Hard cases make bad law.
Black's Law Dictionary defines a 'hard case' as a law suit involving equities that tempt a Judge to stretch or even disregard a principle of law at issue.
The costs of Rs 20 lakh imposed by the Delhi High Court is nothing but reflection of this adage.

Actus Curiae Neminem Gravabit is a legal principle which means an act of the Court shall prejudice no man. The foundation of any jurisprudence is based on the soundness of process followed by Courts. Substantive laws become futile in the absence of free and fair process. This sound procedure is either enacted by Parliament or the power is delegated to the Executive/Judiciary.

Courts in India, including the Constitutional Courts, have time and again tried to encroach upon jurisdiction which is not vested in them. An example of this kind of judicial overreach was observed in the Suit of Juhi Chawla before the Delhi High Court.

The High Court of Delhi through its Judgement & Order dated 04.06.2021 in the case titled Juhi Chawla & Ors Vs. Science & Engineering Research Board & Ors., CS (OS) 261/2021 dismissed the law Suit filed by actor-environmentalist Juhi Chawla against the setting up of 5G Wireless Networks in the country. It was observed inter-alia that Plaintiffs have abused and misused the process of law which has resulted in waste of Judicial time. Further, the High Court also directed the Plaintiffs to deposit the cost of Rs. 20 lakhs.

This direction of imposing the cost of Rs. 20 Lakh raised many objections even among the members of the legal fraternity. The said Order was referred by many authors as hard cases which makes bad law. The said Order was also called by many as Judicial Overreach on the ground that Delhi High Court has gone beyond the provisions of Code of Civil Procedure, 1908 while passing the said Order.

Whether the Judgment imposing costs of Rs. 20 Lakhs passed by Delhi High Court is justified or not raises many substantial questions of law which are extracted herein below:

1. Whether the High Court has power to pass an Order of Cost other than that of Costs provided under Section 35, Section 35-A, Section 35-B & Order XX-A of the Code of Civil Procedure, 1908?
2. Whether the High Court has to confine itself within the four corners of Section 35, Section 35-A, Section 35-B & Order XX-A of the Code to pass any Order on cost?
3. Whether High Court can frame rules for regulating its Own Civil Procedure which can be inconsistent with the provisions of the Code of Civil Procedure, 1908.
4. Whether the High Court while passing the Order of Costs has gone contrary to the law laid down in the case of [Ashok Kumar Mittal Vs Ram Kumar Gupta &Anr:, (2009) 2 SCC 656] and [Sanjeev Kumar Jain Vs. Raghubir Saran Charitable Trust, (2012) 1 SCC 455]?
5. Whether the High Court in the instant case, while imposing the cost of Rs. 20 lakh on the Plaintiffs, has exceeded its jurisdiction?

Meaning & Kinds Of Costs Under The Governing Civil Law:
There is no single meaning of Cost. It's meaning may differ from case to case basis. Though, the general meaning of Cost, as provided under Advanced law Lexicon by P. Ramanathan, 4th Ed. Volume I, Page No. 1093 is the price paid or payable for anything. It may be the price for expenses of typing charges and obtaining copies, for filling false and vexatious claim or for filling the suit for publicity abusing the process of the Court.

There are two Types of Costs under the Governing Civil Law in India. First the Costs provided under the Code of Civil Procedure, 1908. Secondly any other Costs provided the Original side rules of the High Court.

The same is provided herein below:

1. Kinds of Cost under the Code of Civil Procedure, 1908
2. General costs - Section 35 of Code of Civil Procedure, 1908;
3. Miscellaneous costs - Order 20-A of Code of Civil Procedure, 1908;
4. Compensatory costs for false and vexatious claim or defences - Section 35-A of Code of Civil Procedure, 1908;
5. Costs for causing delay - Section 35-B of Code of Civil Procedure, 1908
    

The object of the Cost under Section 35 of the Code of Civil Procedure, 1908 is to award cost to a party before the Court to secure the expenses incurred by him in the litigation. Order XX-A of the Code of Civil Procedure, 1908 is a specific provisions which gives power to Court to award costs for expenses of typing charges, obtaining copies and producing witnesses and in giving notices. Section 35-A of the Code of Civil Procedure, 1908 provides for compensatory costs where the objections is raised by the party claiming that either the claim or defence of other party is false or vexatious. In this case, the power has been conferred on the Court to provide compensatory Costs not exceeding Rs. 3000/-. Section 35-B of the Code of Civil Procedure, 1908 is merely for causing delay caused by the party to the suit.

Thus, costs provided under the Code of Civil Procedure, 1908 is not for the event when any party abuses the process of the Court through any other means such as for publicity.

