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In Re: Jagannth Vasudeo Pandit (Party No. 3) - Court Judgment

LegalCrystal Citation
SubjectCivil;Other Taxes
CourtMumbai
Decided On
Case NumberCivil Application No. 757 of 1920
Judge
Reported in(1921)23BOMLR189
AppellantIn Re: Jagannth Vasudeo Pandit (Party No. 3)
Excerpt:
bombay revenue jurisdiction act (x of 1876), section 12-costs-reference to the high court by government-taxation of costs-practice.;section 12 of the bombay revenue jurisdiction act, 1876, gives the high court absolute power not only to deal with costs by directing as to, who should pay them, but also by giving directions as to how those costs should be ascertained,;the words 'in each case,' in the last paragraph of the section imply the jurisdiction of the high court to give special directions in each case,;the court directed that the coats of this reference should, as a appeal case, be taxed on the scale allowed on the original side. - [couto; m.l. pendse, jj.] in the first instance the order passed under s. 132(5) is an order of a summary nature and does not conclude the rights of the..........each case outside any general rules which may have been provided with regard to the dealing with costs or taxation of costs.2. it has been argued that as this was an appellate side matter, the costs should be taxed under section 7 of the legal practitioners' act i of 1846, which would only give the winning party one-fourth of the 'costs which would have been incurred if this matter had been a regular suit decided on its merits. even then, it is not quite clear whether this case could come within the words of section 7 of act i of 1846. certainly that section was not intended to provide for references of a peculiar nature, as this reference is, and it was really intended, in my opinion, to provide for all other cases arising within the trial of regular suits.3. then rule 65 of the.....
Judgment:

Norman Macleod, Kt., C.J.

1. Section 12 of the Bombay Revenue Jurisdiction Act X of 1876, under which the case was referred for the decision of the High Court, especially provides that the costs (if any) consequent on any such reference should be dealt with as the High Court in each case directs. That appears to me to take the question of how the costs are to be dealt with in each case outside any general rules which may have been provided with regard to the dealing with costs or taxation of costs.

2. It has been argued that as this was an appellate side matter, the costs should be taxed under Section 7 of the Legal Practitioners' Act I of 1846, which would only give the winning party one-fourth of the 'costs which would have been incurred if this matter had been a regular suit decided on its merits. Even then, it is not quite clear whether this case could come within the words of Section 7 of Act I of 1846. Certainly that section was not intended to provide for references of a peculiar nature, as this reference is, and it was really intended, in my opinion, to provide for all other cases arising within the trial of regular suits.

3. Then Rule 65 of the Appellate Side Rules seems to make this clear, because the High Court laid down rules for the amount of costs to be awarded in particular matters, which, on the argument of Mr. Rele, would have come within Section 7 of Act I of 1846.

4. However, all that argument appears to me to be outside the question, because the final paragraph of Section 12 of the Bombay Revenue Jurisdiction Act seems to me to give this Court absolute power not only to deal with costs by directing as to who should pay them, but also by giving directions as to how those costs should be ascertained.

5. Then we have been referred to the decision in Bai Meherbai v. Maganchand (1904) 7 Bom. L.R. 131; I.L.R. 29 Bom. 229. But there the only question was whether the basis of taxation should be the amount for which the suit was valued for the purposes of the Court Fees Act, or on they amount of the true value of the property. Still Sir Lawrence Jenkins said :

The principle and rule of taxation ought (in our opinion) as far as possible to be such as to secure that the successful party should recover from his opponent such costs as are necessary to enable him to place his case properly before the Court, and this can best be secured by adopting the actual value as the basis of taxation.

6. Considering, therefore, as I do, that there is no rule which binds us in directing in this case as to how the costs should be ascertained, the principle laid down in that case seems to me to be a proper one. We ought to give the successful party such costs as were necessary to enable him to place his case properly before the Court. Undoubtedly this was an important case. Property of a very large value was at stake, some of the' opposing parties thought it advisable to instruct solicitors, and all parties appeared by counsel, while it is beyond doubt that the rules of taxation on the Appellate Side do not enable the the successful party to recover the costs which had to be incurred in properly preparing his case and instructing counsel to appear before the Court. I think, therefore, that all costs of the Reference No. 3 of 1920, as also those of Civil Application No. 388 of 1920, should be taxed on the scale allowed on the Original Side Each party to bear his own costs of both these Civil Applications Nos. 727 and 758 of 1920.

Pratt, J.

7. The Bombay Revenue Jurisdiction Act X of 1876 takes away the jurisdiction of civil Courts with regard to certain suits. Under Section 12, the Government has power to refer a question that would arise on any such excluded suit for the decision of the High Court. This in effect restores to this extent the jurisdiction of the Court. The question referred would, therefore, be decided in the same jurisdiction in which the suit would be tried.

8. Now the question decided in this Reference, i. e., the right of the adopted son to succeed as dependent on the validity of the Summary Settlement, was one which, but for the Bombay Revenue Jurisdiction Act, would have been decided in a suit in a mofussil Court, and would have come to this Court, in appeal in its appellate jurisdiction. The reference, therefore, seems to me to be one under the appellate jurisdiction of this Court. It was in fact so presented, and in the absence of any directions by the Court, I think, the Taxing Master was right in taxing all the costs of the Reference according to the rules on the Appellate Side of this Court. But the very wide powers given to this Court by the last paragraph of Section 12 of the Bombay Revenue Jurisdiction Act do, I think, give us the jurisdiction not only to say which of the parties should bear the costs of the reference, but also according to what rules the costs of the reference should be taxed. That paragraph is as follows :-' The costs (if any) consequent on such reference shall be dealt with as the High Court in each case directs.' The words ' in each case' seem to me to imply the jurisdiction of this Court to give special directions in each case. I think this is a case in which such special directions should be given. The Government brief was prepared by the Government Solicitor. Some of the parties employed solicitors. All employed counsel. Taxation on the Original Side would more nearly cover costs properly incurred. I, therefore, agree in the order proposed by my Lord the Chief Justice.

Fawcett, J.

9. I agree and have nothing to add.


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