KHAZIR MOHD GANAI Vs. GH MUSTAFFA BHAT

JUDGEMENT

(1.) AN execution matter between the parties was taken in appeal to the Additional District judge Srinagar which was dismissed with costs. He himself did not asess the amount of costs but the same was assessed by the office and in the decree sheet counsel tee was fixed at RS. 200/ - on learning that the counsel fee has been fixed at Rs 200/ - Khazir Gani the petitioner, submitted an application before the Additional District Judge under section 151 C. P. C. requesting therein that the assesssment of Rs 200/ - as counsel fee has been wrongly made and further submitted that the correct assesment in accordance with rules may be made. The contention before the learned Additional District Judge was that the appeal was valued at Rs 10. for purposes of court fee and at Rs 300; for purposes of jurisdiction and that the amount of Rs 200 as costs was neither permissible nor warranted under rules. The learned Additional District Judge dismissed the application and in his order said that the costs were not excessive. It was against his order that the present appeal has been filed.

(2.) THE learned counsel appearing for the non -applicant raised a preliminary objection that no appeal was maintainable against an order passed under section 15} C P. C. To fortify his submissions he referred to AIR 1953 Sc 23 and AIR 1956 Bom: 592. In AIR 1953 S. C 23 It has been laid down that no appeal was maintainable against an order passed under section 151 C. P. C. Similar view has been expressed in AIR 1955 Bom:598 The learned counsel for the appellant there after submitted that the appeal may be treated as revision as procedural matters should not be allowed to stand in the way of aggrieved to obtain redress, It appears that the application under section 151 C P. C. filed before the Additional District judge was misconceived as there was a clear provision of law entitling the aggrieved to file the petition under section 152 C. P. C before the learned Addll. District Judge. That provision of law relates to correction of decree in cases of alleged mistakes or errors committed either by the court or by the parties to the suit. The application under section 151 C. P. C. was infact an application under section 152 C. P. C and in that view of the matter also an appeal was not maintainable only a revision could be filed against an order passed under section 152 C P C. Keeping in view all this the present appeal was permitted to be treated as a revision petition.

(3.) UNDOUBTEDLY the valuation fixed for purposes of court fee was Rs. 10 and for purposes of jurisdiction Rs. 300/ - and that being the case, the decree holder strictly speaking was not entitled to an amount of Rs 200/ - as counsel fee. The civil Procedure Code nowhere provides the method of assessment of costs. This matter is however dealt with under Special Laws. Rules 49 to 55 of the Special Laws provide various categories of suits and appeals and prescribe counsel fee which may be a warded to a decree holder. Under these rules undoubtedly the amount that may be assessed as proper counsel fee would not amount to Rs. 200/ -. The courts however by virtue of Rule 58 have been given wide discretion to award higher or lower costs than specifically prescribed. Rule 58 reads as under. "Notwithstanding the provisions of Rules 49 to 55 the court may in any case, for special reasons to be recorded in the judgment, award a higher or to lower fee than that therein prescribed." Obviously the court was empowered to exercise its discretion in awarding higher or lower fees than prescribed. The only requirement for this purpose was that the court should give its reasons for awarding higher or lower fee to the counsel than prescribed. From a perusal of the impugned order dated 29 -3 -1976, It was obvious that the learned Additional District Judge has considered this aspect of the matter and has given reasons for awarding higher fees. According to him the litigation was prolonged ore and as such an amount of Rs. 50 - was very small amount that could be a warded as counsel fee in a litigation of this type during these days of high prices and high costs. For this reason he allowed Rs.200. - as counsel fee. The learned Addl. District Judge it appears has not acted in absence, or in excess of his jurisdiction nor there appears to be any illegality or any material irregularity committed by him inawarding the counsel fee, as he did after due consideration of the matter. The discretion excerised by him is no way injudicious and the special reasons narrated by him appear to be sound.