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The petitioner filed a suit for specific performance of an alleged agreement of sale dated 15.7. 2004. The Trial Court dismissed the suit by judgment and decree dated 19.5.2008. The High Court dismissed the petitioner's appeal. Both the Courts held that the petitioner had not approached the Court with clean hands and that he had failed to prove any concluded contract for sale. High Court found that the defendants in the suit were also not above board in their conduct. It found that both sides were guilty of having lied on oath and deserved to be prosecuted. On the ground that Courts were over-burdened with litigation, the High Court decided that instead of directing prosecution, heavy costs should be levied on both petitioner and respondents to be paid to the State, which spends money on providing the judicial infrastructure. It then proceeded to impose exemplary costs of Rs.1,00,000/- on the respondents and directed that the costs should be deposited with the Madras High Court Legal Services Committee.
Feeling aggrieved by the dismissal of his appeal, the petitioner is before this Court. On merits, we find that the concurrent findings of the trial court and the High Court do now warrant interference and, therefore, this is not a fit case for grant of leave. The learned Council for the petitioner submitted that levying costs of Rs. 1,00,000/- against the petitioner was not warranted. He submitted that as the appeal before the High Court arose out of a civil suit, costs were governed by Sections 35 and 35-A of the Code of civil procedure and cannot exceed what is leviable under those provisions.
Under Section 35 of the Code, award of costs is discretionary but subject to the conditions and limitations, as may be prescribed and the provisions of any law for the time being in force. Under Section 35A, compensatory costs for vexatious claims and defences may not exceed to Rs.3,000/-. Further, the primary object of levying costs under Sections 35 and 35A of the code, is to recompense a litigation to vindicate of defend his right. It is therefore payable by a losing litigant to his successful opponent. When an appellant or a plaintiff has already paid the prescribed whether any costs can be awarded to the State by way of penalty in a litigation between two private parties.
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