V. Pichai Udayar vs P. Doraiswami Udayar and others

Ananthanarayanan, Offg. C.J.

The facts in relation to which this revision proceeding arises are not in dispute, and the simple question is the precise manner in which the Rules

of the High Court with regard to the relief of the award of costs, particularly Counsel''s fee, have to be applied in the given situation. This was a

case in which there was a preliminary decree, which directed that costs will be ascertained and awarded or provided for in the final decree to be

passed in the suit. Further, it is admitted that, as the suit was originally instituted, the suit claim was estimated upon a notional basis, But, finally, the

actual amount due to the plaintiff was ascertained at Rs. 12,041-12-11. Further, it is not in dispute that the plaintiff paid court-fee on that basis.

Upon the principle of the costs being dependent upon the event, or the degree of success, the plaintiff would appear to be prima facie entitled to

costs, including the specification of Counsel''s fee, on this basis. If Rule 31 of the Rules relating to Legal Practitioners (Civil Rules of Practice,

Volume I, page 304) is to be applied, the Counsel''s fee will have to be calculated upon the tariff which is included in Sub-Cl. (3) of Cl. (II) of R.

31, and that is actually the basis of the order of the learned Additional District Munsif. The claim was Rs. 750, but the learned District Munsif

awarded only Rs. 680. That is a question of the precise application of the tariff to the facts, and need not concern us.

But it is strenuously contended by the learned Counsel for the revision petitioner that it is not this rule which will apply to a situation of this kind,

but R. 35 which appears at page 306. Under Cl. (I) of that Rule, fees are provided for applications of several varieties. The relevant Orders and

Rules of the CPC are also set forth against these categories. The final category is:

Applications in other cases not specifically provided for by this Rule whether before or after decree.

The contention is that the application for passing a final decree really comes under this category, and that only Rs. 25 ought to have been awarded.

The contention is clearly unsustainable, and have no difficulty in repelling it. After all, the main question before the Court is whether the final

decree should not include costs for the plaintiff proportionate to his success, and also dependent on the court-fee actually paid by him. If these

costs are to be so included in the final decree, the costs awarded by the lower Court are clearly correct. If they have been otherwise provided for,

I can very well understand the argument that an application to pass a final decree ought to be regarded as a separate proceeding, falling within the

last category of R. 35 (1) of the Civil Rules of Practice, and that this application can only be taxed with costs of Rs. 25. But it is not in dispute

before me that the final decree does not otherwise provide for costs of plaintiff, and that the order of the Court below now provides for those

costs, In a some what similar situation which arose on the Original Side of this Court, it was held by Kunhamed Kutty, J., in Raghava Mudaliar v.

Subbu Chetti that just because mesne profits were subsequently ascertained after the decree of the relief for possession, this did not imply that that

relief was not part of the same decree; hence, there were no two separate decrees as contended. Upon parity of reasoning, it would be clear that

this application ought not to be dealt with as a separate proceeding from the final decree itself. I hold that the order of the lower Court is correct

and that the revision proceeding must be dismissed. The learned Counsel for the revision petitioner contends that this is a case of casus omissus,

and that the Civil Rules of Practice ought to be amended by specifically providing for a situation of this kind. I am not clear whether the Rules that I

have referred to, now need be enlarged by a further specific provision in this respect. The matter might be considered by the Rules Committee, on

an appropriate occasion. This revision petition is dismissed. No order as to costs.