Col. Maharajadhiraj Sir Kameshwar Singh vs Nebilal Mistri

Beevor, J.—This is an application in revision which relates only to a small item claimed as costs. The petitioner before us instituted a rent suit No. 116 of 1948 which was finally tried ex parte with other rent suits by the second Munsif of Monghyr on 17th May 1943. On that date one Shivnandan Prasad, the petitioner''s patwari, was examined as the only witness for the plaintiff now the petitioner. A bill was submitted for the sum of Rs. 3, as travelling allowance and subsistence, allowance of the patwari. This was rejected by the learned Munsif without reasons. An appeal was presented to the District Judge of Monghyr who dismissed the appeal holding that, although the Munsif had given no reasons, he had obviously acted u/s 35 (1), Civil P. C. and that he had not made an improper use of his discretion. Section 85, Civil P. C, deals with the Court''s powers regarding costs, and the substantial portion of the section directs that costs shall be in the discretion of the Court. Where discretion has properly been exercised; the appellate Court and this Court in revision willnot interfere with the exercise of that discretion, The discretion given is, however, a judicial discretion to be exercised in accordance with definite principles. It has, however, been held in many cases that where a principle is involved the Court will always interfere and entertain review from the deci sion of the Taxing Officer: vide Langley v. D''Arcy A. I. R. 1930 Bom. 24 where the English decision, Hill v. Peel (1870) C. P.J 172, is cited for this proposition-and there is no doubt that where a question of principle is involved this Court will interfere in revision with orders for costs. We were re-'' ferred in connexion with this case to the decision of the Calcutta High Court, Hara Sundar Mazumdar v. Lahabar Singh A. I. R. 1923 Cal. 315, where it was held that the successful party in, a litigation is entitled as against the unsuccessful party, against whom costs are awarded to recover all proper expenses, including travelling expenses incurred by summons of witnesses; also to the decision in Shujauddin Khan Vs. Mehdi Raza, and another decision of the Calcutta High Court in Upendra Narain Roy and Others Vs. Bisweswar Roy Chowdhury, , but although there are remarks in the judgments in those cases which are of general application, they do not afford a complete ground for deciding the present case because we have to take into consideration the rules framed, by this Court.

Part 5, chap. 1, High Court''s General Rules and Circular Orders, Civil, vol. I, deals with fees and costs and is divided into nine sections. Section 1 deals with process fees; Section 2 with the reduction and remission of court-fees; Section 3 with other fees including costs of affidavits, searching fees and copying charges; Section 4 deals with postage, Section 5 with witnesses'' expenses, Section 6 with expenses of commissions under Order 26, Rule 15, Civil P. C, Section 7 with fees of advocates and pleaders, Section 8 with mukhtars'' fees, and Section 9 with fees of revenue agents, and in the last section appears Rule 31 which clearly has a general application. The main portion of this rule says: "In addition to the fee hereinbefore prescribed the successful, party shall ordinarily be allowed to recover the following charges." The charges are given under three heads and we are now concerned with heading No. l which runs as follows:

The party or his agent according to the circumstances of each individual case may be allowed subsistence allowance according to the scale prescribed for witnesses'' expenses in Rule 19 ante for such days of attendance in Court as the Court may direct.

There is no doubt that the patwari was the agent of the present petitioner for the rent suit in question and the petitioner claims that under this Rule 31(1) he was entitled to subsistence allowance for his patwari. The learned District Judge considered that the Munsif in disallowing the petition had obviously taken into consideration the paltry amount which was claimed and the fact that the suit was uncontested. I do not think that these could be valid grounds for disallowing an item of costs. It is clear that a very wide discretion is given to the Courts u/s 35, Civil P. C, and that discretion extends not only to the question which party should bear the costs of a suit or proceeding or in what proportion but also in many instances to the question whether a particular item should be allowed as costs of a party and, if so, for what sum. This is clearly recognised by the High Court rules. To give one or two examples out of many, I may refer to Rule 28 (i) in Section 7 of the Chapter already mentioned which states that the advocates and pleaders'' fees shall be in the discretion of the Court, and then provides a scale on which such fees shall ordinarily be allowed. Rule 19 (vi) in Section 5 dealing with witnesses'' expenses provides that for witnesses following any profession such as medicine or law special allowance shall be given according to circumstances. Without attempting to lay down any hard and fast rule, I think that in practice it will be found convenient to keep separate any question regarding the exercise of a general discretion given to the Court to determine to what extent a successful party should be allowed to recover his costs and from whom from any question relating to the exercise of the discretion to determine whether a particular item should be allowed as costs and, if so, for what sum. No doubt in some cases the same circumstances may afford a ground both for disallowing a portion of the costs of the successful party and for disallowing a particular item. This will not, however, affect the principle.

When the words of Rule 31(1) are considered, there may at first appear to be a conflict between the words "for such days of attendance-in Court as the Court may direct" and the words in the main part of the rule "the. successful party shall ordinarily be allowed to recover the following charges," and, it may be suggested, that unless the Court directs that a party or his agent shall be allowed subsistence allowance for any particular day, the party shall not ordinarily be allowed to recover anything on that account. In my opinion this is incorrect. I have no doubt that in most suits and proceedings the party or his agent does attend on a number of days other than the date on which his evidence is taken, and the meaning of the rule is that the party is not to be granted subsistence allowance automatically for all such days but only for such days as the Court may direct. Where the party himself or his agent is a necessary witness in the suit his attendance is essential on the date of hearing if on no other date and I do not think that it is a proper exercise of judicial discretion to disallow the subsistence allowance for that date except for definite reasons. No definite reason has been suggested in this case for disallowing the subsistence allowance of the patwari on the date of hearing. For these reasons I hold that the learned. Munsif did not exercise a judicial discretion in disallowing the subsistence allowance of the'' patwari on the date of hearing. I do not, however, think that the claim of Rs. 3 was justified. Prima facie I think that the proper-amount was Be. 1 under the provisions of Rule 19 (a) in Section 5 at p. 136 of the High Court''s General Rules and Circular Orders, Civil, vol. l.

I would ordinarily direct that the decree be altered in accordance with the above directions but the petitioner''s advocate has made it clear that he is not concerned with the small sum now in question but merely to establish the principle for the future. The judgment-debtor has not at any stage appeared to contest the petitioner''s claim and was not at fault in this respect. It might, I think, cause some hardship to the judgment-debtor if the decree of the trial Court were now varied, and I would, therefore, refuse to vary the decree and reject this application subject to the remark that, for the reasons already given, the learned Munsif did not exercise a proper judicial discretion in rejecting alto-gether the claim for subsistence allowance of the patwari.

Manohar Lall, J.

I agree. My learned brother has shown in detail how the question of costs should have been disposed of. In the present case the learned Munsif has given no indication as to whether he applied his mind to decide whether in the circumstances of this case the plaintiff ought not to have been allowed the costs claimed by him. All that is stated in the order is: "The petition for passing the bill is rejected." It may be that the learned Munsif had in mind that the same patwari was present on behalf of the plaintiff not only in suit No. 116 of 1943 but in a number of other rent suits, e. g., Nos. 117, 119,120, 121 and 122 of 1943 which were disposed of at the same time. The learned Munsif should have indicated in the order the reasons which led him to refuse subsistence costs to the patwari in this case.