on facts, it cannot be contended that the question of principle is involved in the matter. In other words, when the court exercises its discretion as to costs on facts, the appellate court would not interfere merely because it would have exercised the discretion differently.
8. The point, therefore, is as to whether there has been a real exercise of discretion by the court in making the order as to costs and whether the order as to costs involves a question of principle.
9. Coming to the facts of the present case, the finding rendered by the court below on the question of costs reads thus :
“Considering the facts and circumstances of the case, I don't find it necessary to burden the defendant with the cost of the suit.”
It is evident from the said finding that, having regard to the facts of the case, the court below was of the view that it is inappropriate to burden the defendant with the costs of the suit. There is, therefore, no question of any principle involved in the matter. The court below has also complied with the requirement of Section 35(2) of the Code, holding that on the facts of the case, it is inappropriate to burden the defendant with the costs of the suit. There is, therefore, no merits in the appeal and the appeal is, accordingly, dismissed.
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P.N.RAVINDRAN, JUDGE.
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P.B.SURESH KUMAR, JUDGE.
tgs (true copy)