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The Bank of Bengal Vs. Kalka Das and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in9Ind.Cas.422
AppellantThe Bank of Bengal
RespondentKalka Das and anr.
Excerpt:
.....signed by the legal practitioner certifying the amount of the fee or fees actually paid to him *together with an affidavit made by such client or his authorised agent. ' this rule, we may observe, prescribes that the court shall be satisfied that the fee is paid to the pleader at or before the commencement of the hearing of a suit as also as to the delivery to the munsarim, of a certificate signed by the legal practitioner certifying the amount of the fee or fees actually paid to him......was brought by the plaintiffs to have a declaration of their title to certain moneys held by the bank. the bank was prepared to hand over the moneys to the persons entitled, whoever they might be, and only required to be satisfied that the plaintiffs were the parties so entitled. the case was taken up late on the afternoon of the 3rd of september, and on a representation by the pleader for the bank that the agent of the bank was not present and that the certificate required by the rules of the court as to the payment of fees could not be verified, the court intimated that the certificate would be accepted afterwards. on the following day the case appeared on the list--and, after some formal matters were disposed of, was adjourned to the 17th of september. on the 10th of september, the.....
Judgment:

1. The only question in this appeal is concerned with the pleader's fee. The suit was brought by the plaintiffs to have a declaration of their title to certain moneys held by the Bank. The Bank was prepared to hand over the moneys to the persons entitled, whoever they might be, and only required to be satisfied that the plaintiffs were the parties so entitled. The case was taken up late on the afternoon of the 3rd of September, and on a representation by the pleader for the Bank that the Agent of the Bank was not present and that the certificate required by the rules of the Court as to the payment of fees could not be verified, the Court intimated that the certificate would be accepted afterwards. On the following day the case appeared on the list--and, after some formal matters were disposed of, was adjourned to the 17th of September. On the 10th of September, the pleader's fee was paid and a certificate filed, and the case was adjourned to the 21st of September when the arguments were heard. Judgment was delivered on the 22nd of September. The result of the suit was that the claim was decreed but costs were awarded to the Bank. Only Rs. 2-8-0 were allowed in respect of costs; the pleader's fee not being allowed on the ground that it was not paid before the commencement of the hearing of the suit. This appeal has been preferred in respect of the pleader's fee and it has been contended before us by the learned Counsel for the Bank that inasmuch as the Court intimated that the certificate would be accepted after the first hearing that the fee ought to have been allowed. The Court below in its order in reference to the fee stated that in intimating that 'the defendant would be justified in producing the required affidavit and certificate on the next following date' it did not undertake to condone the defendant's failure to file this document up to the 16th of September, 1909. The learned Subordinate Judge referred to the Rules of the High Court on the subject and decided that he could not allow the pleader's fee to be included in the costs in the decree. Rule 80(1) of the 'Rules of the 4th of April, 1894, as amended, provides that In drawing up a decree or order no fee to any legal practitioner, not appearing for the Crown * * * shall be allowed on taxation between party and party * * * unless the Munsarim, or on application to the Judge, the Judge is satisfied that the fee was paid to such legal practitioner at or before the commencement of the hearing of the suit or application * * * and unless at or before such time there shall have been delivered to the Munsarim a certificate signed by the legal practitioner certifying the amount of the fee or fees actually paid to him * * * together with an affidavit made by such client or his authorised agent.' This rule, we may observe, prescribes that the Court shall be satisfied that the fee is paid to the pleader at or before the commencement of the hearing of a suit as also as to the delivery to the Munsarim, of a certificate signed by the legal practitioner certifying the amount of the fee or fees actually paid to him. In this case the fee was not paid until the 16th of September, that is, nearly a fortnight after the commencement of the hearing of the suit. Consequently, the Court was justified in the course which it took in refusing to allow the appellant's pleader's fees. But it is said that the proviso to the rule in question meets this case. That proviso runs as follows: 'Provided that in any case the presiding officer may, for valid reasons to be recorded by him accept a certificate for fees filed after the time mentioned above.' It will be observed that this proviso only enables a presiding officer to exercise a discretion as to whether or not he will accept a certificate for fees filed after the commencement of the hearing. It gives him no discretion in regard to the allowance of a fee which was not paid at or before the commencement of the suit. It may be, when these rules were drawn up, that it was intended to give the presiding officer a general discretion in the matter of a fee tardily paid: but if this was intended, it is certainly not expressed in the proviso as it at present stands. In view of this rule we think that the Court below rightly refused to allow the pleader's fee in this case. We dismiss the appeal but, under the circumstances, without costs.


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