AHMED ABDULLA HASANI Vs. ABDUL GAFUR

JUDGEMENT

(1.) [His Lordship after setting out the above facts proceeded as follows:-] The Taxing Master so far has taxed the bill of the plaintiff only and not of the defendants. He states, in his reasons that he has followed the principle laid down by Fry J. in Saner V/s. Bilton (1879) 11 Ch. D. 416 viz., that (p. 418)- The Plaintiff in the original action shall pay the general coats of action, and the Defendant, who is to pay the costs of the counter-claim, shall only pay the costs of the proceedings so far as they have been increased by reason of that counter- claim.

(2.) Applying the converse of that principle to the present case he has disallowed the plaintiff the costs incurred in the de bene esse examination of a pearl broker, who gave evidence on behalf of the defendants with regard to the market-rate prevailing on December 16, 1921, and the decline in the pearl market after that date. The Taxing Master had originally allowed this item in the taxation of the plaintiff's bill of costs as against the defendants. On review he disallowed it. The defendants contend that the costs occasioned by the examination of this witness as well as other defence witnesses who proved the market-rate for pearls on December 16, and its further decline after that date was as much a part of the evidence on the counter-claim as on the claim and should therefore have been apportioned by the Taxing Master. The Taxing Master, while disallowing the costs occasioned by the broker's examination, has allowed the plaintiff the costs occasioned by the examination of the other witnesses on the same point. It is contended on behalf of the plaintiff that the Taxing Master should also have allowed the costs occasioned by the de bene esse examination of the broker. The Taxing Master has held that the costs of the de bene esse were occasioned entirely by the defendants counter-claim but the costs of the examination of the other witnesses on the same point came properly under the costs of the suit.

(3.) The defendants object also to the taxation of certain items in the bill under the following heads:- (1). It appears that, after the defendants had filed their affidavit of documents, the plaintiff called upon them to disclose their ledger account and entries in their weighment book in respect of the sale of these pearls. After some correspondence on the subject, defendants made their supplemental affidavit of documents disclosing these entries. The Taxing Master has allowed the plaintiff the costs of the correspondence, the supplemental affidavit of documents and inspection of documents. The defendants contend that those items relate entirely to their counter-claim and should not be allowed as costs of the suit. (2). The Taxing Master has allowed the plaintiff Rs. 300 for instruction charges in connection with the suit and has deducted from it Rs. 30 for the counter-claim. It is contended on behalf of the defendants that the apportionment made by the Taxing Master is unjust. (3). The Taxing Master has allowed the plaintiff 8 G. Ms. and 6 G. Ms. for brief fee to his senior and junior counsel and deducted 2 G. Ms. from the fee of each counsel as fees for resisting the counter-claim He has also awarded 6 G. Ms. to plaintiff's counsel for refresher and has deducted from it 2 G. Ms, for resisting the counter- claim. The second counsel in the case, it appears, was not present during the hearing. The defendants object to the apportionment as unfair to the counter- claim. (4). The defendants object also to the item of attendance charges allowed to the plaintiff. They contend that it should have been apportioned between the suit and the counter-claim.