P.B. Mukharji, J.@mdashThis summons raises important questions of taxation of costs as between party and party. It involves determination of the principles of party and party taxation which should guide, govern and regulate fees of commissioner, counsel and attorney on commission, their travelling expenses, their boarding and lodging expenses, and allowances, if any, for loss of time involved in the journey.
2. This is an application on behalf of the Defendant for review of the Taxing Officer''s order of taxation of the applicant''s bill of costs No. 950 of 1952. The Taxing Officer''s order under review is dated June 20, 1951. The Defendant took out this summons on November 26, 1953. On the summons, the exceptions are taken only to items Nos. 3, 4 and 5 as they appear on the grounds of exception filed before the Taxing Officer. But here, before me, by consent of parties appearing, item No. 6 of such grounds of exceptions has also been included. The applicant seeks to set-aside the report of the Taxing Officer, dated October 1, 1953, in respect of these items, 3, 4, 5 and 6. The applicant also asks, on this summons, that the costs of and incidental to this application be paid by the Plaintiff. This summons is taken out by Messrs. Chowdhury and Chowdhury, the attorneys on behalf of the applicant.
3. At the outset, I propose to set out items Nos. 3, 4, 5 and 6 to which exceptions are taken. They are:
Item 3, dated September 25, 1949.-Paid to Counsel 90 gold mohurs for examining the Defendant at Bikanir-Rs. 1,530.
Grounds of Objection.-This constitutes fees for counsel as hearing for 6 days. The learned Taxing Officer wrongly allowed only Rs. 119 following Rule 91, item 41 of Chapter XXXVI as between party and party. We submit that the said rule is not at all applicable here and moreover the said rule was misconceived. The fees paid for 6 days are reasonable and should be allowed.
Item 4, dated October 20, 1949.-On the evening of October 15, 1949, the senior attorney started for Bikanir at 7 p.m. with the Counsel-Rs. 75 and other subsequent attendances up to 20th October 1949 at the rate of Rs. 150 each day for 6 days-Rs. 725.
Grounds of Objections.-An advocate or an attorney should be allowed fees when he has to go away from Calcutta from the day he leaves Calcutta and up to the date of his coming back. The learned Assistant Taxing Officer wrongly disallowed this amount on a mis-application of the same rule. We submit that these attendances are necessary for properly instructing Counsel. Full charges should have been allowed between party and party.
Item 5, dated October 28, 1949,-Paid to the senior attorney for travelling charges with one servant, counsel and the commissioner and also their fooding and lodging charges-Rs. 2,000.
Grounds of Objections.-The learned Assistant Taxing Officer wrongly allowed only second class fare for the commissioner and disallowed all other charges which should have been allowed. We submit that Rule 91, item 41, which was applied by him has no application here.
Item No. 6, dated January 26, 1950.-Paid to the commissioner for his fees- Rs. 1,258.
Grounds of objection.-Under order of Court Mr. B.K. Chowdhury, Barrister-it-Law, was appointed the Commissioner as well as the interpreter to examine the Defendant at Bikanir. Acdordingly he started from Calcutta on October 15, 1949 and reached Calcutta on October 20, 1949 and he was paid fees for 6 days as Commissioner and Interpreter. The learned Assistant Taxing Officer wrongly allowed only one day''s fee for the commissioner, i.e., 7 gold mohurs and 2 gold mohurs for interpreter. We submit that the decision is wrong, and the Commissioner is entitled to at least 12 gold mohurs per day.
4. Before discussing the orders of taxation under review, it will be appropriate, for their better appreciation, to make a brief reference to the facts of this suit and the relevant orders of the court on the basis of which the taxation was made. This suit was instituted in August, 1945, by which the Plaintiff claimed return of jewellery valued at Rs. 51,000 said to have been pledged with the Defendant in December, 1939, to secure a loan of Rs. 8,000 taken by the Plaintiff from the Defendant. The Defendant admitted the loan and pleaded that it was paid off within a week. The Defendant denied the factum of pledge and possession of the jewellery. It was pleaded further that the suit was not maintainable. After some proceedings the Defendant mode an application for being examined as a witness at Bikanir on commission which was allowed by an order of this Court, dated March 8, 1949. It was at first an order to examine the Defendant on commission at his residence in Calcutta and the Writ of Commission was directed to be issued to Mr. B.K. Chowdhury. Barrister-at-Law, as the commissioner. This order was modified on September 14, 1949, by consent of parties giving liberty to the Commissioner to hold the commission at Bikanir in the State of Rajasthan. On December 15, 1949, the commissioner, the advocate for the Defendant, and the attorney for the Defendant left Calcutta for Bikanir for execution of the Writ of Commission. The Defendant was examined on commission at his residence at Bikanir on October 17, 1949. The Commissioner, the advocate for the Defendant, and the attorney for the Defendant returned to Calcutta on October 20, 1949. The Defendant, thereafter, died at Bikanir on December 15, 1949. The Plaintiff having failed to take necessary steps for substitution of the Defendant''s legal representatives within the time limited by law, the suit abated. The Plaintiff''s application made subsequently for having the abatement set aside failed. His appeal against the order refusing to set aside the abatement also failed. Mr. Justice J.P. Mitter on June 20, 1951, on the application of the legal representatives of the deceased Defendant for payment of the costs of the suit by the Plaintiff, made an order which runs as follows:
I order, therefore, that the Plaintiff do pay to the Petitioners the costs of the suit (including reserved costs) up to the date of its abatement as also the costs of this application.
