HIRENDRA KUMAR MITTER Vs. SUDHANGSHU SHEKHAR PAUL

JUDGEMENT

(1.) We delivered a judgment in this appeal on January 6, 1976 allowing the appeal, after hearing the Counsel for the appellant. On that day nobody appeared on behalf of the respondent. Thereafter, the matter was mentioned by the Counsel for the respondent and the said judgment and order were recalled. The facts of the case may, briefly, be stated as follows:

(2.) Suit No. 69 of 1963 was filed in this Court by Himangshu Sekhar Paul against Kishori Lal Paul and others. A consent decree was passed on August 21, 1964, whereby, inter alia, a special Referee was appointed to go into the accounts between the parties. On April 1, 1966, the Special Referee allowed the plaintiff to file additional statement of facts on his oral application. On May 9, 1966 a Notice of Motion was taken by M/s. J. N. Mitter and Co., on behalf of one of the defendants to set aside the above order of the Special Referee. On August 8, 1966, A. N. Sen J. set aside the order of the Special Referee and directed a formal application to be made before the Special Referee for the purpose of filing additional statement of facts. On April 26, 1969, a bill of costs in respect of this Notice of Motion dated May 9, 1966 was taxed. The Assistant Taxing Officer allowed the costs as those of the Notice of Motion as of a Chamber application. On April 29, 1969, an exception was taken before the Registrar of this Court against the said order of the Assistant Taxing Officer. On August 12, 1970, the said exception was allowed by the Registrar who held that the costs should have been allowed as those of a Notice of Motion. On September 7, 1970, a Master's Summons was taken out before R. M. Datta J. who after hearing the parties confirmed the order of the Assistant Taxing Officer. Thereafter, this appeal has been filed against the said order of R. M. Datta J.

(3.) Mr. Sen, Counsel for the respondent, has raised a preliminary point that this appeal is not maintainable under the Rules of this Hon'ble Court. Relying upon Kaluram Marwari v. Matilal AIR 1933 Cal 715, he has argued that there is no scope for an appeal against the order of R. M. Datta J. The learned Judge has passed the order under Chapter XXXVI Rule 72 of the Original Side Rules. Under the said Rules, according to him, a Judge can only review the taxation made by the Registrar and once the learned Judge passed the order under the said Rule, his decision is final. The Rules forming a self-contained Code, there is nothing in the Rules which would enable the party to prefer an appeal against such order of the learned Judge. He has also substantiated his argument by referring to Chapter VI Rule 15 and Chapter XXXVI Rules 70, 71 and 72 where the words "appeal" and 'review' have been used. He has also argued that in any event the appeal is not maintainable under Clause 15 of the Letters Patent inasmuch as the said Clause provides for an appeal against a final order deciding the issues between the parties. In this matter the dispute is between the Solicitor and his client and not between the original parties in the suit