Bhanji v Thakore (C.C. 365/1930.) [1930] EACA 96 (1 January 1930)

### ORIGINAL CIVIL.

Before SIR JACOB BARTH, C. J.

#### LAKHMAN BHANJI

# $\mathbf{v}$ . T. THAKORE.

#### $\cdot$ C. C. 365/1930.

Civil Procedure Rules, 1927, Order 33, Rule 8-Amount of costs to.be allowed when defendant is granted conditional leave to defend and does not give the security required.

Held: That the Advocate is only entitled to the fixed costs (Sh. 100) provided by the rules in suits on specially endorsed plaints (see. Rules of Court at page 111 of Vol. 1 of the Subsidiary Legislation).

The following order was made by the Registrar:-

Mr. Hopley present for taxation. This is a plaint filed under Order XXXIII, therefore the costs are fixed at Sh. 100. Defendant was not granted leave to defend; he was granted only conditional leave on lodging £100 in Court which he failed to do, therefore Judgment was entered ex parte against him on 5-12-30, Order XXXIII, Rules 8, 10 and 5. I allow fixed costs Sh. 100, also Sh. 30 for attendance in Chambers on the 13-11-30, together with Court fees. I hold this is not a case where advocate is entitled to draw up and tax a full bill of costs and rule accordingly. Advocate contends he is entitled to full costs under the circumstances and asks for a Judge's ruling.

# Hopley for applicant.

ORDER.—The Registrar has ruled in this case that as the condition on which leave to defend was not fulfilled the leave lapsed and the plaintiff is only entitled to the fixed costs of Sh. 100 provided by the Rules in suits on specially endorsed summonses.

In my view the Registrar is right in such ruling. In this case there was an application for leave to defend on 13th November, 1930. The Judge's order was that the application to defend was granted subject to the defendant paying £100 into Court by 27th November, 1930. Such sum was not paid. The leave therefore lapsed and the plaintiff obtained judgment on 5th December, 1930.

1 do not think that such a conditional leave to defend if the condition was unfulfilled takes the case out of the rule for costs in summary cases.

The Registrar has allowed Sh. 30 for the attendance on the · application for leave. I think it would be reasonable to allow advocates costs on the application to defend apart from the cost of the attendance. Such costs to be allowed at Sh. 34. $\mathcal{L}_{\mathcal{A}} \in \mathbb{R}^{3}$