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Charles Mortimer Eastley Vs. Ernest Do Rozario - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberCivil Revision Application No. 24 of 1943
Judge
Reported inAIR1944Bom189; (1944)46BOMLR389
AppellantCharles Mortimer Eastley
RespondentErnest Do Rozario
DispositionApplication dismissed
Excerpt:
.....(xv of 1ss2), section 38-full court-jurisdiction.; where a judge in a divorce case gives party and party costs to the unsuccessful wife, her solicitor can recover solicitor and client costs from the husband if he proves among other things that he acted on reasonable grounds, made adequate inquiries, and showed proper diligence and full care.; michal abraham, sons & co. v. buckley [1924] 1 k. b. 903, followed.; the full court, under section 38 of the presidency small cause courts act, 1882, has jurisdiction which is revisional and not appellate. it is not entitled to reverse the decision of the trial judge, merely because it disagrees with his view on the facts or law. - - but i thought that, as the solicitor had acted upon the advice of counsel, he might be said to have acted bona..........of the trial court was right, it would really come to this, that where a judge in divorce gives a wife party and party costs, it follows on the same evidence that the solicitor is entitled at common law to recover solicitor and client costs. that cannot be right. in a common law suit for additional costs the solicitor has got to prove his case, and) establish that the costs were a necessity for the wife. it is no doubt possible that the evidence given in the divorce court may be enough for the solicitor's purpose, but that is unlikely if the judge in divorce has not given solicitor and client costs. in this case i think that evidence was not enough.4. in my view the full court were entitled in revision to say that the trial judge had not directed his mind to the right point, and, there.....
Judgment:

John Beaumont, Kt., C.J.

1. This is an application in revision against an order made by the Full Court of Small Causes. The matter arises out of a divorce case which I tried, in which the wife was claiming judicial separation, and I held that she was not entitled to any relief. But I gave her costs. As my judgment shows, I felt some hesitation about it; but I thought that, as the solicitor had acted upon the advice of counsel, he might be said to have acted bona fide, and, therefore, I allowed the wife's costs as against the husband, although she had failed ; but I did not give costs as between solicitor and client. I am told that no application was made to me at the time forsolicitor and client costs, and that may well be, because counsel may have thought that, having regard to the view I had taken, it would be indiscreet to ask for more costs than I had given. At any rate, so far as my judgment went, the wife got party and party costs. Her solicitor then sued the husband in the Court of Small Causes for the difference between party and party, and solicitor and client, costs. The solicitor and client costs have been taxed, so no question arises as to quantum.

2. No evidence was called in the trial Court, but the record in the High Court proceedings was put in, and the learned Judge decreed the plaintiff's case, apparently because he considered that my finding that the solicitor had acted bona fide, coupled with the fact that the costs had been taxed, showed that the solicitor was entitled to solicitor and client costs. But that is wrong. So far as my judgment went, it was against the wife getting solicitor and client costs, because I only gave her party and party costs. Her solicitor was quite entitled, notwithstanding that judgment, to go to the Small Cause Court, and recover judgment for the difference between solicitor and client, and party and party, costs by proving that those costs were really a necessity for which the wife was entitled to pledge her husband's credit. But as Mr. JusticeMc Cardie pointed out in Michal Abrahams, Sons & Co. v. Buckley [1924] 1 K. B. 903 in such a case the solicitor must prove, amongst other things, that he acted on reasonable grounds, made adequate inquiries, and showed proper diligence and full care. The solicitor here never went into the box, and never attempted to prove that he had fulfilled those conditions, except by reference to the evidence given in the Divorce Court.

3. Then an application was made to the Full Court under Section 38 of the Presidency Small Cause Courts Act. Under that section the jurisdiction of the Court is revisional, and not appellate. The Court was not entitled to reverse the decision of the trial Judge, merely because it disagreed with his view on the facts or law. But the Full Court took the view that the learned Judge had not directed his mind to the right point, since he did not require the solicitor to prove that he Had acted with due diligence and in a reasonable manner, and I think the view of the Full Court was right. If the view of the trial Court was right, it would really come to this, that where a Judge in divorce gives a wife party and party costs, it follows on the same evidence that the solicitor is entitled at common law to recover solicitor and client costs. That cannot be right. In a common law suit for additional costs the solicitor has got to prove his case, and) establish that the costs were a necessity for the wife. It is no doubt possible that the evidence given in the Divorce Court may be enough for the solicitor's purpose, but that is unlikely if the Judge in Divorce has not given solicitor and client costs. In this case I think that evidence was not enough.

4. In my view the Full Court were entitled in revision to say that the trial Judge had not directed his mind to the right point, and, there being no sufficient evidence that the solicitor had incurred costs as a matter of necessity for the wife, the Full Court should have set aside the trial Court's order. What they did do was to make a form of order, which seems to be common in the Full Court, but which seems to me a singular form of order. They made the rule absolute for new trial, and on new trial dismissed the suit. So that they practically directed a new trial, conducted the new trial in the space of a few seconds, and dismissed the suit. Why they should have gone through that formality, I do not know, because under Section 38 they could have set aside or reversed the decree or order. I think technically they ought to have reversed the order of the lower Court and dismissed the suit; but as in substance their order comes to the same thing, I see no reason to interfere in revision.

5. The application is dismissed with costs.


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