Any other Cost under the original Side Rules of the High Courts:
This explanation of this kind of Cost depends on the Rules framed by each High Court. The High Courts' as per their power conferred under Section 122 read with Section 128 of the Code of Civil Procedure, 1908 can frame their original side Rules, which may include the Costs other than the Costs provided under the Code. The Costs under this head is majorly for the party who abuse the process of the Court. This costs under this head is in addition to the costs provided under the Code and not in derogation of it.

Analysing The Law Giving Court Power To Pass An Order Of Costs:
The Code of Civil Procedure, 1908 is an Act to consolidate and amend the laws relating to the procedure of the Courts of Civil Judicature. Thus, it generally govern all actions of civil nature unless other provided under the Code. Though, there are some exceptions made by the Code and it is essential to notice them. Section 4 (1) provides as follows:
4. Savings.-

1. In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force.

Apart from this Section, Part IX of the Code of Civil Procedure, 1908 enumerates the special provisions relating to the High Courts. Part X of the Code confers the Rule making power on the High Courts. Section 122 of the Code of Civil Procedure, 1908 confers power on the High Courts, to annul, alter or add to all or any of the rules in the First Schedule.

This power is conferred with regard to rules regulating their own procedure and procedure of the Civil Courts and is subject to the condition of previous publication. Section 128 (2) provides the number of matters for which rules may be framed by High Court and Section 128 (1) provides that such rules framed under Sub-rule (2) shall not be inconsistent with the provisions in the body of the Code. Then Section 129 comes, which provides the power of the High Courts to make rules as to their own Original Civil Procedure and which is crucial for the present discussion. Section 129 reads as under:

129. Power of High Courts to make rules as to their Original Civil Procedure.- Notwithstanding anything in this Code, any High Court not being the Court of a Judicial Commissioner, may make such rules not inconsistent with the Letters Patent or Order or other law establishing it to regulate its own procedure in the exercise of its original civil jurisdiction as it shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.

Section 129 gives ample power to the High Courts to make their own rules establishing to regulate its own procedure in the exercise of its original civil jurisdiction. Further, these rules should not be inconstant only with the Letter Patent or order or other law. The first line of Section 129 uses the non-obstante clause in form of 'Notwithstanding. It means that High Court may make rules which is even beyond the Code.

The Supreme Court in the case of [(Smt.) Parayankandiyal Eravath Kanapravan Kalliani Amma & Ors. Vs. K. Devi & Ors., (1996) 4 SCC 76] observed that:
77. Non obstante clause is sometimes appended to a Section in the beginning, with a view to give the enacting part of the Section, in case of conflict, an overriding effect over the provision or Act mentioned in that clause. It is equivalent to saying that in spite of the provisions or Act mentioned in the non obstante clause, the enactment following it will have its full operation or that the provision indicated in the non obstante clause will not be an impediment for the operation of the enactment.

The Supreme Court in the case of [Chandavarkar Sita Ranta Rao Vs. Ashalata S. Guram, (1986) 4 SCC 447], Para 68 held that:
68. It is well settled that the expression 'notwithstanding' is in contradistinction to the phrase 'subject to', the latter conveying the idea of a provision yielding place to another provision or other provisions to which it is made subject.

The Supreme Court in the case of [Iridium India Telecom Ltd Vs. Motorola Inc., (2005) 2 SCC 145] interpreted the Section 129 of the Code of Civil Procedure, 1908 and held that:
38. Taking into account the extrinsic evidence, i.e. the historical circumstances in which the precursor of Section 129 was introduced into the 1882 Code by a specific amendment made in 1895, we are of the view that the non obstante clause used in Section 129 is not merely declaratory, but indicative of Parliaments intention to prevent the application of the CPC in respect of civil proceedings on the Original Side of the High Courts.

Thus, it is clear, that the High Court can frame rules as to regulate their own original civil procedure which is even inconsistent with provisions of the Code. The High Court can even provide for other method which are not even provided under the Code.

Thus, the Delhi High Court, in exercise of powers conferred by Section 129 of the Code of Civil Procedure, 1908 and Section 7 of the Delhi High Court Act, 1966 (Act No. 26 of 1966), and all other powers enabling it, has brought the Delhi High Court (Original Side) Rules, 2018 (hereinafter the new Rules, 2018) with respect to practice and procedure for exercise of its ordinary original civil jurisdiction.

