Present: Pereira J. and Ennis J.MEENATCHI et al. v. RENGAPPA PULLE cl al.128—D. C. Colombo, 472.Setutr of taxation of bill of costs—Practice of Court clashing with statutoryrules of procedure—All events in the course of an action should beminuted in the journal and signed by the Judge—Civil ProcedureCode, as. 214 and 92.
Section 214 oftheCivil Procedure Code does not make thelight-
of a party to claim a review of taxation of a bill of costs by a Courtdependent uponhishavingappeared beforethe Secretaryand
objected to items of the bill before taxation.
Pebetra J.—Itissaid thatthe practice ofthe District Court of
Colombo is to submit objections to items of the bill to the Secretarybefore taxation.Ifthat- isan inveteratepractice nobodywill
blame a party for following it,bnt iftheallegedpracticeis bo
extended as ' to clash, to any the slightest extent, with the statutoryrulesofprocedure,it must to that extentbe held to be ineffectual.-
Itisnecessarythat the provisions ofsection 93 of the Civil
Procedure Code as to keeping a journal of the proceedings in anaction should be strictly adheredto. Alltheeventsin thecourse
of the action should be minnted as they occur, and each minuteshould be dated and signed by the Judge himself.
fJ>HE facts are set out in the judgment of Pereira J.
Elliott (with him Retnam), for the appellants.—The appellants'proctors applied to the Secretary for time to file objections, and alsofiled a motion in Court asking for an extension of time. No orderwas made by the Court on this motion until after the day of taxation.The appellants did not- know when the bill was going to be taxed,and consequently were not present when the bill was taxed by theSecretary.
The fact that the appellants did not object to the items of thebill before the Secretary does not preclude him from asking for areview of taxation by the Court. Section 214 of the Civil ProcedureCode does not make that a condition precedent.
Somarawickreme, for the respondents.—The appellants did notappear before the Secretary and state their objections. Theycannot now get the taxation reviewed. See 39—D. C. Colombo,27,522. [Ennis J.—Section 214 does not enact that a partydissatisfied with the taxation cannot ask for a .review unless hehad appeared before the Secretary and objected to the bill.]
Section 214 contemplates an inter partes proceeding before theSecretary.
15J >'. A 99413 (8/60)
( 450 )
1912. Under section 4 of the Civil Procedure Code the Supreme Court isMeenatchi v. empowered to frame rules. No rules have been framed on thispoint. The practice of Courts should be followed. It has been thepractice to file objections before the Secretary. Counsel also citedAbeijadeera v. Soysa et at..'
Our. adv. vuH.
October 9. 1912, Pereira J.—
This is an appeal b.y the respondent on the petition filed in theCourt below dated May 30. 1911, from the order of the DistrictJudge dated June 21, 1912, disallowing an application by theappellants under section 214 of the Civil Procedure Code for a reviewof the taxation of a bill of costs given in to the Secretary by therespondents. The bill of costs is dated April 25, 1912, and thereis this endorsement on it:“Received notice for'May 15, 1912."
apparently signed by the appellants’ proctors. There is nothing toshow that the bill was actually taxed on that- day. There is a noteon the bill by the Secretary da.ted thus: “ 28/5.” to the effect thatthe bill is taxed at (how much I cannot say). It looks as if it wastaxed at Rs. 825.52, and as if, subsequently, a further sum ofRs. 111.25 was written below that sum, and the two added together,and the aggregate amount entered on the paper, so that the writingencroached partly on the signature of the Secretary that, had alreadybeen written there. Anyway, in the journal, which is a part of therecord—written, I should, in passing, observe, on much too flimsypaper—there is this entry: " Petitioner's bill of costs taxed at
Rs.including pros, costs.” The correction of the figures
is initialed, but hot dated, and the entry itself is not signed by theDistrict Judge, as it should be under section 92 of the Civil ProcedureCode, but it bears initials, which are presumably those of the nameof the Secretary, and is dated thus: “ 28/5.” This date*rnay, bymeans of some stretch of the imagination, be taken to be May ”&•1912, but whether it is the date of the taxation of the bill or thedate of the making ot' the entry referred to above it is impossible tosay with any degree of certainty. I presume it is the date of themaking of the entry; it may be the date of the taxation of the billas well. Now, the appellants in their petitiou of appeal say—andthey have repeated the statement through their counsel at thehearing of the appeal—that notice of taxation of the bill was servedon their proctor on May 13. 1912. that he then wrote to the Secretarya letter requesting him to postpone the taxation until June 1, 1912.and that he at the same time submitted an application to the Court-for that purpose, but that the orders of the Court on that application.were not entered up in the journal on the due dates, and that, *therefore, the proctor was not in a position to know what thoseorders were. This last statement mayor may not be correct, but1 (mil) u x. L. R. M4.
