Norman Macleod, Kt., C.J.
1. This is an application under the Civil Extraordinary Jurisdiction of this Court. The petitioner was be defendant No. 1 in Suit No. 240 of 1919 on the file of the Court of the Join second Class Subordinate Judge at Broach. the had summoned Rao Bahadur Malji, a pleader, to give evidence with regard to a certain purshis which had been put in another suit, and had paid the usual subsistence allowance of Re. 1. In the end there was no necessity for the Rao Bahadur to give evidence as the parties to the suit admitted the mistake in the purshis. On the day on which the Rao Bahadur had been summoned to appear, he was actually appearing as a pleader in another suit in the same Court building, and had not, therefore, incurred any extra travelling expenses in going to the Court to give evidence. However, when the case was finished the Rao Bahadur put in a bill for Rs. 30, and this was allowed by the Subordinate Judge as the Rao Bahadur was called to- depose on facts which he came to know in his professional capacity as a pleader.
2. Now the only jurisdiction which the Court had was to allow a certain payment to the Rao Bahadur on account of his being called as a witness for subsistence and travelling allowance under Clause 55 of the Civil Circulars That clause provides for the travelling and other expenses which ought to be paid in the case of various witnesses according to various rates. Sub-clause (e) states that peculiar cases are to be dealt with according to their own merits, and at the discretion of tha Court from which subsistence money or travelling allowance is demanded. It is, therefore, open to a witness to show to the Court that none of the rates allowed in Sub-clauses (a), (b), (c) and (d) apply to his case, but that there are peculiar circumstances which entitle him to demand subsistence money or travelling allowance at a higher rate. The learned Judge appeared to think that a special fee under Sub-clause (e) of Clause 55 of the Civil Circulars 1921 should be allowed, not because extra expenses had been incurred by the witness, but because he was entitled to something more on account of his status. The was' a wrong view to take, because the law does note provide for any special fee being paid to witnesses in the District Courts on account of their status. It indifferent if a witness is called as an expert to give evidence in matters in which he is held to be an expert. This is not a case in which the Rao Bahadur was called to give evidence on a question/'of law as an expert. He was merely called to give evidence as to what had occurred in a previous suit in which he engaged as a pleader. According to the statement made by the Rao Bahadur before the Subordinate Judge, it appeals that of the Courts had considered that such special fees could be paid ordinary witnesses, and if that has been the practice in the District Courts, then I can only say, that there is no warrant for it in law. If professional gentlemen consider that provision should ha made by the law to compensate them for the loss of time when they are called to give evidence in Courts, then they should agitate for an amendment of the law. But the Courts have no jurisdiction to set up a practice by which litigants are directed to make payments to witnesses which the law does not authorize. The order allowing Us. 30 to the Rao Bahadur must, therefore, be set aside.
3. It has been argued on his behalf that although the applicant has succeeded, no order as to costs should be made on the ground, first, that the respondent was not a party to the proceeding; secondly, that the demand made was only according to what he considered to be the recognized practice. But I could have understood the argument better if a preliminary point had been taken by the respondent that he was not a proper party to the Rule, and that the Rule should have been taken out against the opposite party in the suit. Then the question of procedure would have been considered, and if the respondent is not a proper party, of course the Rule would have been discharged. But that is a preliminary point, and it was practically waived by the respondent when he entered upon his arguments of the Rule on the merits.
4. As a matter of fact, according to the record, the bill of costs Was sent in to the Court by the Rao Bahadur, and the decision of the Court, so far as I can see, was made between the Rao Bahadur, who was demanding the payment of the bill, and the present applicant. It is not the case of certain expenses of a witness being entered in a bill of costs where an objection could be taken on a point of taxation. It is a demand, made by a witness against the party who has issued the summons. I Maim think, therefore, that the Rule was properly taken out against respondent, and there was no reason why the ordinary law that costs follow the event should not be observed. If, as a matter of fact, the applicant has been wrongly ordered to pay this Rs. 30, then he is entitled to come to this Court for redress, and it would certainly be very unjust if in getting .that order set aside it should cost him the same amount as the amount at stake on the application. In directing that the respondent should nay the costs of the Rule, we do not consider that any slur is involved on the Rao Bahadur since he seems to have considered himself entitled to make the demand quite bona fide according to a wrong practice which was in vogue in District Court. But equally was the applicant entitled to to this Court and to get a final decision on this question. Rule, therefore, must be made absolute with costs.
5. I concur. The only question on this application is one of jurisdiction. That question is whether the Court had power to direct payment of Rs. 30 to the witness, who is the present opponent, and who was summoned in his professional capacity as a witness. It is clear that the case of a professional gentleman being summoned as a witness is not covered by Sub-rule (2) of Rule 2 of Order XVI of the Civil Procedure Code. The only basis for this order that is suggested by the lower Court is Clause 55, Sub-clause (e), of the Civil Circulars of this Court. It is clear, however, that Clause (e) has no application to the present case. Clause (b) specifically provides for the case of Vakils attending as witnesses; and in the absence of any indication of special circumstances justifying a higher payment for travelling expenses or subsistence money, Clause (e) cannot afford any basis for the order which has been made in the present case.
6. There may be some ground for the argument that the time of the professional gentlemen would be taken up without a sufficient check upon the litigants if they could be summoned as witnesses without the summoning parties having to pay adequately for their attendance. But that is a matter for the Legislature or the Rule Committee under the Civil Procedure Code to consider. At present all that we are concerned with is whether there is any provision which can justify the order made by the lower Court; and I am unable to find any such provision either in the Code or in the Civil Circulars.
7. Any argument baaed on the practice on the Original Side of this Court cannot avail the present opponent, as that practice is based upon an express rule of the High Court on the Original Side. There is no such rule either in the Civil Procedure Code or in the Civil Circulars applicable to this case; and in the absence of any such rule, the order of the lower Court, which is based apparently upon the practice of that Court, cannot be supported. The order of the lower Court must, therefore, be set aside on the ground that that Court had no jurisdiction to make it.
8. As regards costs, it has been urged on behalf of the opponent that it would not be right to make him pay the costs of this application. But there is no sufficient reason for departing from the ordinary rule that the successful party must get the costs which he had necessarily to incur in order to get the order set aside. I do not see how such an order as to costs could be interpreted as involving any reflection on the opponent, who appears, to me to have acted with propriety and in good faith in these proceedings.