Skip to content


Dahibai Vs. Sunderji Damji - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberO.C.J. Suit No. 21 of 1904
Judge
Reported in(1907)9BOMLR819
AppellantDahibai
RespondentSunderji Damji
Excerpt:
practice-costs-solicitor-expert knowledge as to handwriting-extra charges for the work-taxing master's decision-review by chamber judge.;in a suit to obtain probate of a will, the defence was that the will was a forgery. the defendant's solicitor failing to obtain an expert in handwriting, made a special study of the subject occupying 128 hours and arrived at the conclusion that the will was not genuine. he then, notwithstanding counsel's opinion to the contrary, got the suit decided in his client's favour. in his bill of costs, the defendant's solicitor claimed his extra fees for the special work: but the taxing master disallowed the claim:-;in review of taxation, that the solicitor was entitled to a special remuneration for his work in qualifying himself as an expert in handwriting. - ..........the question of the review again i must say i regret that the case could not have gone before mr. justice scott again so that he might have dealt with it as he was originally seized of it and he made the original order but as that is impossible now it is useless to say anything more about it.3. it seems to me that looking at mr. justice scott's judgment, it is clear that he intended to lay down a principle to be followed by the taxing master. i refer to the passage in his judgment where he says :. ' it is pointed out to me by the advocate general that the costs of an expert qualifying himself to give expert evidence in a case are allowed on taxing in england and i think that upon the analogy of such allowances the taxing master should take into consideration the amount of special work.....
Judgment:

Russell, J.

1. In the matter of this taxation in suit No. 21 of 1904, 1 have gone through the papers with the utmost care that I could and have heard Mr. Mody yesterday and also heard the excellent argument of Mr. Lowndes on the subject of taxation.

2. It has been urged before me in the first place that looking at Mr. Justice Scott's Order which said that if the Taxing Master increased the costs of Mr. Kanga, Mr. Kanga should have his costs, if he did not do so Mr. Kanga should lose his costs, I have no power to go into the question of the review again I must say I regret that the case could not have gone before Mr. Justice Scott again so that he might have dealt with it as he was originally seized of it and he made the original order but as that is impossible now it is useless to say anything more about it.

3. It seems to me that looking at Mr. Justice Scott's judgment, it is clear that he intended to lay down a principle to be followed by the Taxing Master. I refer to the passage in his judgment where he says :. ' It is pointed out to me by the Advocate General that the costs of an expert qualifying himself to give expert evidence in a case are allowed on taxing in England and I think that upon the analogy of such allowances the Taxing Master should take into consideration the amount of special work which was done by Mr. Kanga in this case and should make his allowance accordingly without being bound by the fact that it appears in the bill of costs as a part of a lump sum charged for the preparation of the brief but taking into consideration that it is in fact a charge for work which would not ordinarily fall upon the solicitor in the preparation of the brief.'

4. This is the principle on which Mr. Justice Scott wished the taxation to begone into. After that order was made Mr. Mody said that he had gone into the question of the special work done by Mr. Kanga and had allowed for it. Now I think it is extremely unfor tunate that in the bill of costs the allowance for the special work done by Mr. Kanga was lumped together with the instructions for the brief and I must say that in future it would be bett?r if solicitors whenever they do some special work would separate it from the ordinary work of the instructions for the brief. It appears to me that Mr. Mody has not given due weight to those remarks of Mr. Justice Scott because e dealt with the question of instructions for the brief as including this special work done and the further question of principle is involved in the case, which is of a very great importance to my mind and that is I could not ascertain from Mr. Mody whether he had followed the directions in the original decree which allowad Mr. Kanga attorney and client costs. It is no question of the words 'as between' ' or between' at all. Mr. Kanga should be allowed attorney and client costs.

5. Now looking at the affidavit of Mr. Kanga the work that he did was of a meritorious character indeed; and he stuck to his opinion as to the forgery apparently in spite of the opinion of two eminent counsel who said that Mr. Kanga had no logs to stand upon or something to that effect.

6. In my opinion therefore I am entitled to review the taxation.

7. It is sufficiently proved to my mini that for the period of 128 hours Mr. Kanga was studying the hand-writing of the deceased man in such a way as to make himself thoroughly acquainted with the hand-writing and as he told me himself he was examining every single letter of the alphabet in the forged will and the three letters with every single letter in the 29 genuine letters. It appears to me from that this was special work which Mr. Kanga was entitled to be remunerated for.

8. Therefore in my opinion Mr. Kanga is entitled to 128 hours for preparing himself as to the question of forgery of this will.

9. Then with regard to the amount at the end of Mr. Lowndes argument I was inclined to fix a somewhat large sum. But I have considered the matter and I have carefully gone into the bill of costs and I have considered all the arguments and I think I should be justified if I allowed Mr. Kanga Rs. 5 per hour for 128 hours.

10. I ought to point out lastly that it is material to observe that this estate is an estate of a considerable value and the next friend of the minor on whom the onus of proving the forgery lay, is perfectly willing to pay the extra sum that the Court thinks reasonable for Mr, Kanga to demand.

11. The costs of Mr. Kanga before Mr. Justice Scott and before me and before the Taxing Master Throughout to be allowed to him

12. Counsel certified.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //