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Arnavaz Hormusji Major Vs. Hormusjl Framji Major - Court Judgment

LegalCrystal Citation
SubjectCivil;Other Taxes
CourtMumbai
Decided On
Case Number Parsi Chief Matrimonial Court Suit No. 8 of 1928
Judge
Reported inAIR1930Bom536; (1930)32BOMLR1079
AppellantArnavaz Hormusji Major
RespondentHormusjl Framji Major
Excerpt:
gosta - review of taxation-chamber judge - objections not carried in before e taxing master-high court mules (original side), mule 589 (1922 edn.), rule. 554 (1930 edn.);there can be no review of taxation before a judge in chambers by a party who has not complied with rule 529 of the bombay high court rules (original side), by first taking in and delivering to the other party and the taxing master objections in writing to the allowance or disallowance. - .....of the bill. the bill was carried in by the plaintiff's attorneys and on september 4, 1929, the taxing master gave his ultimate decision allowing two counsel, having upheld the plaintiff's objection to the disallowance of two counsel. the taxing master also made an order under rule 534 that the plaintiff's attorney who had brought in the bill should pay the costs of the taxation, one-sixth having been taxed off the bill. the plaintiff's attorneys took in objections to that on september 28, 1929, and the taxing master gave a judgment on january 8, 1930, reversing his previous decision. the result was that although the taxing master had on the original taxation decided against the plaintiff, he upheld the plaintiff 's objections, duty taken in, both as to the allowance of two counsel.....
Judgment:

Blackwell, J.

1. This is an application by defendant No. 1 to review a taxation.

2. The suit was a matrimonial suit under the Parsi Matrimonial Act, being the wife's petition for dissolution, her husband being defendant No. 1. A decree by consent was passed dismissing the suit. Nothing was said in the decree about costs. At the time when the order for dismissal wan made, the parties, however, had come to an agreement with one another for a judicial separation. One of the terms of that agreement was that the defendant was to pay the plaintiff's attorneys her costs of the suit taxed as between attorney and client on the Original Side scale.

3. On December 6, 1928, the plaintiff's attorneys obtained an order under Rule 494 of the High Court Rules for taxation of the bill. The bill was carried in by the plaintiff's attorneys and on September 4, 1929, the Taxing Master gave his ultimate decision allowing two counsel, having upheld the plaintiff's objection to the disallowance of two counsel. The Taxing Master also made an order under Rule 534 that the plaintiff's attorney who had brought in the bill should pay the costs of the taxation, one-sixth having been taxed off the bill. The plaintiff's attorneys took in objections to that on September 28, 1929, and the Taxing Master gave a judgment on January 8, 1930, reversing his previous decision. The result was that although the Taxing Master had on the original taxation decided against the plaintiff, he upheld the plaintiff 's objections, duty taken in, both as to the allowance of two counsel and as to the one-sixth rule, holding ultimately with regard to the latter that the taxation was a party and party action, and not one as between attorney and client.

4. Defendant No. 1 now comes before me and asks for a review of taxation. A preliminary objection has been taken by Mr. P. B. Vachha, who appears for the plaintiff,-the objection being that defendant No. 1 has not complied with the Rules of the High Court. His contention is that defendant No. 1, before he could apply to the Chamber Judge for review, was bound to take in his objections in writing, deliver the objections to the plaintiff', and carry them in to the Taxing Master, and that this course is a condition precedent to his right to apply to the Judge in Chambers for a review.

5. Rule 531 (1922 Edn.) (Rule 556 of 1030 Edn.) is in these terms :-

531. Any party who may be dissatisfied with the certificate or allocatur oil the Taxing Officer as to any item or part of an item which may have been, objected to as aforesaid may, before the allocatur' is signed, apply to a Judge ,it Chambers for an order to review the taxation as to the game item or part of an item, and the Judge may thereupon make such order as to him may seem just, but the certificate or allocatur of the Taxing Officer shall be final and conclusive as to all matters which shall not have been objected to in manner aforesaid : Provided that the Taxing; Master shall not be bound to delay the signing of the allocatur more than twenty days from the date of the certificate.

