(1) This is a petition filed by the appellant in C. C. C. A. No. 30 of 1959, an appeal against the judgment of the Additional Chief Judge, City Civil Court, Hyderabad, in O. S. No. 92 of 1958.
(2) The petition raises the question whether the Advocates' fees have to be taxed under the Rules made by the Hyderabad High court under Sec. 27 of the Legal Practitioners Act, 1879 (No. XVIII of 1879) or the rules framed under the said provision of the Act by the High Court of Andhra Pradesh.
(3) It is an undisputed fact that the suit was filed on 23-11-1953 and court-fee was paid under the Hyderabad Court-Fees Act, 1324 Fasli (No. VI of 1324 Fasli). The suit was decreed in part, and the defendant preferred the appeal to the High Court on 1959 and paid court-fee on the memorandum of appeal under the Hyderabad Court-fees Act. The appeal was disposed by us on 8-11-1962 allowing the appeal and remanding the suit for fresh disposal, allowing an amendment of the additional written statement prayed for by the defendant-appellant. We directed in our order that costs of the appeal will abide the result of the disposal by the Court of first instance.
(4) It is the grievance of the appellant-petitioner that the Advocates fee was taxed under the rules framed by this court whereas according to the appellant, the rules framed by the former Hyderabad High Court should govern the fees.
(5) In support of the contention that the Hyderabad Rules apply, the appellant's counsel cites a Bench decision of this High Court : Satyanarayanamurthi v. Income-tax Appellate Tribunal, Madras Bench, (1957) 1 Andh W R 360 (365) : ( (S) AIR 1957 Andh Pra 123 (128). The decision in the case is succinctly expressed at P. 365 (of Andh WR) : at P. 128 of AIR thus :
' In the present case, the Petitioner seeks the aid of the High Court to issue a writ of Mandamus against a Tribunal situated in the Hyderabad City. The Hyderabad Court-fees Act, which was the law obtaining in the state of Hyderabad before the appointed day, would apply to such a proceeding If so, the Court fee payable under Schedule II, Serial No. 1 (d) is Rs. 2 on a writ petition.'
The decision is rested on a true construction of the relevant provisions of the States Reorganisation Act, 1956, secs . 119, 120 and 121. It would suffice for the purposes of this petition to refer to the terms of Sec. 119.
'The provisions of Part II shall not be deemed to have effected any change in the territories to which any law in force immediately before the appointed day extends or applies and territorial references in any such Law to an existing provided by a competent Legislature or other competent authority, be constructed as meaning the territories with in the State immediately before the appointed day.'
Part II of the said Act has the headings ' Territorial changes and formation of new States.' The intendment and the scope of the section is that for the purpose of the application of the Laws, there must be deemed to have been no change in the territories i.e. though Telangana is now a part of the State of Andhra Pradesh the laws of the former State of Hyderabad will be in force in that area as if there was not disintegration of that area of the State of Hyderabad and integration of the same with the state of Andhra Pradesh. The former laws in that area would continue to prevail and govern the rights of parties till the competent Legislature or other competent authority otherwise provides. It is on a true construction of these provisions that the bench had decided the case as above.
(6) It is the contention before us that in a like manner the erstwhile Hyderabad Rules with regard to the taxation of the Advocates' fees would continue to apply and the rules of the Andhra Pradesh High Court would not prevail over the Hyderabad Rules.
(7) having regard to the importance of this question, we had given notice to the learned Advocate General and heard him. He submitted that the position contended for is correct.
(8) Sri Sarma argued that it would be anomalous to say that the Rules made by the Hyderabad high Court, which was defunct, could still have force and validity. He relies on the observations of the bench in Sridhar Rao, In re : (1957) 2 Andh WR 319 ; (AIR 2958 Andh Pra 60) to which we would presently refer. Two questions were raised before the Bench. One of the Questions was whether the appellant had a vested right not only to prefer an appeal to the High Court but also to have it disposed of by the high Court in the manner prescribed by Law then in force. It was contended that the appellant had vested right to pursue the matter to the highest court in accordance with the law and the procedure obtaining at the time the suit was files. It was contended that before the States Re-organisation Act was passed, the appellant had the right to have the second Appeal heard by a Bench of two Judges, and therefore, notwithstanding the abolition of the Hyderabad High Court, the second Appeal should have been heard by a Bench of two Judges of the Andhra Pradesh High Court and the Judgment made by a single Judge of the High Court was without jurisdiction. The said contention was repelled.
It was observed that there was an essential distinction between a substantive right of appeal and the procedure prescribed for disposing of that appeal. The second appeal filed in the Hyderabad High Court was transferred to the Andhra Pradesh High Court and disposed of by the said high Court in accordance with the procedure prescribed by that High Court for disposing of such appeals. Whether the appeal was disposed of by a single Judge or by a Bench of two Judges it was a disposal by the High Curt itself. The Internal distribution and allocation of work between and among the Judges of the High Court was a matter of procedure and the change of the procedure did not affect the vested right of appeal to the High court.
