Frederick William Gentle, C.J.
1. This is an appeal from Clarke, J., sitting on the Original Side of this Court regarding a question of costs. The relevant facts are as follows:
2. The plaintiff (appellant here) instituted a suit against the defendant - respondent, the Chartered Bank of India, Australia and China, claiming Rs. 15,000, the price of goods bargained and sold but which had not been delivered, and, in addition, Rs. 9,000, damages for non-delivery. Further claims amounting to Rs. 3,000 represented interest on the above amounts, making a total claim of a sum slightly exceeding Rs. 27,000. In respect of the claim for damages for non-delivery the amount sought to be recovered was Rs. 10,185, including interest.
3. During the preliminary matters relating to the suit and preparation for trial, three orders were made directing evidence to be taken on commission at Simla, Bombay and Calicut respectively. Two of these orders were obtained at the instance of the respondent and one of them at the plaintiff's instance.
4. At the trial the claim for damages for non-delivery was abandoned and, according to the judgment of the learned Judge, the orders for taking evidence on commission and the evidence which was taken related solely to the abandoned claim. At the trial the plaintiff pursued his claim for Rs. 15,000 in respect of the return of price paid for the goods and no reference was called for or made to the evidence which had been obtained on commission. The plaintiff was successful in regard to the claim which he pursued and a decree was passed for the amount sought to be recovered.
5. In his judgment the learned trial judge (Clarke, J.) directed that the plaintiff do recover his costs to be ascertained on the amount which he recovered ; the learned judge added, that the defendant should have costs on the claim for Rs. 10,185 and, further, that the plaintiff should pay the defendant's costs of the commissions to Simla, Bombay and Calicut, since he was satisfied that none of those commissions would have been necessary in the absence of the contest arising out of the claim for damages.
6. In stating the above facts reference has been made to the Chartered Bank alone as defendant. There was another defendant, but reference to him is unnecessary.
7. In pursuance of the order in the defendant's favour a bill of costs was delivered for taxation, including a sum of Rs. 3,821-2-0 relating to the costs of the three commissions to take evidence. The Taxing Officer allowed a sum of Rs. 328-11-0 being of the opinion that that was the maximum which the rules permitted and that he was entitled only to permit the defendant to recover one advocate's fee in respect of the three commissions. On appeal to the learned Judge the Taxing Officer's order was set aside. The learned Judge considered that the basis of ascertainment of the ad valorem advocate's fee should be not the sum of Rs. 10,185 the amount of the claim for damages for non-delivery, but the amount of the total claim in the suit, namely, Rs. 27,ooo and further that a separate advocate's fee should be allowed in respect of each commission. As the result, the learned Judge came to the conclusion that the advocate's fee in respect of each commission was a sum of Rs. 616-10-0 and awarded a total of Rs. 1,849-14-0. Against the learned Judge's decision the plaintiff has preferred this appeal and the question which requires decision is as to the meaning of the several High Court Fees Rules, to which reference will be made.
8. The amount of advocate's fee is ascertained by ad valorem calculation upon the amount claimed or the amount in respect of which costs have been awarded. In regard to the claim for Rs. 27,000, ad valorem advocate's fee is Rs. 1,233-4-0. In regard to the claim for Rs. 10,185,it is Rs. 657-6-0.
9. The relevant rules, to which reference is necessary, are the following:
Order 5, Rule 3:-In cases which are referred to the Official Referee or to a Commissioner for the purpose of taking accounts or for other enquiry, the Taxing Officer may (if the Court award the costs of the reference) taking into account the diligence of the party and the value of the work done before the Official Referee, or Commissioner, allow to the practitioner so appearing a further fee in addition to the ad valorem fee but not exceeding 50 per centum thereof.
Rule 7.-Unless the Court otherwise orders...the amount or value of the claim...means the value as set forth in the plaint
Rule 15:-In cases of special difficulty or importance or where the amount of work involved is unusually great, the Court may, on the application of a party, direct that a higher fee than would ordinarily be admissible under these rules be allowed to a party.
Rule 17.-The fee allowed on the percentage scale for prosecuting or defending a suit on the original side of the High Court or an appeal therefrom is intended to cover all proceedings up to final decree ; but it shall not be deemed to include the fixed costs of interlocutory application the costs of which have been ordered to be costs in the cause.
Mr. Radhakrishnayya, learned counsel for the appellant, referred to Rule 27 and pointed out that, in the absence of any special order, an advocate is entitled only to the relevant ad valorem fee in respect of a suit irrespective of its length, difficulty or any other matters of complication, other than costs of interlocutory applications which costs have been ordered to be costs in the cause.