6. Rule 529 (1922 Edn.) (Rule 554 of 1930 Edn.) is in these terms :-

529. Any party who may be dissatisfied with the allowance or disallowance by the Taxing Officer in any bill of costs taxed by him of the whole or any part of any item or items may at any time before the allocatur is signed deliver to the other party interested therein and carry in before the Taxing Officer an objection in writing to such allowance or disallowance, specifying therein by a list in a short and concise form, the item or items or part or parts thereof objected to, and may thereupon apply to the Taxing Officer to review the taxation' in respect of the same.

7. It is to be observed that an application can only be made to the Judge in Chambers for review of taxation under Rule 531 'as to any item or part of an item which may have been objected to as aforesaid ', that is to say, in accordance with the requirements of Rule 529. Rule 532 provides that the application to the Judge ' shall be heard and determined by the Judge upon the evidence which shall have been brought in before the Taxing Officer, and no further evidence shall be received upon the hearing thereof unless the Judge shall otherwise direct'. Mr. Vachha submitted that the plaintiff having filed objections, and those objections having been allowed, if defendant No. 1 was dissatisfied with the allowance of those objections, it was incumbent upon him in accordance with Rule 529 to file and deliver his objections in writing to the allowance made by the Taxing Master. He referred me to Bannehr and Porter on Coats, 12th edn., at p. 874, where that learned author says, dealing with the corresponding English rule, Order 65, Rule 27 (39):-

Where one party carries in objections which are allowed by the Taxing Master, if the other party wishes to review such allowance, he must in his turn carry in objections to the allowance ;

and certain cases, which I will presently refer to, are cited in support of that proposition. Similarly, in the Annual Practice, 1980, at p. 1471, it is stated that-

Points not raised in the written objections before the taxing officer cannot be raised on summons to review ; and the allowance of an objection can only be reviewed after counter objections have been carried in.

8. In support of these propositions, Mr. Vachha referred me to Strouberg v. Sanders (1889) 38 W. R. 117 where the Court of Appeal held that an application by a party to a Judge for an order for a review of taxation of a bill of costs as to any item or part of an item contained therein, cannot be entertained unless the party applying has first carried in an objection in writing under Sub-rule (39) with respect to each such item or part of an item. Similarly, in Shrapnel v. Laing (1888) 20 Q. B. D. 334 Lord lusher M. R. said in reference to a review of taxation for costs (p. 337):-

Upon such an application it is necessary that the person who seeks a review should shew that he has taken his objections to the taxation when before the master.

Reference may also be made to Mentors, Limited v. Evans [1912] 3 K. B. 174 where Fletcher Moulton L. J. said (p. 178) :-

This appeal arises upon a taxation of costs, It is a fundamental principle in dealing with such appeals that the appellant is strictly tied to the objections made by him to the taxing Master and answered by the latter.

9. In Bates v. Gordon Hotels, Limited [1913] 1 K. B. 631 the plaintiff had appealed against the decision of the County Court Registrar allowing two counsel at the trial in the County Court, and the Divisional Court held that there was no power to allow the fees of more than one counsel, Thereupon counsel for the defendants asked that the case might be sent back in order that the Registrar might reconsider the amount for junior counsel's brief. An objection was taken for the plaintiff that the defendants had not carried in any objection in regard to that item, and that if the brief fee allowed in respect of the junior counsel was insufficient, they should have done so. The Court held that no objection having been taken in, there was no power under the circumstances to send the case back to the County Court for a further taxation of the bill of costs.

