Decided on November 12,1971



- (1.) The point for consideration in ;this civil revision petition relates to costs.
(2.) The petitioner as plaintiff filed O. S. No. 46 of 1970 in the Lower Court to recover a sum of Rs. 18,504.00 on the foot of a mortgage. Issues were framed and the suit was posed for trial. After some adjournments it came up before the Court on 8/04/1971. On that day both sides reported not ready and sought an adjournment. While granting the adjournment to 17th June, 1971 the Court directed that "both sides to Loss costs irrespective of the result of the suit". It s this direction about costs that is sought to be revised in the revision petition.
(3.) It is argued that while acceding to the request of the parties and granting an adjournment of the suit, the Court can award costs of the adjournment alone and it has no jurisdiction t issue a direction as to the costs in the suit at that stage. This contention seems to be well founded. Order 17, Rule (1), C. P. C. empowers the Court to adjourn the hearing of the suit from time to time if sufficient cause is shown. Sub-rule (2) requires the Court to fix a day for further hearing of the suit when such adjournment is granted and further enables it. to make such order as it thinks fit it respect to the costs occasioned by the adjournment. It is thus manifest that what the Court can award, while granting an adjournment, are only cots occasioned by the adjournment. That means, it can grant all such costs that would be incurred by the other party on account of the adjournment. For instance, if witnesses were summoned and battas were paid to them he witnesses will have to be summoned and battas will have to be paid to them again for the next day of hearing if an adjournment is granted. Those cots occasioned by granting the adjournment may be granted by the Court. But, there is no provision in the Civil Procedure Code which empowers the Court to make an order as to the costs of the suit while dealing with the request for an adjournment. If a direction is made as to the costs of the suit while granting an adjournment it is clearly a case of imposing a penalty. The Court is not empowered to impose such penalties. The costs occasioned by the adjournment are only intended to compensate the other party for the expenses it has incurred for that day fixed for the haring of the suit. The discretionary power as to costs conferred on the Courts by Section 35, C. P. C., has to be exercised when the suit is disposed of That power of discretion has to be exercised having regard to the circumstances, facts, contentions and result of the suit and not earlier. It doers not empowers the Court to make a direction as to costs at an intermediary stage before the disposal of the suit. It is thus clear that the lower Court has acted without jurisdiction in making a direction as to the costs of the suit while granting an adjournment.;

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