TRIMBAK YESHVANT NENE Vs. ABDULLA ABDUL RAHIMAN

JUDGEMENT

(1.) IN view of my decision in the suit, the plaintiffs must pay the costs of the suit of defendant No.1 and defendant No.2. Mr. Tendulkar on behalf of the plaintiffs submits that I should only allow one set of costs as between defendant No.1 and defendant No.2, and he contends that their defences are common and that, therefore, there was no reason why they should have severed their defences and instructed separate solicitors and appeared by separate counsel. Mr. Tendulkar points out that the question in the suit related to the title of the properties which defendant No.3 had mortgaged to defendant No.1 and defendant No.1 in his turn had transferred to defendant No.2. Defendant No.2 was defending his title to the properties. That was the only issue in the suit, and the defences of defendant No.1 and defendant No.2 were common. Mr. Tendulkar relies on the proposition of law as enunciated by Sir Dinshah Mulla in his commentary on Section 35 of the Civil Procedure Code that separate costs should not be allowed to defendants if the defence is common to all, or their interests are the same. This proposition of law has received legislative recognition in the Bombay Pleaders Act (XVII of 1920) where Section 21 lays down that where in any proceeding there are several parties having the same interests or putting forward the same defence, they shall not, if awarded costs, be allowed more than one set of pleaders' fees on party and party taxation unless the Court otherwise directs.

(2.) NOW, in this case it has to be noted that serious charges of fraud were levelled both against defendant No.1 and defendant No.2. Defendant No.1 was charged with having prepared a fabricated document and having ante-dated it. Defendant No.1 and defendant No.2 were charged with conspiracy in that they conspired to defraud the plaintiffs and defendant No.3 of their rights in the properties, the subject-matter of the mortgage deed. The question then arises whether, in view of these serious charges of fraud against defendant No.1 and defendant No.2, they were entitled to sever their defences and appear by separate solicitors and counsel. In Boswell v. Coaks (1887) 36 Ch.D. 444 there was an action brought by some of the creditors of one Harvey on behalf of themselves and the other creditors to have a sale of a life interest belonging to Harvey set aside on the ground that it had been made under an order of the Court to two persons, one of whom was in a fiduciary position to the trust estate, and that a proper disclosure of the facts had not been made. The sale was made to one Coaks and one Bunyon, the first two defendants on the record; they bought for themselves and four other persons who were also made defendants. The trial of the action was before Mr. Justice Fry. Mr. Justice Fry decided in favour of the defendants. The plaintiffs appealed, and the Court of Appeal reversed the decision of Mr. Justice Fry. Then there was an appeal to the House of Lords, and the House of Lords restored the judgment of Mr., Justice Fry. Mr., Justice Fry made the following order as to costs (p. 445): ...in taxing the costs below both in the High Court of Justice and in the Court of Appeal, the Taxing Master do consider whether any of the Defendants in the cause who appeared separately had sufficient reason for severing in their defences, and if and in so far as it shall appear that they had not, then the said Taxing Master shall allow only one set of costs, or only as many sets of costs as he shall think right.

(3.) I, therefore, hold that the plaintiffs should pay the costs of the defendants and that there should be two sets of costs.