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Hirendra Kumar Mitter Vs. Sudhangshu Shekhar Paul - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberAppeal No. 207 of 1972, Suit No. 69 of 1963
Judge
Reported inAIR1977Cal149,80CWN1015
ActsCalcutta High Court Rules - Rule 72
AppellantHirendra Kumar Mitter
RespondentSudhangshu Shekhar Paul
DispositionAppeal allowed
Cases ReferredHanumatmull Boid v. Federation Bank of India
Excerpt:
- .....though not expressly made, is clear and his order of costs is final and binding on the assistant taxingofficer, thus, datta j. and the assistant taxing officer had no jurisdiction to make an order contrary to the order made by sen j. it is well settled that when an order is made without jurisdiction appeal would always lie against such order. it is also contended that the present dispute is not between the original parties, and as such it cannot be a 'judgment' under clause 15 of letters patent. but, in my view, the meaning of the word 'parties' in clause 15 of the letters patent is not restricted to the original parties. to decide the question whether an order under appeal is a 'judgment' it is enough if the court is satisfied that the order under appeal involves a final determination.....
Judgment:

Masud, J.

1. We delivered a judgment in this appeal on January 6, 1976 allowing the appeal, after hearing the Counsel for the appellant. On that day nobody appeared on behalf of the respondent. Thereafter, the matter was mentioned by the Counsel for the respondent and the said judgment and order were recalled. The facts of the case may, briefly, be stated as follows:

2. Suit No. 69 of 1963 was filed in this Court by Himangshu Sekhar Paul against Kishori Lal Paul and others. A consent decree was passed on August 21, 1964, whereby, inter alia, a special Referee was appointed to go into the accounts between the parties. On April 1, 1966, the Special Referee allowed the plaintiff to file additional statement of facts on his oral application. On May 9, 1966 a Notice of Motion was taken by M/s. J. N. Mitter and Co., on behalf of one of the defendants to set aside the above order of the Special Referee. On August 8, 1966, A. N. Sen J. set aside the order of the Special Referee and directed a formal application to be made before the Special Referee for the purpose of filing additional statement of facts. On April 26, 1969, a bill of costs in respect of this Notice of Motion dated May 9, 1966 was taxed. The Assistant Taxing Officer allowed the costs as those of the Notice of Motion as of a Chamber application. On April 29, 1969, an exception was taken before the Registrar of this Court against the said order of the Assistant Taxing Officer. On August 12, 1970, the said exception was allowed by the Registrar who held that the costs should have been allowed as those of a Notice of Motion. On September 7, 1970, a Master's Summons was taken out before R. M. Datta J. who after hearing the parties confirmed the order of the Assistant Taxing Officer. Thereafter, this appeal has been filed against the said order of R. M. Datta J.

3. Mr. Sen, Counsel for the respondent, has raised a preliminary point that this appeal is not maintainable under the Rules of this Hon'ble Court. Relying upon Kaluram Marwari v. Matilal AIR 1933 Cal 715, he has argued that there is no scope for an appeal against the order of R. M. Datta J. The learned Judge has passed the order under Chapter XXXVI Rule 72 of the Original Side Rules. Under the said Rules, according to him, a Judge can only review the taxation made by the Registrar and once the learned Judge passed the order under the said Rule, his decision is final. The Rules forming a self-contained Code, there is nothing in the Rules which would enable the party to prefer an appeal against such order of the learned Judge. He has also substantiated his argument by referring to Chapter VI Rule 15 and Chapter XXXVI Rules 70, 71 and 72 where the words 'appeal' and 'review' have been used. He has also argued that in any event the appeal is not maintainable under Clause 15 of the Letters Patent inasmuch as the said Clause provides for an appeal against a final order deciding the issues between the parties. In this matter the dispute is between the Solicitor and his client and not between the original parties in the suit

