055-NLR-NLR-V-22-THIRIONIS-APPU-et-al.-v.-WICKREMESINGHE.pdf
( 182 )
1920.
Present: Bertram C.J. and SchneiderA.J.
THIRIONIS APPU et al. v. WICKREMESINGHE.
15-r—D. G. Grille, 13,612.
i
Fresh survey ordered to be made at plaintiffs' -expense—Judgment forplaintiffs, with costs—Are plaintiffs entitled to get costs of surveyfrom defendant ?…
On the application of the plaintiffs the Court ordered that, a fresh*«- survey be made at plaintiffs’ expense*; this order as to costs ofsurveydid not add the words “in the first instance.1! The plaintiffsobtained judgment, with costs of action.
Held, that the plaintiffs were entitled to include the costs of thefresh survey in bis bill of costs as the survey was necessary.
f j ^HE Sets appear from the judgment.
A, St. V. Jayawardene (with him De Zoysa), fbr appellants.Cooray, for respondent.
( 18* )
July 29,1920. Schneider A.J.—
This is an appeal by the plaintiffs against an order of the DistrictJudge acting in review of the taxation of plaintiffs’ bill of costs.He has upheld the disallowance by* the taxing officer of an item ofRs. 567*18, being the costs in connection with a survey made byMr. Vandort upon- a commission issued by the Court at instance ofthe plaintiffs. The application for the commission is recorded inthe journal of the action as follows
September 18, 1916. “ Mr. Advocate Gunaratne moving fresh -application of the plan applieid by Mr. Abeygoonewardeneto be made by Surveyor Vandort at plaintiffs’ expense.”
As the plaintiffs were awarded their costs of the action, they areentitled to recover this item from the defendant under the provi-sions of section 208 of the Civil Procedure Code if it can be regardedas expenses. “ necessarily incurred.” The learned District Judgeappears to have been moved by two reasons in making his order.He interprets the order allowing the commission as meaning thatMr, Vandort’s survey was to be done at plaintiffs’ expense, and thatthere was no such qualification as “ in the first instance.” He saysthat he cannot “ get behind that order.” As a further reason, theDistrict Judge adds that Mr. Vandort’s survey was not reallynecessary, because “ the first Commissioner (Mr. Dias) could havebeen directed to survey the whole land if required.” I am unableto agree with either of the reasons given by the District Judge.Both parties produced surveys made by different surveyors; andthe commission issued to Mr. Vandort directed him to survey theland as described in the plaint, and also to survey a block of 100acres according to the defendant’s plan and to apply the differentplans to one another. Mr. Vandort carried out his commission.He gave evidence at the trial. The judgment contains referencesto his plan. The decree is based upon his plan. It is stated in th#petition of appeal that the first surveyor, to whom a commissionissued, did hot, in fact, make a survey of the whole of this 100-acrcblock of land. This appears to be correct.. It seems to me,therefqre, that it is not correct to say that Mr. Vandort’s survey wasnot “ really necessary.” The amount allowed for Mr. Vandort^travelling is not a large sum, and the fact that what was done byMr. Vandort might have been done by Mr. Dias is no reason fordisallowing the costs of Mr. Vandort’s survey.
I am unable to agree with the interpretation put by the DistrictJudge upon the or^er for the commission to be issued to MV Vandort.At the time the application was made the Court'had already orderedeither party to deposit a Bum of money towards the cost of thecommission to Mr. Dias. The plaintiffs could not, therefore, at thatstage ask the Court for an order on the defendant to contribute in•advance towards another commission. It is the ordinary practice,
1920.
ThirionisAjppu v.
Wickreme-
ainghe
■•< 184 )
1920.
Schneider
A.J.
ThmonisAppu v.Wickreme-eingfie
where one party is unwilling in the first instance to contributetowards the cost of a survey, fpr the other party, who desires sucha survey, to get the work done at his expense and take his chanceof recovering it after the determination of the action. I thereforeregard the application for the commission to Mr. Vandort as havingbeen made and allowed upon the footing that it was to be at plaintiffs’expense in the first instance, and not that the plaintiffs should notrecover that expense in any event.
I would, therefore, allow the appeal, with costs. The DistrictJudge had dismissed the plaintiffs’ application for review, with costs.Besides the item which is the subject-matter of this appeal, theplaintiffs contested the taxation of a number of others, and theircontest failed. I would, therefore, vary the District Judge’s order,and direct that the taxation be held to be correct, subject to theincrease of Rs. 10 referred to by the District Judge and the inclusionof the item of Rs. 567 • 18, which has been disallowed. Each partyis to bear his own costs of the review of taxation.
Bertram C.J;—I agree.
Varied.