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Lokappa Chamirappa Chatani Vs. Hiramani Khushaldas Teli - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberCivil Revision Application No. 124 of 1928
Judge
Reported in(1929)31BOMLR471; 118Ind.Cas.799
AppellantLokappa Chamirappa Chatani
RespondentHiramani Khushaldas Teli
Excerpt:
bombay pleaders act (x vii of 1920), schudle iii, rules 1 (section 2 (c)-fees of pleader -dismissal of suit for plaintiff's non-appearance-scale of pleader's fees- alteration in amount for pleader's fees without notice to plaintiff.;it is not open to a judge to alter the amount for the pleader's fees stated in the plaint is favour of the defendant without giving notice to the plaintiff.;when a suit is dismissed for default of appearance by the plaintiff, the pleader's fees should be computed not according to rule 1 of schedule iii to the bombay pleaders act 1920, but at one-fourth of that payable under rule 2(c) of the schedule. - .....to alter the amount of the pleader's fee, and that application was granted. we think, however, the learned judge was bound to give notice to the plaintiff before any such amendment or alteration in the plaint was made. consequently, there must be a remand to the lower court, and on that remand the learned judge will decide whether the original valuation for the pleader's fee on the plaint can stand, notwithstanding that for certain other purposes, the suit was valued at a much higher figure.2. for present purposes i will call the 6gure| the learned judge will eventually arrive at on remand as rs. x then comes another question altogether, and that is whither the defendants will be entitled to recover their pleader's fee computed on the whole of rs. x under rule 1 of schedule iii of the.....
Judgment:

Amberson Marten, Kt., C.J.

1. There are two points here. The first is, whether the learned Judge was entitled to alter the amount for the pleader's fees stated in the plaint in favour of the defendants without giving notice to the plaintiff. What happened was that the suit was dismissed for want of appearance by the plaintiff', and at a later date the defendants applied ex parte to alter the amount of the pleader's fee, and that application was granted. We think, however, the learned Judge was bound to give notice to the plaintiff before any such amendment or alteration in the plaint was made. Consequently, there must be a remand to the lower Court, and on that remand the learned Judge will decide whether the original valuation for the pleader's fee on the plaint can stand, notwithstanding that for certain other purposes, the suit was valued at a much higher figure.

2. For present purposes I will call the 6gure| the learned Judge will eventually arrive at on remand as Rs. X Then comes another question altogether, and that is whither the defendants will be entitled to recover their pleader's fee computed on the whole of Rs. X under Rule 1 of Schedule III of the Bombay Pleaders Act 1920, or whether they will only be I entitled to a quarter of Rs. X under Rule 2(c). That depends on whether within the meaning of Rule 1(a) the suit was one pf those 'suits which decide on the merits the real dispute between the parties'. If it was such a suit, then Rule 1 would apply, j If not, Rule 2 would govern the computation of the fee, and reduce it to of Rs. X.

3. Where then a suit has been dismissed for default of appearance, has it decided on the merits the real dispute between the parties within the meaning of Rule 1(a) In my judgment in such a case there has been no decision on the merits of the real dispute. The decision has rested on the technical ground that one of the parties has absented himself. If Rule 1 had been intended to apply to all suits in which there was a final decision, then the insertion of these words 'which decide on the merits the real dispute between the parties' would have been quite unnecessary. Even if the words had been 'which! decide the real dispute between the parties' it would have been an easier case for the defendants. But the addition of the words 'on the merits' to my mind makes the matter quite clear.

4. I recognize that in some cases this way work a hardship on a defendant, because he may have come to the trial prepared with all his witnesses and having paid his own pleader full fees to fight the matter out, and yet on this construction of the rule he may only succeed in getting one-fourth of his coats. But; if there is any real grievance in that respect, that is a matter for amending the rules. We have merely to decide on the rules as they stand to-day.

5. Under these circumstances, we think the learned Judge was wrong in awarding costs on the full amount of the pleader's fees, a ad that as the case does not fall within Rule 1 the defendant should have been awarded one-fourth of the costs only under Rule 2(c) as being a case 'not otherwise provided for'.

6. Accordingly on the remand the learned Judge will award coats to the defendant on the basis that Rule 2 applies and not Rule 1. The rule granted must therefore be made absolute, the order of the learned Judge discharged, and the defendant's application re costs remitted to the lower Court to be determined Hiramaiti according to law. The respondent must pay the applicant's costs of this application in any event.

Murphy, J.

7. I agree that we have power to interfere in revision in this matter on the ground complained of, and also on the construction of Schedule III, Rules 1 and 2, which has been explained by the learned Chief Justice,


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