# MOTI NATWARLAL & ORS v. RAGHA VAYYA NAGINDAS & CO

- **Citation:** [1977] 3 S.C.R. 351
- **Court:** Supreme Court of India
- **Decided:** 1977-03-21
- **Case number:** Civil Appeal No. 1317 of 1975
- **Bench:** Y. V. Chandrachud, P. N. Shinghal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/moti-natwarlal-ors-v-ragha-vayya-nagindas-co-7229
- **Pages:** 14

## Headnote

Bombay High Court original side Rule." 1957-Rules 569, 573-Whether a
Solicitor's bill of co.<ot for work done in court subordinate to High Court can be
taxed by the Taxing Master of High Court-Whether it can be taxed 01z the
original side scale-Legal Practitioners' Fees Act 1926-Section 4-..Sectian 224
(l)(d) of Govt. of India Act 1935-Rules framed thereunder-Bombay City
Civil Courts Act 1948-Sec.tion 18(2) of the Bon1bay City Civil Court Rules
1948.
Certain properties belonging to the appellants \Vere attached by
the Citv
Civil Court in Bombay in execution of a· decree. The appel1ant engaged
the
respondent firm of Solicitors who by Vakalat executed in their favour by the
appella..nts agreed to act, appear and plead for them in the City Civil c'ourt.
The respondents took out three Chamber Summonses on behalf of the appellants for raising the attachment. Thereafter, they submitted three bills.
Since
the bills remained unpaid, they obtained an order fron1 the Prothonotary of the
High Court directing the Ta~ing Master to tax the bills. The aPpellants filed
an appeal against the order of the Prothonotary which was dismissed by the
Chamber Judge with liberty to the Taxing Master to decide whether the respondents were entitled to be remunerated on the original side scale
of fees
as
between an attorney and client.
The Taxing Master rejected the appellants'
contention and taxed the respondents' bills according to the scale of fees applicable on the original side by the High Court. A Chamber Summons filed by the
appellants before a Single Judge was dismissed. An appeal before the Division
Bench by the_ appellants also failed.
In an appeal by Special Leave the appellnnts contended :
1. The $olicitors' bill for cost and remuneration in respect of the work done
by them in the City Civil Court cannot be taxed by the Taxing !\{aster of the
Original Side, High Court.
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2. The bill in any event cannot be taxed according to the scale of fees
applicable on ·the original side as bet\veen an attorney and client, particularly
in view of the provisions contained in the Legal Practitioners' Fees Act, 1926,
Bombay City Civil Courts Act, 1948 and the Bombay City Civil Court Rules,
F
1948 as· well and the rules framed bv the Bombay High Court under section
224(1) (d) under the Government of India Act, 1935.
Dismissing th~ appeal,
HELD : I. Rule 569 of the Rules of the High Court of Bombay (Origin.I
side) 1957, authorises the Taxing Master to tax the bills of cost on ev<!ry side of
the High Court except the Appellate side of the High Court and in the Insolvency Court. All other bills of cost of attorneys shall also be taxed by hin1
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when be is directed to do so by a Judge's order. There is no justification for
the apnellants' contention thatl "other bills of cost" mu~t be construed to mean
other bills of cost relating to matters_ on the original side of the High Court.
Rule 573 as amended prescribed a limitation of 5 years· for lodging the bill of
cost for taxation after the disposal of the suit or the proceedings in the High
Court. In respect of matters which are not the subject of any proceedings in the
High Court the attorney ha.;; to lodge his bill of cost for taxation within 5 years
from the completion of the matter.
The necessity for making this provision
arose because rule 568 empowers the Taxing Master to tax the attorneys' bill of
H
cost in all matters except those on the Appellate side of the High Court. The
Bombay High Court, over a long course of years has consistently taken tl1e view
that the Taxing Master has jurisdiction to tax attorneys' bills of cost in relation
8-436SCI/77
352
SUPREME COURT REPORTS
[1977] 3 S.C.R.
A
to the_ professiona,I services rendered by them whichever be the court in relation
!O which the sef".1ces are rendered except the Appellate side of the High Court,
in regard to which an exception has been expressly carved out by the 111 le
[354 G-H, 355 A-0]
.
Nowroji Fudumji Sirdar v. Kanga & Savani, 28 Born. L.R

## Text

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351
MOT! NATWARLAL & ORS.
v.
RAGHA VAYYA NAGINDAS & CO.
March 21, 1977
[Y. V. CHANDRACHUD AND P. N. SHINGHAL, JJ.J
Bombay High Court original side Rule." 1957-Rules 569, 573-Whether a
Solicitor's bill of co.<ot for work done in court subordinate to High Court can be
taxed by the Taxing Master of High Court-Whether it can be taxed 01z the
original side scale-Legal Practitioners' Fees Act 1926-Section 4-..Sectian 224
(l)(d) of Govt. of India Act 1935-Rules framed thereunder-Bombay City
Civil Courts Act 1948-Sec.tion 18(2) of the Bon1bay City Civil Court Rules
1948.
