IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 13TH FEBRUARY 2009 / 24TH MAGHA 1930 AS.No. 311 of 1995() -------------------- OS.270/1989 of SUB COURT, PATHANAMTHITTA .................... APPELLANT(S)/DEFENDANTS 1 AND 2: -------------- 1. N.S.S.MEDICAL MISSION HOSPITAL, PANDALAM, REP. BY NAIR SERVICE SOCIETY. 2. DR.L.JAYACHANDRAN, GYNAECOLOGIST, N.S.S.MEDICAL MISSION HOSPITAL, PANDALAM. BY ADV. SRI.P.G.PARAMESWARA PANCIKER, SENIOR ADVOCATE SRI P.GOPAL SRI.N.MANOJ KUMAR RESPONDENT(S)/PLAINTIFF: --------------- SULBETH BEEVI, WIFE OF SHERIF RAWTHER, RESIDING AT KOTRURETTIKENTU VEEDU, KADAKKAD, PANDALAM. ADV. S.MUHAMMED HANEEF THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 13/2/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- A.S.No.311 of 1995 -------------------------------------- Dated this the 13th day of February, 2009. JUDGMENT Questions arising for a decision in this appeal are: (i) when can the court of appeal interfere with an order passed by the trial court in exercise of its discretionary power? (ii) when can a court direct a successful party to the litigation to pay the costs of the unsuccessful party? 2. Facts in brief necessary for a decision are:– Appellant No.1 is running a hospital. Appellant No.2 is the chief gynecologist of that hospital. At a time when the respondent had already given birth to two female children, she again conceived and sought medical assistance from the appellants. She gave birth to female twins and thereafter underwent PPS operation at the hospital of the appellant No.1. According to the respondent, the operation was performed by appellant No.2. She was assured that the operation was successful and that she could lead normal sexual life. Believing that, she did so but conceived again much to her agony as she already has four female children and she was finding it difficult to maintain them. Respondent delivered her fifth female child. Respondent issued notice to appellant No.1 seeking damages on the allegation that the operation did not succeed due to lack of care taken by AS No.311/1995 2 appellant No.2 in performing the operation and making appellant No.1 vicariously liable for such damages. As admitted by the respondent, appellant No.1 gave a reply denying the allegations and repudiating the claim. Not satisfied with that reply respondent filed the suit against the appellants in the court of learned Sub Judge seeking damages to the tune of Rs.50,000/-. Appellants resisted the suit contending inter alia, that there was no negligence on the part of appellant No.2 in performing the operation and that respondent happened to conceive again due to re-canalization of the fallopian tube. It was also contended that appellant No.1 had no involvement in that matter except that the PPS operation was performed in the hospital but that was under the supervision and control of the Family Welfare Department of the Government of India. Learned Sub Judge found on evidence that there was no lack of care taken by the appellants in conducting the operation. In paragraph 13 of the judgment learned Sub Judge observed: “The evidence of DW1 and DW2 is convincing to the effect that 2nd defendant performed the surgery with ordinary care and caution that is expected from a medical officer and the subsequent pregnancy of the plaintiff must have been on account of the natural recanalization of the fallopian tube...............” AS No.311/1995 3 The suit was dismissed. But, by the same judgment followed by a decree learned Sub Judge directed the appellants to pay the costs of the unsuccessful respondent and further directed that since the suit was instituted informa pauperis, the court fee payable by the respondent will be recovered by the Government from the appellants. That part of the judgment and decree are under challenge at the instance of the appellants. 3. Learned counsel for appellants contended that the court below on facts, evidence and law was not justified in granting decree in favour of the respondent for costs and directing that the court fee will be paid by the appellants having found that the case set up by the respondent is not established. According to the learned counsel, the discretion vested with the court was not properly exercised. Learned counsel for the respondent in response contends that the court below has exercised its discretion in favour of the respondent on the materials available on record and this Court may not interfere in appeal against an order passed in exercise of the discretionary power. Learned counsel placed reliance on the decision of the Apex Court in Saji Geervarghese v. Accounts Officer(2009 (1) KLT 378). 