Court No. - 44
Case :- APPLICATION U/S 482 No. - 25508 of 2018 Applicant :- Zaheer Hussain Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Anil Kumar Tripathi Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Anil Kumar Tripathi, learned counsel for the applicant and Learned A.G.A for the State.
At the very outset, learned counsel for the applicant submits that he be permitted to correct the prayer clause of the present application by deleting the challenge made to the order dated 2nd June, 2017 passed by the Special Chief Judicial Magistrate, Agra in Complaint Case No. 2384 of 2015 (Zaheer Hussain vs. Tanveer Hussain & Others).
Prayer made is bona fide. Accordingly, the same is allowed.
Learned counsel for the applicant is permitted to delete the challenge made to the order dated 2nd June, 2017 during the course of the day.
Now the present application is directed against the order dated 14th June, 2018 passed by the Additional Sessions Judge, Court No.4, Agra in Criminal Revision No. 447 of 2017 (Jaheer vs. State of U.P. & Others), whereby the aforesaid criminal revision filed against the order dated 2nd June, 2017 passed by the Special Chief Judicial Magistrate, Agra in Complaint Case No. 2384 of 2015 (Zaheer Hussain vs. Tanveer Hussain & Others), has been allowed on cost of Rs. 5,000/- and further subject to the condition that the revisionist shall produce all evidence under Section 244 Cr.P.C. on the date fixed before the trial court and if any adjournment is sought for on behalf of the revisionist, the same shall be granted on imposing cost of Rs. 3,000/-. It has also been directed that only three adjournments shall be granted in favour of the revisionist and on the second and third adjournments sought for on behalf of the revisionist, Rs. 6,000/- and Rs. 9,000/- respectively shall be imposed as cost upon him for seeking adjournments. This part of the order of the revisional court is challenged before this Court.
After having heard the learned counsel for the applicants and learned A.G.A for the State and upon perusal of the order dated 14th June, 2018 passed by the revisional court, the Court finds no jurisdictional error in the same. Interest of justice has been served, inasmuch as the order dated 2nd June, 2017 passed by the Special Chief Judicial Magistrate, Agra in Case No. 2384 of 2015 (Zaheer Hussain vs. Tanveer Hussain & Others), whereby the accused persons were discharged in terms of Section 245 (2) Cr.P.C. has been set aside on cost of Rs. 5,000/-. Further more, the revisional court has provided the quantum to be paid on adjournments sought by either of the parties. The amount fixed by the court below does not appear to be excessive as per the law laid down by the Apex Court in the case of Salem Advocate Bar Association, T.N. Vs. Union of India, reported in (2005) 6 SCC, 344. In paragraph nos. 36 and 37 of the said judgement, the Apex Court has observed as follows:-
"36. Section 35 of the Code deals with the award of costs and section 35-A with the 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 the award of costs and compensation. Under Section 95 costs can be awarded up to Rs.50,000 and under Section 35-A, the costs awardable are up to Rs.3000. Section 35-B provides for the award of costs for causing delay where a party fails to take the steps 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 the circumstances mentioned in Section 35-B an order may be made requiring the defaulting party to pay to the 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 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 costs shall follow the event and if not, reasons thereof shall be stated. The award of the costs of the suit is in the discretion of the court. In Sections 35 and 35-B, there is no upper limit of amount of costs 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, lawyer's 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."
For all the reasons given herein above, the present application fails and is, accordingly, dismissed.
(Rajeev Misra, J.) Order Date :- 31.7.2018 Sushil/-