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1984 DIGILAW 312 (KER)

K. S. E. Board v. Varkey Sebastian

1984-11-08

K.BHASKARAN, M.P.MENON

body1984
JUDGMENT K. Bhaskaran, Ag. C.J. 1. The 1st defendant in OS No. 3 of 1976 on the file of the Subordinate Judge, Ernakulam is the appellant. The suit was one for injunction. The operative portion of the judgment appealed against reads as follows: "In the result the suit is decreed as follows: The defendants are restrained from removing the structures in the plaint schedule property without issuing proper notice to the plaintiff. The injunction so granted is only subject to the rights conferred on the officers of the defendants as per the Indian Telegraph Act in so far as it is made applicable under the Indian Electricity Act. The plaintiff is also entitled to get his costs." This appeal is restricted only to the award of costs. The counsel for the Board submitted that the plaintiff had absolutely no justification for rushing to the court in as much as the defendants had no intention to trespass upon the property or to demolish his kayyala. 2. In as much as the decree for injunction is not appealed against, it is not open to the defendants not to contend for the position that no decree for injunction had been issued by the court below. It is a well settled principle that, by virtue of the provisions contained in S.35 of the Code of Civil Procedure, the award of costs is in the discretion of the court; and that broadly speaking, an appeal against an order as to costs is the exception, not the rule. Mulla, on the Code of Civil Procedure, 14th edition, Volume I at page 270 state as follows: "It is settled that an appeal lies for costs only when the costs are awarded by a "decree" if the order as to costs involves a question of principle; but it is not settled whether such an appeal lies if no question of principle is involved." It could not be said that any question of principle is involved in this case. That being the position, we dismiss this appeal; however in the circumstances of the case without any order as to costs.