SAILENDRA MOHAN DUTT Vs. DHARANI MOHAN ROY

JUDGEMENT

(1.) This is an appeal by Sailendra Mohan Dutt against the judgment of my learned brother, Mr. Justice Greaves. Sailendra Mohan Dutt was acting as the Attorney for one Dharaui Mohan Roy who was the defendant in the suit and by an order of the 7 of April 1920, there was a change of Attorneys; the material part of the order being: "it is ordered that upon the defendant paying to the said Mr, S. M. Dutt the sum of rupees six thousand on account of costs doe to him in this suit, including the costs of this application, to be taxed by the Taxing Officer of this Court as between Attorney and client and upon the said Mr. S. M. Putt undertaking to refund any excess amount; that may appear to have bean paid to him after taxation of such costs as aforesaid and the defendant by his Raid Attorneys, Messieurs Kali Nath. Mitter and Sarvadhicary, undertaking to pay to the said Mr. S. M. Dutt any earn that may be found due to him upon taxation in excels of the said sum of rupees six thousand and the sum already advanced to him, the said Messieurs Kali Nath Mitter and Sarvadhicary be appointed the Attorneys for the defendant." Upon taxation of the costs, a question arose with regard to four fees of learned Counsel; these four fees are mentioned in paragraph No, 4 of affidavit of Gangadar Bosa at page 37 of the Paper-Book. What happened with. regard to the question is stated as follows: "The said Assistant Taxing Officer, Mr.. S, M, Roy, referred the matter informally to the Taxing Officer and, on the 9 day of September 1920, the said Taxing Officer, after hearing Messieurs Kali Nath Mitter and Sarvadhicary and Mr, S. M. Dutt, expressed his opinion that in view of Rule 32 of the Taxation Rules be could not allow, those fees without an order of Court as required by the said rule." Thereupon, an application was made to the learned Judge, dated the 14 of December 1920, and notice was given to the effect that an application would be made on the part of Mr. Sailendra Mohan Dutt, the former Attorney of Dharani Mohan Roy, the defendant in the suit, for an order that in the taxing of his costs as between Attorney and client the Taxing Oilier of this Hon ble Court may do so irrespective of the Taxation Rules as regards payment of Counsel's fees.

(2.) The learned Judge did not enquire into the merits of the case but disposed of it on ft preliminary objection raised by the respondent that the learned Judge had no jurisdiction to make the order asked for.

(3.) The learned Judge held that Chapter XXXVI, Rule 6 did not apply to fees to Counsel and decided the case upon his construction of Rule 32 of Chapter XXXVI, holding that he had no jurisdiction to allow the fees in question, and that they could only be allowed by the Taxing Officer upon the production of a letter signed by the client authorising or ratifying the tame, and that no such letter had been produced.