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In Re: Framji Cawasji Markar; in Re: Costs of Crawford and Co. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1907)9BOMLR1014
AppellantIn Re: Framji Cawasji Markar; in Re: Costs of Crawford and Co.
Excerpt:
practice-high court rules, rule 544 -taxation-bill of costs-taxing master.;rule 544 of the high court rules is not exhaustive. it gives a party charge-able with the bill power to apply to have his attorney's bill taxed but it make no corresponding provision enabling the attorney to apply to have his bill taxed without the consent of the party chargeable therewith.;apart from the rule the court has inherent jurisdiction to make any order that seems to the court reasonable and necessary in the interests of justice when one of its officers applies to the court for an order for taxation of his costs due to him by his client. - - purshotum (1907)9bomlr508 .i have held that the form of procedure by one summons under circumstances similar to the circumstances in these proceedings was perfectly..........is to have regard to the questions which of the respondents are responsible for which of the bills taxed by him or for how much under each particular bill. the taxing master will also take into consideration whether any of the costs were unnecessarily or wantonly incurred and if so he will apportion such costs personally against the party or parties incurring the same he will state in his allocatur what costs are pay able out of the deceased's or the trust estates and what costs are to be payable personally by the respondents or any and which of them.8. the applicants are entitled to their costs of this summons. it was necessitated by disputes amongst the respondents inter se. i direct that the applicants' costs of this summons to be paid in the first instance by the respondents. i.....
Judgment:

Davar, J.

1. On the 25th of July 1907 Messrs. Crawford Brown & Co., Solicitors of this Court, obtained a Summons calling upon the respondents to show cause why their bills of costs should not be lodged for taxation and be taxed by the Taxing Master of this Court. The respondents are some of them executors and trustees under the will of the late Mr. Pramji Cawasji Markar and some of them trustees under two Settlements known as the Charity and the Family Settlements made on the 29th of May 1888.

2. Some of the respondents did not appear when the matter was brought on for argument before me on the 12th instant. Mr. Runchordass appeared for the respondent Kaikhoshru Framji Markar and supported the application for taxation of the bills referred to in Mr. Tenant's affidavit and enumerated in the list annexed to that affidavit and marked A. The respondent Dinsha Framji Markar appeared for himself and as a duly constituted attorney for his mother Dossibai and objected to any order being made against him and his mother for taxation of the applicants' bills. He first of all objected to the form of the summons and contended that Messrs. Crawford Brown & Co. were not entitled to ask for taxations of several bills for costs incurred in several matters in one summons. His next ground of opposition was that some of the costs, claimed by Messrs. Crawford Brown & Co., were costs unnecessarily incurred by some of the other respondents and the Trust Estates were not liable to pay the same.

3. There is no substance in the first contention. In the matter of Messrs. Wadia Ghandhy & Co. v. Purshotum : (1907)9BOMLR508 . I have held that the form of procedure by one summons under circumstances similar to the circumstances in these proceedings was perfectly proper. I think it is unnecessary to discuss; this further beyond observing that all the respondents are closely connected being widow, sons and son-in-law of the deceased Framji Cawasji Markar, who died having made two settlements and a will prior to his death and all the respondents are either executors and trustees under the will or trustees under one or other of the settlements and that bills sought to be taxed are all in connection with either the will or the settlements.

4. The directions I propose to give to the Taxing Master will however obviate all difficulties if any really exist on the score of there being only one summons in respect of the seven bills sought to be taxed.

5. On the other point my mind was not free from doubt and I took time to consider the matter before passing my orders on the summons. Rule 544 provides that the Taxing Master, besides taxing bills of costs on every side of the Court etc, 'shall also tax all such attorneys bills of costs as he may be directed to tax by a Judge's order on consent of the parties or on the application of any party chargeable with the bill. This rule gives a party chargeable with the bill power to apply to have his attorneys bill taxed but it makes no corresponding provision enabling the attorney to apply to have his bill taxed without the consent of the party chargeable therewith. If the Rule was exhaustive it would be manifestly unfair to the attorneys. I could hardly conceive that the Court when framing the Rule and providing a summary remedy in favour of a party would intend to deprive its own officers of the benefit of that summary procedure and leave them to recover their claims by a suit. I do not think the Rule is exhaustive. Apart from the Rule the Court has, I think, inherent jurisdiction to make any order that seems to the Court reasonable and necessary in the interests of justice when one of its officers applies to the Court for an order for taxation of his costs due to him by his client. The English practice on this subject and other matters relating to solicitors is mainly governed by the Solicitors Act, 1843 (6 & 7 Vic. c. 73) and other later legislative enactments. See Annual Practice, 1907, p. 406 of Vol. II. That these enactments are not exhaustive and have not taken away from the Court its inherent jurisdiction in matters such as the one now before me appears clearly from the pronouncements of the Lord Chancellor' Lord Halsbury in the case of Storer & Co. v. Johnson (1890) 15 App. Crs. 203 where he states as follows: -

I think it is quite clear that the Solicitors Act did not deprive the Court of the jurisdiction which they always possessed to do justice in the premises when dealing with one of their officers and they might therefore order that the costs should be taxed although not in term3 of the Solicitors Act.... The moment it was taken out of the region of the Solicitors Act and brought within the general jurisdiction of the Court then the Court could exercise its own jurisdiction in the way it might think fit.

6. In this matter Mr. Runchordass' client admits that he is one of the parties chargeable with the bill and he has expressed his willingness to be taken as making this application for the taxation of the applicants' bills if I came to the conclusion that Rule 544 precludes my making the order that is now applied for. I do not think this would help very much as his consent would only affect himself and could not bind the objecting parties.

7. I think I have power to make the order asked for independently of Rule 544 and I accordingly make the summons absolute and direct that the applicants' bills mentioned in Mr. Tenant's affidavit of the 25th of July 1907 be lodged with the Taxing Master and that the Taxing Master do proceed to tax the same. In taxing these bills the Taxing Master is to have regard to the questions which of the respondents are responsible for which of the bills taxed by him or for how much under each particular bill. The Taxing Master will also take into consideration whether any of the costs were unnecessarily or wantonly incurred and if so he will apportion such costs personally against the party or parties incurring the same He will state in his allocatur what costs are pay able out of the deceased's or the trust estates and what costs are to be payable personally by the respondents or any and which of them.

8. The applicants are entitled to their costs of this summons. It was necessitated by disputes amongst the respondents inter se. I direct that the applicants' costs of this summons to be paid in the first instance by the respondents. I reserve the question as to which of the respondents are liable to pay these costs as between themselves till after the bills are taxed. If the question is not amicably arranged between themselves I reserve liberty to any of the respondents to apply to me in Chambers after the bills have been taxed in the manner I have indicated above.


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