4. In our view, there is no substance in the demurrer. Under Chapter XXXVI Rule 116, the Taxing Officer includes any Assistant Registrar in the Taxing Office save and except where the words 'Taxing Officer' have been mentioned in certain Rules of this Court which include Rules 70, 71 and 72 in the said Chapter. In the present case, the Assistant Registrar who happens to be the Assistant Taxing Officer has decided that the costs of the application before Sen J. should be taxed as those of a Chamber application. Against the said order the Registrar as a Taxing Officer reviewed the order of the Assistant Taxing Officer under Chapter XXXVI Rules 70 and 71, The Registrar set aside the order of the Assistant Taxing Officer and held that the cost of the application should be as those of a Notice of Motion, The respondent thereafter made an application under Rule 72 of the same Chapter before the learned Judge who reviewed the order of the Registrar and set aside the order of the Registrar. But Chapter XXXVI Rule 72 doesnot provide that no appeal would lie against an order passed under Rule 72 or that the order made on an application under Rule 72 would be final or conclusive. The relevant provisions of the said Rules are as follows:

'Any party, who may be dissatisfied with the decision of the Taxing Officer as to any item ............ may ......... applyto a Judge in Chambers for an order to review the taxation as to the same item......and the Judge may thereupon make such order as to him may seem just; but the taxation of the Taxing Officer shall be final and inclusive of all matters which shall not have been subjected to in manner aforesaid'.

It is clear from this Rule that the Judge may confirm or modify or set aside the order of the Taxing Officer under this Rule but it does not say that the order of the said Judge is final. This Rule only provides that there is a finality of the taxation of the Taxing Officer in respect of those items in the bill of costs which have not been objected to by any of the parties. In the instant case, there was a dispute between the appellant and the respondents as to the costs in respect of the said application before Sen I from the initial stage.

5. Nor can it be said that the order under appeal is not a 'judgment' under Clause 15 of the Letters Patent, From the order of Sen J. it is clear that the learned Judge has directed that the parties would bear their own respective costs and the said order was made, admittedly, upon a Notice of Motion taken out by a defendant other than the appellant Nobody raised any objection that the said application should have been made on a Master's Summons. All the parties proceeded on the basis that an application for setting aside an order of the Taxing Officer could be made by a Notice of Motion. In fact, the formal order, as drawn up, expressly mentions the fact that the learned Judge passed his order upon a Notice of Motion. Not only the parties treated the said application as one which could be made on a Notice of Motion, the learned Judge decided that the parties would bear their respective costs as those of an application made by a Notice of Motion. The said order of Sen J. has not been challenged either. Under these circumstances, the learned fudge having made a decision that the costs of this application should be treated as those of an application by a Notice of Motion, the Assistant Taxing Officer had no jurisdiction to take a contrary view. The decision of Sen J. on the nature of application, though not expressly made, is clear and his order of costs is final and binding on the Assistant TaxingOfficer, Thus, Datta J. and the Assistant Taxing Officer had no jurisdiction to make an order contrary to the order made by Sen J. It is well settled that when an order is made without jurisdiction appeal would always lie against such order. It is also contended that the present dispute is not between the original parties, and as such it cannot be a 'judgment' under Clause 15 of Letters Patent. But, in my view, the meaning of the word 'Parties' in Clause 15 of the Letters Patent is not restricted to the Original Parties. To decide the question whether an order under appeal is a 'Judgment' it is enough if the Court is satisfied that the order under appeal involves a final determination of a lis between two parties, As stated above, by order of Datta J. it has been finally decided that the appellant is to pay costs as those of a chamber application. The result is that the appellant solicitor and not the respondent will have to pay fees personally to the Counsel briefed in application before Sen J. The dispute here is between attorney and client, who are the parties before Datta J. This contention of Mr. Sen, therefore, also fails.

6. Mr. Sen has next argued that the application before Sen J. under Rules of this Court could not be made under a Notice of Motion and as the learned Judge has not specifically decided that point the Assistant Taxing Officer has correctly exercised his jurisdiction under the Rules, In our view, this contention also cannot be accepted. Chapter VI Rule 11 expressly mentions matters which can be disposed of in Chambers by a Judge. Item No. 18 of the said Rule reads as follows:

'Such other matters as are not expressly required to be disposed of in Court and which the Judge thinks fit to be heard in Chambers, and such other applications as are directed to be made in Chambers'.