(9) In the course of the Judgment Sec 119 of the States RE-organisation Act was referred to and explained thus :
'This Section only preserves the Laws prevailing in the Telangana area till the Legislature or other competent authority provides otherwise. The laws will be applied as if there was no territorial changes. But the provisions of the Sections cannot preserve any laws governing the jurisdiction and procedure obtaining in the Hyderabad High Court which ceased to exist form the appointed day. When the High Court itself became defunct it is not possible to hold that the laws governing its jurisdiction and procedure continue to exist, They ceased to have any legal existence along with the Court with which they were bound up . . . . . . . . . . . We therefore, hold that, after the appointed day, the proceedings transferred from the Hyderabad High Court would be subject to the jurisdiction of the Andhra Pradesh High court and be governed by the procedure obtaining therein'.
(10) Sri Sarma relies on these observations in support of his argument that the Hyderabad Rules cannot be applied after the Hyderabad High Court became defunct. We do not consider that these observations convey what is contended for by Sri Sarma. It was expressed that when the High Court meaning thereby the former Hyderabad High Court meaning thereby the former Hyderabad High Court itself became defunct the laws. Governing its jurisdiction and procedure did not continue to exist. So it boils down to this : whether the Taxation Rules were a law governing the jurisdiction exerciseable by the High Court of Hyderabad or a law governing the High court's procedure. It is not easy to construe the Hyderabad taxation Rules as Laws governing the jurisdiction of the former Hyderabad High Court or its procedure. They were made by the former Hyderabad, High court for the taxation of Advocates fees. Corresponding rules were also framed by the High court of Andhra Pradesh. It is not shown that the competent authority comtemplated under Sec. 119 of the states re-organisation Act has abrogated the former Hyderabad Rules. If so, the effect of Sec. 119 of the said Act is to preserve those rules, with regard to the actions instituted at the time the former High Court of Hyderabad functioned.
(11) Sri Sarma has also referred to Bhadrayya v. Subbaiah, : AIR1959AP279 as supporting his contention. In the said case it was held that R. 61 of the Appellant side rules was applicable to all the processes that were to issue from the High court of Andhra Pradesh in its appellate side jurisdiction after 1-11-1956 and that the said requirements was complied with if a court-fee of Rs. 1.7. 0. per notice was paid. Undoubtedly that is a rule of procedure and stands on a different footing.
(12) In our view (1957) I Andh WR 360 : ((S) AIR 1957 Andh Pra 123 ) is in point. There is it was held that a court-fee of Rs. 2/- was payable on a Writ of mandamus prayed for against a Tribunal situated in the Hyderabad City as the Hyderabad court-fees Act, which was the law obtaining in the state of Hyderabad before the appointed day, applied to such a proceeding. if so, on the same analogy, Advocates' fees should also be taxed under the Hyderabad Rules in cases instituted in the former Telangana area at the time the Hyderabad High Court functioned.
(13) It is also contended that the appellant had a vested right to have the costs taxed under the Hyderabad Rules. The learned counsel would have this right construed as a vested right on the analogy of a right of appeal. In re, Pitla Gangaram, (1958) 1 Andh WR 116 is cited for the position that the appellant, who had a vested right to file a second appeal both on questions of fact as well as on questions of law to the High court of Hyderabad continued to have such right of appealing on both questions of law and fact to the High Court of Andhra Pradesh which was substituted for the High Court of Hyderabad. We feel that it is not necessary for us in this case to decide this point, that is to say, whether the right of second appeal on questions of fact and law as well is analogous to a right to have the Advocates' fees taxed under the Hyderabad Rules. We accept the contention of the appellant-petitioner that the Hyderabad rules apply and the Advocates' fees shall be taxed accordingly.
(14) he only other point raised before us is that the junior practitioner's fees may be fixed at half of the seniors. Rule 2(2) of the Hyderabad High Court Rules regarding Taxation of Advocates fees says thus :
' When the amount or value of the claim in the appeal exceeds Rs. 2,000/- an additional fee calculated at one-third of the fee allowable under clause (1) Shall be payable to a junior practitioner engaged with a senior practitioner, provided that the junior was on record at least from the date fixed for the appearance of the respondent :
Provided further that in any case where a junior's fee is payable under this rule or under rule 18, the court shall have a discretion to fix that fee at half the senior's fee instead of one-third'
(15) The matter of junior's fees, whether it should be half or one third of the senior's fees, rests in the court's discretion. We think that we can, in this case, fix the junior practitioner's fee at half the senior's fee instead of one-third.
(16) The costs part of the decree will therefore be amended as directed by this order. The petition is allowed; but there will be no order as to costs of this petition.
(17) Petition allowed.