Costs discretion and survival of the right to sue: appeal on costs maintained, but substituted plaintiff could not continue an abated suit.

An appeal confined to costs was maintainable because an award of costs under Section 35(2) CPC may be interfered with where judicial discretion is exercised on wrong principles, and the lower appellate court treated the order as involving such a principle. The right to sue did not survive after the original plaintiff's death because the suit was not representative in character and the deceased plaintiff was not shown to have a transmissible or legally maintainable cause of action. Substitution could not enlarge the original claim, so the suit abated and dismissal was sustained.

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Issues: (i) Whether an appeal confined to costs alone was incompetent where no question of principle arose; (ii) Whether, on the death of the original plaintiff, the right to sue survived so as to enable the substituted plaintiff to continue the suit, or whether the suit abated and became not maintainable.

Issue (i): Whether an appeal confined to costs alone was incompetent where no question of principle arose.

Analysis: The governing rule under Section 35(2) of the Code of Civil Procedure, 1908 is that costs ordinarily follow the event, but the award of costs remains a matter of judicial discretion. Appellate interference is warranted only where that discretion is exercised on wrong principles or results in injustice. On the facts, the lower appellate court treated the order as involving a principle because the trial court had saddled a successful party with costs despite accepting a substantial part of its defence. The objection that the appeal was confined to costs and therefore incompetent was not accepted.

Conclusion: The appeal against the costs order was maintainable, and the order of the lower appellate court was upheld in favour of the respondents.

Issue (ii): Whether, on the death of the original plaintiff, the right to sue survived so as to enable the substituted plaintiff to continue the suit, or whether the suit abated and became not maintainable.

Analysis: The scheme of Order 22 of the Code of Civil Procedure, 1908 permits continuation only where the right to sue survives. A representative suit by a reversioner may continue on death, but a suit founded on a purely personal claim does not survive if the deceased plaintiff was a stranger to the estate and not a reversioner. The original plaintiff was found to be unrelated to the last male-holder, so the suit was not representative in character. The substituted plaintiff, though an admitted reversioner of the estate, could not enlarge or alter the original cause of action or continue a suit that had abated on the original plaintiff's death. The amendment and substitution were therefore not legally sustainable.

Conclusion: The right to sue did not survive, the suit abated, and dismissal of the plaintiffs' suit was correct in favour of the respondents.

Final Conclusion: Both second appeals were rejected. The first appellate court's order on costs and its dismissal of the suit for want of maintainability were sustained, leaving the defendants successful overall.

Ratio Decidendi: An appeal on costs is competent where the order involves a legal principle affecting the exercise of judicial discretion, and a substituted party can continue a suit only if the original cause of action survives and the suit was capable of being maintained by the deceased plaintiff in a representative or legally transmissible capacity.

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