Certain properties belonging to the appellants \Vere attached by
the Citv
Civil Court in Bombay in execution of a· decree. The appel1ant engaged
the
respondent firm of Solicitors who by Vakalat executed in their favour by the
appella..nts agreed to act, appear and plead for them in the City Civil c'ourt.
The respondents took out three Chamber Summonses on behalf of the appellants for raising the attachment. Thereafter, they submitted three bills.
Since
the bills remained unpaid, they obtained an order fron1 the Prothonotary of the
High Court directing the Ta~ing Master to tax the bills. The aPpellants filed
an appeal against the order of the Prothonotary which was dismissed by the
Chamber Judge with liberty to the Taxing Master to decide whether the respondents were entitled to be remunerated on the original side scale
of fees
as
between an attorney and client.
The Taxing Master rejected the appellants'
contention and taxed the respondents' bills according to the scale of fees applicable on the original side by the High Court. A Chamber Summons filed by the
appellants before a Single Judge was dismissed. An appeal before the Division
Bench by the_ appellants also failed.
In an appeal by Special Leave the appellnnts contended :
1. The $olicitors' bill for cost and remuneration in respect of the work done
by them in the City Civil Court cannot be taxed by the Taxing !\{aster of the
Original Side, High Court.
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2. The bill in any event cannot be taxed according to the scale of fees
applicable on ·the original side as bet\veen an attorney and client, particularly
in view of the provisions contained in the Legal Practitioners' Fees Act, 1926,
Bombay City Civil Courts Act, 1948 and the Bombay City Civil Court Rules,
F
1948 as· well and the rules framed bv the Bombay High Court under section
224(1) (d) under the Government of India Act, 1935.
Dismissing th~ appeal,
HELD : I. Rule 569 of the Rules of the High Court of Bombay (Origin.I
side) 1957, authorises the Taxing Master to tax the bills of cost on ev<!ry side of
the High Court except the Appellate side of the High Court and in the Insolvency Court. All other bills of cost of attorneys shall also be taxed by hin1
G
when be is directed to do so by a Judge's order. There is no justification for
the apnellants' contention thatl "other bills of cost" mu~t be construed to mean
other bills of cost relating to matters_ on the original side of the High Court.
Rule 573 as amended prescribed a limitation of 5 years· for lodging the bill of
cost for taxation after the disposal of the suit or the proceedings in the High
Court. In respect of matters which are not the subject of any proceedings in the
High Court the attorney ha.;; to lodge his bill of cost for taxation within 5 years
from the completion of the matter.
The necessity for making this provision
arose because rule 568 empowers the Taxing Master to tax the attorneys' bill of
H
cost in all matters except those on the Appellate side of the High Court. The
Bombay High Court, over a long course of years has consistently taken tl1e view
that the Taxing Master has jurisdiction to tax attorneys' bills of cost in relation
8-436SCI/77
352
SUPREME COURT REPORTS
[1977] 3 S.C.R.
A
to the_ professiona,I services rendered by them whichever be the court in relation
!O which the sef".1ces are rendered except the Appellate side of the High Court,
in regard to which an exception has been expressly carved out by the 111 le
[354 G-H, 355 A-0]
.
Nowroji Fudumji Sirdar v. Kanga & Savani, 28 Born. L.R. 384, Chitnis &
~
Kanga v. Wanianrao· S. Mantri, 46 Born. L.R. 76 and Mis. Pereia Fazalblzoy &
Co. v. The Rajputana Cold Storage & Refrigeration Ltd., 65 Born. L.R.
87
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. . ·2. The preamble and the statement of objects and reasons of the Legal _Practitioners Fees Act 1926 shows that the Act was passed in order to give effect to
the recomm.e!'-dations of the Indian Bar Committee that in any case in which a
Legal Practitioner has acted or agreed to act he should be liable to be sued for
negligence and be entitled to sue for his fees.
The Indian Bar Commjttee
reco~mended by para 42 of its report that the distinction relating to suing for
negligence and being sued for fees was not of great importance since suits by
or against Legal Practitioners in respect of fees and the conduct of cases were
extremely_ rare.
But it was necessary to provide that in any case in which a
Legal Practitioner had acted or agreed to act he should be liable to be !\Ued for
negligence and be entitled to su~ for his fees.
The definition of Legal Practitioner in the 1926 Act is the same as in the Legal Practitioners Act,
1879
(which includes an attorney). Section 3 of the Act of 1926 provides that any
Legal Practitioner who acts or agrees to act for any person may by private
agreement settle with such person the terms of his engagement and fees to be
paid for his professional services. Section 4 of the· Act provides that any such
Legal Practitioner shall be entitled to institute and maintain legal proceedings
for the recovery of any
fee
due
to him
under
the agreement or if no
such fee has been settled a fee computed in accordance with the law for the
time being in force in regard to the computation of the cost to be awarded to a
party in respect of the fee of his Legal Practitioner.
