NEMAI CHANDRA DEY Vs. BROJENDRA NATH MITTER

JUDGEMENT

(1.) This is an application by an attorney for review of taxation of his bill of costs, under Ch. 36, E. 72, Original Side Rules. The items objected to and which are now before me fall into two categories. In the first are items 41, 42, 43 and 44 in the exceptions. They refer to "drawing observations, making a copy of brief, delivering the same and paying counsel's fees." The suit in which these costs were incurred was for the construction of the will of Hiralal De and for a declaration that on the death of his widow the plaintiff Nemai Charan De as the sole reversionary heir became entitled to his residuary estate. Amongst the defendants were three ladies, Sm. Santimoyee Dassi, Sm. Sudhamoyee Dassi, and Sm. Narayan Dasi and at a subsequent date Bivash Chandra Mazumdar, a minor who was represented by his father and guardian ad litem. The suit was eventually settled by a consent decree. Items 41 to 44 have been disallowed by the learned Taxing Officer on the ground that this was a chamber application that no order was drawn up, and that there is no certificate of counsel appearing in the entry of the bill. On behalf of the applicant it is contended that although the order was not drawn up, it is clear, both from the endorsement on counsel's briefs and also from the Court minutes, that the application was made and that the learned Judge certified for counsel, and that the learned Taxing Officer is labouring under a mistake of fact in not allowing these items. The endorsement of counsel, Mr. Das Gupta, bears out the statement of counsel for the applicant and from the Court minutes it appears that the time was extended by the Court, the applicant to pay the costs of the application, and of all parties appearing, and the matter was certified for counsel.

(2.) In the circumstances it seems to me that the learned Taxing Officer was labouring under a mistake, and that had the facts been clearly put before him he could have allowed these items. Counsel has addressed me at length with regard to the powers of the Court in reviewing questions which have been decided by the Taxing Officer. These matters have been dealt with in frequent decisions both in this country and in England, and the English practice is followed in this country in the absence of any particular rule. The Court is always averse from interfering with the discretion exercised by the learned Taxing Officer, and particularly the Court has said that it will not interfere where the only question raised is a question of quantum.

(3.) It has been suggested that the question here is a question of quantum. With that contention I am unable to agree. As I have already said the learned taxing officer has come to his decision, so it appears to me, because he was misinformed as to the actual order made by the Court. These items must be allowed. Item 56 has been disallowed on the ground that it is a third copy brief for which there is no justification. The defendant ladies to whom I have already referred had put in written statements in which they contended that they were in certain events the nearest heirs of the testator, and they claimed to be preferred to the plaintiff. In para. 5 of their written statement they contend that they are the nearest living relations of the deceased and being young and married capable of conferring spiritual benefit on the deceased by giving birth to male issue and on that ground, amongst others, they put forward the contention that they were the nearest reversionary heirs. Subsequently a boy Bivash was born and a written statement was put in on his behalf in which he claimed that he was the nearest living heir of the deceased. In opposing this application Mr. Roy contends that the ladies were really claiming on behalf of the boy Bivash. That contention cannot be upheld. In the paragraph of the written statement to which I have referred the ladies are claiming not on behalf of any child who might be born here after, but they are claiming for themselves, on their own behalf, on the ground that they might later give birth to male issue and that they are entitled to succeed because they are capable of conferring religious benefit on the deceased.