Earlier Chapter 11 Part C of the Delhi High Court (Original Side) Rules, 1966 (hereinafter the Old Rules, 1967) used to deal with award of costs in Civil Suits. Chapter 13 of the Old Rules dealt with taxation of costs. The Old Rules, 1967 nowhere provided the power of the High Court to levy any costs other than the cost provided under Section 35 and Section 36 etc. However, The Chapter 13 of the New Rules, 2018 provides for Cost and Taxing of Costs.

The relevant rules of Chapter 13 of the New Rules, 2018, are extracted herein below:
Chapter XXIII Costs & Taxation Of Costs
Power of Court/ Registrar General/ Registrar to impose cost
If the Court considers any party abusing the process of Court or in any manner considered dilatory, vexatious, mala fide and abuse of process by them, the Court shall require the delinquent party to make deposit / payment upfront, in the manner directed by Court of such costs as the Court deems appropriate, before proceeding further in the matter. For the purpose of this Chapter, the expression ―Court shall mean and include the Court, the Registrar General and the Registrar, as the case may be.

Imposition of actual costs. – In addition to imposition of costs, as provided in Rule 1 of this Chapter, the Court shall award costs guided by and upto actual costs as borne by the parties, even if the same has not been quantified by parties, at the time of decreeing or dismissing the suit….

In addition to imposition of costs as above, the Court may also pass a decree for costs as provided in Sections 35-A and 35-B of the Code of Civil Procedure, 1908 or under any applicable law.

It clearly evinces, that the costs imposed by the Court under Rule 1 and Rule 2 of Chapter 13 of the New Rules, 2018 is different from the Costs awarded under Sections 35-A and 35-B of the Code of Civil Procedure, 1908. Thus, there is no question of any conflict between Delhi High Court (Original Side) Rules, 2018 and Sections 35-A and 35-B of the Code of Civil Procedure, 1908 in relation to Costs. It is also evident that Sections 35, 35-A and 35-B nowhere provides that High Court cannot award any other costs apart from the costs provided under those Sections. Moreover, the Delhi High Court (Original Side) Rules, 2018 have not been challenged and thus hold valid which gives ample powers to the Delhi High Court to pass the order of costs in addition to costs enumerated under the Code.

Judicial pronouncements
The Supreme Court has time and again observed that High Courts do not have jurisdiction in case of Suits under the Code of Civil Procedure, 1908 to impose costs on any party beyond the limit prescribed under the Code.

[Ashok Kumar Mittal Vs Ram Kumar Gupta & Anr:, (2009) 2 SCC 656] was a case where the High Court imposed exemplary costs of Rs. 1 lakh on the Petitioner and Rs. 1 lakh on the Respondent, on a finding that both sides were guilty of having lied on oath. The Apex Court observed that the limit prescribed under Section 35-A should be kept in view by the Courts. The Court also adversely commented upon the practice of directing costs to be paid to Legal Services Committee etc. or to some non-party charitable organisation. The Supreme Court also made an observation that the principles and practices relating to levy of costs in administrative law matters cannot be imported mechanically into civil litigation governed by the Code of Civil Procedure, 1908. It was observed:
The more sound view however is that though award of costs is within the discretion of the Court, it is subject to such conditions and limitations as may be prescribed and subject to the provisions of any law for the time being in force; and where the issue is governed and regulated by Sections 35 and 35-A of the Code, there is no question of exercising inherent power contrary to the specific provisions of the Code...

...It is also to be noted that huge costs of the order of Rs. Fifty Thousand or Rs. One lakh, are normally awarded only in Writ Proceedings and Public Interest Litigations, and not in civil litigation to which Sections 35 and 35-A are applicable. The principles and practices relating to levy of costs in administrative law matters cannot be imported mechanically in relation to civil litigation governed by the Code.”

The ratio of Ashok Kumar Mittal (supra) was reiterated in the case of and [Sanjeev Kumar Jain Vs. Raghubir Saran Charitable Trust, (2012) 1 SCC 455]. In that case, the Apex Court expressed its disagreement with the exemplary costs imposed by High Court ignoring the outer limit of Rs 3, 000/- in derogation of Section 35-A. The Court was concerned with the question as to whether a sum of Rs. 45 lakh awarded as costs by the High Court while dismissing an appeal was sustainable. The said Suit was related to a contractual dispute. This Order of the High Court was set aside by the Supreme Court, which ordered the appellant to pay the costs of the appeal as per the High Court Rules, plus Rs. 3,000/- as exemplary costs to the Respondent.

The Supreme Court held that the Order of the High Court awarding heavy costs was unsustainable in light of the existing provisions of Code of Civil Procedure, 1908 read with the Delhi High Court Rules.