It may be that if an
attorney institutes a· suit he may be governed by section 4 but it really confers an
additional right on the Legal Practitioner to institute a suit and cannot be con~
strued as detracting from any other right which he may possess in regard to the
taxation and recovery of hi< fees. [358 G-H, 359 A-B, F-H]
3. The High Court was in error in observing that alternatively there \Vas an
apparent conflict between section 4 of the 1926 Act and the original side rules
relating to the taxation of an attorney's bills of cost. · Bearing in mind the true
object anc.l purpose for which the 1926 Act \Vas passed and the drive of sect~on
4, there is ·no conflict, apparent or real between the 1926 Act and the High
Court Rules of 1957.
[360 D-E]
4. The rules framed by the High Court under section 224(1 )(d) of _the 1935
Act, are rules for fixing and regulating the fees payable as costs by any party in
respect· of the fees of his adversary's attorney. These rules according to their
very terms have nothing to do with the taxation of any attorney's bill of cost as
between himself and his O\Vn client.
[360 F-G]
5. The combined effect of section 4 of the 1926 Act and the Rules framed by
the High Court under section 224 ( 1) (d) is that if an attorney-Who has appeared
or acted for his client in the City Civil Court sues his client for fees he cannot
recover in the suit anything more than what is permissible under the Rules framed
by the High Court under sect!on 224(1)(d). Howe"".er, that c"!..O _not af(ec,t.the
right of an attorney to have his bill taxed by the Taxing Master on the ong1nal
side scale. [361 C-Dl
6. Section 18(2) of the Bombay Cit~ Civil Courts Act .. 194? provides that
in respect of suilci transferred from the High Courl to the City Ct"".il Court cost~
incurred in the High Court till the date of the transfer of t_he suit are to
be
assessed bv the city Civil Court in such man.ner as the State Government n1ay
after consultation with the High C-Ourt determine by rules. Rule 2 framed l}nder
section 18(2) provides that even as regards the fees of attorneys the Re~1strar
of the City Civil Court is _given the -power to tax ~nd allow all such costs and
out of pocket expenses as shall have been properly incurred by au attorney upto
the 1tate of transfer of the - suit. The nlle further provides that nfter the date
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M. NATWARLAL v. R. NAGINDAS & co. (Cha11drachud, !.) 353
of· the transfer such fees shall be taxed and allowed as in the opinion of the
A
Registrar are commensurate with the work done by the advocate having regard
to the scale of fees sanctioned for the advocates in the City Civil Courts Rules.
The said rule, applies only to transferred suits. It has no application to the suits
and .proceedings instituted in the City Civil Court after 148. [361 D-H]
M/s. Sandersons & Morsans v. Mohan/al Lalluchand Shah, A.I.R.
[1955)
Cal 319 distinguished.
7. The Taxing Master, however, before allowing the cost claimed
by the
attorney from his client must have regard to the fact that the actomey
ha~
appeared in a subordinate court and to the scale of fees generally prevalent in
that Court.
[363 G-Hl
The Court observed that power similar to the power of taxation of a bill of
costs betv1een the advocate and client which is found in Supreme Court Rule~.
1966, should be conferred on appropriate officers of the Court subordinate to
the High Court.
Such a power may enable the presiding Judge to c.ontrol the
professional ethics of the advocates appearing before them more effectively than
is possible at present. [362 A-Gl
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1317 of 1975.
lfrom the Judgment and Order dated 8-10-197 4 of the Bombay
High tourt in Appeal No. 73 of 197 4)
P. H. Parekh and Miss Manju Jelley, for the Appellant
S. K. Dholakia and R. C. Bhatia, for the respondent.
F. S. Nariman and B. R. Aggarwal, for the intervener.
The Judgment of the Court was delivered by
CHANDRACHUD, J. A question of practical importance concerning
the dying profes'sion of Solicitors arises in this appeal by special leave.
The question is whether the bill of costs of a Solicitor or an Attorney
who 'has rendered professional services to his client in the City Civil
Court can be taxed by the Taxing Master, Original Side, Bombay High
Court, and if so, whether it can be taxed on the Original Side scale.
The dual system which was prestigiously in vogue in Bombay since
the inception of the Bombay High Court has been abolished with effect
from January 1, 1977 and therefore the question is not of growing
importance. All the same, though the question will by and by cease
to have the importance which it has to-day, we are informed at the
bar that quite a few cases are kept pending in Bombay to await the
decision of this appeal.
Certain properties belonging to appellants were attached by the
City Civil Court, Bombay, in execution of a decree passed by a Court in
Bellary. The appellants appeared in the execution proceedings through
a firm of Solicitors, Mis Raghavayya Nagindas & Co., respondents
herein, who by the vakalatnama executed in their' favour by the appellants, agreed to act, appear and plead for them in the City Civil Court.
The respondents took out three Chamber Summonses on behalf of the
appellants for raising the attachment, which was eventually raised · in
about 1960. Thereafter, they submitted three bills to the appellants
for their costs and remuneration.
