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Radha Ballav Bose Vs. Nagendra Nath Mitter and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1944Cal364
AppellantRadha Ballav Bose
RespondentNagendra Nath Mitter and ors.
Cases ReferredLevetus v. Newton
Excerpt:
- orderdas, j.1. this is an application for review of taxation of the taxing officer in respect of the bill of costs of messers. r. c. basu & co., attorneys for the applicants. the bill was lodged for taxation underthe decree passed on 24th july 1941 on an originating summons which was marked as suit no. 706 of 1939 order s.2. the originating summons was concerned with the will dated 3rd august 1863 of raja sir radhakanta deb bahadur who died on 19th april 1867. the will was duly probated on 1st may 1867.3. by his will the raja appointed two persons as executors and trustees and gave directions to them to pay rs. 300 to each of his three sons separately with remainder to their respective children and descendants per stirpes. there were various other legacies which it is not necessary to.....
Judgment:
ORDER

Das, J.

1. This is an application for review of taxation of the Taxing Officer in respect of the Bill of Costs of Messers. R. C. Basu & Co., attorneys for the applicants. The bill was lodged for taxation underthe decree passed on 24th July 1941 on an originating summons which was marked as Suit No. 706 of 1939 Order S.

2. The originating summons was concerned with the will dated 3rd August 1863 of Raja Sir Radhakanta Deb Bahadur who died on 19th April 1867. The will was duly probated on 1st May 1867.

3. By his will the Raja appointed two persons as executors and trustees and gave directions to them to pay Rs. 300 to each of his three sons separately with remainder to their respective children and descendants per stirpes. There were various other legacies which it is not necessary to refer to for the purpose of this application.

4. Shortly after the death of the Raja his will became the subject-matter of litigation in this Court which went upto the Court on appeal. By the decree passed on 20th September 1869 in Appeal No. 1 of 1869 it was declared that the estate ot the Raja was by the will vested in the trustees therein named for the purposes of carrying into execution such of the trusts of the said will as were good and valid as in the said decree declared and that subject to the said valid trusts the estate upon the death of the Raja descended to his three sons and heirs at law. One of the trusts declared valid by the decree was that each of the three sons got an annuity of Rs. 300 for life with remainder to his children living at the time of the Raja's death.

5. There were various subsequent litigations the details of which are not relevant for the purpose of this application. Broadly speaking, the nett result of these litigations was that certain properties were set apart for the payment of the annuities, debseba and sradh expenses being the trusts declared valid and the rest were divided amongst the descendants. There was a provision that the trustee would spend the income of the properties so set apart in paying the annuities and meeting the debseba and sradh expenses and hold the surplus income for the benefit of the descendants of the Raja.

6. Some of the descendants of the Raja from time to time conveyed and transferred their respective right, title and interest in these properties belonging to the estate of the Raja subject to the valid trusts. It is necessary to refer only to two of these conveyances. One was executed by Kumar Girindra Narain Deb on 24th September 1919 and the other was executed by Radha Kristo Bose on 12th July 1921. Both these conveyances were executed in favour of Surendra Nath Paul and Jatindra Nath Paul. The present applicants are the successors-in-interest of these transferees and are hereafter collectively called the Pauls.

7. Kumar Girindra Narain Deb died in April 1923 after having made and published his last will. The defendant Nagendra Nath Palit was at the date when the originating summons was taken out the surviving executor of this will and was administering the Kumar's estate. Radha Kristo Bose died leaving his widow Sm. Malina Bala Dassi one of the defendants in the originating summons suit.

8. I have already said that by the decree passed on 20th September 1869 in Appeal No. 1 of 1869 it was declared that each of the three sons of the Raja got an annuity of Rs. 300 for life with remainder to his children living at the time of Raja's death. The second son of the Raja was named Rajendra Narain Deb. He died in January 1900. On his death the annuity of Rs. 300 was distributed amongst his descendants who were living at the time of the death of the Raja. On the death of each of these descendants, the amount payable to such deceased descendant was distributed amongst the other surviving descendants thus augmenting their share. Ultimately the whole of this annuity of Rs. 300 became payable to Sm. Sukhadaini Dassi as the sole surviving descendant of the second son of the Raja who was alive at Raja's death.

