1. [His Lordship referred to the facts of the case and proceeded :] At the hearing of the summons it was argued before me on behalf of Messrs, Hiralal & Co. that if this Rule (559) was literally and strictly construed in every case, it may sometimes lead to an abuse of the process of the Court. On the other hand, counsel for defendants Nos. 5 and 6 argued that the rule was clear and specific, as it referred to ' all costs whatever attending the taxation ', and that there was no distinction between the provisional taxation of the bill in the office before warrant for taxation was issued, in which one-sixth of the bill was already knocked off, and the taxation by the Taxing Master himself. In support of his contention counsel relied on Rule 44 of the taxing rules of the High Court of Calcutta, the first part of which is in almost the same terms as Rule 559 of the Bombay High Court Rules, but in Rule 44 of the Calcutta High Court there is a proviso ' that the Taxing officer shall be at liberty to certify specially any circumstances relating to such bill or taxation, and the Court or a Judge shall upon application by the attorney whose bill of costs has been so taxed bo at liberty to make any such order as such Court or Judge may think right respecting the payment of the costs of such taxation '. This proviso follows the wording of the proviso in Section 37 of the Solicitors Act of England, 6 & 7 Vic. c. 73, which was as follows :-
Provided also, that such Officer shall in all Cases be at liberty to certify specially any Circumstances relating to such Bill or Taxation, and the Court or Judge shall be at liberty to make thereupon any such Order as such Court or Judge may think right respecting the Payment of the Costs of such taxation.
2. It was argued that there is no such proviso in Rule 559 of the Bombay High Court Rules In my opinion Rule 559 is meant to penalise a solicitor against bringing in an exaggerated bill of costs against his client, so that if the bill was cut down by one-sixth, he would have to pay the costs attending the taxation including the costs of the attorney employed by the opposite side in contesting the bill. It would, however, really be a hardship in an exceptional case, if merely because one-sixth of the bill was disallowed, the attorney was not only not entitled to the costs of the hearings at which ho succeeded in all his contentions, but was even made to pay the costs himself. In this particular case the objections raised by defendants Nos. 5 and 6 to the taxation regarding the two questions which I have mentioned before wore disallowed with costs, and yet under the rule defendants Nos. 5 and 6 claim to be entitled to get the costs of the hearings which related to the subject-matter of those very grounds of objection. This creates an anomalous position under a strict enforcement of the rule. Counsel for defendants Nos. 5 and 6 referred me to Higgins v. Woolcott (1826) 5 B.& C. 760 in which Abbott C.J. construed the words of Section 23 of 2 Geo. II as being imperative. The words of that statute provide ' that whore the bill taxed is less by a sixth part than the bill delivered, the attorney is to pay the costs of the taxation', and in that particular case the bill was reduced on taxation by more than one-sixth. That was a case under the old statute in which there was no provision for exceptional cases. All that the section says is that if the bill taxed shall not be less by a sixth part the Court in its discretion shall charge the attorney or client in regard to the reasonableness or unreasonableness of the bill of costs. Counsel for Messrs. Hiralal & Co. referred to a judgment of Mr. Justice Kemp in Jivanlal v. Bai Manchha (1924) 27 Bom. L.R. 532 in which the leraned Judge at p. 534 observes as follows :-
Generally, it may be laid down that on the warrant to tax, the party taking the taxation must pay the costs of the proceedings on that warrant. But if the Taxing Master is of opinion that the party bringing in the bill has unnecessarily or vexatiously increased the coats he may report accordingly and the Court, i.e., the Chamber Judge, will make such order as to those costs as he thinks fit.
3. It was argued that this rule was applicable only to party and party taxation, but I see no reason why the same principle cannot also be, gene rally speaking, applied to the taxation of a bill as between attorney and client. The Taxing Master himself may not go against the express provision of Rule 559, but there is nothing to prevent him from certifying or reporting to the Court as to the special circumstances, if any, of a case and recommending that even where more than one-sixth has been taken off the bill, the solicitor should not be made to pay the costs of taxation and in some cases actually get his costs. The Court may then on persuing his report make such order as to costs of taxation as it may think fit. It may in its discretion deprive the solicitor of the costs of the taxation although less than one-sixth has been taxed off, or allow him the costs though one-sixth or more has been taxed off. In other words the Court may exercise its discretion in exceptional cases either in favour of the solicitor or in favour of the client. In my opinion Rule 559 should not interfere with the discretion of the Court in those cases in which the Taxing Master has specially certified or reported the circumstances of the case. In this particular case there is no report, but it does appear from the proceedings that the hearing before the Taxing Master was unnecessarily prolonged, at any rate by reason of the attempt to prove the oral agreement which had never been recorded, and about which the story of defendant No. 5 varied from time to time. The agreement was not only untrue in fact, but was put forward and vexatiously persisted in merely to harass the solicitors. Every case must stand on its own facts, and no hard and fast rule can be laid down; but the Court ought not to allow Rule 559 as it stands to be used as an instrument of oppression. I wish to add that an amendment of the rule on the line of Rule 44 of the taxing rules of the High Court of Calcutta is desirable.
4. The order made by the Taxing Master will be set aside, and I order that defendants Nos. 5 and 6 do pay to Messrs. Hiralal & Co. their costs of the hearing before the Taxing Master from July 4, 1931, till October 15, 1931, being fourteen meetings, but not so as to allow the costs of counsel who appeared for Messrs. Hiralal & Co. on such hearings. Defendants Nos. 5 and 6 will bear their own costs of those hearings, including the costs of the hearing before the Taxing Master on March 25, April 11, April 17, June 20, 1931, respectively. Defendants Nos. 5 and 6 will also bear their own costs of all other hearings before the Taxing Master. I make no order as to the costs of and incidental to this application and the order made thereon.