RAMA KALINGA MAHAR Vs. BALAPA KALINGA MAHAR

JUDGEMENT

(1.) THIS is an application to the Court under Rule 132 of the Appellate Side Rules. The question relates to the amount allowed by the Taxing Officer for the advocate's fee, and the application raises an important question of principle.

(2.) THE suit is a suit for an injunction, in which the plaintiff asks that the defendants may be restrained from interfering with his possession of the suit property. THE plaintiff's case was that he was the absolute owner of the suit property as his separate estate, and the defence was that the property was joint family property and vested in the plaintiff and the defendants, the plaintiff's share being an undivided third. THE plaintiff's suit failed at the trial, and his appeal to the Assistant Judge and a second appeal to this Court were dismissed. In the result, therefore, the finding is that the property is not the separate property of the plaintiff.

(3.) WHAT we have to deal with is the question of the advocate's fee. That subject is dealt with in matters in the High Court by Appendix E of the Appellate Side Rules. The provisions of Appendix E follow the terms of the Pleaders Act, which relates to litigation in the mofussil. Rule I of Appendix E provides that in suits which decide on the merits the real dispute between the parties, and in, among other things, appeals from decrees (including preliminary decrees) other than appeals from execution proceedings which decide on the merits the real dispute between the parties, the amount of the advocate's fee shall be computed on the amount or value of the subject-matter in dispute in the suit, appeal or proceeding at the rates therein specified. The learned Government Pleader on behalf of the plaintiff contends that the value of the advocate's fee under that rule should be the same as the value for purposes of the court-fee and for jurisdiction, and that on that basis the value of the subject-matter being Rs. 5, only the minimum advocate's fee should be allowed under Appendix E, Rule VI. But it is to be noticed that Appendix E does not refer to the value for purposes of the court-fee or jurisdiction. It bases the amount of the advocate's fee on the amount or value of the subject-matter in dispute in the suit.