MANILAL LALLUBHAI Vs. BHARAT SPINNING AND WEAVING CO LTD

JUDGEMENT

(1.) THIS is a chamber summons taken out by the Bharat Spinning and Weaving Company, Limited, who were the respondents in Appeal No.51 of 1932, for an order that their objections dated April 9, 1934, to the taxation of the bill of costs of the appellants may be allowed, and the appellants ordered to pay their costs of and incidental to this summons and also of the objections filed by them before the Taxing Master. The bill of costs was lodged for taxation by the appellants' attorneys, Messrs. Khandwalla and Chhotalal, on September 15, 1933, and the taxation was completed on or about March 22, 1934. Thereafter the respondents filed their objections, and a warrant to review the taxation was issued in the ordinary course. After hearing the attorneys of the parties the Taxing Master gave his judgment on August 15, 1934, a copy of which is annexed to his certificate dated August 17, 1934.

(2.) THERE were disputes between the company and the firm of Mulchand Pranjiwandas in respect of certain dealings in piecegoods which were referred to arbitration. The arbitrators made and published their award under which the firm was held liable to pay a sum of Rs. 45,000 odd to the company. The award was duly filed in Court. The company thereafter called upon four persons as being partners in the firm of Mulchand Pranjiwandas to pay the amount. Two of these four are the appellants. They contended that they were not partners in the firm, and denied liability. The company thereupon took out a chamber summons dated July 21, 1931, for leave to execute the award made against the firm against the four persons including the appellants. The appellants showed cause, and the summons was adjourned S into Court for trial of the issues arising on the summons. Two issues were raised at the trial, viz. , (1) whether Manilal Lallubhai and [or Madhavlal Lallubhai were partners in the firm of Mulchand Pranjiwandas at the date of the accrual of the cause of action, and (2) whether the said persons or either of them held themselves out as partners in the firm of Mulchand Pranjiwandas. Certain particulars of the holding out were furnished by the company. An order was made for further and better particulars which were subsequently furnished. At the trial the two appellants were represented by two different counsel, one for each appellant, though both were instructed by the same firm of solicitors, viz. , Messrs. Khandwalla and Chhotalal. Kania J. held after a lengthy trial that the appellants were partners in the firm or had held themselves out as such. The appellants appealed, and the appeal was allowed. The company who were respondents were ordered to pay to the appellants their costs of the appeal and of the chamber summons dated July 21, 1931, including the costs of trial of the issues in the Court below and of the order dated September 8, 1932, when taxed. The Appeal Court also certified that it was a fit case for the engagement of two counsel in appeal. Two counsel had been briefed for the appellants jointly on the hearing of the appeal.

(3.) THE principle of taxation on which costs of briefing separate counsel are allowed is laid down in the Guide to Costs by Porter and Wortham, 13th Edn. , at p. 920, as follows : Defendants appearing by the same solicitor, however numerous or diverse they or their interests may be, can have but one bill of costs; but this will not limit their representation in Court. If their interests are diverse, separate counsel may appear in Court, and their charges will be allowed. THE test in such cases is, as was pointed out by me in an earlier judgment in Gorakhram v. Pirozsha (No.1) (1932) 35 Bom. L. R. 93, 99, whether there is a reasonable probability of there being a substantial difference in the two defences. In my opinion the same test should also apply in considering whether the attorneys were justified in incurring separate sets of costs in respect of various items for the two appellants, not altogether separate sets of costs, one identical with the other, but separate in respect of various items wherever necessary. THE test really is whether the interests of the parties were identical, or whether before the hearing commenced there was a reasonable probability of the defences being substantially different. Counsel for the appellants argued that there was no justification even for the appearance of the two appellants by separate counsel in the Court below, for the record showed that the cross-examination of the witnesses, the arguments advanced, and the authorities or almost all the authorities cited on behalf of appellant No. 1 were adopted by counsel who appeared for appellant No.2. He also said that the 2nd appellant was examined as a witness on behalf of appellant No.1 which showed how identical their interests were. He further argued that at the utmost the Court should only allow the appellants the costs of the briefing charges for the two counsel, but not a separate set of costs in respect of the items allowed by the Taxing Master.