Patel v Jetha and Another (Civil Appeal No. 8 Of 1942) [1944] EACA 13 (1 January 1944)

# APPELLATE CIVIL

### Before THACKER J.

## SHIVII KARSON PATEL, Appellant (Original Plaintiff)

#### $\mathbf{v}$

# SHIVII JETHA and LALJI MULJI. Executors of the Will of MULJI JETHA. Deceased. Respondents (Original Defendant)

# Civil Appeal No. 8 of 1942

Taxation of costs—Objection to Quantum—Value of Suit in taxation—Discretion in Registrar—Quantum as distinct from principle—Instruction fee.

The appellant objected to the decision of the Registrar upon a taxation of costs on the grounds, *inter alia*, that the Registrar was wrong in allowing as an instruction fee Sh. 500 when the value of the appeal was only Sh. 800, and that generally the Registrar had exercised his discretion improperly.

Held (24-3-44).—Generally speaking the Court on a review of taxation will determine on the propriety of allowing or disallowing items only where some principle is involved and not where a question of quantum only arises.

White v. Altrincham Urban District Council 1936 I A. E. R. p. 923 applied.

Kapila for the Appellant

## Khanna for the Respondents.

JUDGMENT.—The unsuccessful appellant upon an appeal has applied to this Court to revise the decision of the Registrar upon a taxation of costs held on the 4th December.

Much stress has been laid by Mr. Kapila for the appellant upon the fact that the subject matter of the appeal was of a value only of Sh. 800 whereas the Registrar has allowed Sh. 500 as advocate's fee for instructions only. I cannot see any force in this argument. The value of 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 careful consideration both by the Court and counsel. And, after all it is to be borne in mind that it was the appellant who commenced this litigation and there has been much of it over four years. Mr. Khanna for the respondents has drawn my attention to the case of White v. Altrincham Urban District Council 1936 1 A. E. R. and in particular to the passages referred to on pages 931 and 932. I quote two relevant passages as follows:-

"In the case of In the Estate of Ogilvie (2) the Court of Appeal laid down the general principle of the discretion of the taxing master in the High Court in similar language and perhaps even more strongly treating the rule as long settled. Cobens-Hardy, M. R., adopted the statements of the principle made by two of his predecessors, Sir John Leech in Alsop v. Lord Oxford (1), and 20 years later by Sir John Romilly in the case of *Re Catlin* (4), in which the latter has said, at page 509:

It is admitted on both sides, that this Court can only be called upon to determine on the propriety of allowing or disallowing items which involve some principle, and not where a question only of quantum arises.

Buckley, L. J., was equally definite:

On questions of quantum the decision of the taxing master is generally speaking final. It must be a very exceptional case in which the Court will even listen to an application to review his decision. In questions of quantum the judge is not nearly as competent as the taxing master to say what is the proper amount to be allowed; the Court will not interfere unless the taxing master is shown to have gone wholly wrong. If a question of principle is involved it is different; on a mere question of quantum, in the absence of particular circumstances, the decision of the taxing master is conclusive. I think that the learned judge ought not to have interfered."

It is also alleged by this somewhat litigious appellant that certain costs have been increased by the respondents' action in opposing a certain application which he instituted during the course of the proceedings to substitute certain persons for the deceased defendant. Sh. 150 have been allowed on taxation as an instruction fee to the respondents' counsel upon that application. Hayden, J., ordered that the costs of that application were to be costs in the cause.

It is urged that some nominal sum and not Sh. 150 should have been allowed. Looking at the record before Hayden, J., I should not have thought that Sh. 150 were in any way unreasonable as an instruction fee. The Judge's note covers one and a half pages of foolscap and his order two and a half pages of typewritten script. Questions of law arose on the application and the learned Judge reserved judgment. It is alleged that the instruction fee of Sh. 500 is "preposterous" because the arguments upon the appeal lasted only half a day. On the other hand. Mr. Khanna says the appeal lasted a whole day.

The learned Registrar had the file before him when he arrived at his taxation and I am unable to agree that there is any foundation for the allegation that his taxation is "preposterous." This is a matter purely of quantum and of nothing else.

I can see no justification whatever for the allegation that the learned Registrar has in his taxation erred upon any question of principle.

I adopt the words quoted above:

"On question of quantum the decision of the taxing master is generally speaking final. It must be a very exceptional case in which the Court will even listen to an application to review his decision. In questions of quantum the judge is not nearly as competent as the taxing master to say what is the proper amount to be allowed; the Court will not interfere unless the taxing master is shown to have gone wholly wrong. If a question of principle is involved it is different; on a mere question of quantum, in the absence of particular circumstances, the decision of the taxing master is conclusive."

The original bill of costs filed by respondents was for Sh. 2,382/50 and no less than Sh. 1,198 have been disallowed, or more than 50 per cent. If any comment is to be made at all it is this, that, in my opinion, the appellant ought to realize that he has been treated by the Registrar with if anything generosity and that he has nothing to complain of. There is nothing whatever to be said for the application and it is dismissed with costs.