1. This matter has been referred to me by the Prothonotary because of the refusal of Mr. J.P.Dastoor, the senior partner in Messrs. Dastoor and Co., attorneys of this Court, to pay a bill of Rs. 293-8-0 in respect of costs of certain de bene esse proceedings. An order was made for the examination of witnesses of both parties de bene esse. The order was originally applied for on behalf of the plaintiff in the suit. The defendants had objected to the order being made and had contended that the wit nesses should be examined before the Court at the hearing of the suit. When the Court overruled the objection and was about to make the order asked for, the defendants applied for and obtained leave to examine certain of their witnesses also de bene esse at the close of the examination of the plaintiff's witnesses.
2. The de bene esse examination of the witnesses should ordinarily be held in Court and preferably before the Judge who is ultimately to hear and decide the suit. The Chamber Judge, however, has a discretion given to him to delegate the work to the Prothonotary or one of his Associates. Owing; to the great congestion in the work of our Courts and there being an insufficient number of Judges to cope with the arrears a practice has grown up to entrust this work to the Prothonotary or such one of his Associates as he may appoint. If a Judge were to hold thede bene examination in Court the Court fees payable by the parties for a day's hearing which might extend to five hours would be only Rs. 20. If the examination were held during office hours by the Prothonotary or one of his Associates the fees payable to Government in respect of the services of the Prothonotary or his Associate would be computed at the rate of Rs. 4 per every half hour thus working out at Rs. 40 for five working hours, In this way it would cost a party twice as much for a full day's hearing before the Prothonotary or his Associate as for a full day's bearing before the Court. This is not all. Owing to the great increase in litigation during the last few years and the arrears which have accumulated the Prothonotary's officeat pears to be short-manned and the Prothonotary is unable to spare himself or one of his Associates to do this class of work during office hours, The Prothonotary himself has to put in long hours in the office and cannot spare himself for doing this class of work even outside office hours. A practice has grown up with the cognizance of the Chief Justice and Judges for the Prothonotary to depute one of his Associates to do this work outside Court hours. For this work, in addition to the fees chargeable for Government, the party on whose behalf the de bene esse examination is being held is required to pay a personal fee of Rs. 15 per hour to the Associate who presides at and takes down the notes of the examination. This practice has received in the past the sanction of the Chief Justice and Judges and the fee paid to the Associate is recognized by the Taxing Master as a taxable item allowable as between party and party in the bill of costs. The profession are well aware of the practice and have submitted to this extra levy as a necessary condition for having witnesses examined for the convenience of parties before the suit has reached a hearing. Mr. J.P.Dastoor, as a senior attorney of this Court, is well aware of the practice, and has on several occasions in the past submitted to the payment of Rs. 15 per hour to the Prothonotary's Associate as a personal fee for his services outside Court hours. The matter, however, rests only on practice and there is no rule in the High Court Rule book to enable the levy of this charge by the office.
3. In this case the plaintiff's attorneys have paid their share of the office bill without demur but the amount coming to the share of the defendants has been objected to on various grounds by Mr. Dastoor. The de bene esse examination of the defendants' witnesses occupied eleven hours and the amount which has become payable to the Associate, who conducted the enamination, is Rs. 165. Mr. Dastoor has contended that there is no justification for this item as there is no provision in the rules for an officer of the Court to charge a fee for himself for doing work outside Court hours. In my opinion it would have been more regular if the procedure now prevailing were embodied in a rule in the High Court Rule book. But as this practice has existed for a long time I would not be justified in overruling it without a reference to the Chief Justice and Judges in their administrative capacity.
4. Mr. Dastoor's next complaint is that in addition to this sum of Rs. 165 the Prothonotary has charged for fees due to Government under the High Court Rules, The Prothonotary, according to the practice of his office, has treated this matter as coming under Court hours for payment of Government dues and as being out-side Court hours for payment of fees to the Associate. There is some force in Mr. Dastoor's contention that when the Prothonotary is not provided by Government with a sufficient staff to discharge one of the ordinary functions of his office, namely, the taking of de bene esse examinations, Government should not be allowed to charge fees for a work which is done outside Court hours by one of the Prothonotary's staff on a special personal remuneration. It is pointed out that the same work could be done more cheaply by the appointment of a special commissioner who would charge his own personal fee according to arrangement and no charges would have become payable to Government except at the hearing when the notes of the de bene esse examination together with the exhibits if any would be tendered in evidence, It was open to the parties to have adopted such a course if they had so wished. The objection now taken by Mr. Dastoor to the bill, which is in accordance with the practice of the Prothonotary's office, appears to me to be unfair when parties have acted on the faith of such practice. The defendants must be taken to have acquiesced in the practice and are liable to pay the amount of the bill.
5. I order that the amount of the Prothonotary's bill coming to the defendants' share be paid by the defendants.