9. This lady died in January 1937 and thereupon question arose as to what was to happen to this annuity of Rs. 300. One Nagendra Nath Mitra who is one of the descendants of the first son of the Raja and who was one of the persons alive at the date of the death of the Raja claimed this annuity of Rs. 300. The other descendants contended that on the death of the lady this annuity lapsed and fell into the residue and was distributable amongst the descendants. The Pauls contended that on the death of the lady this annuity lapsed and became surplus income and they claimed the shares of Kumar Girindra Narain Deb and Radha Kristo Bose in this amount as such surplus income or as the undisposed of residue. The defendant Nagendra Nath Palit the executor of Kumar Girindra Narain Deb contended and in this he was supported by the defendant Malina Bala Dassi the widow of Radha Kristo Bose that on the lapse of the annuity by death of the lady a new resulting trust arose in favour of the descendants and that this new right had not been conveyed to the Pauls.

10. It was in these circumstances that Radha Ballav Bose who had previously transferred his interest to Sm. Susama Sundari Mitter took out this originating summons on 25th April 1939 for the determination of the following questions:

(1) Who is entitled to the sum of Rs. 300 per month which has become available on the death of Sm. Sukhadayini Dassi the last surviving annuitant of the branch of Raja Rajendra Narayan Deb?

(2) Whether the said sum of Rs. 300 per month is to be distributed amongst the beneficiaries ?

(3) Whether by the conveyance dated 24th September 1919 and 12th July 1921 executed by Kumar Girindra Narayan Deb and Radha Kristo Bose the said Jatindra Nath Pal and Biswanath Pal are entitled to any portion of the said sum of Rs. 300 per month (4) Whether Sm. Malina Bala Dassi widow of the said Radha Kristo Bose and the executor of the estate of Kumar Girindra Narain Deb are entitled to receive the same or the proportionate share thereof ?

(5) Are the beneficiaries to the estate of Raja Sir Radha Kant Deb Bahadur, K.C.S.I. entitled to ask for release or distribution of the properties or a sufficient portion of the estate in the hands of the trustee on the death of the annuitants?

There were 27 defendants in the summons including the Pauls. The Pauls entered appearance through their attorneys Messrs. R.C. Basu & Co.

11. On 13th July 1939 directions were given on the parties to file their respective affidavits. Some of the defendants including the defendants Nagendra Nath Palit and the Pauls filed affidavits in support of their respective contentions and claims. After several adjournments the case was called on for hearing on 22nd July 1940 before Ameer Ali J. and was heard for three hours and was adjourned. It is said that on this occasion the case was adjourned for a week only. It appears, however, that the case next came on for hearing about a year later, namely, on 17th July 1941. So it may be taken, for the purpose of this application, that in effect the postponement was for about a year. On 17th July 1941 being the second day of hearing the case was heard for three hours. The next hearing was on 22nd July 1941 when after a hearing of 3 1/2 hours the hearing was concluded and judgment was reserved. Judgment was delivered by Ameer Ali J. on 24th July 1941 substantially upholding the contentions of the Pauls. The learned Judge on that day did not deal with the question of costs. Accordingly on 21st August 1941 Mr. S.C. Bose learned counsel for the Pauls mentioned the matter and the learned Judge directed learned counsel for the trustee defendant to discuss the matter with Messrs. R. C. Basu & Co. attorneys for the Pauls and Mr. P.C. Basu attorneys for the plaintiff as to how the costs should be dealt with. There was a conference as desired by the learned Judge. On 4th September 1941 his Lordship gave directions for costs, namely, that the plaintiff was to pay the costs of the Pauls and that the costs of the trustee should come out of the estate. Later on, on 27th April 1942, the matter was mentioned again before the learned Judge for varying the previous directions for costs and ultimately the learned Judge directed that defendant Nagendra Nath Palit should out of the estate of Kumar Girindra Narain Deb pay the costs of the Pauls as of a defended suit including fees of two advocates. The decree dated 24th July 1941 has been drawn up accordingly.

