Kalyanjee v M.M Stores (Civil Appeal No. 24 of 1947) [1950] EACA 630 (1 January 1950)

# **APPELLATE CIVIL**

### Before SIR BARCLAY NIHILL, C. J.

## MOHANLAL KALYANJEE, Appellant (Original Defendant)

#### $v$ .

## M. M. STORES, Respondent (Original Plaintiff) Civil Appeal No. 24 of 1947

## (Appeal from decision of Resident Magistrate's Court at Eldoret-H. G. Sherrin, Esq.)

Taxation-Bill of costs-Discretion of Registrar-Quantum-Subject matter of suit not criterion—Complexity of issues to be considered.

### Appeal from Registrar's Taxation of Bill of Costs.

Plaintiff's claim for Sh. 571/81 was allowed to the extent of Sh. 554 and costs, and judgment was given accordingly. Bill of costs submitted for taxation included the item: "1. Instructions to oppose appeal. Sh. 750". At the hearing, ex parte defendant, the Registrar taxed off Sh. 150 on this item. At a subsequent hearing of defendant's objections, the Registrar refused further to reduce the amount. Defendant appealed.

Held $(15-5-50)$ .—(i) That the subject matter of a suit is not the sole consideration in taxation, but the complexity of the issues involved are also material.

Patel v. Shivji Jetha & Another, 21 K. L. R. 27 followed.)

(ii) The general rule, that the Registrar's discretion on question of quantum is final, may be varied only in exceptional cases, where the Registrar has acted on a wrong principle.

(Hasham Kara v. Karmali, 22 K. L. R. 1; Zala v. Jiwan Singh & Others, 22 K. L. R. 6referred to.)

(iii) The present case is not such an exceptional case. Appeal dismissed.

,Mandavia for appellant.

Mangat for respondent.

ORDER.—This is an appeal from the Registrar's taxation of a Bill of Costs.

Two objections have been taken, namely to Items 1 and 4. In the Bill of Costs submitted for taxation these items were as follows: —

| 1. Instructions to oppose appeal | | Sh. 750 | | |----------------------------------|--|---------|-----| | 2. Perusing evidence, 40 folios | | Sh. | 40. |

At the hearing at which the defendant's advocate was not present, the Registrar taxed off Sh. 150 on Item 1. Subsequently the Registrar heard the objections of defendant's advocate and reduced the amount allowed on another item "Attending Court when appeal was dismissed" by Sh. 20. He refused, however, to make any further reduction on Item 1. The defendant's advocate on this appeal now submits that the fee allowed for instructions in so patently extravagant, having regard to the circumstances of the suit, as to indicate that the Registrar must have acted on a wrong principle, and that in respect of Item 4 that this should not have been allowed at all apart from the instruction fee. I see no substance in this submission, but the Registrar has overlooked the fact that the perusal fee should not have exceeded fifty cents a folio. This item will therefore be remitted to him for adjustment. I am left with the instruction fee allowed on Item 1.

The principles on which a Judge of the Supreme Court must act in deciding appeals against taxation are well known and need only be briefly restated. This Court will not interfere on questions of quantum where the Registrar has a

discretion unless it appears to the Court that the sum allowed is so large, having regard to the nature of the suit or proceeding; that the Court is driven to the conclusion that the Taxing Officer must have acted upon a wrong principle. It will, however, require an exceptional case to call for the interference of the Court. (See Patel v. Shivji Jetha and another, 21 K. L. R. 27. Hasham Kara v. Karmali, 22 K. L. R. 1. Zala v. Jiwan Singh and others, 22 K. L. R. 6).

I now come to the facts in this case. The suit was for a breach of contract of sale and it was heard by the Resident Magistrate in Eldoret. The plaintiff's claim was for Sh. 571/81 and judgment was given for Sh. 554 and costs. The defendant appealed to the Supreme Court and in due course Mr. Mangat, whose bill of costs is the subject of this appeal, was instructed to oppose the appeal. He had not appeared for the plaintiff in the Magistrate's Court. The substantial point raised by the memorandum of appeal was that the Magistrate had no jurisdiction to try the suit since the contract has not been made within his jurisdiction. As was said by Thacker, J., in Shivji Patel v. Shivji Jetha (supra) "the subject matter of a suit may well be small but the point or points of law or other difficulties involved may, if parties litigate, be important and require a careful consideration both by the Court and counsel". The fact then that the instruction fee in this case is a little more than the total value of the suit to the plaintiff by itself cannot be decisive, although it is a factor with others that I must take into consideration. As regards the issue of complexity, I agree with Mr. Mandavia that the memorandum of appeal, although it does raise an issue of law, or of mixed law and fact, does not on the face of it suggest issues of great complexity, nor has Mr. Mangat urged that in fact this case contained any such. He is content to base his ground of opposition to this appeal on the submission that an instruction fee of thirty pounds for the retention of a leading metropolitan advocate in an appeal to be heard by two Judges of the Supreme Court cannot on the face of it be regarded as excessive. Then it is said that the Court should take into account the fact that the defendant withdrew his appeal before it was heard. Unfortunately for the defendant by that time the trouble has been done, for by his action in filing the appeal he had put the plaintiff to the trouble and expense of engaging counsel, and the advocate instructed had prepared himself for the fray. That the defendant at the last minute withdrew from what supposedly he was then advised was an untenable position is to my mind completely immaterial. Each case of this kind must depend on its own merits, but I have carefully examined the two cases cited above in which this Court allowed appeals against taxation, and also the more recent case of Lakhani v. Bhojani (Civil Case No. 667 of 1949) in which Thacker, J., did likewise. In this last case the instruction fee remitted was also Sh. 500 but beyond that similitude with the present case ends, since in that case all the advocate had to do was to oppose a Chamber application to enter summary judgment. The nearest case to the present in my view is Zala and Zala v. Jiwan Singh and others (supra) where the issue was an instruction fee in a Supreme Court appeal. The subject matter of the suit was Sh. 700 and the fee allowed £85. The learned Judge who heard the taxation appeal and who heard the appeal on the suit had no hesitation in saying that the appeal did not raise any questions of great complexity. The learned Judge remitted the bill of costs back to the Taxing Officer because, to quote his words, "to my mind this is plainly one of those exceptional cases". After due consideration of all the circumstances in the case now before me I am not able to reach a similar conclusion, and this being so it would be wrong for me to depart from the general rule that on questions of *quantum* the decision of the Taxing Office is generally final. In this case 1 am satisfied that the fee allowed was not so patently excessive as to warrant intervention.

The appeal fails altogether on the main issue and must be dismissed with costs.