Sanjeev Kumar Jain v Raghubir Saran Charitable Trust

• The suit was a tenant's suit for injunction concerning a staircase at E-67, Connaught Place, New Delhi.
• In the appeal against the interim order, the High Court asked the parties to agree to bear actual litigation expenses and then awarded Rs 45,28,000 on the basis of an affidavit of fees paid to four counsel.

1. Could the High Court award "actual costs" of Rs 45,28,000 in an appeal against an interim order, beyond the scale in the Delhi High Court Rules?

• S.35 CPC begins "subject to such conditions and limitations as may be prescribed, and to the provisions of law for the time being in force". Costs exceeding the scale in the Delhi High Court Rules were contrary to the Rules and so to S.35. A request for the parties' consent could not change this.
• Salem Advocates Bar Association did not authorise courts to ignore the rules; it called for the rules to be amended to provide for actual realistic costs.
• "Actual realistic costs" means what a normal advocate would charge in a normal case of that kind, not whatever a party chose to pay several senior counsel.
• The mandate of S.35(2), that reasons must be stated where costs do not follow the event, is seldom followed and should be.
• Result: the award of Rs 45,28,000 was set aside; the appellant was to pay costs of the High Court appeal as per the Rules plus Rs 3,000 as exemplary costs. The Court sent suggestions on reform of costs to the Law Commission, Parliament and the High Courts.

A civil court's power to award costs under S.35 is subject to the prescribed rules; it cannot award actual or consensual costs beyond them. Realistic costs require amendment of the rules, not departure from them.