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Haji Jamal Noor Mahomed Sait Vs. A. Anandaraya Mudaliar and Company - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1935Mad791; 158Ind.Cas.546; (1935)69MLJ483
AppellantHaji Jamal Noor Mahomed Sait
RespondentA. Anandaraya Mudaliar and Company
Excerpt:
- - the learned master, before whom the application to excuse the delay originally came, declined to do so and seems to me to have given the very best reasons for his refusal. and the sooner it is understood the better. there may be cases where a deception practised upon a client by his advocate would be a good reason for excusing delay in bringing in the bill of costs......side made in chambers excusing the delay in lodging the bill of costs in court and getting the costs taxed. the respondents are the assignees of a decree passed in a counter-claim. they got the assignment by deed on 4th august, 1926. on 6th august, 1926 they gave a vakalath to mr. p. thiruvengadaswami mudaliar and on 6th august, 1926 that gentleman put in an application for search of the records stating that he was entitled to the benefit of the decree. on 23rd july, 1927 an application for execution of the decree on the counter-claim was made by the respondents and in the costs column it was settled that the costs were not yet taxed and the right to recover them was reserved until later. it should be noticed that by that time specified in the rules for presenting a bill of costs,.....
Judgment:

1. This is an appeal from an order of the learned Judge sitting on the Original Side made in chambers excusing the delay in lodging the bill of costs in Court and getting the costs taxed. The respondents are the assignees of a decree passed in a counter-claim. They got the assignment by deed on 4th August, 1926. On 6th August, 1926 they gave a vakalath to Mr. P. Thiruvengadaswami Mudaliar and on 6th August, 1926 that Gentleman put in an application for search of the records stating that he was entitled to the benefit of the decree. On 23rd July, 1927 an application for execution of the decree on the counter-claim was made by the respondents and in the costs column it was settled that the costs were not yet taxed and the right to recover them was reserved until later. It should be noticed that by that time specified in the rules for presenting a bill of costs, namely, 3 months had already expired, that is to say, taking it from the date of the original side decree. There was an appeal filed, however, and on 2nd March, 1928, the respondents (assignees) were made party-respondents to the appeal. On 1st May, 1928 the appeal was dismissed with costs. On 2nd May, 1928, the respondents put in an application for payment out of them of the money under the decree in the counter-claim. There was an appeal against the recognition of the assignment and that was disposed of by the end of 1928. On 8th January, 1934, an application was made by the respondents for change of vakalath and in the affidavit filed in support of the application the allegation was made against Mr. P. Thiruvenkatasami Mudaliar but he had not got the costs taxed. The change of vakalath was ordered on 12th January, 1934, and even then there was sonle delay because it was not until 30th January, 1934, that a search was applied for. After that again there is a remarkable delay because it was not until 11th May, 1934, the date upon which the Court closed for the summer recess, that the application, the subject of this appeal, was filed and was made returnable on 24th July, 1934, the date of the re-opening. The learned Master, before whom the application to excuse the delay originally came, declined to do so and seems to me to have given the very best reasons for his refusal. There was an appeal then to the Original Side Judge in Chambers and, as before stated, he excused the delay seeing no reason to disbelieve the explanation put forward by the respondents in their affidavit in support of the application to excuse the delay. He, therefore, excused the delay. The position is that the bill of costs under the rules ought to have been lodged, within three months from the date of the appellate decree dismissing the appeal. That was on 1st May, 1928. Six years have elapsed since that time. Consequently the application is to excuse a delay of not less than six years. The explanation given by the respondents in their affidavit is that they were being put off from time to time by their Advocate who led them to believe that the costs were being taxed. This was more particularly so apparently in 1933 when they were actually led, according to the affidavit, to believe that the costs had been taxed. It is to be inferred, although it is not definitely stated in the affidavit and no dates are given, that from the date of the passing of the appellate decree instructions had been given to Mr. Tiruvengadasami Mudaliar to get the costs taxed and it was believed be the respondents that he was doing so.

2. This explanation has been believed by the learned Judge on the original side. Assuming all these statements to be correct, it is in my opinion, clear that the respondents themselves were grossly negligent in their conduct of the matter. I cannot understand any body, who has got a decree for costs in his favour and who has given his Advocate instructions to get the costs taxed, being content month after month and year after year for six years with the bare statement that the costs were being taxed. It must have been obvious to the respondents that there was an unaccountable delay and the obvious course which the respondents should have taken was either to have insisted on the Advocate at once getting the costs taxed or to have withdrawn his vakalath. This should have been done in as early as 1929 and certainly 1930. It may be that the respondents were put off by the answers given to them by their Advocate but they were largely responsible for this dreadful delay by allowing the matter to remain in the hands of an Advocate who was so negligent of his duty that he produced nothing to satisfy his clients that he was proceeding with the matter with due diligence. It is quite obvious that he could not have been proceeding with the matter with due diligence. The trouble has been largely brought upon the respondents by their own want of diligence and care. This was a disgraceful delay of six years. The late Master of the High Court Mr. P. Kandaswami, in dealing with an application to excuse a delay of seventeen months in filing the bill of costs after the decree for sale had been passed rightly declined to excuse the delay and learned Original Side Judge on appeal upheld that order. Kandaswami said. The Master correctly stating:

I see no reason to excuse the delay. Parties have been frequently warned during the last three years at any rate and it is now settled practice that bill of costs should be filed in time.

3. It is quite obvious that that is the settled practice; and the sooner it is understood the better. I regret to say that I am quite unable to agree with the learned Judge on the Original Side and, in my opinion, this appeal should be allowed and the order excusing the delay set aside. The appeal is allowed with costs.

Cornish, J.

4. I am of the same opinion. I think that the rule fixing three months' time for carrying in a bill of costs for taxation is a rule of practice which ought to be enforced. It is eminently desirable that costs should be taxed promptly. To excuse a departure from the rule in such circumstances as appear in the present case would be to put a premium on gross negligence and delay. There may be cases where a deception practised upon a client by his Advocate would be a good reason for excusing delay in bringing in the bill of costs. But there must be some limit to the extent of a client's credulity. To allow this as an excuse where a client, as is the allegation here, has been content to sit down for six years wider his lawyer's deception would, in my judgment, be an altogether unreasonable indulgence.


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