Mohant Ramkishun Das vs Babu Beni Prosad and Others and Daulatram

Das, J.—These applications are directed against the order of the learned Subordinate Judge of Patna, by which he has calculated the fees payable to two sets of defendants on the whole value of the suit under Rule 35. The facts are these:

The plaintiffs brought a mortgage action against the defendants. The question as between the plaintiffs and defendants Nos. 3 to 5 was one of priority; defendants Nos. 3 to 5 claimed to be the prior mortgagees and the plaintiffs case was that they were the prior mortgagees. So far as the defendant No. 9 is concerned the controversy between the plaintiffs and him was as to a particular property which had been purchased by defendant No. 9, the case of defendant No. 9 being that he had acquired a title to the property before the mortgage in favour of the plaintiffs.

When the case same up before the learned Subordinate Judge, the plaintiffs withdrew the case as against defendants Nos. 3 to 5. The question arises whether the learned Subordinate Judge was right in assessing costs payable to defendants Nos. 3 to 5 on the whole value of the suit.

Mr. Purnendu Narain Sinha appearing on behalf of the plaintiffs argues that the Court was wrong, and he relies upon Rule 37-B. That rule provides that: "If the suit be dismissed for default, the amount of the fee to be paid to the defendant''s Pleader shall be left to the discretion of the Court, provided that such fee shall not exceed the moiety of the fee calculated on the whole value of the suit under Rule 35." According to Mr. Purnendu Narain Sinha the amount of the fee payable to the Pleader of defendants Nos. 3 to 5 should not have exceeded the moiety of the fee calculated on the whole value of the suit. The learned Vakil appearing on behalf of defendants Nos. 3 to 5 urges that Rule 37, paragraph (b) has no application inasmuch as the suit was not dismissed for default, but as against this Purnendu Baba relies upon the case of Nanhilal Agrari v. Secretary of State for India 5 Ind. Cas.770 : Cri.L.J. 217. In that case, which was a case that arose on certain land acquisition proceedings, the claimant applied to withdraw the case and the District Judge allowed him to do so but directed him to pay full costs to the Government. Mr. Justice Mukerjee and Mr. Justice Teunon came to the conclusion that full costs should not have been allowed. But there is this distinction between the case upon which Purnendu Baba relies and this: that it does not appear from the facts recited in the judgment of Mr. Justice Mukerjee that the case was withdrawn after witnesses had in fact been examined on behalf of the petitioner. The opposite party has filed an affidavit in this Court in which he swears that the petition of withdrawal of the suit was not filed until the witnesses had been examined on behalf of the petitioner. I quite agree that no distinction on principle can be drawn between the withdrawal of a suit and the dismissal of a suit for default, but I am unable to say that where a suit is withdrawn after witnesses had in fact been examined on behalf of the petitioner that such withdrawal operates as a dismissal for default. I am of opinion, therefore, that so far as the order granting full costs to defendants Nos. 3 to 5 is concerned that order is right and ought to be affirmed.

I have now to consider whether the learned Judge was right in awarding full costs to defendant No. 9. The learned Subordinate Judge relies upon Rule 40, but Purnendu Babu argues before us that Rule 41 was the rule that applied in this case, and he says that the value of the property in which defendant No. 9 was interested being Rs. 50, the fees awarded to the Pleader of defendant No. 9 should have been calculated with reference to that value.

Now the learned Vakil appearing on behalf of defendant No. 9, argues first, that if there is any error in the order passed by the learned Subordinate Judge of Patna that error arose out of a misconstruction of the rules relating to Pleader''s fees and this Court ought not to revise such an order as the learned Subordinate Judge bad complete jurisdiction to misconstrue these rules. Alternatively he argues that it is not established that Rs. 50 was the value of his property. I am of opinion that these arguments are entitled to succeed. The question was a question of construction of Rules 40 and 41. Both these rules were placed before the learned Subordinate Judge and he same to the conclusion, erroneously in my opinion, that Rule 40 applied to this case. But 1 am unable to say that that order is revisable u/s 115 of the Civil Procedure Code.

On the next point which has been argued by the learned Vakil I am of opinion that the document by which the defendant No. 9 purchased the properly does not establish the value of the separate interest of the defendant in the property at the date of the suit. There is no evidence before us as to what the value of the separate interest of the defendant was at the date when the learned Subordinate Judge passed his order. On the whole I am of opinion that we cannot interfere with the order passed by the learned Subordinate Judge.

These applications must be refused but in the circumstances without costs.

Adami, J.

I agree.