Again, in the case of [Vinod Seth Vs Devinder Bajaj & Anr., (2010) 8 SCC 1] the Supreme Court ruled out the discretion of Civil Courts (including the High Court) under the Code of Civil Procedure, 1908 to award costs without regard to statutory provisions, even in a frivolous litigation.

Suggestions of the Law Commission regarding costs under Code of Civil Procedure, 1908
In the above mentioned cases, the Supreme Court had called for an amendment to the provision relating to costs under the Code of Civil Procedure, 1908. To this end, the Law Commission of India, under the Chairmanship of Justice (Retd.) P. V. Reddy in 240th Report On Costs In Civil Litigation made the following suggestions:

1. Ceiling limit (under Section 35-A) of Rs. 3, 000/- needs to be enhanced to Rs. 1, 00, 000/-.
2. Out of costs awarded under Section 35-A (maximum being Rs. 1, 00, 000/-) part of the costs should be allowed in favour of the party who has been subjected to frivolous or vexatious litigation, and a part of the amount of costs should be directed to be deposited in the Judicial Infrastructure Fund to be created by each High Court.
3. The expression ‘exemplary’ should be substituted for the word ‘compensatory’ wherever it occurs in Section 35-A.
4. Every Court, on its own, even without an application from one of the parties, shall be empowered to award exemplary costs under Section 35-A if the Court is satisfied that the claim or defence is false or vexatious to the knowledge of the party. However, before passing such order, opportunity of hearing shall be given to the party against whom such order is proposed to be passed.

Analysing The Judgement and Order Passed By Delhi High Court On 20 Lakh Rs. Costs:
Coming back to the Juhi Chawla case, it seems that the dismissal of the Suit with costs of Rs 20 lakh is beyond the jurisdiction of the High Court under Code of Civil Procedure, 1908. There is neither any statutory provision nor established jurisprudence on the matter of costs under Code of Civil Procedure, 1908 that permits any Court to impose such heavy costs on Plaintiffs while dismissing frivolous or vexatious Suits filed for publicity.

It has been held that the inherent power of Courts under Section 151 of Code of Civil Procedure, 1908 cannot be exercised in conflict with the general scheme and intent of the Code.
There is no doubt that High Courts can innovate with a view to disciplining those who pursue vexatious, frivolous, malicious or speculative litigation, but the same has to be done within the four corners of law. With due respect to the Delhi High Court, the author feels that in the Juhi Chawla case, the imposition of exemplary costs was not within the four corners of law, and was in utter disregard to judicial precedents and provisions of the Code of Civil Procedure, 1908.

It's evident that the High Court has passed the Order of the Cost for abusing the process of the Court for publicity by Plaintiffs. The said Order cannot, at stretch of imagination, be said to be passed under the provisions of the Code of Civil Procedure, 1908. The Order was passed under Rule 1, Chapter XIII of the New Rules, 2018 which is absolutely permissible in the law. Thus, it will not be apt and apposite to state Delhi High Court had no power to pass an Order of Costs beyond the provisions of the Code of Civil Procedure, 1908 specifically where the Original Side Rules are in existence.

Another objection, as put forth by many writers, is that the instant order of Rs. 20 Lakh Cost is against the law laid down in the case of [Ashok Kumar Mittal Vs Ram Kumar Gupta &Anr, (2009) 2 SCC 656] and [Sanjeev Kumar Jain Vs. Raghubir Saran Charitable Trust, (2012) 1 SCC 455]. However, the Supreme Court in the aforementioned two Judgements gave the observation only in relation to actual cost under Section 35 of Code of Civil Procedure, 1908 and the Cost under Section 35A of Code.

Thus, the said observation cannot be applied mutatis mutandis to other kinds of Cost as provided under the New Rules, 2018. Further, the Apex Court in the said Judgement clearly emphasised on the absence of Rules on the awarding the actual cost. If there had been Rules for the same, The Apex Court would not have objected to the high amount of actual cost awarded by the High Court. Though, the case imposing cost of Rs. 20 lakh is not about the actual cost falling under the Code of Civil Procedure, 1908 but falling under the New Rules, 2018.

As per the analysis made above, it may safely be concluded, that the Delhi High Court has power to pass an Order of Cost other than that of Costs provided under Section 35, Section 35-A, Section 35-B and Order XX-A of the Code of Civil Procedure, 1908. The High Court is not bound to confine itself within the four corners of Section 35, Section 35-A, Section 35-B and Order XX-A of the Code to pass any Order on Cost, if the original side Rules confer power on the High Court to pass such Orders.

Written By: Dinesh Singh Chauhan, Advocate - J&K High Court of Judicature, Jammu.
Email: [email protected], [email protected]