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Nemai Chandra Dey Vs. Brojendra Nath Mitter and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1935Cal723,159Ind.Cas.376
AppellantNemai Chandra Dey
RespondentBrojendra Nath Mitter and ors.
Cases ReferredSpalding v. Gamage Ltd.
Excerpt:
- .....was eventually settled by a consent decree. items 41 to 44 have been disallowed by the learned taxing officer on the ground that this was a chamber application that no order was drawn up, and that there is no certificate of counsel appearing in the entry of the bill. on behalf of the applicant it is contended that although the order was not drawn up, it is clear, both from the endorsement on counsel's briefs and also from the court minutes, that the application was made and that the learned judge certified for counsel, and that the learned taxing officer is labouring under a mistake of fact in not allowing these items. the endorsement of counsel, mr. das gupta, bears out the statement of counsel for the applicant and from the court minutes it appears thatthe time was extended by the.....
Judgment:

McNair, J.

1. This is an application by an attorney for review of taxation of his bill of costs, under Ch. 36, E. 72, Original Side Rules. The items objected to and which are now before me fall into two categories. In the first are items 41, 42, 43 and 44 in the exceptions. They refer to 'drawing observations, making a copy of brief, delivering the same and paying counsel's fees.' The suit in which these costs were incurred was for the construction of the will of Hiralal De and for a declaration that on the death of his widow the plaintiff Nemai Charan De as the sole reversionary heir became entitled to his residuary estate. Amongst the defendants were three ladies, Sm. Santimoyee Dassi, Sm. Sudhamoyee Dassi, and Sm. Narayan Dasi and at a subsequent date Bivash Chandra Mazumdar, a minor who was represented by his father and guardian ad litem. The suit was eventually settled by a consent decree. Items 41 to 44 have been disallowed by the learned Taxing Officer on the ground that this was a chamber application that no order was drawn up, and that there is no certificate of counsel appearing in the entry of the bill. On behalf of the applicant it is contended that although the order was not drawn up, it is clear, both from the endorsement on counsel's briefs and also from the Court minutes, that the application was made and that the learned Judge certified for counsel, and that the learned Taxing Officer is labouring under a mistake of fact in not allowing these items. The endorsement of counsel, Mr. Das Gupta, bears out the statement of counsel for the applicant and from the Court minutes it appears that

the time was extended by the Court, the applicant to pay the costs of the application, and of all parties appearing, and the matter was certified for counsel.

2. In the circumstances it seems to me that the learned Taxing Officer was labouring under a mistake, and that had the facts been clearly put before him he could have allowed these items. Counsel has addressed me at length with regard to the powers of the Court in reviewing questions which have been decided by the Taxing Officer. These matters have been dealt with in frequent decisions both in this country and in England, and the English practice is followed in this country in the absence of any particular rule. The Court is always averse from interfering with the discretion exercised by the learned Taxing Officer, and particularly the Court has said that it will not interfere where the only question raised is a question of quantum.

3. It has been suggested that the question here is a question of quantum. With that contention I am unable to agree. As I have already said the learned taxing officer has come to his decision, so it appears to me, because he was misinformed as to the actual order made by the Court. These items must be allowed. Item 56 has been disallowed on the ground that it is a third copy brief for which there is no justification. The defendant ladies to whom I have already referred had put in written statements in which they contended that they were in certain events the nearest heirs of the testator, and they claimed to be preferred to the plaintiff. In para. 5 of their written statement they contend that they are the nearest living relations of the deceased and being young and married capable of conferring spiritual benefit on the deceased by giving birth to male issue and on that ground, amongst others, they put forward the contention that they were the nearest reversionary heirs. Subsequently a boy Bivash was born and a written statement was put in on his behalf in which he claimed that he was the nearest living heir of the deceased. In opposing this application Mr. Roy contends that the ladies were really claiming on behalf of the boy Bivash. That contention cannot be upheld. In the paragraph of the written statement to which I have referred the ladies are claiming not on behalf of any child who might be born here after, but they are claiming for themselves, on their own behalf, on the ground that they might later give birth to male issue and that they are entitled to succeed because they are capable of conferring religious benefit on the deceased.

4. The infant defendant Bivash was claiming separately from the ladies and it was only right, particularly as he was a minor, that his point of view should be placed before the Court. Moreover, it is pointed out by counsel for the applicant that the decree which was passed and for which counsel was briefed was a consent decree and that it was necessary that the point of view of the infant should be placed before the Court so that the Court might be able to certify that any terms of settlement to which consent was given were for the benefit of the infant. Reference has been made to the case reported in Ager v. Blackloack & Co. (1887) 56 LT 890 which was decided by Kelewich, J. There the Taxing Officer refused to allow more than one set of costs in respect of counsel on the ground that the difference in the defences was not sufficiently material to justify appearance by separate counsel. Kelewich, J., while stating that if it were a matter purely of the Taxing Master's discretion he would not entertain the motion, held that it was not purely a question of his discretion but that the Judge was entitled to look into the pleadings and to see whether in fact there were different cases set up by the parties and if so whether there were such differences as to justify representation by separate counsel. That case was referred to and followed by Sargant, J., as he then was, in Spalding v. Gamage Ltd. (1914) 2 Ch 405. In that 'case there were two companies, Gamages and Benetfinks, Gamages having a controlling interest in Benetfinks. A similar contention was put forward that the interests of the two companies were identical and that the Master's discretion could not and should not be interfered with. The learned Judge again looked into the defences which had been put in at the trial and considered that the defendants were entitled to file separate defences. Those two cases are authorities for the proposition that the Judge is entitled in applications of this nature to consider and review the findings of the learned Taxing Master and having reviewed those findings I am of opinion that the attorney's contention put forward in this application should prevail. A further question arises as to the costs of and incidental to the exception proceedings before the Taxing Officer. It appears that on 1st March 1935 the Court minutes are as follows:

On the applicant paying Rs. 300 to the attorney, Mr. G.B. Chatterjee, by Friday, 8th March, to be held by the attorney subject to the further orders of this Court, time to file exceptions extended till 4 p.m. Thursday 14th March. Costs of this application reserved.

5. The Rs. 300 was duly paid and the time was extended. It is now claimed that the Rs. 300 should be refunded and that in view of the fact that the attorney who filed the exception was at any rate partly successful he should be entitled to his costs. Mr. Bose for the present applicant contends that the amounts disallowed were negligible. The ordinary rule is that costs follow the event and, having succeeded, Mr. Roy's client is, in my view, entitled to the return of the Rs. 300 and to those costs for which he asks. The applicant is entitled to his costs of this application.


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