JUDGMENT
1. These are applications to review the decree passed by us directing the respondents to get their costs of the litigation from the appellant. The ground for the review is that the appellant succeeded in appeal in getting an important relief prayed for in the plaint, namely, the determination of fair and equitable rent, and consequence the was entitled to the costs upon the principle that costs abide the result.
2. Ordinarily, no doubt, the successful party is entitled to costs of the litigation, but in certain circumstances the Court has discretion to pass such orders as it thinks fit regarding the costs to be borne by the parties.
3. The plaintiff claimed khas possession of the lands in suit and in the alternative for a determination of fair and equitable rent. The defendants resisting the suit objected to the maintainability of the suit on account of the aforesaid relief regarding determination of fair and equitable rent having been joined with the prayer for khas possession. No specific issue was framed as to the plaintiff’s right to fair and equitable rent. The point was, however, tried in issue No. 1, which related to the maintainability of the suit. In that issue the learned Subordinate Judge held that the plaintiff was entitled to a determination of fair and equitable rent and he was also entitled to make that prayer in the present case while seeking to recover khas possession. Inasmuch as he declared the plaintiff entitled to khas possession, there was no necessity of giving the alternative relief to the plaintiff, namely, the right to fair and equitable rent. The defendants appealed to the District Judge. The learned District Judge allowed the appeal and dismissed the suit with costs.
4. In second appeal we confirmed the decision of the learned District Judge as to the plaintiff not being entitled to khas possession. We, however, came to the conclusion that the plaintiff was entitled to the alter native relief claimed by him. One of the grounds for granting this alternative relief was that the defendants did not challenge before the District Judge the finding of the Subordinate Judge an issue No. 1. We, therefore, partially decreed the appeal as to costs. We, at this stage, were of opinion that the principal question related to the khas possession obtained by the plaintiff and as the plaintiff failed to get the principal relief, he ought to pay the costs of the respondents. This order was a deviation from the ordinary rule relating, to the costs under which the plaintiff, being, a successful party, was entitled to costs.
5. I have already said that we were influenced in making this unusual order account of oar having been under the impression that the principal question related to khas possession. We now find that the alternative prayer relating to the determination of fair and equitable rent was also a principal relief clearly sought for in Clause (gha) of the paragraphs relating to reliefs. The defendants held the large property on a nominal rent of one rupee and consequently the relief for determination of fair and equitable rent is a substantial relief in favour of the plaintiff, though it is a lesser relief than the actual possession of the lands. Considering all the circumstances we think that as both parties have succeeded partially, and probably equally in this litigation, that it is desirable to modify our order as to costs by directing that each party do bear his own costs throughout.
6. No doubt there is great force in the contention of Mr. Akbari that the order as to costs was passed in the presence of both the parties and should not be reviewed. I agree that unlese a strong case is made out for review of such an order passed in the presence of both parties, this Court will be reluctant to review it. But no hard and fast rule can be set out for review can be granted not only upon discovery of a new important matter but also upon sufficient cause being shown. This is wide enough to entitle the Court to review the order, if it is satisfied that the order of costs passed in the first instance was not a proper order.
7. There is another reason why a review in such matter may, in the circumstances, be granted. It is this, that in an order as to costs the parties generally are, and particularly in the present case were, not heard; and the Court in delivering judgment passes the order at the end of it. No doubt the Court in passing that order and in making directions as to costs took into consideration all the circumstances, but tin error in the discretion is not beyond the range of possibility and I confess that there was some misapprehension in this matter. There is no other way to rectify such matters except by review, and that must always be after the decree has been prepared. This view appears to be in consonance with that in the case of Rajah Leslanund Singh v. Rajah Ram Narain Singh 15 W.R. 415,
8. It is also in accordance with the general principle.
9. We, therefore, direct that the order relating to casts should be reviewed and, as already stated, each party should bear his own costs. There will be no order as to costs in these applications.