( 451 )
on looking at the journal I find that steps taken and orders made onMay 20 and 27 are recorded after the entry of May 28. There issome confusion here, and it is possible that, the appellants weremisled, and I think that they should be given an opportunity toobtain an adjudication on their objections to the taxation of thebill of costs. They will place those objections as early as possiblebefore the Secretary, and unless that officer amends his taxationaccordingly, he (the Secretary) will refer the matter in dispute tothe Court for its decision in review of taxation. This, I think, asI shall explain more fully later, is the proper' procedure undersection 214 of the Civil Procedure Code. In yiew of the peculiarcircumstances of the case, I think that -each party should bear hisown costs of this appeal.
Before quitting this part of the case, I should like to say that therequirements of section 92 of the Civil Procedure Code should becarefully observed in all Courts. It is provided that .the 11 journalshall be the principal record of the action. That being so, it isnecessary that the provisions of the section as to how it should be'kept should, be rigidly adhered to. All the events in the course ofthe action, that is to say, the original application, and every subse-quent step, proceeding, and order, should be minuted as they occur,and each minute should be signed and dated by the Judge himself:
I should like to add that in the course of the argument in appealthere was some discussion as to the correct procedure under section214 of the Civil Procedure Code. To my mind the words of thesection are quite clear:Itsays that if either party is dissatisfied
with the taxation, the matter in dispute should be referred to theCourt for its decision; that is to say, if, after the bill is taxed, eitherparty objects to fcny item, the Secretary should either amend thebill accordingly, or refer the matter to the Court for its decision.It is said that the practice of the District Court of Colombo is tosubmit objections to items of the bill to the Secretary before taxation.If that is an inveterate practice nobody will blame a party forfollowing it, but if the alleged practice is so extended as to clash,to any the .slightest extent, with the statutory rules of procedure, itmust to that extent be held to be ineffectual. Section 214 does notmake the right of a party to claim a review of taxation by the Courtdependent upon his having appeared before the Secretary andobjected to items of the bill before taxation. The provisions of theorders and rules under the Judicature Acts as to the filing of objec-tions with the taxing master, the review, in the first instance, oftaxation by the master himself, and the subsequent appeal to aJudge in chambers and the hearing of the application by the Judgeupon such evidence only as had been brought fn before the taxingmaster, form no part of our procedure.
1 would set aside the order appealed from, and enter up the ordermentioned above.
( 452 )
This is an appeal from an order of the District Judge dismissingan application for review of taxation of costs under section 214 ofthe Civil Procedure Code, on the ground that the respondents hadample opportunities for lodging their objections to the bill of costsbefore the Secretary but took no steps to bring their objectionsbefore that officer.
It appears that it is the practice of the Secretary, when a bill ofcosts is presented for taxation, to issue a notice to the party directedto pay the costs, fixing a day for taxation, to allow that party toappear and state objections to the bill of costs presented.
Section 214 of the Civil Procedure Code, after stating that all billsof costs shall be taxed by the Registrar, &c., provides that if eitherparty is dissatisfied with the taxation the matter in dispute shallbe referred to the Court for decision.
It is to be observed that the review of taxation by the Court isconsequent upon a party being dissatisfied with the taxation, andthat it is not limited to cases in which the Registrar has taxed thebill after hearing objections.
An unreported case (1J. C. Int. Colombo, 27,522), and also a casein 14 N. L. R. 334, have been referred to by the respondents, but inboth these cases directions were given for the objections to be heardon the ground that no notice had been served. In the first case itwas given as a matter of indulgence, and the appeal was dismissed,as several weeks had elapsed after the taxation before objection wastaken, and in the second case the appeal was allowed.
I am of opinion that section' 214 allows of a party dissatisfied withan ea: parte taxation having the matter referred to the Court fora decision, and that the question as to whether or not notice ofthe taxation was given is only relevant to ascertain whether theobjections were taken within a reasonable time thereafter. Thepractice af the Court before the taxing officer cannot bar any partydissatisfied with the taxation from bringing the matter before theCourt in review, for the section entitles him to do this whether hehas appeared before the taxing officer or not.
For these reasons I agree with the order proposed by my learnedbrother.
MEENATCHI et al. v. RENGAPPA PULLE et al