This item makes it clear that any matter other than matters mentioned in Items Nos. 1 to 17 may also be disposed of in Chambers, if the Judge thinks fit to be heard in Chambers. In the present case, no learned Judge has directed or thought fit that the said application before Sen J. should be heard in Chambers. Reliance may be placed upon Gobinda Das Bhatter v. Pran Kumar Das (1959) 63 Cal WN 877, 882. In Appendix Z to the Rules a long list of matters or applications other than those in Chapters VI and XI have been set out which could be dealt with or made in Chambers. The appellant in his application before Sen if, has asked for the following prayers:

'(e) The orders by Special Referee for filing an additional or amended state of facts by oral application on behalf of the plaintiffs may be set aside.

(f) In the alternative, Special Referee do file a special report as to why the plaintiff is allowed to file the additional state of facts in the manner sought to be done and at this stage'.

Prayer (e) cannot be said to be one of the matters which is included in either Chapter VI Rule 11 or in Appendix Z and therefore the application before Sen J. could only be taken by a Notice of Motion under Chapter XX Rule 3, relevant portions of which read as follows:

'Except where otherwise provided by Statute or prescribed by these Rules all applications, which in accordance with these Rules cannot be made in Chambers, shall be made on Motion after notice to the parties affected thereby ..........'

7. Mr. Sen has drawn our attention to paragraph 21 of the petition before Sen J. which reads as follows:

'The Special Referee was requested by the Counsel on behalf of the defendants to make a special report before allowing the plaintiff to alter or amend the state of facts by filing an additional state of facts on oral application but the special Referee declined to make a special report.'

As the Special Referee declined to make a special report, Mr. Sen has argued that under Chapter XXVI Rule 51 the said prayer (f) can only be granted in an application under Master's Summons as set out in the Rules. But Mr. Sen has overlooked the fact that Sen J. has passed the order in terms of prayer (e). Prayer (f) has been sought for as an alternative relief. Even assuming that the Special Referee has refused to make a Special Report the learned Judge has exercised his power to treat a Chamber matter as a matter to be decided by Judge in Court under Chapter VI Rule 10 of the Rules. In the instant case, the parties admittedly, by their conduct, represented to the Court that the application should be heard by a Notice of Motion. Even assuming that the said application may be treated as an application to be moved before a Judge in Chambers, Sen J. has finally adjudicated that the matter should be disposed of in Court. If the Parties were of opinion that the application should be treated as an application before a Judge in Chambers, Counsel could have asked for a Certificate that the application wasa fit and a proper one where Counsel should have been briefed. In conclusion, I would like to state that I have read the judgment of my learned brother and respectfully agree with the same.

8. Lastly, Mr. Sen has urged that the application before Sen. J. was made in a proceeding under a decree or order and, as such, the said application should be treated as a Chamber application under Ch. VI R- 13. It is not necessary for me to decide the question whether the application could have been made in chambers under the said Rule, inasmuch as the learned Judge for reasons stated above disposed of the said application as an application under notice of motion and not as a chamber application.

9. I, therefore, hold that the appeal is allowed and the order of the learned Judge is set aside. The respondent shall pay costs of the appeal and the Court below to the appellant. It is certified that the application before R. M. Datta J. is a fit case for engaging a Counsel.

S. K. Mukherjee, J.

10. Iagree that the order should be as proposed by my Lord. I also agree that the order dated January 6, 1976 by which the learned Judge set aside the order of the Registrar and restored the order of the Taxing Officer on an application made under Rule 72 of the Chapter XXXVI of the Original Side Rules, is appealable under Clause 15 of the Letters Patent. The order is a 'Judgment' because it finally determines an independent proceeding for taxing the attorney's bill of costs to which the attorney and his client are parties. Clause 15 provides that an appeal shall lie from an order of a single Judge of the High Court, not being a judgment passed in the exercise of appellate jurisdiction by a Court subject to the superintendence of the High Court and not being an order made in the exercise of revisional jurisdiction. In the present case, the order was made on an application for review under Chapter XXXVI Rule 72, and not in exercise of revisional jurisdiction. Moreover, the order of the Registrar which was reversed by the learned Judge is not an order made by a Court subject to the Superintendence of the High Court.

11. It was contended that an order made on an application under Rule 72 is final and conclusive. The Rule does not say so. It merely says that the decision of the Taxing Officer as to any item or part of any item which has not been objected to by any party before him, shall be final and conclusive. Inthis context reference may be made to Rule 63 of Order XXI of the Code of Civil Procedure which lays down that where an objection is preferred under Order 21 Rule 58 the party against whom an order is made may institute a suit to establish the right which he claims to the property in dispute but subject to the result of such suit, if any, the order shall be conclusive. It has been held that the language of Rule 63 bars an appeal. The provisions of Rule 72 of Chapter XXXVI have nothing in common with Rule 63 of Order XXI of the Code in language.