5. That was the end of the suit.
6. The matter that is now before me relates to taxation of those items of the bill of costs in this suit relating to the execution of the Commission which I have set out item by item and is concerned only with the principle of party and party taxation and not attorney and client taxation. Before I discuss the principles which should regulate and govern party and party taxation in such matters, I feel it is necessary for me to set out the exact terms of the order for Commission issued by this Court, dated March 8, 1949 and its modification, dated September 14, 1949.
7. The material portion of the order of March 8, 1949, is in these terms:
It is ordered that a Commission do issue out of and under the seal of this Court directed to Mr. B.K. Chowdhury, Barrister-at-Law, authorising him to swear or affirm and examine viva voce at 22 Belvedere Road, Calcutta, the Defendant, but they said Writ of Commission shall not be executed before the 31st day of March (instant) and it is further ordered that the parties to this suit do appear before the said Commission either in person or by their agents or pleaders and that the said Commission be made returnable within 3 months from the 5th day of May next and that the evidence to be taken thereunder be read and used at the hearing of this suit save in all just exceptions as to the admissibility thereof and let the consideration of the question of costs of and incidental to this application and of the issuing and -executing the said Commission and of the return thereof be reserved until the determination of this suit or until further orders of this Court.
8. The consent order of variation, dated September 14, 1949, is in these terms:
It is ordered by and with the consent of the parties appearing that the returnable date of the Writ of Commission issued therein under the said order be and the same is hereby extended till the loth day of December next and it is further ordered that Mr. B.K. Chowdhury, Barrister-at-Law, the Commissioner appointed herein be at liberty to examine the Defendant either in Calcutta or in Bikanir, Rajputana, and to act as Interpreter on usual remuneration.
9. This brief account of facts and of the different orders of this Court now clears the ground for consideration of the principles of taxation raised in this summons.
10. Taking up the first ground of objection relating to item No. 3 as set out above, it is necessary to recall that this item relates to fees paid to counsel for examining the Defendant at Bikanir. The Defendant''s solicitors charged the counsel''s fees at the rate of 15 gold mohurs per day for six days amounting to a total of 90 gold mohurs. The actual commission, however, lasted only for one day. The Assistant Taxing Officer allowed the fee of 7 gold mohurs to the counsel acting under item 15 of Rule 32(4) of Chapter XXXVI of the Original Side Rules. This objection raises two questions of principle, first the amount of fee per day and secondly the principle as to how many days should be charged. The Defendant''s solicitors charged for six days on the basis of including the day when he left Calcutta and the day when he returned to Calcutta. The Taxing Officer upheld the Assistant Taxing Officer''s decision holding that the fee to be allowed to the counsel in such a case was 7 gold mohurs and that the number of days to be allowed was only one and not six. The applicant now asks me to review that order of the Taxing Officer.
11. Rule 32 of the Original Side Rules lays down that, in cases of taxation as between attorney and client, where the fees are payable by the client personally, or out of a fund belonging entirely to him, the Taxing Officer shall ordinarily allow as fees to counsel all sums actually paid, but not exceeding those set out in the table thereunder. Now, in that table appearing under Rule 32, item 15 provides-
Before Arbitrator or Commissioner (if allowed by the court)-One Counsel- 7 gold mohurs.
12. Sub-rule (2) of Rule 32 provides for the case of taxation as between attorney and client when the costs are payable out of a general or common fund, or out of a fund which belongs to the other parties in which the client has no interest and also provides for cases of taxation as between party and party. In those two cases Sub-rule (2) of Rule 32 provides that the fees to counsel allowable shall be reasonable and proportionate to the length and difficulty of the case but shall not exceed the fees set out in the said table. The difference, therefore, between Sub-rule (1) and Sub-rule (2) of Rule 32 is that while in the former case the Taxing Officer ordinarily allows fees to counsel which are actually paid but not exceeding the maximum set out in the table, in the latter case it is not a question of actual fees paid to counsel but fees considered reasonable and proportionate to the length and difficulty of the case with the upper limit as provided in the table. The upper limit, therefore, as provided in the table operates as a bar in either case between client-attorney taxation and party-party taxation. This bar of upper limit may in a specified case be exceeded and that specific case is provided in Sub-rule (4) of Rule 32. A fee in excess of that specified in the table may be allowed by the Taxing Officer only as against the client personally on production of the written consent of the client, or his recognised or authorised agent, specifically to pay such higher fees. Now, this Sub-rule (4) although expressly refers to Sub-rules (1) and (2) and therefore would seemingly appear to attract even party-party taxation under Sub-rule (2) nevertheless appears to exclude party-party taxation because it says expressly that such fees are to be allowed "as against the client personally". This can only have a reference to an attorney-client taxation referred to in Sub-rule (2) and not to party-party taxation, because in the taxation between party and party no question of obtaining client''s authority by way of written consent can be expected to arise. Prima facie therefore on a construction of entire Rule 32 and the table thereunder it does appear to me that the Taxing Officer was right in upholding the decision of the Assistant Taxing Officer that the maximum fee of 7 gold mohurs should be allowed to counsel attending the commission and he was justified in refusing an extra or additional fee of eight gold mohurs.
