008-NLR-NLR-V-20-CROOS-v.-PUNCHA-et-al.pdf
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Present: De Sampayo J.
CBOOS v. PUNCHA et al.
254—C. B. Negombo, 21,890.
Costs—Two sets of defendants—Same proctor retained—Separate proxies—Action dismissed with costs against one set and judgment enteredagainst the other set—Taxation of hill.
Two sets of defendants retained the same firm of proctors, butgave them separate proxies and filed separate answers. One set(A) disputed plaintiff’s title to the land and claimed it themselvesand justified their possession. The other set (B) disclaimed titleand denied ouster. The decree gave judgment for the plaintiffagainst set A, and dismissed the case against set B with costs.
The Commissioner decided, on a review of taxation, that set Bwas only entitled to recover half the costs.
Held, in appeal that the full amount of the proctor’s fees shouldbe allowed.
facts appear from the judgment.
J. S. Jayewardene, for 3rd, 4th, and 8th defendants, appellants.—The defences of the two sets of defendants are distinct and separate.The proxies as well as the answers are separate. The .fact thatthe same firm of proctors was retained makes no 'difference tothe appellants’ right to get their full cbstjS. The test is the liabilityto the proctor. The case of Wijcsuriyfa v. Mepi Nona1 is exactlyin point. The learned Commissioner has erred in following the caseof Abdul Rahiman v. Amerasekera,2 which is clearly distinguishable.The taxation by the chief clerk is correct.
P. AT. Jayewardene, for plaintiff, respondents.—Although therewere two sets of defendants throughout the case they actedjointly. They retained the same proctors, and their defences were,hot entirely independent of each other. Counsel relied on AbdulRahiman v. Amerasekera.1 s
September 5, 1916. De Sampayo J.—
This is an appeal from an order in review of taxation of costs.The decree gave judgment for the plaintiff against the 1st, 2nd,and 6th defendants, and dismissed the case against the 3rd, 4th,and 8th defendants, appellants, with costs. These two sets of
1 {1912) 15 N. L. R. 158.* (1911) 14 N. L. R. 226
1916.
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1916.
Dh SampayoJ.
Oroosv.
Puncha
defendants retained the same firm of proctors, but gave themseparate proxies and filed separate answers. The 1st, 2nd, and 6thdefendants disputed the plaintiff's title to the portion of land, ofwhich the plaintiff was alleged to have been dispossessed by thedefendants, and claimed it themselves, and justified their possession.The 3rd, 4th, and 8th defendants disclaimed title and denied theouster. It will thus be seen that the defences of the two sets ofdefendants were distinct and separate, though the same proctorsappeared at the trial and conducted the case for them without anydistinction. A bill of costs was submitted by the proctors on behalfof the 3rd, 4th, and 8th defendants charging items for proctors’fees, stamps on subpoenas to witnesses, and their batta. The billwas taxed by the chief clerk as submitted, but the plaintiff appliedto Court to review the taxation. The Commissioner, who was notthe same as the Commissioner who tried the case and entered thedecree, held that as, in his opinion, the two sets of defendants “'actedjointly in their defence, and did not support their defences entirelyindependent of each other,” only half the costs could be taxed onthe bill of costs, in question. The words I have quoted from hisjudgment are not an accurate description of the position of thedefendants. If they. : were, the Commissioner who entered thedecree might have had good reason to allow the 3rd, 4th, and 8thdefendants only half the costs of the action. But he did not do so,and the only point now is as to the carrying out of his actual orderfor costs. The decision in Abdul Bahiman v. Amerasekera,1 whichthe Commissioner purported to follow, has therefore no relevancy.The case more in point is Wijesuriya v. Mepi Nona* which theCommissioner thought did not apply. If he had examined thatcase closely he would have found that the facts were practicallysimilar to those of this case. That was a partition action. The jlstto 7th defendants appeared by a proctor and claimed a particularlot for themselves, while the 16th defendant, appearing by the sameproctor, claimed a planter’s interest, and also supported the 1st to7th defendants’ defence. The Supreme Court considered that thedefence of one set of defendants was entirely independent of the other,“ though ” (to quote from Middleton J.’s judgment) “ it happenedto be the same. ** Wood Kenton J. emphasized the fact that twoseparate proxies were given, and said “ They did not retain him(the proctor) jointly, nor were they in any sense acting jointly intheir defence. ” The result was that the 1st to 7th defendants, whohad obtained an order for costs of the action against the plaintiff,were allowed to tax all such costs as were payable by them to theirproctor, quite apart from what the 16th defendant might have ..topay the proctor. This decision is therefore an authority, which,I think, the Commissioner ought to have followed. In this case.noquestion is raised that the amount shown in the bill as proctors’ fees
1 (1911) 14 N. L. R. 226.
* (1912) 16 N. L. R. 158.
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is not payable by the 3rd, .4th, and 8th defendants to the proctors,and therefore I think the full amount should have been allowed ontaxation, and not half of it only.
The proctors in the Court below were content to take half thestamp costs and batta, and the revised taxation in that respect willstand. But the order as to proctors’ fees is set aside, and the chiefclerk’s original taxation as regards those fees is restored. The 3rd,4th, and 8th defendants, appellants, will have the costs of theirappeal.
Varied.
1916.
Db Sampavo J.
Oroos thPuncha