Since the bills remained unpaid, the
respondents obtained on February 8, 1972 an order from the Prothonotary of the High Court directing the Taxing Master to tax the bills
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354
SUPREME COURT REPORTS
(1977] 3 S.C.R.
The appellants appealed against the order of the Prothonotary by way
of Chamber Summons which was dismissed by the Chamber Judge
on October 26, 1972 with liberty to the Taxing Master to decide whether
rnspondents were entitled to be remunerated on the Original Side scale
of fees, as between au Attorney and client.
The Taxing
Master
rejected the a2pellants' contention, taxed the respondents' bills according to the scale of fees applicable on the Onginal Side of the
High Court and directed the issuance of an allocatnr.
Before the respondents could obtain a payment order on the basis
of the allocatur, the appellants took out a Chamber Summons on May
7, 1973 challenging the order of the Taxing Master.
That Chamber
Summons was dismissed by the Chamber Judge whose decision has
been confirmed in appeal by a Division Bench.
Three contentions were raised by the appellants
in the
High
Court : ( 1) A Solicitor's bill for costs and remuneration in respect
of the work done by him in the City Civil Court cannot be taxed by
the Taxing Master, Original Side, High Court; (2) The bill, in any
event, cannot be taxed according to the scale of fees applicable on the
Original Side as between an Attorney and client; and ( 3) The recovery
of the amount taxed by the Taxing Master is barred by limitation under
art. 113 of the Limitation Act, 1963.
The High Cowt rejected all
these contention~ by its judgment d,jlted October 8, 1974.
Mr. Parekh, appearing for the appellants before us, did not .press
the third point regarding limitation and rightly so. Article 113 of the
Limitation Act, though residuary, applies to suits and cannot govern
,the special form of remedy available to the Attorneys for recovering
their fee's.
Proc~edings in pursuance of that remedy are governed by
rule 573(ii) (a) of the Original Side Rules and the proviso thereto.
The proceedings for recovery of fees under those provisions are not
· barred by time.
Counsel has, however, pressed the first two contentions with some
zeal.
We wiU first take up for consideration the primary question
whether the Taxing Master has jurisdiction at <tll to tax an Attorney's
bill of costs for professional services rendered by him to his client in
connection with a litigation in a court other than the Bombay High
Court, in ·this case the City Civil Court.
Rule 569 of "The Rules o[
the High Court of Bombay (Original Side), 1957" affords, in our
opinion, a complete answer to the appellants' contention that the Taxing Master who is an officer of the Original Side of the H~h Court has
no jurisdiction to tax the Attorneys' bills in regard to work done by
them in matters other than those on the Original Side. Rule 539
occurs in Chapter XXIX of the Original Side Rules under the rubric
"The Taxing Office". The rule reads thus :
"569. The Taxing Master shall tax the bills of costs on
every side of the Court (except the Appellate Side) and in
the Insolvency Court.
All other bills of costs of Attorneys
shall also be taxed by him when he is directed to do 8o by a
Judge's order."
'
M. NATWARLAL v. R. NAGINDAS & co. (Chandrachud, J.) 355
'I_be rule consists of two parts of which the first part confers jurisdicA
t1on on the Taxing Master to tax the bills of costs on every ~ide of
the High Court including bills relating to matters in the Insolvency
Court but excluding those on the Appellate Side of the High Court.
If the rule were to stop with the first part, it would have been possible
to say that the Taxing Master has no· jurisdiction to tax the bills in
regard to matters outside the High Court.
But the second parts of
the rule puts the matter beyond doubt by providing that all other bills
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of costs of Attorneys shall also be taxed by the Taxing Master.
It is
argued on behalf of the appellants that "other bills of costs" must be
ccmstrued to mean "other bills of costs relating to matters on
the
Original Side of the High· Court" and bills relating to non-contentious
matters. We see no jurisdiction for cutting down the scope of the
second part o~ the rule by putting a limited meaning on words of
width used therein. "All other bills of costs of Attorneys" to which
C
the second part of the rule refers must mean all bills of costs
of
Attorneys other than those which are referred to in the first part of
the rule.
That we conceive to be the plain meaning of the particular
provision.
Rule 573 which was amended by Slip No. 190 !l]so shows that the
Taxing Master has jurisdiction to tax the bills of Att.orneys in regard
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to professional services rendered. by them in matters outside
the
High Court. Amended rule 573(i) (a) provides that subject to the
proviso and subject to the discretion of the Chamber Judge to enlarge
the time, in "every suit or proceeding in the High Court" an Attorney
'shall lodge his bill of costs for taxation within five years after the disposal of the suit or the proceeding, and if an appeal is filed in the
High Court, within five years from the disposal of the appeal.
AmendE
ed rule 573(ii)(a) provides that subject to the proviso and to the
Chamber Judge's discretion, "Iu the case of matters which are not
the subject of any proceedings in the High Court, an attorney shall
lodge his bill of cosfs for taxation within five years from the completion of the matter." This latter rule prescribes the time within which
an Attorney must lodge his bill of costs in regard to matters which are
not the subject of any proceedings in the High Court.