13. It does not seem that Rule 6 of Chapter XXXVI appears to help the attorney in such a case. The principle behind Rule 6 is that the Taxing Officer shall allow such costs as shall appear to him to have been necessary or proper for the attainment of justice or for defending the rights of any party. Now, attainment of justice and defence of rights are vague expressions of general import whose limits have to be sought in actual administration and by regard to any specific rules that may be existing as a guide for the same. But Rule 6 makes it quite clear expressly that on taxation as between party and party no costs shall be allowed which appear to the Taxing Officer to have been incurred or increased unnecessarily, or through negligence or mistake, or by payment of special charges or expenses to witnesses or other persons, or even by other unusual expenses. Here again such words as "unnecessary" or "unusual" are vague expressions. What is unusual or what is unnecessary can only be decided with reference to the facts and circumstances of each case. But the most important feature in Rule 6 from the point of view of deciding the question raised in this summons is that such costs are not to be allowed as between attorney and client without proof that the attorney communicated to the client the probability that they would be disallowed as between party and party and that the client or his recognised agent in writing expressly authorised them to be incurred or ratified the incurring thereof. Now, in this case the Defendant''s solicitors armed themselves with the requisite written consent of the client so far as the costs as between attorney and client are concerned. That being so, then on the basis of Rule 6 the attorney must have known and communicated to the client the probability that these costs would be disallowed as between party and party, or else he could not have secured the authority of a written consent of his client under the express language of that rule. It would therefore be improper and unjustified now to allow as party and party costs these additional fees to counsel in excess of the maximum as provided in the table. From this point of view also I therefore uphold the decision of both the Assistant Taxing Officer and the Taxing Officer on the question of the maximum fee of 7 gold mohurs to counsel.
14. It is necessary to consider yet another rule of taxation in this connection. That is Rule 9 of Chapter XXXVI of the Original Side Rules. It is a rule providing for Taxing Officer''s recommendation for a fee in excess of the maximum provided in the table or for a fee not provided at all in the Table. In a case where the Taxing Officer is of the opinion that the maximum fee allowed by these rules is insufficient or a fee ought to be allowed for any matter not provided for in the rules or table of fees, he may, upon the application of a party, refer the matter to the Court, stating what amount, in his judgment, ought to be allowed, and by whom the same ought to be paid, and the Court shall make such order thereon as to the allowance of the whole or any part of the amount proposed by the Taxing Officer as it shall think fit. Now, this rule is only an enabling rule and comes into play if a party makes an application for reference of the matter to the Court. No application by the applicant was made either to the Assistant Taxing Officer or to the Taxing Officer to move under this Rule 9. This rule, therefore, cannot be attracted in this case. Besides, the Taxing Officer did not consider that the maximum fee allowed by these rules was insufficient in this case and therefore he could not possibly have proposed a higher amount to the Court by making a reference under Rule 9. Rule 9 has for its basic foundation the opinion of the Taxing Officer in favour of the increased fee. In this case the opinion of the Taxing Officer is against such increase. On that ground also Rule 9 cannot apply here.
15. The question whether the Court has the power to allow the excess fee in this case is a different question altogether. On principle it has been held in a number of decisions of this Court on taxation that in spite of Sub-rule (4) of Rule 32 the Court retains its jurisdiction to allow excess fees even in cases where client''s written consent has not been obtained. Reference may be made in this connection to such decisions as Ramjas Agarwalla v. Ors. Dignam and Company (1931) 35 C.W.N. 993, Ramesh Chandra Basu v. Jadav Chandra Mitter ILR (1924) Cal. 829, Sailendra Nath Dutt v. Dharani Mohan Roy ILR (1921) Cal. 618, and Gour Chand Mullick v. Pradyumna, Kumar Mallik (1949) 84 C.L.J. 9.
16. This leads me to refer to the principle that on the question of quantum of counsel''s fees the Court does not lightly interfere with the opinion of the Taxing Officer. Unless a principle is involved the Court does not as a rule interfere with the question of the quantum of counsel''s fees allowed by the Taxing Officer. I do not find that in this case there is any question of principle involved. All that has happened here is that the maximum fee under the table under Rule 32 has been awarded. Whether the counsel himself would normally charge a fee higher than 7 gold mohurs for such a work is not an issue in this case, for that is an issue more appropriate in the field of attorney and client taxation and not between party and party taxation. The principle which restrains the Court from lightly interfering with the Taxing Officer''s decision on the question of quantum of counsel''s fees applies with all the greater force in cases of party and party taxation.
17. I will only add a word on this subject on the nature of party and party costs. The general principle deducible from well-known decisions which can now be said to have settled the nature of party and party costs is that costs chargeable under a taxation as between party and party are only such costs that are necessary to enable the adverse party to conduct the litigation but no more and such extra charges for a more convenient conduct of litigation should be regarded as luxuries and must be paid for by the party incurring them and not to be reimbursed from the losing party. Standards of judgment between individuals as to what is necessary and what is luxury may be a subtle one in theory but in actual practice it is not difficult to apply a working formula. The working test in a party and party taxation is one of necessity not of convenience in conduct of litigation. Now, can it be said in this case that unless the particular counsel in question was taken from Calcutta and paid more than double the maximum fees allowed by the table of fees, justice would have been defeated or that it was "necessary" to take him all the way from Calcutta to enable the Defendant to conduct the litigation? I am afraid there are no materials before me to come to so serious a conclusion. Indeed, such materials as there are indicate the other way because the Plaintiff could avail of the services of the Advocate-General of Rajasthan for this Commission and paid only Rs. 250 for engaging him. As against this sum of Rs. 250 which the Plaintiff spent, the Defendant''s claim on this item to be paid as much as Rs. 1,500 for the very same work as party and party costs must fail and I have no hesitation in upholding the Taxing Officer''s decision on this point.
