1. These appeals were decided on October 4, 1935, and both were dismissed with costs. Appeal No. 316 of 1928 was not decided on the merits but was dismissed, because the appellant did not pay a sufficient Court-fee, and was not willing to rectify the omission. Appeal No. 86 of 1928 was decided on the merits.
2. In speaking to the minutes in both these cases, the learned advocates ask for two sets of pleaders' fees under Rule 97 in Appendix E at p. 49 of the Rules of the High Court of Judicature at Bombay, which is the same as Section 20 of the Bombay Pleaders' Act. It has been decided in the case of Tulsi v. Onkar Huna I.L.R. (1927) 51 Bom. 492 : 29 Bom. L.R. 897 that unless the Court otherwise directs, the fees of two pleaders should be allowed on taxation of the bill of costs in cases falling under Clauses (a), (b) and (c) of Sub-section (1) of Section 20 of the Bombay Pleaders' Act, 1920. Therefore the parties in these appeals are entitled to two sets of pleaders' fees as a matter of course, if they come within the provisions of Section 20, and the argument has been whether the conditions required of Section 20 have been fulfilled.
3. Section 20 runs-
Where a party has, before the first hearing of a proceeding, engaged more than one pleader, the fees of two pleaders may be taxed in-
(a) any original suit of which the amount or value of the subject-matter exceeds Rs. 5,000;
(c) in any appeal to the High Court from a decree deciding on the merits any -suit or contested proceeding of the kind referred to in Clause (a) or Clause (b).
4. The question we have to decide is whether the parties engaged more than one pleader before the first hearing of the appeal. The appeal was actually heard on October 4 and both sides had engaged two pleaders before that date, but not before the date fixed in the notice for the hearing of the appeal, which must have been some date in 1928.
5. This point came before a bench of this Court in Kanayalal Manordas V. Gopaldas Chunilal (1931) Civil Application No. 585 of 1931, decided by Baker and Nanavati JJ. on August 6, 1931 (Unrep.) when Mr. Justice Baker decided that the date fixed in the notice issued under Order XLI, Rule 12, must be taken to be the date of the first hearing for the purpose of Section 20 of the Bombay Pleaders' Act. The reason given by the learned Judge for adopting this opinion was in effect that, if the date fixed for hearing in the notice be not reckoned as the date of the first hearing, there can only be one hearing of an appeal and the rule becomes meaningless. This may be true. Nevertheless, with respect, we are not inclined to adopt that reasoning, since in our opinion it is not permissible for us to adopt an interpretation which in effect amounts to an amendment of the rule framed by the Legislature. The term ' first hearing ' is not a term of Article It is nowhere defined and in our opinion it must mean what it says, the day on which there is for the first time a hearing in Court. It is true that this interpretation renders this part of the rule meaningless; and in such circumstances a Court must adopt any possible interpretation rather than ignore a part of the rule. But we cannot go so far as to say that there was a hearing on a date when there was no hearing and could not have been one, The truth is that the rule requires amendment. The term ' first hearing ' has meaning when it applies to original suits, because in an original suit notices are issued either for settlement of issues, or for final hearing. But it has no meaning, as far as we can see, with reference to an appeal. We, therefore, decide that the parties are entitled to fees of two pleaders, since they engaged more than two pleaders before the date of the hearing in this Court, as we are told they did.
6. Mr. Gharpure objects that his opponent is not entitled to fees for two pleaders because his appeal was not decided on the merits, but on a preliminary point of jurisdiction. But the rule is quite clear. ' In any appeal decided on the merits ' means not, as he contends, a decision on the merits in the High Court, but as it says, a decision in the High Court even on a preliminary point, from a decree on the merits in the lower Court.
7. I agree. As the case decided by Mr. Justice Baker and Mr. Justice Nanavati does not appear in any authorised report, I think that we are at liberty, with respect, to disagree with their conclusion as to the meaning of the words ' first hearing' occurring in Section 20 of the Bombay Pleaders' Act. It is true that when applied to appeals, the words ' first hearing', if taken in their literal sense, will nearly always mean the only hearing; and the rule will then have no practical effect. To take the words as meaning the date of ' first hearing given in the notice after admission ', as has been done by the learned Judges who decided Kanayalal Manordas v. Gopaldas Chunilal (1931) Civil Application No. 585 of 1931, decided by Baker and Nanavati JJ. on August 6, 1931 (Unrep.) , gets over the difficulty of the rule being otherwise nugatory; but any such interpretation is subject to a further difficulty of its own. It often happens that notices are not returned served; and the question would then arise whether the deciding factor would be an unserved notice fixing the date of first hearing, or a subsequent notice that was returned served. If, therefore, the interpretation put upon the words in that case is to be accepted, then the apparent meaning of the words will have to be still further extended.
8. In the absence of a statutory definition I do not think that we should be justified in treating the meaning of the words ' first hearing ' as something entirely different from what it appears to be on the face of it. But I agree: that Section 20 of the Act might usefully be amended so as to make it of some practical effect when applied to appeals.