The necessity
F
for making this provision arose evidently because rule 569 empowers
the Taxing Master to tax the Attorneys' bills of . costs in .all matters
except !hose on the Appellate Side of the ,High .Court. The appellants' contention, if accepted, will render rule 573 (ii)( a) otiose because according to that contention, no matter which is not the subject of any proceeding on the Original Side of the High Court or in
the Insolvency Court could be taken before the Taxing Master for
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taxation of the Attorney's bills. It was then useless to provide that
bills in rep:ard to matters which are not the subject of any proceeding
in the High Court must be filed within a particular period.
Apart from what appears to us to be the only reasonable construction of rule 569, the Bombay High Court, over a long course of
years, has consistently taken the view that the Taxing Master has
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jurisdiction to tax Attorneys' bills of costs in relation to professional
services rendered by them in all matters, contentious or non-contentious, and whichever be the Court in relation to which the services
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SUPREME COURT REPORTS
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are rendered, except the Appellate Side of the High Court in regard
to which an exception has been expressly carved out by the rule. In
Nowroji Pudumji Sirdar v. Kange & Savani(1) the appellants were
represented by the respondent firm of Solicitors in litigation in the
District Court and the Subordinate Courts of Poona.
The appellants
having declined to pay the respondents' bills on the ground that they
were excessive, respondents obtained an order from the Prothonotary
for having the bills taxed by the Taxing Master.
In an appeal from
the decision of the Chamber Jndge _who upheld the Prothonotary's
order, it was contended by the appellants that the 'faxing Master had
no jurisdiction to tax the bills of the respondents, firstly because the
bills pertained to work which was not connected with the Original
Side of the High Court and secondly because the services were rendered to the appellants by a partner of the respondent firm in his
capacity as a pleader.
These contentions were rejected by a Division
Bench consisting of Sir Norman Macleod, C. J., and H. C. Coyajee,
J., who could "see no reason" why a Solicitor practising in Bombay
and performing professional services for a client regarding business
in the mofussil 'should not be entitled to get his bills taxed by tqe
Taxing Master on the Original Side of the High Court.
In coming
to this conclusion, the High Court relied on rule 494 of the Original
Side Rules, 1922 which was identical with rule 569 of the Rules of
1957.
The High Court observed i11 Nowroji's case that it may be that
Attorney would fall within the provisions of the Bombay Pleaders
Act, 17 of 1920, with regard to any work done i11 mofu'ssil Courts aft1~r
the coming into force of that Act, but that it was unnecessary to consider that question because the work for which the respondents. had
lodged their bills was done before that Act bad come into force, Relying upon this observation, it was submitted by Mr. Parekh that the
decision in Nowroji's case is not good law after the coming into force
of the Bombay Pleaders Act. It is not possible to accept this submission because even after that Act came into force, the Bombay
High Court took the same view as was taken in Nowroji's case and
for good reason which we will expiate while dealing with the appellants' contention bearing on the scale of fees according to which the
bills can be taxed.
The relevant rule, couched iu identical language, with which the High Court was concerned from time to time
leaves no doubt that the Taxing Master has the jurisdiction to tax
all bills of costs of Attorneys, except those in regard to the work done
by them on the Appellate Side of the High Court.
In Chitnis & Kanga v. Wamanrao S. Mantri( 2 )
the appellants, a
firm of Solicitors, had obtained from the Prothonotary of the High
Court an order under rule 534 of the Rules of 1936; directiM the
Taxing Master to tax their bill of costs relating to (1) a suit filed on
the Original Side of the High Court, (2) a petition for probate in
the District Court at Satara, (3) an appeal in the Hir.Jt Court on its
(l) 28 Born. L.R. 384.
(2) 48 Born. L.R. 76.
•
M. NATWARLAL v. R. NAGINDAS & co. (Chandrachud, J.) 357
Appellate Side and ( 4) certain miscellaneous work done in the mofusA
sil. . The res110ndent, to whom the appellants had rendered these professional services, contended before the Taxing Master that the order
of the Prothonotary was ultra vires insofar as it related to items (2),
(3) and (4). The Taxing Master rejected that contention whereupon the respondent took out a Chamber Summons submitting that
it was not competent to the Attorneys to take advantage of the pro-.
.cedure that applies to taxation of Solicitors' costs ou the Original Side
B
of the High Court in respect of costs incurred in the mofussil and on
the Appellate Side of the High Court.
The respondent further contended by the Chamber Summons that the matter was governed by
the Bombay Pleaders Act, 17 of 1920, and therefore the Taxing
Master had no jurisdiction to tax the' appellants' bill in regard to
items 2, 3 and 4.
