JAINI LAL Vs. FIRM DURGA PRASAD-DAU DAYAL

JUDGEMENT

(1.) FOR the reasons stated in our judgment in First Appeal No. 28 of 1920, this appeal is dismissed. We ought, however, to take notice of one matter not discussed in that judgment. The appellant has taken the objection that the fees awarded to defendant No. 2 in the lower Court were not certified by the Pleader, nor were they certified by an affidavit of the defendant filed in accordance with Chapter XXI, Rule 1 of the General Rules for Civil Courts subordinate to the High Court. Looking at the matter very technically and narrowly, it does appear that there is no certificate by the Pleader and there is no affidavit by the defendant, but there is an affidavit by the Solicitors duly instructed by the defendant which sets out, what we have no doubt is the truth, that certain sums of money were duly paid by the Solicitors to the gentlemen named in the affidavit for and on behalf of the defendant. Therefore, in substance, though not in strict form, there is the certainty at which Chapter XXI, Rule 1 was aiming, namely, that the Court should be satisfied that fees were paid. If the matter had rested merely there, we are of opinion, that Dr. Agarwala's point, technical though it is, would have to be allowed; but a reference to the judgment shows that the concluding words of it were "the defendants will get their costs from the plaintiff." That was a perfectly clear intimation to the plaintiff and to the plaintiff's advisors that they would be called upon to pay the costs in the Court below incurred by the Titaghur Paper Mills. They did not raise any objection to that order at any time in the Subordinate Court, The first objection taken has been made in the Memorandum of Appeal filed in this Court. We are of opinion that these objections ought to be taken in the lower Court and should be taken at the time when either the judgment is delivered or the decree published so that the lower Court may consider whether there are circumstances which would justify it in allowing costs even though the rules have not been strictly complied with. In the lower Court all those matters are ascertainable and we consider it bad practice to allow the appellant who has taken no objection to an award of costs against him in the lower Court, to come up here in appeal and argue that which he should have put before the learned Subordinate Judge making the order, FOR these reasons we overrule this objection. There will be no order as to costs except that the appellant do pay the costs of the Titaghur Papers Mill in this Court including fees on the higher scale. As the Titaghur Paper Mills stood in one event to bear the whole of the liability of Rs. 25,000, their costs should be taxed upon that scale.