1. This is an application for review of an order of the Taxing Officer in respect of two sums which have been disallowed in taxing a bill of costs of the defendant. The first sum of Rs. 895 was claimed as fee for an advocate instructed to examine or take part in the examination of certain witnesses on commission at Calcutta. The learned Taxing Officer took the view that such a fee was not provided for in the rules and could not be allowed, in effect saying that according to the rules an advocate who was employed in a case only receives one brief fee in spite of the fact that he might, as in this case, have to go elsewhere to take part in the examination of witnesses on commission or to perform any other duty in connection with the case on the special instructions of his client. Mr. Gopalaratnam has acted as an amicus curiae and has pointed out very clearly and concisely that on a reading of the rules, not only of those to which the Taxing Officer's attention was drawn, such a contention cannot be upheld. The Taxing Officer's attention was invited to Rule 3 of the new Order 5 of the High Court Fees Rules and also to Rule 17, and he held that as Rule 3 specifically refers to cases which are referred to the Official Referee or to a Commissioner for the purpose of taking accounts or other enquiry, it did not cover the taking of evidence on commission. However, if one looks at Order 23 of the Original Side Rules which provides for reference to Commissioners or Arbitrators, it will be seen that the costs of reference to a Commissioner form part of the general costs of the cause, that is to say, the costs which the one or the other party will have to pay. And further, Rule 26 provides that the rules relating to a reference to a Commissioner to take accounts shall apply mutatis mutandis, to a reference to a Commissioner to examine witnesses or for any other purpose. In my view, that shows that Order 5, Rule 3 of the Fees Rules is not limited in the way in which the Taxing Officer says. If further support were required for this view, it : will be found in Order 4, Rule 14 which provides for the costs of an agent being paid, where a practitioner employs an agent to act beyond the local limits of the jurisdiction of the Court. If the agent may be paid a fee, a fortiori, the principal must receive one if the principal acts himself. For these reasons, I think that where an advocate is employed to attend the examination of a witness on commission, he must be allowed whatever his proper fee is for that work separately from, and in addition to, whatever fee he may get for appearing in Court at the hearing of the case.
2. The second item related to a sum of Rs. 286-11-0 which was an excess in the ad valorem fee claimed in the bill. The action or the suit was valued at Rs. 46,000. The advocate's fee on that amount was allowed. Had the suit been successful, mesne profits for three years would also have been recovered, but the work in connection with this case and the mesne profits had to be done by the advocates, no matter what the result of the case was and I can see no reason why they should not be paid their fees. Advocates do not or are not expected to work on the basis of results. Order 4, Rule 20 of the Fees Rules provides for an extra fee being allowed in respect of any matter not provided by these rules. If the rules do not provide for it, as the Taxing Officer seems to think, then under Order 4, Rule 20, I think this extra amount should be allowed as representing work which was undoubtedly performed by the advocates and for which therefore they should be properly remunerated.
3. The application for review will be allowed, and I may add the thanks of this Court to Mr. Gopalaratnam. Costs of this application will be added to taxation.