The Chamber Judge set a·side the ex-parte order
of the Prothonotary without a speaking order, against which
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appellants filed an appeal which was heard by Sir John Beaumont,
C. J., and Kania, J. The Division Bench held that the order of the
Prothonotary in regard to item 3 which related to the work done
by the appellants on the Appellate Side of the High Court was clearly
wrong in view of the provision contained in rnle 534 of the Rules
of 1936. As regards the remaining three items, namely the suit on
the Original Side, the probate proceedings in the Satara District Court
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and the miscellaneous work done 1n the mofussil, the Court following
the decision in Nowroj(s case held that the appellants were entitled
to have their bill taxed in regard to these items by the Taxing Master.
of the Original Side, although it related to work done in the mofussil.
Adverting to the observation made in Nowroji's case in regard to the
effect of the Bombay Pleaders Act of 1920, the learned Judges held
that the provisions of that Act had no effect on the question in issue.
E
The learned Chief Justice referred in his judgment to s. 17 of the
Act of 1920 which provided that a legal practitioner (which expression included an Attorney) may enter into a special agreement as
to the terms of his remuneration and to s. 18 which dealt merely with
the amount of pleader's fees which could be recoverea against the
opposite party.
These provision's, according to the High Court, had
nothing to do with the question whether an Attorney's bill of costs
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in regard to the work done by him in the mofussil co1lld be taxed
by the Taxing Master.
in Nowroji (supra), the learned Judge held that by reason of rule 569,
age & Refrigeration Limited,(1) Mody J., sitting singly, took
the
same view of the Taxing Master's power to tax the Attorneys' bilfs.
Tn that .case the appellants had rendered professional services to the
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respondents in respect of a petition for winding up which was filed
in the High Court of Rajasthan. Respondents raised the same contenions which are r~ised by Mr. Parekh before us, namely, that the
Prothonotary had no jurisdiction to pass the order directing the
Taxing Master to tax the bill and secondly, that the bill of costs could
not be taxect on the Original Side scale.
Relying upon the decision
in Nowroji (supra), the learned Judge held that by reason of rule 569,
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the very rule with which we are concerned in the instant case, an
(l) 65 Bom. L.R. 87.
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358
SUPREME COURT REPORTS
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Attorney of the High Court was entitled to have his bill of costs taxed
by the Taxing Master in respect of professional work done by him even
in a Court other than the Bombay High Court The karned Judge also
negatived the second contention of the respondents before him, but
we will turn to that part of the judgment later.
These decisions of the High Court contain a correct exposition
of the relevant rule which was numbered a:s Rule No.494 in the
Rules of 1922, No. 534 in the Rules of 1936 and is now Rule No.
569 in the Rules of 1957. The Rules of 1909 also contained a
similar rule bearing No. 491. It is important to mention from the
point of view of 'legislative' history, that prior to the framing of the
1909 rules, the. corresponding rule was Rule 544 of the 1907 Rules
which, in material respects, was worded differently. It ·said :
"Rules 544.
The Taxing Officer shall tax the bills of costs on every
side of the Court (Except the Appellate Side) and in the
Insolvency Court.
He shall also tax all such attorney's
bills of costs as he may be directed to tax by a Judge's order
on consent of the parties, or on the application by any
party chargeable with the bill."
Under this rule, the Taxing Officer could tax the bills referred to in
·the second part of the rule by consent of parties only or if an application was made for taxation of the bill by a person chargeable with
the bill.
Further, the second part of Rule 544 did not contain the
expression "Aii other bills of costs" (emphasis supp!ieo) which is
to be found in the corresponding rule since the framing of the 1922
Rules.
The significant changes introduced in 1922 are directed at
conferring on the Taxing Master the power to tax all bills of Attorneys, including those for work done in any other Court save the appeJ ..
late side of the High Court.
It is argued on behalf of the appellants that assuming that the ·
Taxing Master has jurisdiction to tax the bills in regard to the work
done by the respondents in the City Civil Court, the bills cannot he
taxed on the Original Side scale in view of the provisions contained
in the Legal Practitioners (Fees) Act, 21 of 1926. We see no substance in this submission.
The statement of Objects and Reasons of
the 1926 Act shows that the Act was passed in order to give effect
to the recommendation of the Indian Bar Committee that in any
case in which a legal practitioner has acted or agreed to act, he
should be liable to be sued for negligence and be entitled to sue for
his fee~. Prior to the Passing of the Act of 1926, various
High
Courts in India had held aim~! consistently that Vakils could be
sued for negligence in the discharge of their professional duties and
were entitled to sue for their fees but Barristers could neither be sued
for negligence nor could they sue for their fees.
Ti)e Indian Bar
Committee recommended by paragraph 42 of its report that in practice, the distinction relating to suing for negligence and being sued
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M. NATWARLAL v. R. NAGINDAS & co. (Chandrachud, J.) 359
for fees was not of great importance since suits by or against legal
practitioners in respect of fees and the conduct of c&ses were extremely rare; but it was necessary to provide that in any case in which
a legal practitioner had 'acted' or 'agreed to act', he should be liable
to be sued for negligence and be entitled to sue for his fees. The
Jong title of the Act of 1926 describes it as an Act "to define in certain cases the rights of legal practitioners to sue for their fees and
their liabilities tg be sued in respect of negligence in the discharge
of their professional duties."