18. Then comes the other objection under this item of counsel''s fees as to the number of days that should be allowed. The fact is not disputed that the Commission was held only for a day and it was fully executed within a day. What is being contended, however, on behalf of the applicant is that the counsel leaving from Calcutta to execute this commission is not compensated for the loss of time that he suffers by his journey to the place of commission at Bikanir and back to his place of usual work in Calcutta. Now, I do not find that there is any provision in the Rules of the Original Side of this Court compensating a counsel for his loss of time in such a case. That is in curious contrast to the reference to compensation to the attorney for his loss of time in item 37 or Rule 91 relating to attorney''s fees where the actual expression "loss of time" is mentioned. I cannot persuade myself to believe that while the attorney loses time in the journey, the counsel does not. In a proper case, therefore, it appears to me that a counsel should and can be reasonably compensated for the unavoidable loss of time. The prevailing common practice of charging for the day when the counsel leaves his usual place of work and also for the day when he arrives back at his usual place of work added to his days of absence on duty while permissible as attorney-client taxation appears unreasonable in a party-party taxation for in actual fact it may just be that the counsel has done his full work for the day on which he left his usual place and also returns in good time to his usual place to avail of the full day''s work on the day of his return at his usual place of work. The only principle that can be laid down for compensating counsel for his loss of time appears to me to give the counsel a fee for the actual days of the journey when he could not attend at Ms usual place of work. The journey obviously involves loss of time for him which might have been remunerative for him had he not been engaged in the journey.
19. There is another way of coming to the same conclusion. Our rules provide that in all cases where our rules do not sufficiently declare what business or proceedings may be charged for m the bills for fees and costs or in what manner or by what steps any part of the business or proceedings ought to be conducted, the Taxing Officer is directed to take the Rules and Practice of the Supreme Court in England as his guide. It is also said that the Taxing Officer shall, in the absence of any special provision in these rules, regulate the taxation of charges for retaining and employing counsel as nearly as may be by the practice of the Supreme Court of England regard being had to any difference which may exist between two countries in the relative value and use of money. That is the express effect of Rules 2 and 3 of Chapter XXXVI of the Original Side Rules. As there is no rule on the Original Side providing for compensation to the counsel for his loss of time, these rules would attract the practice of the Supreme Court in England. An examination of the practice of the Supreme Court in England on this point therefore becomes necessary.
20. In the case of Potter v. Rankin (1868) L.R. 4 C.P. 76, the Master on taxation of the Defendant''s costs in an action on a policy where the questions to be tried were admitted to be extremely difficult and complicated having declined to allow the expenses incurred in legal assistance to the commissioners in conducting viva voce examination of several witnesses at Calcutta although the order for the Commission provided that "the costs of the order and of "the examination, interrogatories, cross-interrogatories, and "office copies thereof and all other costs incidental thereto should "be costs in the cause", the Court refused to interfere with the Master''s discretion. There the Commissioner called in the aid of an attorney to help him in conducting the examination under commission. Bovill, C.J. in that case observed at p. 79 of the report:
In the first place, he contends that the Commissioner had a right to call in the aid of an attorney in conducting the examination under the commission, and that the unsuccessful party must pay for it. There is no foundation whatever for that contention. The matter must be for the discretion of the master in each particular case; and, unless we see that the matter has been clearly and substantially wrong, we cannot interfere with his decision. The importance of the case, and the nature of the questions to be put to the witnesses were matters for the consideration of the master; and no doubt everything that could be urged before him in support of the claim was ably urged. It was probably, highly desirable that the Defendant should have the assistance of a legal adviser to conduct the examination before the Commissioners. But the question is whether he can impose the expense of that upon the Plaintiffs. If the master had altogether declined to exercise discretion, there might possibly be ground of complaint. But here the master did go into the matter; for, he allowed a portion of similar charges on the Otego commission. It is impossible for the Court to discuss the question of amount.
21. This, however, was not a case of counsel''s fees but was a case where the commissioner called in the aid of an attorney in conducting the examination under commission. But the case of Yglesias v. The Royal Exchange Assurance Corporation (1870) L.R. 5 C.P. 141, is an authority on the point of counsel''s fees in commission. There on the taxation of costs in an action on a policy of insurance, involving questions of an extremely complicated and important character, the master, having duly considered all the circumstances, allowed the expenses of sending a barrister as commissioner to examine witnesses in the Canaries and the Court refused to interfere with his discretion. Montague Smith, J. in his judgment at p. 144 observes:
The propriety of sending out commissioner from this country to a distant place must obviously depend upon the particular circumstances of each case. The nature and complexity of the action, the value of the subject-matter in dispute, the accessibility of the spot, and whether resident commissioners properly qualified can be found in the place, are all consideratoins which must be taken into account. It is impossible to lay down any rigid rule upon the subject, or to say that such expenses can never be allowed. If the witnesses are to be examined in France or Italy, for instance it might be a saving of expense to send out a commissioner. A discretion in the matter must be left to some one; and it has usually been left to the master, with whose discretion the Court is slow to interfere. His decision is always considered final, unless he appears to have proceeded upon a wrong principle or has exercised his discretion in a way which is manifestly wrong. I do not see that the master has done so here.
22. There is one more'' important aspect in that decision which was referred to by the same learned Judge. At p. 145 of that report Montague Smith, J. observes:
It is the duty of the Master, in the first instance to consider whether the expenses of the commissioner should be allowed, and upon what principle and on what- scale, subject to revision by the Court under the conditions I have already stated. I think it would be better that it should be settled beforehand whether a commissioner should go out from this country or not. That however, has not been the practice hitherto.
