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Tulsi Lalji Vs. Omkar Huna - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberCivil Application No. 1001 of 1926
Judge
Reported inAIR1927Bom399; (1927)29BOMLR897
AppellantTulsi Lalji
RespondentOmkar Huna
Excerpt:
bombay pleaders act (bom. act xvii of 1920], section 20, clauses (a), (b), (c)-pleader's fees-fees of two pleaders-taxation of costs.;in cases falling under section 20, clauses (a), (b) and (c), of the bombay pleaders act 1920, the fees of two pleaders shall be taxed in the bill of costs, unless the court otherwise directs. - .....section. section 20 must be read with section 18 of the act which deals with the computation of taxed fees which shall be computed in accordance with the rules in schedule iii unless such fee has been settled for a less amount under section 17. the taxing officer has refused to award two sets of pleader's fees and has referred the respondent's pleaders to move the court. it appears that two counsel and one pleader were engaged on behalf of the appellant and two pleaders were engaged on behalf of the respondent, it is urged on behalf of the respondent that if the appellant thought it necessary to engage two counsel and one pleader, the case was of sufficient importance to justify the respondent's engagement of one senior and one junior pleader, and that the words 'may be taxed' in.....
Judgment:

Patkar, J.

1. In this case the question for decision is whether the respondent is entitled to have the fees of two pleaders taxed in the bill of costs under Section 20 of the Bombay Pleaders Act XVII of 1920. The Appeal No. 347 of 1925 is from a decree deciding on the merits a suit of which the value of the subject-matter exceeds Rs. 5,000. The case would, therefore, fall under Clause (c) of Sub-section 1 of Section 20 of the Act. The section does not make it obligatory that a party should engage more than one pleader but if a party has before the first hearing of a proceeding engaged more than one pleader, the fees of two pleaders may be taxed in the bill of costs in the cases mentioned in the section. Section 20 must be read with Section 18 of the Act which deals with the computation of taxed fees which shall be computed in accordance with the rules in Schedule III unless such fee has been settled for a less amount under Section 17. The Taxing Officer has refused to award two sets of pleader's fees and has referred the respondent's pleaders to move the Court. It appears that two counsel and one pleader were engaged on behalf of the appellant and two pleaders were engaged on behalf of the respondent, It is urged on behalf of the respondent that if the appellant thought it necessary to engage two counsel and one pleader, the case was of sufficient importance to justify the respondent's engagement of one senior and one junior pleader, and that the words 'may be taxed' in Section 20 are to be construed as 'shall be taxed' and reliance is placed on Sub-section (2) of Section 20. The point is not covered by any authority. In First Appeal No. 173 of 1923 the learned Chief Justice held that if the respondents wished to take advantage of Section 20 of the Bombay Pleaders Act an application should have been made to the Judge before the record was closed in order that they should be allowed the costs of two pleaders. In First Appeal No. 285 of 1922 Shah and Percival JJ. ordered the fees of two pleaders to be taxed without deciding the general question whether when two or more pleaders are engaged in cases indicated in Clauses (a), (b) and (c) of Section 20, a party is entitled to the fees of two pleaders being taxed subject to the provisions of Section 18, Sub-section (1), without any order of the Court.

2. Sub-section (2) of the section says: 'Except in the cases specified in this section a party employing more than one pleader shall not be entitled to recover from his adversary more than one set of pleader's fees.' This would show that in the excepted cases a party shall be so entitled. The wording of Clause (2) is not conclusive. It may be susceptible of the construction that except in the cases specified in the section a party is not entitled to recover more then one set of costs but that in the excepted cases the Court has a discretion. In Clause (d), however, of Section 20 a party is entitled to recover more than one set of pleader's fees in any suit in which the amount or value of the subject-matter is less than Rs. 5,000, where the Court certifies by order in writing that the fees of two pleaders may be taxed. It appears, therefore, that only in cases falling under Clause (d), the certificate of the Court in writing is necessary. It would, therefore, follow that in cases falling under the other three Clauses (a), (b) and (c) the order of the Court is not necessary. The words 'may be taxed' in Clause (d) must be understood as meaning 'shall be taxed,' for when the Court certifies in writing that the fees of two pleaders may be taxed, it leaves no discretion to the Taxing Officer who must tax in the bill of costs the fees of two pleaders. The words 'may be taxed' in Clause (d) must have the same meaning in Sub-section (1) of Section 20 of the Act. When the word 'may' is used, the ordinary rule of interpretation is that the requisite condition being fulfilled the Court will and ought to exercise the powers it may exercise, and the word 'may' though primarily permissive has been in certain circumstances treated as mandatory : Hookamchand v. Nowroji (1907) 10 Bom. L.R. 345. See also Nadiar Chand Shaha v. Wood I.L.R. (1907) 35 Cal. 194; Rex v. Roberts [1901] 2 K.B. 117; Rex v. Mitchell [1913] 1 K.B. 561 and Golden Horseshoe Estates Company Limited v. The Crown [1911] A.C. 480. I think, therefore, that in cases falling under Clauses (a), (b) and (c) the fees of two pleaders shall be taxed in the bill of costs. I think, however, the discretion of the Court to disallow more than one set of costs is not excluded, but unless the Court otherwise directs, the fees of two pleaders shall be taxed in the bill of costs in cases falling under Clauses (a), (b) and (c) of Section 20 of Act XVII of 1920.

3. I would, therefore, direct that the Taxing Officer should tax the fees of two pleaders in the bill of costs in this case.

Fawcett, J.

4. I agree. I would add that I have satisfied myself that the intention was that ordinarily there should be the fees of two pleaders taxed in cases coming under Clauses (a), (b) and (c) of Sub-section 1 of Section 20 of the Bombay Pleaders Act, XVII of 1920.


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