12. Pursuant to this decree Messrs. R.C. Basu & Co. attorneys for the Pauls lodged their Bill of Costs No. 814 of 1942 for taxation. The Assistant Taxing Officer taxed the bill and disallowed some of the items of charges. The bill was carried in before the taxing officer and exception was taken to 58 items out of the items disallowed by the Assistant Taxing Officer. The Taxing Officer allowed some of these items and disallowed the rest. The present application is for review of taxation of the Taxing Officer under Rule 72 of Chap. 36 of the Rules of this Court. It is directed against the disallowance of items 6, 8 to 15, 25, 27, 28 to 30, 33 to 36, 38 to 40, 43,47 to 58 of the exceptions.

13. The principles on which the Court acts in the matter of review of taxation are well settled. The Court entertains a review of taxation and inter feres only where a question of principle is in volved. The Court is generally unwilling to interfere where it is a question whether the Tax-ing Officer exercised his discretion properly or if it is only a question of the amount to be allowed. Langley v. D'Acry ('30) 17 A.I.R . 1930 Bom. 24.

14. A perusal of the different rules of taxation will-clearly indicate that taxation as between party and party is to be done more strictly than that as'between attorney and client. Rules 2 and 3 of Chap. 36 of the Rules of this Court provide that in the absence of specific rules of this Court the Taxing Officer should follow the rules and practice of the Supreme Court in England as his-guide.

15. Keeping these principles in mind I now proceed to deal with the items.

Items 6, 8 to 15: These items contain charges:

(a) for writing letters to the solicitors for the plaintiff and for other co-defendants informing them that clients would use an affidavit in opposition and offering copies thereof;

(b) for writing letters to the solicitors for the plaintiff and for other co-defendants asking fora copy of the affidavit in opposition if their respective clients intended to use any:

(c) for receiving letters from these solicitors asking for copies of clients' affidavit and informing that their respective clients would use affidavits in opposition;

(d) for receiving and perusing copies of affidavits of the other co-defendants, and

(e) for making and delivering additional briefs. to counsel.

16. The Assistant Taxing Officer allowed all these items as between attorney and client but disallowed all these items as between party and party.

17. The Taxing Officer upheld the decision of the Assistant Taxing Officer but on different grounds.

18. Mr. S.R. Das Gupta who appears for the applicants referred me to Ch. 13, Rules 16-19 of the Rules of this Court and pointed out that the originating summons comes before the Court at first without any affidavit in opposition and it is only when there is conflict between the parties. on facts that the Court gives directions to the parties for filing their respective affidavits in opposition. He contended that in this particular case the parties being in conflict directions had been given by the Court for filing affidavits and it was essential for them to know what case or contention they had to meet and to appraise their respective counsel of the same and for this purpose it was necessary for them to get copies of their opponents' affidavits and prepare briefs and deliver same to counsel. He then referred me to the notes under the heading 'co-defendant's pleadings' in Annual Practice 1940 at p. 1883 where it is stated that on an originating summons and other proceedings where there is conflict between the defendants, the perusal of co-defendant's evidence would seem to be proper to be allowed. He also strongly relied on an unreported judgment of Panckridge J. where in a taxation under a decree passed on originating summons concerning this very estate his Lordship on a review of taxation, while declining to lay down any general principle, allowed similar items of charges. Mr. Das Gupta argued that Chap. 9, Rule 8 did not apply to originating summons and submitted that these items should be allowed. He said that in so far as the items consisted of writing letters they came under items 42 and 43 of Rule 91 and in so far as they consisted of receiving letters they came under items 21 and 22 of the same Rule and in so far as they related to receiving and perusing the affidavits they came under item 23 of the same rule.

19. Mr. S. Banerjee drew my attention to Chap. 13, Rule 19 and the decree itself which provides for taxation as in a defended suit and contended that the taxation being as in a defended suit the affidavits must be regarded as written statements and the provisions of Ch. 9, Rule 8 at once became applicable. He further contended that in so far as the charges came within any of the items, of charges allowed under Rule 91 of Chap. 36, they depended, under Rule 94, entirely on the discretion of the Taxing Officer to decide which of them should be allowed as between party and party and which of them should be allowed as between attorney and client. In this case the Assistant Taxing Officer and the Taxing Officer allowed all these items as between attorney and client and disallowed all these items as between party and party and the Court should not interfere with the exercise of their discretion.

