IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV WRIT PETITION No.44525/2015 (GM-CPC) Between:
M/s. Ocean International Hotel No.72, Markham Road, Ashok Nagar, Bangalore 560025.
Represented by its Proprietor, Mr. Chettali Haneefa S/o. Late C. Saidalavi Haji. (By Sri. Usman P., Advocate) And:
Smt. Bimla Devi W/o. Ramkailash Singh, Aged about 44 years, Residing at No.202, Divine Nest Apartment, 5th Cross, Masjid Road, Kodihalli, Bangalore - 560 028.
(By Sri. Shantesh Avaji, Adv.) … Petitioner …Respondent This writ petition is filed under Article 227 of the Constitution of India praying to quash the impugned order dated 16.09.2015 passed on I.A. filed under Section 152 of CPC in O.S.No.898/2009 on the file of the learned City Civil Judge at Bangalore, produced as Annexure-N to this writ petition.
This writ petition coming on for orders this day, the Court, made the following:
ORDER The petitioner who is the defendant before the trial Court has challenged the order of the trial Court passed on I.A. filed under Section 152 of CPC, whereby the application of the petitioner seeking for amendment of the decree insofar as awarding of costs came to be rejected.
2. It is the contention of the defendant that in the suit for ejectment filed, possession was handed over voluntarily during the pendency of the proceedings. Learned counsel for the petitioner submits that claim for damages was subsequently included by way of an amendment and the suit was continued. It is submitted that the trial Court had framed issues as regards to the points of controversy. As regards to the finding on issue No.4 that the claim was with respect to an extent of Rs.19,00,000/- as regards damages with interest at 24% per annum, the trial court has awarded an amount of Rs.40,000/-. Hence, it is contended that when the suit itself was only partly decreed, payment of costs ought not to have been awarded in its entirety and the Court ought to have awarded costs in proportion to the relief granted. It is further contended that this power ought to have been exercised in a judicious manner as discretion vested also ought to be exercised appropriately.
3. Learned counsel for the respondent on the other hand would contend that the order passed does not suffer from any infirmity and that the prayer that is sought for is beyond the scope of power conferred under Section 152 of CPC as the error that is sought to be pointed out is not the one that may fall within the scope of exercise of power under Section 152 of CPC. Relying on the judgment in the case of DWARAKA DAS V. STATE OF M.P. AND ANOTHER – (1999) 3 SCC 500, it is pointed out that the correction that is sought for under Section 152 of CPC could be only of mistakes or errors and in the present case, there is no such error or mistake and in fact the petitioner is seeking to assail awarding of costs on its merits.
4. Heard both the sides and perused the order.
In the application that is filed under Section 152 of CPC, the petitioner has assailed awarding of costs in its entirety. A perusal of the application filed by the petitioner would reveal that in effect the application is one seeking for review of the judgment insofar as awarding of costs is concerned.
5. The Court while dealing with the application has made observations as regards to the justification for awarding of costs. Accordingly, it would be appropriate that the Court ought to have treated the application of the petitioner as been one filed under Order 47 read with Section 114 of CPC. In fact, the award of costs is also to be done in a judicious manner and the exercise of discretion must be done in an appropriate manner. The mandate under Section 35 of CPC to impose costs ought to take note of the considerations in Sub-clause (3). In the present case, petitioner has stated in the affidavit that imposition of costs ought to be only in part in light of decreeing of the suit only in part.
6. Awarding of costs, however, is a matter to be reconsidered by the trial court and such discretion is to be exercised in accordance with the guidelines as contained in Section 35(3) of CPC. Taking note of the same and also noting that the application is essentially one that has been filed seeking review of the judgment and decree, it is made clear that the trial Court to reconsider the application by construing it to be one filed seeking review of the judgment and pass an order after considering the contentions of both parties, keeping in mind the mandate under Section 35(3) of CPC. The trial Court to dispose of the application as directed within a period of three months from the date of receipt of a certified copy of this order.
7. Accordingly, petition is disposed off. The impugned order passed on 16.09.2015 is set aside, and the matter is remanded to the trial Court to re-consider and dispose off the application filed under Section 152 by treating it as a review of the judgment. It is noticed that this Court on 13.10.2015 had granted interim stay of the execution of decree and further proceedings, subject to the petitioner depositing a sum of Rs.2,00,000/-. It is noted that the petitioner had deposited the sum of Rs.2,00,000/- as ordered which is kept in fixed deposit. It is made clear that the appropriation of this deposit would be subject to the orders to be passed by the trial Court consequent to disposal of the application of the petitioner which has been remanded for fresh consideration. Accordingly, the amount kept in fixed deposit is to be retained and renewed till the disposal of the proceedings before the trial Court.
Though the petitioner makes a prayer for keeping in abeyance the execution proceedings, in light of disposal of the writ petition directing reconsideration of the application of the petitioner, petitioner is at liberty to move the Executing Court for interim prayer if so advised and found to be necessary, pending reconsideration as directed.
Petition is disposed off subject to above observations.
Sd/- JUDGE VP