23. Here in this case before me it was the order of the Master of March 8. 1949 and of September 14, 1949, issuing a writ to a counsel of this Court to act as a commissioner at Bikanir. As this case which I have just quoted is of some importance as an authority on the point under consideration and as both Bovill, C.J. as well as Brett, J. agreed with Montague Smith, J. in refusing to upset the master''s decision, I should like to state very briefly the facts that fell to be considered there by the Master. It related to an action on a policy of insurance of a cargo of barley shipped in the Canary Islands on board the ship "Candidad". The claim was resisted by the Defendants on the ground inter alia that the goods were not shipped and that the vessel did not sail. Criminal proceedings had been instituted in the Spanish courts by the Lloyd''s Salvage Association against the Captain and mate of the vessel which, however, ultimately resulted in their acquittal. The Plaintiffs being unable to obtain particulars of the proceedings in the Spanish courts, in order to establish their claim and to prove the actual purchase and shipment of the property incurred, and the facts connected with the loss, procured a commission for the examination of witnesses at the Canary Islands, addressed to three commissioners, two of whom resided in the Canaries and the third was an English barrister, resident in London. The Defendants, who had liberty to join in the commission, named as commissioner on their behalf a captain Heathcoat who was well skilled in commercial and maritime affairs, and a Spanish advocate of Gadiz, and also sent out an English barrister resident in London to conduct the examination on their behalf. Finding that the Defendants had determined to send out a barrister from England and that there was no person on the spot capable of conducting the examination of witnesses, the Plaintiffs arranged that their English barrister appointed to the commission should act for them rather in the character of counsel than of a commissioner and it was accordingly so provided. The commission sat for 22 days and the Plaintiffs'' English barrister was engaged thereon and in travelling to and fro altogether 45 days. At the trial before Bovill, C.J. the case was found to be of much difficulty and intricacy. A verdict was found for the Plaintiffs. On taxation of the Plaintiffs'' costs the master allowed a charge of �576 9s. 8d. for the fees and expenses of Mr, Underdown (the Plaintiffs'' English barrister) being �10 10s. per day and �102 19s. 8d. for travelling expenses, though it was objected on the part of the Defendants that the Plaintiffs might and ought to have appointed a person on the spot, the cost of which would not have exceeded �150. This case is, therefore, on the point before me and is also important because it allows the fees of the counsel from England to a place outside, including his travelling expenses, and also because it refers to the decision of Potter v. Rankin (5), where a special fee of fifty guineas to a counsel for attending another court was disallowed as between party and party. If I have given the details of this case it is because I consider them to be relevant.
24. The principle, therefore, laid down in English cases is that in a proper case fees to counsel can be allowed when he goes out to appear before a commission which compensates for his loss of time as well as for his travelling expenses. The whole question, however, in this case, therefore, turns on the fact whether this is a proper case. There is very little guidance in this matter of practical difficulty. My own view is that no hard and fast rule can be laid down as applicable uniformly to all cases of counsel going out of his usual place of work to appear before a commission. But there are certain practical standards which, I think, can always be applied, as some of them were applied by Montague Smith, J. in the case of a commissioner. I will formulate these tests as follows:
(1)the nature and complexity of the evidence to be taken on commission;
(2)the value of the subject-matter involved in the dispute;
(3)the accessiblity of the spot;
(4)the availability of local lawyers near or about the place of commission.
25. These tests, I think, are useful practical guides to determine whether in a particular case fees should be paid to counsel executing a commission to compensate for the loss of time taken in the journey to the place of commission away from the counsel''s usual place of work and back, including travelling expenses. Now, applying those tests, I find in this case that the Taxing Officer holds. "The attorney for the Defendant "could have engaged a local lawyer. If he had done so, fees of "the advocate for 5 days easily have been saved." It is not suggested in the affidavits before me that this case answers the above tests. The only questions involved were questions of simple fact, whether there was a pledge or not and whether there was possession of jewellery or not. It was not suggested in this case, nor can it be suggested, that such a fact required the taking of a counsel all the way from Calcutta and no counsel either at or near Bikanir could be had. In fact) as I have said, the Plaintiff engaged the Advocate-General of Rajasthan at a comparatively small fee of Rs. 250 only. On the basis, therefore, of these facts which are not disputed and on the basis of the finding of the Taxing Officer that the Defendant could have engaged a local lawyer, I am not prepared to allow in this case the fees for extra 5 days at 15 gold mohurs to cover counsel''s loss of time on the journey and stay as costs between party and party for which the unsuccessful Plaintiff should be made to pay.
26. I, therefore, uphold the Taxing Officer''s decision on item No. 3 and reject the appeal in respect thereof.
27. Then comes No. 4 of the bill of costs which I have set out above. The entire fees of the attorney covered by this item were disallowed by the Assistant Taxing Officer as between party and party and in his opinion in the absence of any specific direction of the Court on the point, he could not allow them. The Taxing Officer varied that decision of the Assistant Taxing Officer by allowing the attorney the sum of Rs. 170 for his attendance before the commission and loss of time involved at Bikanir, under Rule 91, item 37 of Chapter XXXVI of the Original Side Rules. As this item shows, the attorney charged Rs. (sic)5 on the day of departure from Calcutta to Bikanir although he left after office hours on October 15, 1949 at 7 p.m. and lie charged the subsequent attendance on each day up to October 20, 1949 at the rate of Rs. 150 per day. The attorney contends that he should be allowed fees when he has to go away from Calcutta from the day he leaves Calcutta up to the day of his return to the usual place of business and that the Taxing Officer wrongly disallowed this item. The attorney also contends that such attendance was necessary for properly instructing the counsel and, therefore, the full charges claimed by him should have been allowed as between party and party.
28. It becomes necessary in this context therefore, to examine item 37 of 91 of Chapter XXXVI of the Original Side Rules:
Attending at a Local Enquiry, or at a commission to examine parties or witnesses or at an Examination de beenesse, or before a commissioner for partition, or before a receiver on the letting of property, or to take or deliver possession or before an arbitrator, per hour-Rs. 2-8.
Where attendance of attorney or his managing clerk is required, per hour- Rs. 5 to 10.
