SHRIMANT RAMCHANDRA MUKUNDRAO KIBESHRINIWAS SHASTRI Vs. SERVANTS OF INDIA SOCIETYSHRIMANT RAMCHANDRA MUKUNDRAO KIBE

JUDGEMENT

(1.) THESE appeals were decided on October 4, 1935, and both were dismissed with costs. Appeal No.316 of 1928 was not decided on the merits but was dismissed, because the appellant did not pay a sufficient Court-fee, and was not willing to rectify the omission. Appeal No.86 of 1928 was decided on the merits.

(2.) IN speaking to the minutes in both these cases, the learned advocates ask for two sets of pleaders' fees under Rule 97 in Appendix E at p. 49 of the Rules of the High Court of Judicature at Bombay, which is the same as Section 20 of the Bombay Pleaders' Act. It has been decided in the case of Tulsi v. Onkar Huna (1927) I. L. R. 51 Bom. 492 : s. c. 29 Bom. L. R. 897 that unless the Court otherwise directs, the fees of two pleaders should be allowed on taxation of the bill of costs in cases falling under Clauses (a), (b) and (c) of Sub-section (1) of Section 20 of the Bombay Pleaders' Act, 1920. Therefore the parties in these appeals are entitled to two sets of pleaders' fees as a matter of course, if they come within the provisions of Section 20, and the argument has been whether the conditions required of Section 20 have been fulfilled.

(3.) THIS point came before a bench of this Court in Kanayalal Manordas V. Gopaldas Chunilal (1931) Civil Application No.585 of 1931, decided by Baker and Nanavati JJ. on August 6, 1931 (Unrep.) when Mr. Justice Baker decided that the date fixed in the notice issued under Order XLI, Rule 12, must be taken to be the date of the first hearing for the purpose of Section 20 of the Bombay Pleaders' Act. The reason given by the learned Judge for adopting this opinion was in effect that, if the date fixed for hearing in the notice be not reckoned as the date of the first hearing, there can only be one hearing of an appeal and the rule becomes meaningless. THIS may be true. Nevertheless, with respect, we are not inclined to adopt that reasoning, since in our opinion it is not permissible for us to adopt an interpretation which in effect amounts to an amendment of the rule framed by the Legislature. The term " first hearing " is not a term of Article It is nowhere defined and in our opinion it must mean what it says, the day on which there is for the first time a hearing in Court. It is true that this interpretation renders this part of the rule meaningless; and in such circumstances a Court must adopt any possible interpretation rather than ignore a part of the rule. But we cannot go so far as to say that there was a hearing on a date when there was no hearing and could not have been one, The truth is that the rule requires amendment. The term ' first hearing ' has meaning when it applies to original suits, because in an original suit notices are issued either for settlement of issues, or for final hearing. But it has no meaning, as far as we can see, with reference to an appeal. We, therefore, decide that the parties are entitled to fees of two pleaders, since they engaged more than two pleaders before the date of the hearing in this Court, as we are told they did.