CRATIA15N J.—rfe Silva v. Mervyn Fernando
1955Present: Gratiaen J.
V. 15. B. DE SILVA, cl al., Petitioners, anti MERVYNFERNANDO, Respondent
S. C. 256—Application in revision in C. R. Panadure, 13,782
Court of Requests—Costs—Taxation as between parly and parly—Witnesses’expenses —Discretion of Court-—Civil Procedure Code, Part .1 of Schedule 11.
Under Tart 3 of Schedule II of the Civil Procedure Code, a party who has beenawarded costs in a decree in hia favour in the Court of Requests is not entitled toclaim a sum paid to a lawyer-witness to compensate him for the loss of hisprofessional income while attending the Court in obedience to summons.
.Al PPLICATION to revise an order of the Court of Requests, Panadure.Cecil de 8. Wijeratne, for the plaintiffs petitioners.
Vernon Wijetunge, for the defendant respondent.
Cur. adv. vult.
January 24, 1955. Gratiaen J.—*
This application relates to a dispute concerning the taxation of costsnB between party and party in an action in the Court of Requests ofPanadure. The respondent, who had been awarded costs in a decree inhis favour against the petitioner, claimed that sums amounting toRs. 157-50 paid to two witnesses were permissible items in his bill ofcosts. The witnesses concerned were proctors, but had given evidenceat the trial as private citizens, so that no question of payment of foos toexpert witnesses arises for consideration.
Palisena v. Perera
Both witnesses resided within 4 miles of the precincts of the Court,so that they were liable to attend the Court on summons without pre-payment or guarantee of travelling or other expenses. Nevertheless,the learned Commissioner allowed the retention in the taxed bill ofcosts of “ batta ” at the rate of Rs. 31*50 per day to each witness. Hestated that it was customary in his Court to allow the payment of “ batta ”at this rate to lawyer-witnesses, and that he did not wish to interfere with“ the usual practice ”.
The scale of costs as between party and party in actions in the Courtof Requests is laid down in Part 3 of the Second Schedule of the CivilProcedure Code. “ Witnesses’ expenses ” are no doubt payable “ as theCommissioner may determine ” ; but in this case'the payments do notpurport to represent any “ expenses ” incurred by either witness, butwere made apparently to compensate him to some extent for the loss ofhis professional income while attending the Court in obedience to thesummons. That is not an expense which the unsuccessful party to alitigation can be compelled to meet. I therefore allow the applicationand disallow these items aggregating Rs. 157*50 from the respondent’sbill of costs. The respondent must also pay to the petitioner the costsof this application and the costs of the relevant proceedings in the lowerCourt.
V. E. B. DE SILVA et al .,Petitioners, and MERVYN FERNANDO, Respondent