For every mile or portion of a mile beyond the local limits and within 20 miles, additional to cover travelling expenses and loss of time, per mile-Re. 1 provided the total amounts including the fee for going and returning shall not exceed twenty rupees.
Where beyond 20 miles-in the discretion of the Taxing Officer.
29. It is plain from the above rule that it provides a fee for the attorney at the rate of Rs. 2-8 per hour for attending at a commission to examine parties or witnesses and where attendance of the attorney himself or his managing clerk is required, the fee is said to vary from Rs. 5 to Rs. 10 per hour. Then this item No. 37 makes provision for an additional allowance to cover his "travelling expenses and loss of time" at the rate, of Re. 1 per mile or portion of a mile, provided the total amount does not exceed a sum of Rs. 20, and this provision accordingly is made applicable to a distance within 20 miles of the local limits. This additional compensatory allowance of rupee one per mile does not, however, apply where the distance travelled is beyond 20 miles. In the latter case when it is beyond 20 miles this additional compensatory allowance is left to the discretion of the Taxing Officer. Item 37 of Rule 91 as it stands now, therefore, deals with three distinct classes. In the first paragraph it deals with the fet of Rs. 2-8 per hour of attendance. In the second paragraph it deals with the attendance of attorney or his managing clerk at the rate which wariest from Rs. 5 to Rs. 10 per hour and in the third paragraph it deals with additional allowance to cover travelling expenses and loss of time at a fixed rate of Re. 1 per mile within 20 miles of the local limits and at a rate left to the discretion of the Taxing Officer if the distance is beyond 20 miles of the local limits. The fact that this additional compensatory allowance varies with reference to miles does not mean that it is confined only to bare travelling; expenses alone. The express language used on item 37 of Rule 91 is "travelling expenses and "loss of time". My interpretation is that this additional allowance can cover both travelling expenses and loss of time. That it varies with miles means only this that journey per mile involves loss of time in the journey as well as travelling expenses.
30. Now, the Assistant Taxing Officer disallowed the whole of these fees only on the ground that there was no order of the Court. There he was manifestly wrong because the order of the 8th March, 1949 definitely directed the parties "either to appear "in person or by the agents or pleaders". The attorney, therefore, in a case like this was well covered by the order of the Court to appear and instruct his advocate. The attendance of the attorney, was in this case sanctioned by the order of the Court. The Taxing Officer also saw this error of the Assistant Taxing Officer and he, therefore, made an allowance for the attorney under item 37 of Rule 91, Chapter XXXVI for a sum of Rs. 170 to cover, as he says, "attendance before the commission and "loss of time involved at Bikanir". I have already said that normally the quantum of fees allowed by the Taxing Officer should not be interfered with and the Court does not as a rule interfere with such quantum unless the Court finds that there is again some manifest error or some question of principle.
31. Now, on this point I am satisfied that there are both a manifest error and a question of principle involved in the order of the Taxing Officer. The Taxing Officer made no separate allocation to show how much he allowed the attorney on (a) loss of time and (b) for attendance. He allowed a total sum of Rs, 170 only on both the grounds taken together. Applying the interpretation of item 37 of Rule 91 that I have given above, it is plain that the attorney certainly is entitled to charge his attendance at a rate of Rs. 10 per hour as the maximum limit in the schedule under Rule 91. Now, that alone even if the commission is taken to be one full day of five hours will mean Rs. 50 for such attendance. Attendance charged at the rate of Rs. 10 per hour at a commission at Bikanir does not appear to me at all unreasonable. The result then is that the Taxing Officer has only allowed Rs. 120 for the loss of time involved in attending the commission at Bikanir. Now it takes at least five days by train to travel to Bikanir from Calcutta and back with minimum haltage, and if each day at least is taken to be a five-hour working day, then for attendance alone the charges would have come up to Rs. 50 a day at the rate of Rs. 10 per hour amounting to Rs. 250 for attendance. If one calculates such loss of time for these five days at the rate chargeable for attendance then the amount would be Rs. 250 as the minimum. But that basis of calculation would obviously be unfair. Under the third paragraph of item 37 of Rule 91, the attorney is entitled to a compensatory allowance for both travelling expenses and loss of time at a rate left to the discretion of the Taxing Officer, which obviously is intended to permit a rate higher than one rupee per mile. The Assistant Taxing Officer never applied his discretion at all and the Taxing Officer improperly exercised such discretion so far as this claim for compensatory allowance is concerned. Calcutta to Bikanir and back would be more than 1,500 miles and even at the rate of Re. 1 per mile the figure would be more than Rs. 1,500. The Taxing Officer''s order, therefore, is manifestly wrong because it allowed only Rs. 170 for attendance and loss of time together which is manifestly wrong. Under item 37, attendance is to be charged for separately from the charge on loss of time and travelling expenses. He was wrong in lumping together (a) attendance and (b) loss of time. He is also wrong because no discretion was properly applied to calculate and assess the compensatory allowance to cover loss of time due to the fact that the commission was held at a place much beyond 20 miles from Calcutta. On this account I will assess at least Rs. 750 as minimum as a fair compensation for the attorney''s loss of time alone under the third paragraph of item 37 of Rule 91. Therefore, the total fees on item 4 of the bill of costs for the attorney amount to Rs. 50 for attendance plus Rs. 750 for loss of time-Rs. 800. That is what was claimed by the attorney in item 4 of his bill of costs although not in the manner I have calculated above. I, therefore, allow the whole of this sum of Rs. 800 as claimed by the attorney on the basis of the calculation that I have made. The order of the Taxing Officer on this point is modified accordingly by increasing the sum of Rs. 170 which he allowed to Rs. 800.