20. The reason assigned by the Assistant Taxing Officer is that these items are 'costs of correspondence between co-defendants and so allowed as between attorney and client.' This reasoning overlooks the fact that some of these items are not for costs of correspondence at all but are charges for receiving and perusing copies of affidavits of co-defendants and for preparing additional briefs and delivering same to counsel. The reasons for which the learned Taxing Officer has disallowed these items are stated to be as follows:

I have read Rule 8 of Chap. 9, page 303 and am of the opinion that this must be paid by the party himself and I think that the Assistant Taxing Officer was correct.

It is, therefore, clear that he has not based his decision on the ground of discretion at all. He refers to Ch. 9, Rule 8 and his decision is founded on that rule. I therefore consider it open to me to examine whether, on a true construction of the rule, the decision of the learned Taxing Officer is well founded.

21. Chapter 9 of the Rules of this Court deals with written statement and set off. Rules 6, 7 and 8 of this Chapter correspond to old Rules 232, 233 and 235 and are in the same language. Rule 6 of this Chapter provides that where both the plaintiff and the defendant are required to file written statements, either party, after filing his own written statement, shall be entitled to obtain an office copy of the statement of the other party. Rule 7 lays down that where two or more defendants are required to file written statements, a defendant, after filing his own written statement, shall be entitled to obtain an office copy of the statement of a co-defendant. It will be noticed that both these rules speak of obtaining 'office copy'. Then comes Rule 8 which is in these terms:

where a defendant shall obtain a copy of a statement of a co-defendant, whether filed spontaneously or in compliance with an order, the costs of obtaining such copy shall, unless otherwise ordered, be borne by himself.

22. It will be noticed that in this Rule the expression 'office copy' is not used-a circumstance to which my attention has been drawn and which 1 do not overlook. I am, however, of opinion that Rule 8 is complementary to Rules 6 and 7 and should be read along with those preceding rules. Further the words 'whether filed spontaneously or in compliance with an order' in this Rule 8 seem to indicate that the copy which is referred to in this Rule is copy which is taken from Court where the statement has been filed spontaneously or in compliance with an order. Again, this Rule 8 appears to me to be designed to protect the interests of the attorneys in the matter of supplying copies of their client's statement on usual terms. A party may obtain office copy of his co-defendant's statement because he does not desire to pay the profit costs of the attorney of the co-defendant. He may do so under Rule 6 or Rule 7 but under Rule 8 he will have to bear the cost of obtaining such office copy. On the other hand, a party may be driven to obtain an office copy of his co-detendant's statement because of the neglect or refusal of the latter's attorney to supply such copy. In such a case obtaining an office copy is not reprehensible and costs should be allowed and it is to meet such a case that the words 'unless otherwise ordered' have been inserted in Rule 8. In this connection I may refer to item 23 of Rule 91 of Ch. 36, which allows charges for 'perusing pleadings, proceedings, or documents received from the opposite party or obtained from Court where necessary in the discretion of the Taxing Officer'. In this item documents received from the opposite party and documents obtained from Court are separately and specifically mentioned. If Rule 8 was intended to cover both these cases, it would have said so separately and specifically in the same terms as in item 23 under Rule 91. In my opinion the operation of Rule 8 should be regarded as limited to cases of obtaining office copy under the preceding Rules 6 and 7.