4. First question for a decision is, under what circumstance a court of appeal could interfere with an order passed by the trial court in exercise of its discretion? The court of appeal may interfere with a discretionary order passed by the trial court when the trial court acted arbitrarily, capriciously, AS No.311/1995 4 without evidence or in a manner which would vitiate the exercise of discretion or would show that the discretion was not exercised at all. If the discretion has been exercised by the trial court reasonably and in a judicial manner, the fact that the court of appeal would have taken a different view may not justify interference with the trial court's exercise of discretion. But, if it appears to the court of appeal that in exercising its discretion the trial court has acted unreasonably or in an erratic manner or has ignored relevant facts, then it would be open to the court of appeal to interfere with the trial court's exercise of the discretion (see U.P. Co-op. Federation v. Sunder Bros. - AIR 1967 SC 249. 5. The next question is whether the learned Sub Judge was correct and has exercised the discretion in a proper manner in directing the appellants who succeeded in the suit to meet the litigation expenses and the court fee payable by the respondent who was unsuccessful in the litigation. Section 35 of the Code of Civil Procedure (for short, “the Code”) deals with the power of the court to award cost. The provision 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 AS No.311/1995 5 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 respondent was permitted to sue informa pauperis. Order XXXIII Rule 11 of the Code states thus: “Procedure where an indigent person fails.- Where the plaintiff fails in the suit or is dispaupered, or where the suit is withdrawn or where part of the claim is abandoned or where the suit is dismissed,- (a) because the summons for the defendant to appear and answer has not been served upon him in consequence of the failure of the plaintiff to pay the Court-fee or postal charges (if any) chargeable for such service, or to present copies of the plaint or concise statement, or (b) because the plaintiff does not appear when the suit is called on for hearing, the Court shall order the plaintiff, or any person added as a co-plaintiff to the suit, to pay the Court-fees which would have been AS No.311/1995 6 paid by the plaintiff if he had not been permitted to sue as an indigent person.” 6. “Cost” means the statutory allowances required to reimburse the successful party to the litigation for expenses incurred in defending or prosecuting the proceedings. Normally, costs are meant to be given to a successful party so that he is reimbursed by the unsuccessful party for incurring the expenses in connection with the litigation which was instituted by the wrong or illegal conduct of the unsuccessful party. 'Costs' includes the court fee payable (see Parasmall v. Jayalakshma (AIR 1962 Mysore 201). 7. The normal rule is that costs will follow the result of the litigation. But in appropriate cases the court has very wide discretion to depart from that normal rule and refuse costs to the successful party. The view of the judge on the equity and the tragedy on the human side, on the moral as well as legal merits on the conduct of the parties before and during the litigation and other like intangible factors have a play in shaping the judicial verdict regarding costs, it was held by this Court in Yusuf Rowthan v. Sowramma (1971 1 ILR (Ker.) 154). Jessel , M.R. said in Willmott v. Barber [(1879) 17 W. 48) (see Law Reports Chancery) that - “the judge has a large discretion as to costs. He may make the defendant pay the costs of some of the issues in which he AS No.311/1995 7 failed, although he may have succeeded on the whole action.” The Gujarat High Court considered the issue in Anandji Haridas & Co. v. State (AIR 1977 Guj. 140) P.D.Desai, J. speaking for the Bench observed: “The principle of common law in England which has been held to be applicable even in India in the matter of taxing party and party costs is that the costs are awarded, not as a punishment to the defeated party, nor a bonus to the party which receives them, but as a recompense to the successful party in order to indemnify him, though not completely, for legal expenses to which he has been subjected in prosecuting his suit or his defence.” (underline supplied) Learned Judge quoted the words of Buckley, J. in Gundry v. Sainsbury [(1910) 1 KB 645) that a successful party is entitled to come to the court and say “This is a matter in respect of which I am entitled to get costs because I have been put to expenses, and the law as administered in this court allows me in that state of things to be indemnified by the defendant to the extent of party and party costs.” Mookerjee, Acting C.J. stated in Manindra Chandra Nandi v. Aswini Kumar AS No.311/1995 8 Acharya [(1921) 48 ILR 427] thus: “……..we are now far removed from he days when “the plaintiff who failed was punished in “amercement pro falso clamore, and the defendant, “where the judgment was against him, in miserecordia “cum expensis litis or his unjust detention of the “plaintiffs right”. The theory on which costs are now awarded to a plaintiff is that default of the defendant made it necessary to sue him and to a defendant is that the plaintiff sued him without cause; costs are thus in the nature of incidental damages allowed to indemnify a party against the expenses of successfully vindicating his rights in court and consequently the party to blame pays costs to the party without fault. These principles applied not merely in the award of costs, but also in the award of extra allowance or special costs. Courts are authorized to allow such special allowances, not to inflict a penalty on the unsuccessful party, but to indemnify the successful litigant for actual expenses necessarily or reasonably incurred in what are designated as important cases or difficult and extraordinary cases………..” AS No.311/1995 9 8. Thus, it is within the discretionary power of the court to award cost to a successful party though, not in the form of penalty. 