32. The next item is item 5 of the bill of costs. I have set out this item above. It concerns a sum of Rs. 2,000 claimed as charges paid to the attorney for his travelling expenses with one servant, the counsel and the commissioner and also as their lodging and boarding expenses. The Assistant Taxing Officer allowed second class railway fare to the commissioner but disallowed the travelling expenses of both the attorney and the counsel. But the Taxing Officer disallowed all travelling charges of the commissioner, the attorney and the counsel. The Assistant Taxing Officer purported to act under item 37 of Rule 91 of Chapter XXXVI. The ground of objection taken by the attorney, however, is in these terms:
We submit that r. 91, item 41 which was applied by the Assistant Taxing Officer has no application here.
33. The Taxing Officer in considering this objection was guided by the language of the order of March 8, 1949 winch said:
Let the consideration of the question of costs of and incidental to this application and of the issuing and executing the said commission and of the return thereof be reserved until determination of this suit or until further orders of this Court.
34. The Taxing Officer construed the words "costs of issuing and "executing the commission" in that order and expressed the view that these words did not contemplate the costs of travelling and other charges incurred in connection with the Commission in the absence of any specific order to that effect being made by the Court.
35. Apparently the Taxing Officer in engaging in a construction of the words "cost of issuing and executing the commission" appearing in the order of March 8, 1949 was considering the travelling expenses of the counsel, the attorney and the commissioner altogether. I would, however, clear the ground by separating the travelling expenses of the attorney from the travelling expenses of the counsel and the commissioner because I think that different considerations apply to these different persons. The reason for such separation is that I find that in item 37 of Rule 91 our rules provide by express reference for the travelling expenses of the attorney, whereas our rules are silent on the point of travelling expenses of the counsel and the commissioner.
36. I will take up first the attorney''s claim for travelling expenses. The attorney quite clearly is entitled to charge travelling expenses, first, because the order itself issuing the commission said that the party would be entitled to appear through agent at the commission and secondly, because the rules expressly provide for travelling expenses of the attorney, in such a commission. Item 41 of Rule 91 of Chapter XXXVI which allows a fee of Rs. 8 only to the attorney in respect "of instructions to agent where when a "commission has issued for examining a witness abroad, it may "appear to the Taxing Officer that the attorney could not reasonably be expected to attend" cannot be applied in this case for three reasons, first, because this is not a commission "abroad", secondly because Bikanir is a place which the attorney could reasonably be expected to attend, and thirdly the terms of the order in this case are a sufficient sanction for the attorney himself to travel to the place of commission. When such travelling expenses cover a distance beyond 20 miles, item 37 of Rule 91 leaves the quantum of such travelling expenses entirely to the discretion of the Taxing Officer. The Taxing Officer''s total disallowance of the travelling expenses of the attorney is, therefore, not only erroneous on principle being in breach of the rule, but also indicates that he exercised no discretion whatever in the matter which it was his duty to do under that rule. I, therefore, allow second class railway fare to the attorney from Calcutta to Bikanir and back. I disallow, however, the fare which he has charged for a servant which he took with him as not being permissible in a party-party taxation.
37. Then comes the question of travelling expenses for the counsel. I have already expressed my opinion on this point. I will repeat briefly my views. In this case no travelling allowance to the counsel as party-party costs can be allowed because the evidence before the commission in this case has not been proved to be one which required the taking of a counsel all the way from Calcutta to Bikanir. While in exceptional cases travelling expenses for a counsel can be allowed in this country notwithstanding the fact that the Rules of this Court are silent on the point, it must be established in a case where counsel is paid travelling expenses as party and party costs, that such case satisfies the requirement of the tests that I have laid down. In my judgment this case does not satisfy those tests. The enunciation of this principle is naturally confined to party and party taxation.
38. I, therefore, uphold the Taxing Officer''s decision in disallowing counsel''s travelling expenses in this case.
39. Next comes the question of travelling allowance for the commissioner. The practice of the Supreme Court in England is stcted in the 12th Edn. of Baunehr and Porter''s Taxation of Bill of Costs p. 854 to be the costs of sending out counsel as commissioners to take evidence are not generally allowed but the discretion of the Taxing Officer will not be interfered with unless clearly wrong
40. Our Rule 78 of Chapter XXXVI provides that except as provided in Rule 108 (which does not apply in this case), or unless otherwise ordered, the fees to be allowed to commissioners for the examination of witnesses on commission will not exceed seven gold mohurs for the first effectual meeting and after the expiration of five hours, for each subsequent period of five hours, and interpreter''s fees not to exceed two gold mohurs with the same time limits. In this Rule 78 no travelling expenses for the commissioner are expressly provided for. I do not find in any other rule any provision being made for travelling expenses of the commissioner. Therefore, the words "unless otherwise ordered" in Rule 78 become important. Now, the consent order of the Court of September 14, 1949 provided:
It is further ordered that Mr. B.K. Choudhury, Barrister-at Law, the Commissioner, appointed herein be at liberty to examine the Defendant either in Calcutta or in Bikanir, Rajputana, and to act as interpreter on usual remuneration.
