1. This appeal relates to the costs which the Subordinate Judge refused to allow to the defendant when dismissing the plaintiff's suit. So far as regards the vakil's fee, the appeal must, I think, be allowed, for the defendant's vakil is at least entitled to the sum for which he has certified, that sum not exceeding a moiety of the full ad valorem fee. With regard to the other costs incurred in connection with witnesses summoned by the defendant, there is more room for doubt. It is said that, as issues had been settled on all the questions of law and fact supposed to arise on the pleadings, the defendant was hound to have his witnesses ready, and that, if anybody was to blame, it was not the defendant's vakil but the Judge, who ought to have discovered that on the face of the plaint the suit as framed would not lie. This contention appears to me wholly unreasonable. The costs which a defeated plaintiff should be required to pay should be only the costs necessarily incurred by the successful party in the defence of the suit. Costs cannot be decmed necessary if by reasonable diligence on the part of the defendant or his pleader the expenditure of them could have been avoided.
2. In the present case it was open to the defendant's pleader to have the plaint rejected under the provisions of Sections 53 and 54 of the Civil Procedure Code. That is the course which he ought to have adopted. Instead of doing this, he filed a written statement raising a variety of defences but not raising the very point which has ultimately caused the shipwreck of the suit; and when the time came for settling the issues, he again let slip the opportunity of pressing the matter on the attention of the Court. It is said that it is the business of the Judge to peruse the plaint and to frame the requisite issues. That is perfectly true, but it does not follow that the vakils on either side have no duty to perform. It is, I apprehend, the clear duty of a party's vakil to bring to the Judge's notice any allegation on which he relies and to ask for the requisite issue. If he overlooks the allegation and does not ask for the issue, and costs are occasioned by the omission, it is his client and not the other party who ought to be saddled with them. In the present case it may be said that at the outset the fault lay with the plaintiffs; they launched a suit which, on the face. of the plaint could not be maintained, X do not think we ought to assume that they acted in bad faith any more than we should assume that anything worse than negligence was imputable to the defendant's vakil. Let it be assumed that on both sides there was a lack of skill and due care. The defendant is entitled to the costs so far as they were occasioned by the plaintiffs' fault, but, as he is not by reason of that fault absolved from the duty of himself taking due care, he ought to bear the loss which by dint of such care he might have avoided. To bold otherwise would be to make the plaintiffs answerable for the mistake of their adversary's vakil.
3. For these reasons I would decline to interfere with the Judge's ruling as to the costs of witnesses, and dismiss the appeal.
Muttusami Ayyar, J.
4. I am also of the same opinion.
5. As regards the vakil's fee, the amount certified should have been allowed It is less than the ad valorem fee, and the sum awarded by the Court below, viz., Rs. 25, is certainly inadequate. I would award the fee certified as received.
6. I doubted if the Subordinate Judge was not also in error in refusing defendant's costs incurred by taking out summons for his witnesses. It is true that it was necessary to take out these summonses when regard is had to the ground upon which the suit was ultimately decided. But the objection to the suit which eventually prevailed was not noticed either by the defendant's vakil or by the Subordinate Judge when issues were framed. Though the vakil was certainly negligent in not pressing the preliminary objection at the first hearing and in not insisting upon its prior determination, yet as the Subordinate Judge also overlooked the defect and as the issues framed by him constituted the proximate cause for defendant's taking out summons for witnesses with reference to those issues, I first doubted whether the party concerned should be mulcted in costs which he incurred band fide to be ready to prove the recorded issues. As the defendant's vakil contributed to the error on the part of the Subordinate Judge, I think on further consideration that I cannot say that the ground upon which the Subordinate Judge exercised his discretion in refusing costs was illegal. On taking time to consider the matter, I do not think that the Subordinate Judge's order on this point should be disturbed, as the Code leaves the adjudication of costs to the discretion of the Subordinate Judge.
7. I concur in the decision proposed by my learned colleague.