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Madho Lal Vs. Banarsi Das and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in82Ind.Cas.73
AppellantMadho Lal
RespondentBanarsi Das and anr.
Excerpt:
civil procedure, code (act v of 1908), order xviii, rule 2(1) - general rules (civil), ch. 21, rule 1--'day fixed for hearing of suit,' meaning of--payment of pleaders' fee--certificate when should be filed. - - the rule governing the question is rule 1 of chapter 21 of the general rules (civil). as it stood at the time, this rule prescribed that no fee to any legal practitioner should be included in any decree or order unless the judge was satisfied that the fee was paid at or before the commencement of the hearing of the suit......the judge was satisfied that the fee was paid at or before the commencement of the hearing of the suit. an explanation appended to the rule ran, 'by the word 'hearing' is meant the hearing referred to in order xviii, rule 2(1)... but not the day to which such hearing is adjourned.' order xviii, rule 2(1) provides that 'on the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove.' it seems to me clear that in this rule of the civil procedure code 'the day fixed for the hearing of the suit' does not mean or include the day on which issues are framed. it is true that elsewhere in the code, as, for instance, in order.....
Judgment:

Neave, J.

1. This appeal arises out of an order of the District Judge of Benares upholding the order of the Additional Subordinate Judge admitting a certificate for Pleader's fee which was said to have been filed after the first day of hearing. The facts are that the certificate was filed on the 24th of April, 1922, the issues were framed on that date, and the case was fixed for final disposal on the 12th of May. The Rule governing the question is Rule 1 of Chapter 21 of the General Rules (Civil). As it stood at the time, this rule prescribed that no fee to any legal practitioner should be included in any decree or order unless the Judge was satisfied that the fee was paid at or before the commencement of the hearing of the suit. An explanation appended to the rule ran, 'By the word 'hearing' is meant the hearing referred to in Order XVIII, Rule 2(1)... but not the day to which such hearing is adjourned.' Order XVIII, Rule 2(1) provides that 'on the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove.' It seems to me clear that in this Rule of the Civil Procedure Code 'the day fixed for the hearing of the suit' does not mean or include the day on which issues are framed. It is true that elsewhere in the Code, as, for instance, in Order VIII, Rule 1 the first day of hearing is used to mean the first day on which the parties appear in Court, but having regard to the express reference made in the explanation to Rule 1 of Chapter 21 I take it that for the purpose of determining whether a certificate of payment of Pleader's fee has been filed in time, the first day of hearing is to be interpreted as the first day fixed for hearing after the framing of issues. This interpretation is supported by the recent amendment of the rule in question published in the U.P. Government Gazette on the 12th of April of this year. This amendment has altered the rule by allowing the payment of the fee to be made before the conclusion of the hearing of the suit, and has done away with the explanation. The certificate was filed within the time prescribed by the Rule and the appeal is accordingly dismissed with costs including in this Court fees on the higher scale.


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