The preamble of the Act is in the
·same terms. Section 2(a) of the Act defines a 'legal practitioner' to
mean a legal practitioner as defined in s. 3. of the Legal Practitioners
Act, 1879 according to which a 'legal practitioner' means "an Advocate, Vakil or Attorney of any High Court, a Pleader, Mukhtar or
Revenue Agent".
Section 3 of the Act of 1926 provides that any
legal practitioner who acts or agrees to act for any person may by
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private agreement settle with such person the terms of his engagement and the fee to be paid for his professional services.
Section .
5 of the Act provides that no legal practitioner who has acted or
agreed to act shall, by reason only of being a legal practitioner, be
exempf from liability to be sued in respect of any loss or injury due
to any negligence in the conduct of his professional duties.
Section
4 of the Act of 1926 which is the sheet anchor of Mr. Parekh's
ugumcnt reads thus :
"4. Right of legal practitioner to sue for fees.
Any such fogal practitioner shall be entitled to institute
and maintain legal proceedings for the recovery of any fee
due to him under the agreement, or, if no such fee has been
settled, a fee computed in accordance with the law for the
time being in force in regard to the computation of the
costs to be awarded to a party in respect of the fee of his
legal practitioner."
In the first place, as explained aliove, the Act of 1926 was passed
for an entirely different purpose with which we are not concerned
in .the present case.
Secondly, and that is more important, section
4 on which the appellants rely deals, as shown by its marginal note,
with a limited question viz., the right of a legal practitioner to sue for
his fees.
It may be that since an Attorney is included within the
meaning of the expression 'legal practitioner', he will be governed ·
by the provisions contained in s. 4 of the Act of 1926 if he brings
a suit for the recovery of his fees.
But we are not concerned
in
this case to deJermine the scope and extent of an Attorney's right
to sue for his fees.
It must further be borne in mind that s. 4,
which is in two parts, provides in the first place that a legal practitioner 'shall be entitled' to institute and maintain a legal proceeding
for the recovery of any fee due to him under an agreement.
This
part of the section confers an additional entitlement on legal practitioners and cannot justifiably be construed as detracting from any
other right which they may possess in regard to the tax-ation and recovery of their fees.
Section 4 provides by its second part that if
there is no agreement between the legal· practitioner and hls client· in
regard to the fees payable to him, he shall be entitled to institute and
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maintain leg~l proceedings for the recovery of a fee c'omputed in the
manner provided therein.
This also is in the nature of an entitlement, the right r~cognisect thereby being the right to bring a suit to
r.e~over the fees In the absence of an agreement.
Anj' legal practitioner who wants to enforce the right which is specially created and
confe~ed by the Act. of 1926 will have to comply with the conditions
on which that nght 1s conferred.
When a statute creates a
special
nght, .. 1t can on1l:' be enforced in the manner and subject to
the
conditions prescnbed by the statute.
Therefore, the fees for the
recovery of wnich legal proceedings are brought under s. 4 cannot
be anY. larger than the fees computed in accordance with the law for
the time being in force in regard to the computation of the costs to
be awarded to a party in respect of the fee of his legal practitioner.
But, as we have stated earlier, the provisions of the Act of 1926 arc
entirely be"side the point.
They have no bearing on the question
whether an Attorney can have his bill taxed by the Taxing Master ·
in respect of the work done by him in courts ·other than the High
Court of Bombay and if so, on what scale.
The Bombay High Court in the judgment under appeal thought
that there was an apparent conflict between s. 4 of the Act of 1926
and the Original Side Rules relating to the taxation of an Attorney's
bill of costs.
We would like to make it clear that bearing in mind
the true object and purpose for which the Act of 1926 was paSsed
and the drive of s. 4 thereof, there is no conflict, apparent or real,
between any of the provisions of tne Act of 1926 and the rules of
taxation contained in the Original Side Rules of 1957. · In that view.
it is unnecessary to resort to the principle of harmonious construction
which the High Court alternatively relied upon for holdTug that the
Taxing Master has the jurisdiction to tax the respondents' bill in the
instant case and on the Original Side scale.
Mr .. Parekh then relied upon the rules framed by the Bombay
High Court under s. 224(1) (d) of the Government of India Act,
1935 which corresponds roughly to art. 227(3) of the Constitution
and contended that the respondents' bills must be taxed in accordance with those rules and not according to the scale prescribed by
the Original Side Rules. This contention too is unacceptable. The
rules on which counsel relies were framed by the High Court "for
fixing and regulating by taxation or otherwise the fees payable as
Costs by any party in respect of the fees of his adversary's Attorney
appearing, acting and pleading upon all proceedings in the Bombay
City Civil Court."
These rules, according to their very terms, have
nothing to do with the taxation of any Attorney's bill of costs as
between himself and his own client. The rules govern the fees
payable by way of costs by any party in the Gity Civil Court, in
respect of the fees of his adversary's Attorney.
