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In Re: Jagannath Vasudeo Pandit - Court Judgment

LegalCrystal Citation
CourtMumbai
Decided On
Judge
Reported inAIR1921Bom71; 61Ind.Cas.271
AppellantIn Re: Jagannath Vasudeo Pandit
Excerpt:
bombay revenue jurisdiction act (x of 1876), section 12 - reference to high court--costs, method of taxation of. - - 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 re-cover 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......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.
Judgment:

Norman Macleod, 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 cost 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 1 of 1846.

4. However, all that argument appears to me to be outside the question, because the final paragraph of section of the Bombay Re-venue Jurisdiction Act seems to me to give this Court absolute power not only to 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 7 Bom. L.R. 131 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 Ant, or on the amount of the true value of the property. Still, Sir Law-fence 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 re-cover 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, that was an important case. Properly of a very large value was at stake, some of the opposing parties thought it advisable to in true of 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 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 Macter was right in taxing all the costs of the Reference according to the Rules of the Appellate Side of this Court. But the very wide powers given to this Court by the Act 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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