23. Further, in construing these rules of taxation one must not altogether overlook the substance and principles of the rules. In an ordinary case the plaintiff is on one side and all the defendants are on the other. Generally speaking, the interests of; all the defendants are to defeat the plaintiff's claim. If the plaintiff loses his case he ordinarily pays the costs of all the defendants, but in such circumstances it may not be reasonable to make him liable for the extra costs incurred by the defendants who have same interest in obtaining copies of each others' statement or affidavits. In some cases however the real conflict may be between the defendants inter se, as in the case of an interpleader suit where the interpleader has not been discharged or more frequently in the case of originating summons taken out by an indifferent person like an executor or trustee where the real conflict is between the defendants inter se who are the real claimants. In these cases it will not be right to regard and put them on the same footing as co-defendants in an ordinary suit who have a common interest as against the plaintiff. It is on this principle that under the English practice charges are allowed for perusing affidavits of co-defendants on an originating summons where there is conflict between the co-defendants. It is on this principle that the judgment of Panck-ridge J. to which I was referred, was based, although his Lordship did not desire to formulate any general principle. I see no difference between the situation that arose before Panckridge J. and that is now before me. It is no good disguising the fact that I am basing my decision on what I conceive to be the principle implicit in the English practice and the judgment of Panckridge J. and in our rules. It is that the conflict of interest alone determines who are the real opposite parties irrespective of the superficial alignment of parties in the cause title. The very fact that in this case one co-defendant was directed to pay the costs of another co-defendant only justifies and illustrates the principle and the rules should be construed and applied to give effect to this principle.

24. For reasons stated above I set aside the decision of the learned Taxing Officer on these items 6 and 8 to 15.

25. I must not, however, be taken to imply that the whole of the charges under all these items should be allowed. To take one example, I do not think that the letters written by Messrs. R. C. Basu & Co. to the other attorneys informing them that the former's client would use an affidavit in opposition and offering a copy thereof can be regarded as necessary letters within item 42 of Rule 91. At best they can come under item 43 of that Rule as a formal letter. On the other hand, again to take an example, writing letters to the other solicitors enquiring if their clients will use any affidavit and asking for a copy thereof may come under item 42 or 43 of Rule 91. Likewise receiving letters from the other solicitors informing that their clients will use an affidavit and offering copies thereof may come under item 21 or 22 of Rule 91. In respect of all these items 6, 8 to 15 the Taxing Officer will no doubt exercise his discretion in allowing these charges under one or other of these items of Rule 91.

26. Items 25 and 27.--These have been allowed by the Assistant Taxing Officer as between attorney and client by virtue of the written instructions of client as contemplated by Rule 6 of Chap. 36 but have been disallowed as between party and party. The learned Taxing Officer has upheld the decision of the Assistant Taxing Officer. Mr. Das Gupta has contended that when these items are allowed as between attorney and client they must be taken to have been necessary and proper charges and if so, they should be allowed as between party and party also. The reasoning is entirely fallacious. The Taxing Officer may have considered these charges as unnecessary and yet allowed them as between attorney and client, on the strength of the written instruction under Rule 6. Further under Rule 41 charges for more than one conference or consultation may be allowed where it shall appear to the Taxing Officer that such additional conference or consultation was necessary or proper. The Taxing Officer has exercised his discretion and I see no reason for interfering with his decision. Rule 97 has no application to taxation as between party and party.

27. Item 28.--This item relates to refresher fees to counsel and attorneys' charges in connexion therewith. It will be remembered that the case was first heard on 22nd July 1940, for 3 hours and was then adjourned, and the second hearing was on 17th July 1941, for 3 hours and the third hearing was for 3 1/2 hours on 22nd July 1941, when the hearing was concluded and judgment was reserved. From these dates it is clear that after the first hearing the case was in effect adjourned or postponed for about a year. It is also clear that the three hearings occupied 9 1/2 hours. The Assistant Taxing Officer allowed the brief fees or first day's fees to counsel and one refresher for the second 4 1/2 hours obviously under Rule 33 of Chap. 36. The hearing not having lasted for more than 10 hours he disallowed the claim for a second refresher as between party and party but has allowed it as between attorney and client. His decision was as follows:

Allowed under 5 hours Rule one refresher the rest allowed under clients written instructions produced and seen as between attorney and client.

28. Exception was taken to this decision on the ground that on the last two days the case was heard for more than 6 1/2 hours and, therefore, two refreshers should be allowed under Rule 34 of Chap. 36. The reasoning appears to be that as there was an adjournment for more than a month the 5 hours should be counted afresh from the second day. The Assistant Taxing Officer did not accede to this contention. The Taxing Officer upheld the decision of the Assistant Taxing Officer and gave his decision as follows:

28. First hearing 22nd July 1940 ... 3 hrs.Second ' 17th ' 1941 ... 3 'Third ' 22nd ' 1941 ... 3 1/2' I do not think that when a case is partheard and is continued on a subsequent day and then another day and disposed of, Rule 33 of Chap. 36 will apply and in this respect I agree with the Assistant Taxing Officer.