9. Does the discretionary power of the court extend to directing the successful party to pay the litigation expenses of the unsuccessful party? The discretionary power conferred on the court is so wide and unfettered that even deviating from the normal rule that costs should follow the result of the litigation and notwithstanding the provisions of Order XXXIII Rule 11 of the Code it is well within the power of the court to direct the successful party to pay the litigation expenses of the unsuccessful party includes the court fee payable. The provision in Section 35(1) of the Code that “the fact that the court has no jurisdiction to try the suit shall be no bar to the exercise of such powers” makes this clear. Support for that view can be had from R.K.Karanjia v. K.M.D.Thackersey (AIR 1970 Bombay 424). That was an appeal by the defendants who lost in the trial court on all points. They went up in appeal to the High Court of Bombay. At the time of hearing, counsel for defendants confined their arguments on two questions of which they lost one in the appeal. The arguments went on for more than 22 days. Ultimately the defendants succeeded in part in their appeal. The High Court, observing that had the defendants confined their argument to the one point which was allowed in their favour in the AS No.311/1995 10 appeal the arguments would have been over by five or six days, directed the successful defendants/appellants in exercise of its discretion under Section 35 of the Code to pay four-fifth of the costs of the appeal to respondent No.1. 10. What then is “discretion”? “Discretion” has been explained by Lord Mansfield in Rex v. John Wilkes [(1770) 4 Burr.2528) thus: “Discretion means sound discretion guided by law. It must be governed by rule, not by humour. It must not be arbitrary, vague and fanciful. Tomlin’s Law Dictionary states about “discretion” thus: “’Discretion’, it is stated that when anything is left to any person, judge or magistrate to be done according to his discretion, the law intends it must be done with sound discretion, and according to law” In the words of Lord Halsbury (Sharp v. Wakefield - (1891) 64 L.T.Rep. 180], “Discretion means, when it is said that something is to be done within the discretion of the authorities that something is to be done according to the rules of reason and justice, not according to private opinion; according to law and not humour. It is to be not arbitrary, vague and fanciful, but legal and AS No.311/1995 11 regular and it must be exercised within the limit, to which an honest man, competent to discharge of his office ought to confine himself.” “Discretion” in itself implies a vigilant circumspection and care. When the Code confers wide discretion on a court, it also imposes a heavy responsibility on it. In short, “discretion” is the power to administer justice. When a Statute gives a judge a discretion, what is meant is a judicial discretion, regulated according to the known rules of law, and not the mere whim or caprice of the person to whom it is given on the assumption that he is discreet. 11. Under which all circumstances could a court direct the successful party to pay the costs of the unsuccessful party? It may not be possible to give an exhaustive list of such circumstances. Broadly speaking, if the conduct of the successful party towards the unsuccessful party before, at the time of or after the institution of the proceeding in relation to the matter in issue is so perverse and obstinate that the court considers it just and equitable to do so, it may direct the successful party to meet the costs of the unsuccessful party. 