Wigkremesinghe v. Seneviratne.
1936 Present: Abrahams CJ., Maartensz and Moseley JJ.'
WICKREMESINGHE v. SENEVIRATNE.
1045—D. C. Galle, 31,449.
Costs—Proctor’s bill of costs—Charge for making copies of plaint—Copiesmade by mechanical process—Reasonable charge—Civil Procedure Code,Schedule III.i
The item “ making a copy of the plaint ” occurring in schedule HT. ofthe Civil Procedure Code should be construed as making a copy by otherthan mechanical means.
Where, owing to the number of defendants in.a case, copies of the plaintwere printed, the taxing officer has power to allow a reasonable fee formaking the copies.
^^PPEAL from an order of the District Judge of Galle.
This was a partition action in which the respondent, who was theproctor of the plaintiffs in the action, included in his bill of costs thefollowing item: “ Making copies of plaints (110 folios in each) 50 cents perfolio Rs. 14,355. Owing to the large number of defendants in the actionit was found convenient to have the copies printed and the actual cost ofprinting was Rs. 35. The taxing officer reduced the item to Rs. 5,205.50.On a reference to the District Judge he held that the item should be 5,220.Against this order both parties appealed.
H. V. Perera (with him L. A. Ra.japa.kse), for appellant in appealNo. 104, and respondent in appeal No. 105.
The taxing officer has a discretion to allow a sum within the specifiedlimits as is fair and reasonable. In this instance he has followed animaginary scale which he could not reproduce before the District Judge.Therefore we do not know what scale was followed by him.
The scale in schedule III. refers to work done, and can only meanprofessional services rendered. The amount charged by the proctorand the amount allowed by the Judge bear no relation to the value of thework done.
AlZes v. Buultjens1 was wrongly decided- It may be admitted that ifthe proctor’s clerk has made these copies, then it would come within themeaning of a professional service ; but here the work was done by anindependent contractor. Professional services rendered must be distin-guished from actual disbursements. It is a fundamental principle of allcontracts of agency that the agent must be remunerated for reasonableexpenses ; he must of course be indemnified for actual disbursementsmade by him on the principal’s behalf.
“ Making ” a copy, in schedule III., must be taken to mean making acopy by other than mechanical process. When the Civil Procedure Codewas enacted, handwritten copies weTe the rule, and the Legislature did notcontemplate the printing of copies.[
It cannot reasonably be contended by the proctor that he even comparedeach one of the printed copies with thecumanuscript. He would normallyhave corrected only the proof copy.
1 6C.W. R. 197.
8J. N. B 32999 (1/54)
228MOSELEY J.—Wickremesinghe v. Stneviratne.
It cannot be that the Legislature contemplated allowing an exorbitantcharge like the present one. The decision in Alles v. Buultjens (supra)works great hardship and injustice; and in the present case the initialstep of making the plaint and copies for service would cost more than thevalue of the land which is only Rs. 11,000.
N.E. Weerasooria (with him T. S. Fernando), for respondent in appealNo. 104, and appellant in appeal No. 105.
It is not denied that 261 copies were necessary. The charge made bythe proctor is in accordance with the scale in schedule HI., and thereshould be no departure from that scale. The language of the scheduleis clear, and if there is hardship caused, it is a matter for the legislatureto amend the law accordingly.
Even though the process employed in making the copies is a mechanicalone, each copy has been certified by the proctor. He would therefore bepersonally responsible for any errors in the printed copies. Undersections 49 and 55 of the Code, it is the duty of plaintiff to serve a copyof the plaint with the summons on each defendant.
“ Making ” should not be limited to mean acts of the proctor himselfso long as the proctor is responsible for the made copies, however theymay be made. The word “ making ” is a general one, and is wide enoughto include making by a mechanical,) process. Alles v. Buultjens (supra)holds that the process employed in making the copies makes no differenceto the rate allowed by the schedule.
In Anohamy v. Nonabadathe Court approved a modified rate ofcharges for printed copies of the plaint in a partition case.
Bills of costs may be unreasonable ; but it has been pointed out fromtime to time, and certainly so long ago as 1916 (in Juan Appu v. PeloAppu:) that the remedy lay with the Legislature.
This Court will not lightly interfere with the interpretation of anenactment concerning procedure or practice which has been recognizedfor a long time ; see Boyagoda v. Mendiss.
Plaintiff has got his own bill of costs in. the case taxed on the footingthat he has had to pay his prcctor according to the rate allowed by thetaxing-master; be cannot now be heard to say that the proctor cannotcharge on the basis upon Which he has himself acted.
Cur. adv. vult.
November 12, 1936. Moseley J.—
The appellant in case Nc. 104 was one of the plaintiffs in a partitionaction and the respondent'Vas his proctor. In case No. 105 the positionsare reversed, but, as the two cases are being considered together, I shallfor the sake of convenience, refer throughout to the client as the appellantand to the proctor as the respondent.
The latter included in his bill of costs the following item:—“Making261 copies of plaints (110 folios in each) at 50 cents per folio Rs. 14,355.”It is conceded that this number of copies . wa$ necessary and it is con-tended ori behalf of the respondent that the charge is according to thescale, in the third schedule to the Civil Procedure, Code. According to-thescale a charge of 50 cents per foHo is allowed for making and serving acopy of the plaint, or translation thereof, for service.
