WAJIHUDDIN AHMAD, J. S.I. No. 1&2- Learned counsel for the plaintiff claims that, in spite of decreeing the suit as prayed, grant of costs in this suit was overlooked by the Court due to inadvertisement since the plaintiff had unwittingly omitted to incorporate the same in the prayer clause of the Plaint. Request is made for a grant now. The request is opposed. Section 35(2) in the Code of Civil Procedure is invocable in such matters. It runs thus: Section 35(2) CPC.
"Where the Court directs that any costs shall not follow the event, the Court shall state its reasons in writing."
2. On examining Section 35 of the Code of Civil Procedure, as a whole, it becomes clear that costs in a LIS, though in the discretion of the Court must follow the event and in case a Court refuses to allow the same reasons therefor are to be recorded in writing. As a rule, costs in terms of Section 35 of the Code are awarded in order to secure the expenses undergone by a successful litigant in the conduct of his case in court and such are neither a penalty nor a punishment of the adversary nor a premium for success in litigation. They constitute the prescribed actuals. It would, therefore, seem that even where the plaintiff has omitted to specifically pray for costs in a suit because of inadvertisement or misapprehension it still remains for the Court, at the time when it passes the decree, to say something on the subject in the way of reasons, may such even be the omission to pray itself, though that perhaps may not be sufficient as a reason, the only difference being that on refusal the matter would not fall for correction or review.
3. The foregoing obligation on the part of the Court to assign reasons for disallowing costs, apart from the postulates of Section 35(2) C.P.C., is based on long standing rules of practice having due sanction in law. Thus in the matter of grand of costs plaintiffs and defendants are to be equated; whoever succeeds gets the costs. Frequently, a defendant only urges that the suit is liable to be dismissed as against him. No prayer is, besides, permissible in a written statement, transgression attracting payment of Court fees. Yet, without question, costs follow a successful defence. Similarly, in appeals prayers usually are for reversal of the decrees and no costs are prayed for. Still such are granted on success. The conclusion is, in turn, fortified on the language of Section 35(2) of the Code of Civil Procedure, which enjoins that, if the Court directs that any costs shall not follow the event, the Court shall have to record reasons therefor. Section 35(2) is directed particularly to an articulated refusal in the grant of parts or portions of the costs only and the rule should be still stronger where all costs are consciously disallowed. For the same reason, an inadvertent disallowance of costs would not *be permissible.
4. This precisely emerges to be the position here, for the suit was decreed without expressly denying costs. A case for redress may thus be made out. The omission, in my view, constitutes an error apparent on the face of the record or even a slip or omission. The error can be rectified and the omission can be supplied. No case upon the event. All that is urged is that the matter has attained finality and stands foreclosed. That is not so. Review is clearly competent. If not, accidental slips or omissions can always be redressed under Section 152, Civil Procedure Code. Accordingly, the costs sought are allowed and such costs, in usual terms, are permitted to run with the event.
Matters at S. Nos. 1 & 2 above stand disposed of.