1. In view of my decision in the suit, the plaintiffs must pay the costs of the suit of defendant No. 1 and defendant No. 2. Mr. Tendulkar on behalf of the plaintiffs submits that I should only allow one set of costs as between defendant No. 1 and defendant No. 2, and he contends that their defences are common and that, therefore, there was no reason why they should have severed their defences and instructed separate solicitors and appeared by separate counsel. Mr. Tendulkar points out that the question in the suit related to the title of the properties which defendant No. 3 had mortgaged to defendant No. 1 and defendant No. 1 in his turn had transferred to defendant No. 2. Defendant No. 2 was defending his title to the properties. That was the only issue in the suit, and the defences of defendant No. 1 and defendant No. 2 were common. Mr. Tendulkar relies on the proposition of law as enunciated by Sir Dinshah Mulla in his commentary on Section 35 of the Civil Procedure Code that separate costs should not be allowed to defendants if the defence is common to all, or their interests are the same. This proposition of law has received legislative recognition in the Bombay Pleaders Act (XVII of 1920) where Section 21 lays down that where in any proceeding there are several parties having the same interests or putting forward the same defence, they shall not, if awarded costs, be allowed more than one set of pleaders' fees on party and party taxation unless the Court otherwise directs.
2. Now, in this case it has to be noted that serious charges of fraud were levelled both against defendant No. 1 and defendant No. 2. Defendant No. 1 was charged with having prepared a fabricated document and having ante-dated it. Defendant No. 1 and defendant No. 2 were charged with conspiracy in that they conspired to defraud the plaintiffs and defendant No. 3 of their rights in the properties, the subject-matter of the mortgage deed. The question then arises whether, in view of these serious charges of fraud against defendant No. 1 and defendant No. 2, they were entitled to sever their defences and appear by separate solicitors and counsel. In Boswell v. Coaks (1887) 36 Ch.D. 444 there was an action brought by some of the creditors of one Harvey on behalf of themselves and the other creditors to have a sale of a life interest belonging to Harvey set aside on the ground that it had been made under an order of the Court to two persons, one of whom was in a fiduciary position to the trust estate, and that a proper disclosure of the facts had not been made. The sale was made to one Coaks and one Bunyon, the first two defendants on the record; they bought for themselves and four other persons who were also made defendants. The trial of the action was before Mr. Justice Fry. Mr. Justice Fry decided in favour of the defendants. The plaintiffs appealed, and the Court of Appeal reversed the decision of Mr. Justice Fry. Then there was an appeal to the House of Lords, and the House of Lords restored the judgment of Mr., Justice Fry. Mr., Justice Fry made the following order as to costs (p. 445):-.in taxing the costs below both in the High Court of Justice and in the Court of Appeal, the Taxing Master do consider whether any of the Defendants in the cause who appeared separately had sufficient reason for severing in their defences, and if and in so far as it shall appear that they had not, then the said Taxing Master shall allow only one set of costs, or only as many sets of costs as he shall think right.
3. The Taxing Master allowed a separate bill of costs to each of the defendants, and he did this on the ground that the action was very serious both as to character and property to these defendants. The plaintiffs took out a summons to have the certificate of the Taxing Master reviewed in respect of the allowance of costs of separate appearance. The matter came on before North J. It is to be noted that at the bar counsel appearing for the plaintiffs conceded that Coaks and Bunyon who were charged with fraud were entitled to have costs for separate appearances, and the only matter that was argued was whether the other four defendants who were not so charged were entitled to have separate sets of costs. Mr. Justice North refused to go behind the decision of the Taxing Master holding that there was no appeal from his discretion. The matter then went in appeal, and in the Court of Appeal at the bar it was again conceded that the two: defendants who were charged with fraud were entitled to have separate sets of costs, and the only' point that was argued on behalf of the appellants was whether there was any occasion for the four defendants who were not personally charged with fraud to appear separately from each other. Now it seems to me that it is the general principle as enunciated by North J. in this decision (Boswell v. Coaks (1887) 36 Ch.D. 444 that as an ordinary rule each of the defendants appearing and succeeding in the suit is entitled to have separate sets of costs.
4. This principle has also been accepted by the Chief Justice in a recent decision in Shridhar Balkrishna v. Poona City Municipality : AIR1941Bom16 the learned Chief Justice says that it is the practice to allow each of the defendants appearing separate sets of costs on the broad principle that a person, who is brought before the Court, wrongly as it turns out, is entitled to defend himself in his own way and by the employment of such advocate as he thinks fit. Now, to this general principle of law certain exceptions have been grafted, and the question is whether this particular case is an exception as Mr. Tendulkar contends. In my opinion if parties to a suit are charged with fraud or misappropriation or breach of trust, they are fully entitled in defence of their character to employ such solicitor and such counsel as they think fit. But I also hold that in this case there are different charges of fraud against the two defendants, and this case does not even fall within the exception contended for by Mr. Tendulkar, because the fraud with which Mr. Desai's client is charged is different from the fraud with which Mr. Somjee's client is charged, and Mr. Desai and Mr. Somjee are entitled to defend their clients separately against these distinct charges of fraud, and therefore it cannot be said that the defences of defendant No. 1 and defendant No. 2 are common.
5. I, therefore, hold that the plaintiffs should pay the costs of the defendants and that there should be two sets of costs.
6. Counterclaims of defendants Nos. 1 and 2 are dismissed with costs. Costs to be set off against the costs awarded to the defendants.
7. Mr. Tendulkar applies that I should quantify the costs of this suit under Rule 549-A of the Bombay High Court Rules. This rule has application only when the Judge trying the suit can without any difficulty fix the costs. This rule is not intended to constitute the Judge a Taxing Master, and looking to the seriousness of the charges in this case, the length of the inquiry and the other factors, I do not think it is a fit case in which I should quantify the costs. Therefore the costs should be taxed.