LOKAPPA CHAMIRAPPA CHATANI Vs. HIRAMANI KHUSHALDAS TELI

JUDGEMENT

(1.) There are two points here. The first is, whether the learned Judge was entitled to alter the amount for the pleader's fees stated in the plaint in favour of the defendants without giving notice to the plaintiff. What happened was that the suit was dismissed for want of appearance by the plaintiff , and at a later date the defendants applied ex parte to alter the amount of the pleader's fee, and that application was granted. We think, however, the learned Judge was bound to give notice to the plaintiff before any such amendment or alteration in the plaint was made. Consequently, there must be a remand to the lower Court, and on that remand the learned Judge will decide whether the original valuation for the pleader's fee on the plaint can stand, notwithstanding that for certain other purposes, the suit was valued at a much higher figure.

(2.) For present purposes I will call the 6gure| the learned Judge will eventually arrive at on remand as Rs. X Then comes another question altogether, and that is whither the defendants will be entitled to recover their pleader's fee computed on the whole of Rs. X under Rule 1 of Schedule III of the Bombay Pleaders Act 1920, or whether they will only be I entitled to a quarter of Rs. X under Rule 2(c). That depends on whether within the meaning of Rule 1(a) the suit was one pf those "suits which decide on the merits the real dispute between the parties". If it was such a suit, then Rule 1 would apply, j If not, Rule 2 would govern the computation of the fee, and reduce it to of Rs. X.

(3.) Where then a suit has been dismissed for default of appearance, has it decided on the merits the real dispute between the parties within the meaning of Rule 1(a) ? In my judgment in such a case there has been no decision on the merits of the real dispute. The decision has rested on the technical ground that one of the parties has absented himself. If Rule 1 had been intended to apply to all suits in which there was a final decision, then the insertion of these words "which decide on the merits the real dispute between the parties" would have been quite unnecessary. Even if the words had been "which! decide the real dispute between the parties" it would have been an easier case for the defendants. But the addition of the words "on the merits to my mind makes the matter quite clear.