29. In the above quotation the reference to Rule 33 appears to be a mistake for Rule 34. The decision of the Taxing Officer clearly proceeds on the construction which he places on Rule 34 and not on the exercise of any discretion and it is therefore open to me ,to consider if his decision is well founded. Further the matter is undoubtedly of some importance and it is right that I should deal with it. There is a singular lack of reported decisions on the subject both here and in England.

30. Under the English practice from which our Rules have been adopted, refreshers are of two kinds, namely, daily refresher and term refresher. Daily refresher is governed by Order 65, Rule 27(48) of the Rules of the Supreme Court. This is regulated by a computation of the actual time taken up by the hearing in Court. Term refresher, which is referred to in item 131 of Master's Practice notes, is only allowed where the case has been in the daily list in the preceding term and not reached, but apply to all cases in Court. This refresher has no reference to the time occupied in hearing the case in Court. It is allowed out of consideration of the mere fact that the case was in the list in the preceding term and was not reached. When a case is on the list counsel has to be ready with his case from day to day during that term. When, therefore, the case is not reached in that term and goes over to the next term there is a break and it cannot be reasonably expected that counsel will carry the matter in his head during the vacation. From a practical point of view counsel has to get ready over again when the next term begins. This seems to me to be the underlying principle on which term refresher is allowed to counsel. In 2. Levetus v. Newton (1883) 28 S.J. 166, which is noticed in Annual Practice 1940 at page 1530 the trial of the action took many days and the Taxing Master allowed both daily refreshers under Order 65, Rule 27 (48) and also a term refresher. Summons was taken out before Chitty J. to review the taxation. The question was raised as to the allowance to counsel of term refresher when refreshers from day to day were allowed. Chitty J. overruled this objection and observed that:

As to the question of term refreshers, both the Registrar and Taxing Master had stated their opinion that it was the established practice to allow them and this being so and as no precedent to the contrary had been produced he should follow the practice as stated and not disturb the Taxing Master's Certificate.

Thus it is clear that in England it is the settled practice to allow term refresher which has no reference to the hours of hearing in addition to daily refreshers which are computed on the basis of the length of time occupied by the hearing.

31. Turning now to the rules of this Court, I find that formerly we had no specific Rule relating to daily refresher. The old Rule 780 directed the Taxing Officer to regulate the taxation of charges for retaining and employing counsel, as nearly as may be, by the practice of the Superior Courts in England, reference being had to any difference which may exist between the two countries in the relative value and use of money. This corresponds to our present Rules 2 and 3 of Chap. 36. From Mr. Belchamber's notes to the old Rule 780 I find that daily refreshers were left entirely to the discretion of the Taxing Officer and the Taxing Officer used to follow the English practice and allow daily refreshers on a consideration of the length of time occupied. There was, however, one rule, namely, Rule 790, which was in the same terms as our present Rule 34 of Chap. 36, namely:

No refresher should be allowed to counsel on any adjournment or postponement, unless such adjournment or postponement extends beyond the period of one month.

When there was no express mention at all of refresher in other rules, why was this Rule specifically prescribed? The obvious answer is that it was intended to make a departure from English practice. In England term refresher was allowed on account of the break between one term and the following term. In following English practice a refresher would have to be allowed if a case went over the Christmas vacation or the Easter vacation both of which in this case last for ten days. Further, the principle on which a term refresher is allowed applies even when a case is adjourned for a substantial period even during one term. So our old Rule 790 fixed the period of the break which will entitle counsel to a refresher to a period extending beyond one month. Our old rules were recast and new rules were introduced in 1914. Rule 32 of chap. 86 of the new rules dealt with fees to counsel. In the table of fees set out in that Rule I find a column headed 'Refresher.' Daily refresher was thus expressly and openly recognized in our rules. In this Rule the maximum fees to counsel for first day and for refresher were fixed but the actual amount to be allowed in any particular ease or how the amount would be computed was left to the discretion of the Taxing Officer except that by Rule 33 the absent counsel was debarred from charging refresher unless he certified in writing that he had kept himself generally acquainted with the case as it was developed during the course of the hearing. Old Rule 790 was reproduced verbatim, without any change, in new Rule 34.

