JUDGMENT
1. This is in some way an unfortunate case. The petitioner filed a Small Cause Suit No. 4388 of 1942 in Madras. After some discussion, the learned Small Cause Court Judge made the following order:
It is ordered that the plaint be returned for re-presentation to the proper Court and the costs of this suit shall abide the result of the suit.
2. I question the jurisdiction of the learned Judge to have made the order in so far as it relates to costs. There is no doubt that under Section 35 of the Civil Procedure Code, the Court has jurisdiction in suits before it to determine ” by whom or out of what property and to what extent.” such costs are to be paid and to ” give necessary directions for the purpose.” There is equally no doubt that an appellate Court when remitting a case to an inferior Court can make any order with regard to costs. In this case, the Small Cause Court, Madras, appears to have directed the District Munsiff’s Court, Kavali, in the following terms:
You will, in this suit before you, give directions with regard to costs in this suit which has been before me and in which the plaint has been returned.
Supposing instead of making that order, the order that “costs will follow the result” in the lower Court was made that would have been a direction to the District Munsiff of Kavali to make an order for the payment of costs in Madras, whether he wished to do so or not. I do not think that Section 35 gives the Court jurisdiction to direct a Court of equal jurisdiction to make any order as to costs. This difficulty would never have arisen if the Small Cause Court, Madras, had itself made an order for costs and the plaintiff having sued in the wrong Court, the proper order should obviously have been that he should pay the costs of the defendant. This aspect was not considered by the District Munsiff of Kavali, but he proceeded to apportion costs on the merits, treating the expenses in Kavali as being a continuation of the expenses in Madras. I do not propose to take too critical a view in revision of this procedure. There is no question that the result of his order is that substantial justice has been done and that what I think seems to have been a wrong order by the Small Cause Court, Madras, has been put aright. I accordingly do not propose beyond making these observations to interfere in revision with the order of the Court below. This aspect does not appear to have been discussed below. The proper order will be therefore that this civil revision petition is dismissed, but I make no order as to costs.
