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Report No. 128

Costs on Account of Adjournments

2.17. While dealing with the question of cost incurred in paying travelling expenses to witnesses, attention has been drawn to Order 17 of the Code of Civil Procedure. Therefore, it is not necessary here to further dilate on the subject save and except saying that Order 17 must be scrupulously followed. Costs Payable by the Vanquished Party to the Successful Party

2.18. To some extent, this method of compensating the successful litigant may operate as a check on an utterly frivolous litigation. Put it is equally true that sometimes a genuine claim may fail because of non-availability of reliable evidence, or occasionally by lapse on procedural front. To wit, if in a pending suit, the defendant, or one of the defendants where there are more than one, dies and his heirs are not brought on record within the prescribed time, the suit abates.1 In such a situation, the claim may be genuine but gets rejected for failure on procedural front.

Cases are not unknown where a successful litigant up to the Supreme Court lost the case when in a pending appeal the heirs were not brought on record within the prescribed time and the court declined to condone delay on the ground that sufficient cause was not shown for failure to implead the heirs or the legal representatives of the deceased party within the prescribed time. Even when on account of this technical failure a suitor is non-suited, costs are awarded to the other side. To deny costs to a successful litigant may appear to be unjust.

But this should not detain the Commission any more because while taxing costs, it would have to be ascertained whether the other side has spent anything on court fees and if the litigant is in the exemption limit, nothing will be taxed under the head "court fees". Similarly, if legal aid has been obtained, nothing would be taxed under the head "lawyer's charges". The remaining expenses would be negligible. Therefore, 'the practice of awarding costs to successful litigant may continue save and except where the matter should be left to the discretion of the court when the successful litigant is from the affluent section of the society and the vanquished party may belong to impoverished section of the society.

In such a situation, the costs should not be awarded to the affluent successful party. But if on the other hand, the successful litigant is one coming from impoverished section of society, full costs should be awarded to him against the affluent litigant on the other side. To tilt the balance in favour of justice in such a situation, even compensatory costs can be awarded under section 35 of the Code of Civil Procedure, 1976.

1. See Order 22 rules 3 and 4 of the Code of Civil Procedure, 1976.

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