41. This makes it quite clear that for the actual act of taking evidence as a commissioner and for interpreting the evidence the court ordered the commissioner the "usual remuneration". But the order was silent as to his travelling expenses. My interpretation of this order is that when a court directs a commissioner to take evidence at a place like Bikanir the Court considers it in the interest of justice that the commissioner should go from Calcutta to Bikanir and in the case of such an order the question of availability of a local commissioner does not arise. That being the case, the question now is that the court having given permission to the commissioner to proceed from Calcutta to Bikanir, was it the intention of the Court that the commissioner in proceeding to execute such commission should not receive his actual travelling expenses incurred on duty under the behest of the Court? I should consider such a situation to be most unreasonable and I have no doubt that whenever the Court directs a commissioner to proceed from his usual place of business to the place of commission, the Court desires by necessary and unavoidable implication that his actual travelling expenses should be paid for. It is on this point that I will construe the words "cost of executing the "commission" as including the travelling expenses of the commissioner who had been directed to proceed to the place of commission by the order of the court. I will, therefore, allow second class railway fare for the commissioner from Calcutta to Bikanir and back as travelling expenses and allow the appeal in respect thereof. The Taxing Officer''s order on this point is set aside. I will only add this, that if the Court did not order a Calcutta commissioner to proceed to Bikanir to execute the commission, then quite different considerations will apply such as the availability of a local commissioner at or near the place of commission.
42. This question has been more reasonably solved by an express provision in the Rules of the Supreme Court in England. Order 37 Rule 51 R.S.C. provides,
The party prosecuting the order shall also pay all reasonable travelling and other expenses including charges for the room (other than the Examiner''s chamber) where the examination is taken.
43. If the practice of the Supreme Court in England is to be applied on this point, as by our Rules it is said that it should apply in those cases where we have no provision, then also the same result is reached as I have already stated.
44. Before I conclude my discussion on this ground of objection, it is necessary to recollect that the charge under this head that is being claimed is not wholly composed of travelling expenses, it also includes boarding and lodging expenses of the attorney, the counsel, the commissioner, and the servant. They have been disallowed by the Taxing Officer, and in my judgment, rightly. The Taxing Officer has given no reasons separately for disallowing warding and lodging expenses. It will be preposterous to allow warding and lodging expenses as party and party costs on the basis of any principle. If it is allowed on commission, then the next step follows that even while doing a case for the client at the usual place of business the counsel or the attorney or the commissioner will contend that they have to be properly fed and housed before they can do the work, and those charges will be part of the costs of the litigation. This shows the illogical character of this claim, and if any reason is to be given for the disallowance of such claim, that is the reason.
45. The net result of my finding is, therefore, that I allow second class railway fare from Calcutta to Bikanir and back both to the attorney and to the commissioner and the rest of the claim including counsel''s travelling expenses, and all boarding and lodging expenses is rejected under this charge being item 5 of the Bill of costs set out above. The Taxing Officer''s decision is modified accordingly. I, therefore, direct the Taxing Officer to allow that portion only of the charge claimed under item 5 of the Bill of costs which represents the amount of second class railway fares from Calcutta to Bikanir and back and disallow the rest of the said item 5.
46. Coming to the last ground of objection relating to item 6 of the bill of costs set out above, it must be recalled that it concerns the sum of Rs. 1,258 paid to the commissioner as fees. The Taxing Officer allowed the maximum fees under Rule 78 of Chapter XXXVI of the Original Side Rules, that is, 7 gold mohurs as commissioner''s fee and 2 gold mohurs as interpreter''s fee. As the commissioner also acted as the interpreter, therefore, he was given the maximum 2 gold mohurs, for interpreting. He obtained altogether 9 gold mohurs. The Taxing Officer disallowed the rest of the claim under this head. The ground of objection taken by the attorney on this point is that the commissioner should be paid for 6 days and that his daily fee should be at the rate of 12 gold mohurs per day. The Taxing Officer agreed with the decision of the Assistant Taxing Officer on this point and disallowed this objection, but no reason has been given.
47. Having regard to the exact terms of the Order of the Court in this case, this objection is, to my mind, entirely untenable. There is no doubt that Rule 78 which I have quoted above expressly says that the Court can order a fee higher than 7 gold mohurs for the commissioner and 2 gold mohurs for the interpreter. So far, therefore, the Taxing Officer is concerned, he acted properly in disallowing these objections because he apparently was of the opinion that there was no order of the Court. I find, however, that far from there being no order of the Court, the order of the Court is plainly against this contention. The consent order of the Court of September 14, 1949 expressly appointed the commissioner to act as. a commissioner as well as to act as an interpreter "on usual remuneration". The words "usual remuneration" obviously mean the remuneration usual under the rules. The usual remuneration underline rule as I have stated, is 7 gold mohurs for the work of a commissioner and 2 gold mohurs for the work of an interpreter. That is what was allowed by the Taxing Officer and that was the order of the Court. The exceptions, therefore, taken by the attorney on this point must be discharged and I uphold the Taxing Officer''s decision on item 6 of the bill of costs.
48. My decision on this summons,: therefore, is that: (1) I uphold the order of the Taxing Officer in respect of item 3 of the bill of costs and reject the appeal in respect thereof: I hold that as party and party costs, the counsel in this case is not entitled to travelling expenses and compensation for loss of time, (2) I set aside the order of the Taxing Officer in respect of item 4 of the bill of costs and allow the appeal in respect thereof though not on the grounds alleged. I hold that as party and party costs the attorney is entitled to (a) his attendance charges and (b) compensation for his loss of time; (3) 1 set aside partly the order of the Taxing Officer in respect of item 5 of the bill of costs. In other words, I uphold his Order disallowing counsel''s travelling charges as party and party costs, and I also uphold his order disallowing all boarding and lodging expenses as party and party costs but I set aside his order disallowing fair travelling expenses of the attorney and the commissioner and grant them as party and party costs in this case; and (4) I uphold the decision of the Taxing Officer in respect of item 6 of the bill of costs and reject the appeal in respect thereof. In other words I hold that by reason of the specific order for "usual remuneration" the commissioner in this case is not entitled to charge (a) any fee higher than the maximum specified in the rules and (b) any other fees as compensation for loss of time.
49. Having regard to my decision as above, I make no order for costs of this application although I certify this summons for the counsel appearing.