12. In this case to make the appellants liable to pay the cost of the respondent including the court fee payable by her, learned Sub Judge said: “The evidence of DW1 and DW2 is convincing to the effect that the 2nd defendant performed the surgery with ordinary care and AS No.311/1995 12 caution that is expected from a medical officer and the subsequent pregnancy of the plaintiff must have been on account of the natural recanalisation of the fallopian tubes. But the fact remains that a poor lady who came to the court for the redressal of her grievance was not able to substantiate her case. The plaintiff who is the wife of a daily labourer must have found it very difficult to meet the expenses of a long protracted litigation before the court. As a measure of equity this court has got a duty to direct defendants 1 and 2 to pay the litigation expenses and other incidental expenses which the plaintiff might have incurred while prosecuting the suit. There cannot be any hard and fast rule for quantifying the litigation expenses. True, the suit was filed in forma pauperis. But the plaintiff has to pay the necessary fee to the advocate, the fee to the advocate clerks. She must have had spent considerable money in coming to the advocate's office from her residence very often. Her husband who must have escorted her to the court and to the advocate's office must have lost his wages on those particular days. In short, the plaintiff must have spent a handsome amount for the prosecution of this suit. The defendants are AS No.311/1995 13 hence directed to pay Rs.10,000/- as litigation expenses and expenses the plaintiff had to incur in connection with the litigation to the plaintiff within two months from today.” 13. In this case there is no finding or observation by the learned Sub Judge that it was the conduct, not to say about any perverse or obstinate conduct on the part of the appellants that dragged the respondent to this unnecessary litigation. Admittedly appellant No.1 had replied to the notice issued to it on behalf of the respondent stating that there was no negligence or lack of care in performing the surgery and requiring the respondent not to go for unnecessary litigation. No notice had been issued to appellant No.2 in the matter. Respondent was not satisfied with the reply given by appellant No.1 and brought the litigation. Could the appellant be said to have brought about the litigation? One could understand if in response to the notice issued to appellant No.1 there was no response and thus the respondent under the impression that her allegations are not countered or, as she was not informed as to what really was the reason for the failure of the operation she happened to bring the litigation which ultimately failed inspite of her attempt to produce the best evidence possible. If inspite of the reply given by appellant No.1 the respondent chose to bring the litigation, it must be at her risk and cost. In the suit, respondent did not even attempt to prove the allegations she made about the failure of the surgery except examining herself and her husband. Learned AS No.311/1995 14 Sub Judge was satisfied that: “the evidence of DW1 and DW2 is convincing to the effect that the 2nd defendant performed the surgery with ordinary care and caution that is expected from a medical officer and the subsequent pregnancy of the plaintiff must have been on account of the natural re- canalisation of the fallopian tube”. Respondent made allegations against the appellants which were either false or at least, not even attempted to be proved to be correct. To allege that there was negligence or lack of care on the part of a professional is nothing but a stigma on him which may even affect his reputation and career. There is no evidence and, it is not so argued before me as well that there was any attempt on the part of the appellants to protract the litigation or in any other manner harass the respondent. It is not shown that before, at the time or even after the institution of the suit, there was any reprehensible conduct on the part of the appellants in relation to the matter in issue which put the respondent in a disadvantageous position viz-a-viz the appellants. The mere fact that the respondent hailed from poor financial circumstances cannot by itself be a circumstance to direct the appellants who succeeded in the suit to meet the costs of the respondent. Learned Sub Judge appears to have been carried away by the fact the respondent hailed from poor financial circumstances. The discretion to direct AS No.311/1995 15 the successful party to meet the costs of the unsuccessful party stands on a different pedestal from the discretion not to award costs of the successful party against the unsuccessful party. The decision relied by the learned counsel for respondent has no application to the facts of this case. On a consideration of the facts and evidence of this case in the light of the legal principles discussed above, I am inclined to hold that the learned Sub Judge has not exercised the judicial discretion in a proper manner rationally or regulated by any logical process of reasoning. Learned Sub Judge has arbitrarily directed the appellants to pay the costs - including the court fee - of the respondent. In the circumstances stated above the direction issued by the learned Sub Judge is liable to be set aside. I do so. Resultantly, this appeal succeeds. That part of the judgment and decree of the court below to the extent it went against the appellants are set aside. Parties are directed to suffer their respective cost in this appeal. C.M.P.No.1050 of 2000 will stand dismissed. THOMAS P.JOSEPH, Judge. cks AS No.311/1995 16 Thomas P.Joseph, J. A.S.No.311 of 1995 JUDGMENT 13th February, 2009.