Bombay High CourtSmetham, Byrne And Lambert vs Darashaw Eruchshaw Karanjawalla on 9 January, 1940Equivalent citations: (1940)42BOMLR922, AIR 1940 BOMBAY 412JUDGMENT
 

Blackwell, J.1. [His Lordship after setting out the facts of the case and discussing evidence bearing on the question of fact arising in the case came to the conclusion that an agreement for payment of costs was made between the parties. His Lordship then proceeded:] It was contended by Mr. Pardiwalla for the defendant that this suit was premature and would not lie inasmuch as, according to his submission, taxation of the bill of costs on the Original Side was a condition precedent to a right to demand payment of the costs and a fortiori to a right to sue for the recoveryl thereof, Mr. Pardiwalla referred to Rule 534 of the High Court Rules, which is as follows:-The Taxing Master shall tax the bills of costs on every side of the Court (except the Appellate Side) and in the Insolvency Court. All other bills of costs of attorneys shall also be taxed by him when he is directed to do so by a Judge's order.2. He argued that it was open to the plaintiffs to obtain an order from a Judge on the Original Side by a summons for taxation of the bill of costs and that not until such an order had been obtained a demand made and a refusal to pay had the plaintiffs any right to seek to enforce payment of their bill.3. Mr. Pardiwalla's contention is, in my opinion, unsustainable. In a judgment delivered by Mr. Justice Kania in Chambers on June 12, 1939, in the matter of a bill of costs of Messrs. Little & Co., relating to) an appeal from Civil Suit No. 389 of 1931 in the Court of the First Class Subordinate Judge of Poona the applicant being Mr. D. B. Narayan Vithal Sayana, Mr. Justice Kania considered the meaning of Rule 534 and Rules 83 and 89 of the High Court Rules. Mr. Justice Kania came to the conclusion that it was not open either to a learned Judge or to the Prothonotary to make an order for taxation in respect of an Appellate Side matter under Rule 534 and that the only remedy open to an attorney who claimed to be entitled to payment of costs on the Original Side scale in respect of a matter relating to the Appellate Side jurisdiction was to file a suit on his contract with his client. Following that decision, with which if I may respectfully say so I entirely agree, I am clearly of opinion that the only remedy open to the plaintiffs was to bring a suit, as they have done, upon the agreement which they rely upon to get that agreement established by the Court and to ask for an order for taxation and for payment of the bill when taxed. Mr. Pardiwalla argued that Mr. Justice Kania's decision involved the proposition that a Judge could not in any circumstance make an order for taxation of costs on the Original Side in respect of an Appellate Side matter. I entirely disagree with that interpretation of Mr. Justice Kania's judgment. It seems to me to be perfectly plain that Mr. Justice Kania was at pains to point out that the remedy open in such a case was a suit on the Original Side, it being open to the clients to obtain an order for taxation, provided they proved in that suit the agreement which would justify the) making of the order.4. The remainder of the judgment is not material for the purpose of this report.