10. Reliance was placed by Mr. Bahadurji, who appeared for defendant No.1 upon Sparrow v. Hill (1881) 7 Q. B. D. 362. That was a case which undoubtedly raised a question as to the proper principle upon which costs should be taxed having regard to the terms of the order made by the Court when judgment was entered. In that case objections had been taken in, but no item was specifically referred to, and a question arose whether the taxation could be reviewed. The Divisional Court took the view that the taxation must be reviewed, and that the Rules 80 and 32 of Order (5 applied only where particular items were objected to, and not where the general principle of the taxation was challenged. Mr. Bahadurji contended that a question of principle was involved in both classes of objections raised by the plaintiff in this case, namely, as to whether two counsel should be allowed, and also on the question of the application of Rule 534. Accordingly, he submitted that it was open to defendant No. 1 to apply for a review although defendant No. 1 had taken in no objections to the Taxing Master's allowance upon the plaintiff's objections. That decision of Sparrow v. Hill went to the Court of Appeal (1881) 8 Q. B. D. 479. But the Court of Appeal reversed the decision of the Divisional Court, and did not discuss the point which is now before me, Mr. Bahadurji also relied upon the case of In re Castle (1887) 36 Ch. D. 194 where Kay J. followed Sparrow v. Hill, taking the view that it was a distinct authority for the proposition that to enable the Court to order a review of taxation, it was not necessary that objections to the Taxing Master's finding ' should have been carried in before certificate, when the ground of objection is to the whole of his finding '. It is, however, to be observed that in In re Castle there had been no taxation at all. Mr. Bahadurji next referred me to Fletcher and Dyson, Re [1903] 2 Ch. 688 where Mr. Justices Swinfen Eady referred with approval to In re Castle.

11. On the other hand, Mr. Vachha drew my attention to a decision of the Court of Appeal in Crashe v. Wade (1899) 80 L. T. 380, where Lord Justice Rigby commented upon Sparrow v. Hill. There that learned Lord Justice said (p. 381):

I must say that Sparrow v. Hill...loses some of its authority because the judges in the court below -went upon a wrong view of the rules and the taxing master's duty. There were objections taken, which were considered by the master and answered by him. There are observations in Sparrow v. Hill in the nature of obiter dicta which have given me some trouble ; but, without taking upon myself to say that Sparrow v. Hill in the court below was wrongly decided, I cannot get sufficient light from that case to enable me to say in this case that it was right to dispense with objections to the taxation.

12. Similarly, Lord Justice Williams said (p. 381):-

It is suggested that they (that is, Sub-rules 39 and 41 of Rule 27, of Order 65) do not apply because Sparrow v. Bill and In re Gastle show that those rules have no application where the master's decision in respect of the particular items allowed or disallowed is based upon some general principle. There is no such proposition, and it was impossible that any authority to that effect should be produced, because, if there was any such authority, the result would be that if you can only review the master's decision where he was wrong in principle and you can say that you can review without carrying in objections, it necessarily follows that you need never carry in objections at all.

13. Later he said (p. 382):-

I quite agree that if you can really draw the inference that the taxing master had refused to tax, or had refused to tax in accordance with the terms of the order in this case, Rules 39 and 41 would have no application. Bat I do not find here any refusal to tax or any refusal on any principle defined by that judgment in Sparrow v. Hill.

14. Mr. Vachha also drew my attention to a report of a case of In re Moreoroft (1885) 29 S. J. 471. From the judgment of the Court of Appeal it seems to me to be plain that if any point of principle is to be taken upon a review of taxation, the point of principle must have been properly raised by objections in writing on the part of the party who desires a review by the Judge as a condition precedent to such a right to review.

15. I have consulted, at the request of the parties in this case, the Taxing Master with a view to ascertaining whether in the whole of his experience lasting now over twenty years, there has, be far as he is aware, ever been a review of taxation brought before the Judge in Chambers by a party who has not complied with Rule 529 by first taking in and delivering to the other party and the Taxing Master objections in writing to the allowance or disallowance. He has informed me that he has never known of such a case and as far as he is aware this is the first time the question has arisen.

16. In my opinion, I ought, in interpreting our High Court Rules 529, 531 and 532, to follow the principle indicated by the English Appeal Court decisions to which I have referred. Accordingly, in my judgment, this objection succeeds, and I decline to order a review of the taxation. I order defendant No. 1 to pay the plaintiff's costs of this application, and I certify for counsel.


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