That is to say, if
an order of costs is passed in favour of a party to a suit or proceeding in the City Civil Court, he is entitled to recover from his adversary by way of professional charges incurred by him, The fees computed in accordance with lhe rules framed under _'s. 224(1) (d) <?f
tbe Government of India Act and not what he has m fact paid to his
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M. NATW,ARLAL v. R. NAGINDAS & co. (Clu111drachud, J.) 3611
Attorney: Rule 9 on which counsel relies particularly, makes this
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position clear by providing :
"9. Where costs are awarded to a party in any proceeding the amount of the Attorney's fee to be taxed in the
bill of costs is recoverable by such party if represented by
an Attorney from the adversary and shall be computed in
· accordance with the rules above unless such fee has been
settled under the provisions of section 3 of the Legal Practitioner's (Fees) Act, 1926, for a lesser amount in which
case not more than such lesser amount shall be recoveral:ile."
B
The combined effect of this rule and s. 4 of the Legal Practitioners
:(Fees) Act, 1926 is that iJf an Attorney who has appeared or acted
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for his client in the City Civil Court sues his client for fees, he cannot recover in the suit anything mor~ than is permissible under the
rules framed by the High Court under s. 224(1) (d) of the Government of India Act, 1933. Neither those rules nor anything contained
in the Act of 1926 is calculated to affect the Attorney's right to have
his bill taxed by< The Taxing Master on the Original Side scale, for
work done by the Attorney in the City Civil Court.
D
The Bombay City Civil Court Act, 69 of 1948, provides! by s.
18 ( 1) that all suits and proceedings cognizable by the City Civil
Court and pending in the High Court, in which issues have not been
settled or evidence has not been recorded shall be transferred to the
City Civil Court. Bys. 18(2), costs incurred in the High Court
till the date of the transfer of the suit are to be ·assessed by the City
Civil Court in such manner as the State Government may after
tonsultation with the High Court determine by rules.
Mr. Parekh
drew our attention to rule 8 framed by the Government of Bombay
under s. 18 (2) but we do not see its relevance on the issue under
consideration in the instant case.
That rule shows that even as
regards the iees o!f Attorneys, the Registrar of the City Civil Court
is given the power to tax and allow all such costs and out of pocket
expenses as sh;i.ll have been properly incurred by an Attorney up to
the date of the transfer of the suit.
The rule further provides that
after !he date of the transfer such fees shall be taxed and allowed
as in the opinion of the Registrar are commensurate with the work
done by the Advocate having regard to the scale of f~ sanctioned
for the Advocate in the City Civil. Court by the High Court.
Rule
2, being a rule framed under s. 18(2) of the Act of 1948, governs
transl'erred suits only and it expressly authorises the Registrar to tax
the Attorney's bill for the work done in such suits both before arid
af!er the transfer of the suit from the High Court to the Citv Civil
Court. There is no corresponding rule which can apply to suits and
proceedings instituted in the City Civil Court after the Bombay City
Civil Court Act, 1948 came into force and in the absence of such
rule, the rules framed under s. 18(2) cannot support the appellants'.
contention.
Mr. Parekh also drew our attention to the "Rules of the
Bombay City Civil Court, 1948" framed by the Bombay High Court
under s. 224 of the Government of India Act, 1935 but we see nothing
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in those rules either which can assist his contention regarding the
power of the Taxing Master to tax an Attorney's bill as between him-
.self and his client.
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While we are on this aspect of the matter it would be useiful to
refer to the.supreme Court Rules, 1966 and the Boll!.bay High Court
Appellate Side Rules, 1960.
The Supreme Court Rules contain
elaborate provisions in Order XLI and XLII thereof regarding costs
of proceedings and taxation of costs.
Rule 13 of Order XLII provides that except as otherwise provided in the rules or by any law for
the time being in force, the fees set out in the Second and Fourth
Schedules to the Rules may be allowed to Advocates and officers of
the Court respectively.
Rules 23 to 29 of Order XLII deal specifically with Advocate and Client taxation.
The Second Schedule contains detailed provisions under which fees are payable to Advocates
for various types of professional services rendered by them. Similarly,
Chapter 14 of the: Appellate Side Rules of the Bombay High Court
contains various rules for computing the fees which an Advocate is
entitled to charge his own client.
Similar provision is to be found in
England in the Supreme Court Costs Rulec~. 1959 (see The Annual
Practice 1965, p. 1998/300). Mr. Nariman who appears on behalf
of the Incorporated Law Society, Bombay, drew our attention to rule
29 of the last mentioned rules under which a Solicitov:s bill can be
taxed as between himself and his client.
These provisions are on a
par with the rules of taxation of the Original Side of the Bombay High
Court.
The important point to be noted is that the Rules of the City
Civil Court do not, except in regard to suits transferred from the
High Court, contain any provision under which an Attorney can have.
his bill taxed as between himself and his client.
Perhaps there is good reason for this because though under s.
224(1) (d) of the Government of India Act, 1935 '1!1d art.