32. These 1914 rules were amended as from August 1933, when the five hour Rule was for the first time introduced in Rule 32. In this amended Rule 32 also there was a table setting out the maximum fees that could be allowed by the Taxing Officer and both brief fee and refresher were mentioned in the table under different columns. There was no amendment of Rule 34. Rule 32 was further amended as from November 1939 and brought to its present form. Now Rule 32 deals only with brief fees of counsel and Rule 33 deals only with refresher computed on the basis of the length of time occupied. Rule 34 which deals with refresher on adjournment stands in the same language as it was under old Rule 790. It appears to me that our present Rule 33 is adapted from Order 65, Rule 27 (48) of the Rules of the Supreme Court, and is concerned with daily refreshers. Rule 34 appears to me to be an adaptation of the term refresher under the English practice with the intervening period fixed at a period of over one month. The Rule is in form in the negative but the language implies an affirmative direction, namely, that when the case is adjourned for over a month, a refresher should be allowed. This refresher, being in the nature of a term refresher under the English practice has nothing to do with the daily refresher under Rule 33. If we are to follow what has been called the settled practice in England according to the decision in 2. Levetus v. Newton (1883) 28 S.J. 166, to which I have referred, then this 'adjournment refresher,' if I may so call it, should be allowed under Rule 34, where the adjournment is for over one month over and above the, daily refresher, if any, allowed under Rule 33.

33. Mr. Banerjee contended that the note to Rule 34 indicates that only an application fee should be allowed. This note is no part of the rule. It was really Mr. Belchamber's note and has been reproduced in all subsequent editions of our rules. In my opinion, this note cannot override the rule. It only explains the rule. Rule 34 in terms applies whether the suit is called on and heard for some time and then adjourned or whether the suit is called on but not heard at all and then and there adjourned, provided, in both cases, the adjournment or postponement extends beyond the period of one month. The note indicates, to my mind, the practice followed by the Taxing Officer, in the second above-mentioned case, namely, that of adjournment without hearing, in fixing the quantum of refresher that should be allowed and it states that in such a ease the practice is to allow only a fee allowable on a substantive application for adjournment. Nor do I agree with Mr. Das Gupta's argument that the brief fee was worked off on the first day of the hearing and that because there was an adjournment for more than one month the computation of five hours should begin anew on the second day of hearing. There is no warrant for such construction. As I have said, the adjournment refresher under Rule 34 has nothing whatever to do with the hours of hearing. It is in the nature 'of a solatium to counsel for having to get ready with the case over again after a long break as in the case of term refresher in English practice.

34. For these reasons, in my opinion, while the Taxing Officer was right in allowing one daily refresher under Rule 33 on a computation of time occupied by the hearing, he has, on principle, gone wrong in not allowing a refresher on adjournment under Rule 34. I accordingly allow this item. The amount of charges to be allowed, however, will be decided by the Taxing Officer. (After dealing with the other items his Lordship proceeded.) The result is that I accede to this application for review in respect of items 6, 8 to 15 and 28 and allow these items as between party and party. I also allow items 29 and 30 as between attorney and client only. I do not accede to this application in respect of the other items. I say nothing about the amounts that should be allowed on the items I have allowed. The quantum should be fixed by the Taxing Officer when the Bill goes back to him. I direct that the matter do now go back to the Taxing Officer to be dealt with by him, only as regards the items which I have allowed, in the light of the principles I have endeavoured to lay down. The greater part of the time occupied in hearing this application had been devoted to discussing items 6, 8 to 15 and 28. On these items Mr. Das Gupta has succeeded. On other items involving equally substantial amounts he has failed. In these circumstances, I make no Order as to the costs of this application. Certified for counsel as against own client. As regards the costs of taxation before the Assistant Taxing Officer and the Taxing Officer I leave it to the Taxing Officer to decide under Rule 71, when the matter goes back to him, whether in the altered circumstances, the applicants should get any part of those costs.


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