12. The other argument, namely, that the order is in the nature of one made under Order XLVII of the Code of Civil Procedure is equally of no substance. The legal situation spoken of in Order XLVII is a far cry from the situation which Rule 72 of Chapter XXVI envisages. The procedure prescribed for review in Order XLVII is also radically different from the procedure enjoined in Rule 72.

13. The Assistant Taxing Officer, as also the learned Judge have relied on a rule of practice, which we were told, is being followed by the Taxing Office since 1917 pursuant to the directions of Chitty and Chaudhury JJ. The practice/direction is said to be as follows:

'Note by the Regr. (Mr. Hechle as Taxing Officer on 14-5-1917) I suggest that the profession should be informed that in future if applications which can be made in Chambers are made in Court the Taxing Office will in the absence of a certificate, tax the costs of the application as of a Chamber application.

'I see no particular objection to the Registrar in writing to the Incorporated Law Society to remind them of what are properly Chamber matters but I think the attorneys ought to learn the Rules for themselves. I do not allow them to evade responsibility or to plead ignorance of the Rules with regard to paragraph 2 of the note (I felt that I must take it that the Court considered that the application in question was proper for disposal in court) I think that counsel should not be allowed on taxation unless there has been a special certificate to that effect. This should apply to matters which have by inadvertence been dealt with in Court though they were really Chamber matters. It is the duty of, the Counsel and Attorneys to see that the application is made in the proper place.'

C.W. Chitty,

16-5-17'

Chaudhury J.

'I do not think it is any use to write to the incorporated Law Society. Chamber application, if made in Court, should be taxed as Chamber application unless otherwise directed by the Court. The mere fact that they are disposed of in Court sometimes, does not affect the question of taxation. I do not usually certify for Counsel in Chamber Applications.

A. Chaudhury

17-5-17'

'The Taxing Office will please

note and act accordingly.

J.H. Hechle

22-5-17'.

14. We asked for production of the original notes but were told that they were not available. The notes are capable of meaning that an application by chamber summons, if made in Court, should be taxed as chamber application. There is no unequivocal direction given by either of the learned Judges, and certainly not by Chaudhury J., that in the absence of any specific direction by Court, the costs of a motion should be taxed as of a chamber application, if the Taxing Officer is of opinion that the application should have been made not by a notice of motion but by a chamber summons. The application was made before A. N. Sen, J. by a notice of motion. No objection was raised from any quarters either before or during the hearing. The learned Judge, by his order dated 8th August, 1966, directed that each party do bear and pay its own costs, of and incidental to the application to be, if necessary, taxed by the Taxing Officer. The order recites that the application was made by a Notice of Motion. Assuming that the application should have been properly made by chamber summons, the application must be deemed to have been treated as a motion by Sen J. In that context, we must hold that Sen J. by necessary intendment, directed that the bill of costs should be taxed as of a motion. No appeal was preferred from the order. With utmost respect, we are unable to subscribe to the proposition that the Assistant Taxing Officer, the Registrar or for that matter the learned Judge who heard the application for review under Order, Rule 72 of Ch. XXXVI of the Original Side Rules had any power or jurisdiction to direct taxation of the bill of costs in derogation of the order of Sen, J. No Rule of practice, if any such Rule exists, can invest a Taxing Officer with jurisdiction to revise by implication an order of a learned Judge of this Court.

15. An order of G. K. Mitter J. made in Hanumatmull Boid v. Federation Bank of India in Suit No. 2020 of 1947 was relied upon in support of the order of the Assistant Taxing Master. We closely looked into the judgment and order of G. K. Mitter J. and found, as did counsel on either side, that the judgment and order have no relevance to the facts of this case.

16. In these circumstances, the appeal succeeds. In future, Taxing Officers are directed to tax bills of costs according to the tenor of the Court's order. It is not for them to decide whether an application which is made by a notice of motion should have been made by chamber summons and vice versa. Their clear duty is to implement the Court's order and nothing more.


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