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Madhav Pershad Vs. Meer Hasan Ali and ors. - Court Judgment

LegalCrystal Citation
CourtAndhra Pradesh
Decided On
Judge
Reported in143Ind.Cas.535
AppellantMadhav Pershad
RespondentMeer Hasan Ali and ors.
Excerpt:
hyderabad civil procedure code (act iii of 1382, fasli), sections 71, 72 - application to fie award, whether plaint--return for re-presentation--legality--pleader's fees--assessment of. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of section 149 of the act, and no other grounds are available to it. the insurer is not allowed to contest the claim of the injured or heirs of the..........ought to have been returned for presentation to the proper court under section 72, hyderabad civil procedure code, act no. iii of 1332 fasli (order vii, rule 11 of act no. v of 1908). but this argument also is not acceptable because the application to file an award is not a plaint and section 71 (order vii rule 10) ordains the return of the plaint only. such an application cannot be deemed a plaint for every purpose simply because it is provided in section 559 (schedule. no. ii para. 20) that an application to file award is numbered and registered as a suit nor can we hold likewise within the principles of analogy. the high court of rangoon has held the same view in ma thein tin v. maung ba than, 76 ind. cas. 493 76 ind. cas. 493 : i.r. 266 : a.i.r. 1923 rang 26. the appellant's.....
Judgment:

1. The Pleader for the respondent is heard. The appellant is present in person. The order of the lower Court that the Original Side of the High Court is not competent to entertain the application is correct: Vide Ram Lal v. Kishen Chand 83 Ind. Cas. 531 : 51 I.A. 72 : (1924) M.W.N. 79 : A.I.R. 1924 : P.C. 95 : 8 N.L.J. 62 : 20 N.L.R. 33 : 19 L.W. 549 : 34 M.L.T. 62 : 22 A.L.J. 386 : 46 M.L.J. 628 : 51 C. 351 : 26 Bom. L.R. 586 : 28 C.W.N. 977 : L.R. 5 A.P.C. 216 (P.C.). It might be argued that the application ought to have been returned for presentation to the proper court under Section 72, Hyderabad Civil Procedure Code, Act No. III of 1332 Fasli (Order VII, Rule 11 of Act No. V of 1908). But this argument also is not acceptable because the application to file an award is not a plaint and Section 71 (Order VII Rule 10) ordains the return of the plaint only. Such an application cannot be deemed a plaint for every purpose simply because it is provided in Section 559 (Schedule. No. II para. 20) that an application to file award is numbered and registered as a suit nor can we hold likewise within the principles of analogy. The High Court of Rangoon has held the same view in Ma Thein Tin v. Maung Ba Than, 76 Ind. Cas. 493 76 Ind. Cas. 493 : I.R. 266 : A.I.R. 1923 Rang 26. The appellant's contention that cost a ought not to have been awarded on the scale as in a regular suit is certainly tenable. Undoubtedly in regard to allowing costs, Section 245 Hyderabad Civil Procedure Code. (Section 35 of Act No. V of 1938), can be made applicable to the present proceedings in view of Section 636, Hyderabad Civil Procedure Code. (Section 141 of Act No. V of 1908). But the lower Court has ordered Pleader's fees to be assessed under Section 5 Clause(a) Legal Practition is Rules of 1333 Fasli provided for regular suits. This order of the lower Court cannot stand in view of our finding that the present proceedings cannot be considered a regular suit for every purpose. We therefore hold that Section 6, Clause 7 of the Legal Practitioners Rules of 1333 Fasli is applicable to the present proceedings, and the Pleader's fees is to be assessed accordingly. The said rule requires the court to fix the amount. Hence we think it will meet the interests of justice if the plaintiff is ordered to pay the defendants H.S. Rs. 50 towards Pleader's fees in the lower Court. Accordingly the appeal is allowed in part. The order of the lower Court is modified to this extent that in the decree of the court below Pleader's fees are to be calculated at H.S. Rs. 50 only. The costs of this appeal to be borne by the parties.


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