10. Although the wording of Rule 3 does not specifically mention that it relates to commissions to take evidence, nevetheless it was stated that this is the rule which has always been applied when questions arise regarding payment of ad valorem fee to an advocate regarding his work and attendance before a commissioner ordered to take evidence. Mr. Radhakrishnayya argued that no matter how many commissions may be ordered, nevertheless under Rule 3 only one fee can be allowed to the party in whose favour an order for costs is made. He went on to contend that if any additional fee is sought and it can be directed to be paid, it can only be paid if an order is made under Rule 25-some order on account of special difficulty or importance or greatness of work involved ; and no such order has been made in the present suit.
11. Learned counsel for the respondent, on the other hand, placed particular emphasis on the words 'so appearing' in Rule 3. He argued that those words make it clear that the Court can allow a fee to an advocate in each case in respect of each commission and that those words signify that a practitioner appearing in one of several commissions is entitled to a fee for himself irrespective of any other commission ordered and of those who appear in the other commissions each becomes entitled to a fee. It seems to me that that argument is correct. In order to test what is the meaning of the rule, its aspect can be considered in this way. The rule allows a fee to the practitioner so appearing. Surely it cannot mean that if the same practitioner appears in three commissions, in a suit, he is entitled only to one fee, whereas if a different advocate appears each would be entitled to a fee. To my mind, if we approach it in that way, the real meaning of Rule 3, which is not perhaps too happily worded, is made clear. In my opinion it follows that, no matter how many commissions may be ordered in a suit, when an order for costs is made, such as was made in the suit out of which the present proceedings arise, the order occasions an ad valorem fee of a practitioner in respect of each commission. The rule goes on to provide that the amount of the fee shall not exceed 50 per cent. of the ad valorem fee allowed to the advocate in the suit. It does not direct that in every case the fee shall be as much as 50 percent but that that percentage is the maximum. It will be for the Taxing Officer to fix the percentage to be allowed in each case. If the work is very light and does not involve much time, or considerable preparation, it may well be that for less than 50 per cent. should be allowed by the Taxing Officer. That provision, to my mind, prevents any injustice being done or any improper use of the rule being made.
12. The next question is as to the amount upon which the ad valorem fee should be calculated. Learned Counsel on behalf of the respondent contended that the learned Judge meant to give full indemnity to the defendant in respect of the expenses to which the defendant had been put by the commissions for evidence being occasioned, and, he argued, the direction for the plaintiff to pay the defendant's costs occasioned by the commissions was an order under Rule 7 and separate and apart from the direction that the defendant should recover from the plaintiff the costs upon the amount of the abandoned claim, namely the sum of Rs. 10,185 but that the costs in respect of the commissions should be ascertained by ad valorem calculation on the amount claimed in the suit, namely, Rs. 27,000. I am unable to agree with that argument. In the first instance there was an order for the plaintiff's costs since he was successful in the suit in respect of the claim for Rs. 15,000. Then came the order in the defendant's favour for costs expressed to be on the claim for Rs. 10,185. The judgment then proceeds to say that the plaintiff should pay the defendant's costs of the commission, the learned Judge being satisfied that none of these commissions would have been necessary in the absence of the contest in regard to the abandoned claim. In my view, the special order in respect of the commissioner's costs was part and parcel of the order for costs in the defendant's favour which was to be ascertained upon the basis of Rs. 10,185. It is in respect only of that claim, as stated by the learned Judge that the commissions were directed. It was not in respect of the other part of the claim which brought the total amount to Rs. 27,000. In the judgment against which this appeal has been preferred, the learned Judge says that, in ordering the plaintiff to pay the defendant's costs of the commissions, his intention was that the defendant should be as nearly as possible reimbursed in full for the expenditure unnecessarily incurred. I can quite understand and appreciate the learned Judge's intention, but it can only be carried out so far as the rules permit.
13. In the light of the conclusion which I have expressed it must follow that the amount of costs which the learned Judge directed to be paid by the plaintiff is too much. The learned Judge expressed the opinion that the fee should be ascertained upon the basis of Rs. 27,000. There in my view, he was incorrect. It should be ascertained on the basis of the claim for Rs. 10,185. In that respect as stated above the full ad valorem fee on that amount is the sum of Rs. 657-6-0 and half of it is Rs. 328-11-0. That is the amount which the Taxing Officer allowed. But the Taxing officer was wrong, and the learned Judge was correct in directing that there should be three fees of that amount, one in respect of each commission. That being so, Rs. 985-1-0 is the amount which is recoverable by the defendant from the plaintiff as costs which were directed to be paid.
14. As regards the costs of this appeal the appellant has partly succeeded and partly failed. Similar observation applies to the respondent. In these circumstances it seems to me that the proper order is that each party do bear his or their own costs.
15. I agree.