042-NLR-NLR-V-49-JAYEWARDENE-Applicant-and-PERERA-Respondent.pdf
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Jayetoardene v. Perera.
1948Present : Windham J.
JAYEWARDENE, Applicant, and PERERA, Respondent.Election Petition No. 18, Kelaniya—In the matter of anApplication in revision of Costs taxed by theRegistrar, Supreme Court.
Election petition—Objection to petition—Referred to three Judges under section. 48
Courts Ordinance—Objection overruled with costs■—Taxation—Scale of costs—
Parliamentary Election Petition Rules—Rule 33 (7).
An objection to the petition was referred to a Bench of three Judges undersection 48 of the Courts Ordinance. The,objection was overruled with costs.It was contended that costs should be taxed in terms of the provisions of rule33 (1) of the Parliamentary Election Rules, 1946.
Held, that when the matter was referred to a Bench of three Judges undersection 48 of the Courts Ordinance it ceased to be one to which the Parliamen-tary Election Petition rules applied and that costs should be taxed accordingto the principals applying to the taxation of costs' in matters heard beforethe Supreme Court.
WINDHAM J.—Jayitcurdene v. Perera.
13ft
Application in revision of coats taxed in respect of a matterconcerning an Election Petition.
T. Samerawidereme, for respondent, applicant.—The applicationin respect of which the order for costs was made was one nnder rule 12 (3).The sub-section authorises the Judge to make an order for costs ofhearing and deciding the application. Rule 33 provides the mode oftaxation and recovery of costs ordered by an Election Court. Therule is in identical terms as rule 42 of the Election (Legislative Council)Petition Rules, 1923. A supplemental order as to costs in the case ofRambvJcweUe v. de Silva reported in 6 C. L. Rec. 128 shows thatBertram C. J. considered that under that rule costs should be taxed onthe highest scale applicable to District Court proceedings. It issubmitted therefore that the Registrar should be directed to tax thebill on the highest class of the scale applicable to a District Court action.
S. E. J. Fernando, for petitioner, respondent.—The Election PetitionRules have no application at all as the matter was referred undersection 48 of the Courts Ordinance to a bench of three Judges. Costs shouldbe taxed on the same principle as in other proceedings before the SupremeCourt which are governed by the Courts Ordinance. There is no scale.Costs actually incurred, provided they are reasonable, should be allowed.In matters of this kind involving important civic rights parties areentitled to be well represented. See Pelpola v. Goonesinghe.1 In anyevent where the rule says, “ in the same manner as costs are taxed ina District Court ” it does not mean on the same scale. Tf that wasintended it would have been simple to have said so expressly.
T. Sameiawickreme, in reply—Though the matter was referred toa Divisional Bench the application was one under rule 12 and the orderfor costs was made in terms of sub-section (3) of that rule. Article 78 (5)of the Ceylon (Parliamentary Elections) Order in Council enables a Judgeof the Supreme Court to deal with interlocutory matters. Hence itwas that the matter was referred to a Divisional Bench under the CourtsOrdinance. It did not thereby cease to be an application under theElection Petition Rules.
February 20, 1948. Windham J.—
This is an application to set aside an order of the Registrar of thisCourt, taxing costs to be paid by the applicant to the respondent-peti-tioner in respect of hearings upon an objection to the Election Petitionconcerning the question of the deposit of security, which was dismissed.The point originally came before His Lordship Mr. Justice Basnayakeupon an application made under rule 33 of the Parliamentary ElectionPetition Rules, 1946. Then His Lordship, acting under section 48of the Courts Ordinance, referred the matter for the determination of abench of two or more Judges, and the matter was thereupon determinedbefore a bench of three Judges of the Supreme Court.
The present application relates to the taxing of costs in the applicationbefore that bench. It is argued by the applicant that the costs shouldhave been taxed on the basis of the highest scale set out in the 2ndschedule of the CSviLProcedure Code, Part II, and this by virtue of the
939) 40 N. L. R. 416.
130
In re Bereaford Beil.
provision of Rate 33 (1) of the Parliamentary Election Petition Roles,1946. Role 33 (1) states that “ Costs shall be taxed by the Registrarupon the order by 'which the costs are payable, in the same manner ascosts are taxed in a District Court, but subject to such express directions,either general or specific, as the Judge may give …. ” Without
deciding upon the exact meaning of the phrase “ in the same manner ”in Rule 33 (1), I am satisfied that that Rule does not apply to thedetermination of a point arising upon an interlocutory proceeding in anElection Petition, where that point has to be decided by a bench of twoor more Judges of the Supreme Court. It seems to me that so soon as areference has been made to such a bench under section 48 of the CourtsOrdinance, the determination of the matter before such a bench ceasesto be a matter to which the Parliamentary Election Petition Rules,1946, apply and becomes a matter to be determined (so far as concernscosts) upon the principles applying to the taxation of costs in mattersheard before the Supreme Court. In such matters there is no scale ofcosts laid down, and the taxa tion is left to the discretion of the Registrar ;and this will not be interfered with unless the Registrar has proceededupon wrong considerations or principles, or has allowed extravagantcosts needlessly incurred. For the reasons I have given, I hold that thelearned Registrar did not proceed upon wrong considerations or principles ;and with regard to the question whether the costs allowed were extra-vagant, the costs allowed weTe in fact incurred and were not excessive, andfurthermore the learned Registrar did cut down the original bill for costssubmitted by the Respondent Petitioner from the sum of Rs. 4,192.50to the sum of Rs. 3,418.75. For those reasons T hold this is not a matterin which this Court should interfere.
The application is accordingly dismissed with costs.
Application dismissed.