1 8 G. W. R. 40.1 19 N. L. R. 272.
s 30 N. L. R. 321
MOSELEY J.—Wickremesinghe v. Seneviratne.
It is not disputed that, normally, such a charge represents a fairremuneration for the work performed.
In this case, however, owing to the large number required, it wasconsidered convenient to have the copies printed, in respect of which theactual cost was Rs. 35. The taxing officer reduced the item of Rs. 14,355to Rs. 5,208.50 following a scale which differs from that laid down by theCivil Procedure Code.
• Both the appellant and the respondent raised objections to the revisedfigure, and the bill of costs was referred to the District Judge. Theappellant contended that the charge was excessive; the respondentthat the taxing officer had no discretion to allow anything less than theamount fixed by the Code. The acting additional District Judge thoughtthat the taxing officer was entitled to allow any sum up to what he referredto as “the maxima” and further thought that Rs. 20 for each copy ofthe plaint was a fair and reasonable charge, and found that the itemshould be Rs. 5,220.
Against this finding both parties have appealed on the grounds indicatedabove.
Counsel for the appellant has urged that the amount charged in thebill of costs, and indeed the reduced amount fixed by the District Judge,bears no relation to the value of the work done. He further contendedthat the charges fixed by the schedule are "maxima ”, and that in a caseof this nature the taxing officer has a discretion to allow such sum withinthe specified limit as he considers a fair arid proper remuneration for thework done.
In the case of Alles i Buuitjens in which the facts closely resemblethose in the case before us, the Court, while allowing in full an item forprinting copies of a plaint which was charged according to scale, was ofthe opinion that “the object of the schedule is to fix a maximum up towhich “ the taxing officer is entitled to tax when he is satisfied that someitem of work in the case has been done ”.
No reasons were advanced by the learned Judges in support of thisview with which I regret that I am unable to agree.
A taxing officer has a discretion to allow charges or fees not speciallyprovided for in the schedule, but where a definite fee is fixed in respect ofan item, it appears clear that a taxing officer has not, not is it desirablethat he should have, a discretion to depart therefrom.
In my view, therefore, the eharge for printing copies of a plaint,assuming that such printing can be said to come within the meaning ofthe words “ making a copy ”, would be 50 cents a folio, that is to say,the proctor’s charge in this case would be a proper one.
In the case of Alles v. Buuitjens (supra), the view was taken that “ asthe schedule now stands no distinction is made as to the process by whichcopies are made
It was admitted there, as I think it must be in this case that, if thecopies had been made by the proctor’s clerk in his own handwriting, thecharge would be in order. The amount involved in that case was small,viz.:—Rs. 588, and the extravagance of such a charge was not so apparentas in the present case.
1 6 C. W. R. 197.
MOSELEY J.—Wicferemesinghe v. Seneviratne.
That a proctor should be able, by the mere act of handing certainscript to a printer and paying the latter Rs. 35 for work done, to recoveron that account from his client a sum of Rs. 14,355 can only be describedas fantastic.
There can be no doubt that such a circumstance could not have beenenvisaged when the Civil Procedure Code became law, and handwritingwas the universal means of making a copy.
Counsel for the respondent has contended that the language used inthis particular item of the schedule is clear, and it is not for the Court toattempt to give effect to the intention of the Legislature, and that it isfor the Legislature to remedy the evil, if such it be.
It is a fundamental principle of interpretation that in order to avoid ahardship or an injustice the ordinary meaning of a word may so far bemodified. There are numerous authorities for the proposition. It willsuffice to quote one. The County Courts Act (13 & 14 Viet. c. 61) bysection 12 provided that a plaintiff in trespass who recovered a sum notexceeding £5 should not get costs, but that, if he recovered less than£5 and the Judge certifies, the plaintiff should recover his costs. In Garbyv• Harris1, the plaintiff recovered £5 exactly. He was not ipso factoentitled to costs ; and as the amount recovered was not less than £5, itwas contended that the certificate given by the Judge was improperlygiven and should be rescinded. It was held that as there was no doubtabout the intention of the Legislature, the words “ less than £5 ” shouldbe read as “ not exceeding £5 ”,
It seems to me that in the present case we are faced with no less aninjustice.
There is, I take it, no limit to the number of persons whom it may benecessary to cite in a partition action, so it may be that with the presentcase the limit of injustice has not been reached. In order to avoid suchan injustice, I feel that there is ample justification for construing thewords “ making a copy ” as I think the Legislature intended them to beunderstood, that is to say, as making a copy by other than mechanicalmeans.
That being so, it follows that the item as charged in the bill does not,in my opinion, fall within the meaning of item in the schedule.
The appeal in case No. 104 is therefore allowed with costs. The itemis one in respect of which the taxing officer had power to allow a reasonablefee. In all the circumstances, I think a charge of Rs. 200 includingRs. 35 actually paid to the printer, would be reasonable and should beallowed.
The appeal in case No. 105 is dismissed with costs.
Abrahams C.J.—I agree.
Maartensz J.—I agree.
Appeal No. 104 allowed.Appeal No. 105 dismissed.
1 (1852) 21 Law Jour. Ex. p. 160.
WICKREMESINGHE v. SENEVIRATNE