Patna High Court
Sarju Prasad Sao vs Ram Chandra Singh And Ors. on 15 May, 1958
Equivalent citations: AIR1959PAT151, 1958(6)BLJR492, 1959CRILJ506, AIR 1959 PATNA 151, 1958 BLJR 492
JUDGMENT K. Sahai, J.
1. The facts relevant for decision of the points raised before this Court are as follows. There was a dispute relating to the possession of some lands between the parties. A proceeding under Section 145 of the Code of Criminal Procedure was drawn up. The petitioner was the first party whereas the members of the opposite party in this Court were the second party in that case. The proceeding was finally disposed of by Mr. R. N. Sinha, a Magistrate with first class powers of Arrah, on 23-11-1953. The learned Magistrate declared that the disputed lands were in the possession of the second party. The last sentence of his order was:
"First party to bear the pleader's cost incurred by the second party."
Mr. R. N. Sinha was thereafter transferred from Arrah, but the actual date of his transfer is not apparent from the record. On 6-9-1954, the opposite party filed an application under Section 559 of the Code of Criminal Procedure before the District Magistrate with the prayer that the successor to Mr. R. N. Sinha be appointed. By an order of the same date, the District Magistrate directed the Sub-divisional Officer of Arrah Sadar to dispose of the matter, or, in other words, he appointed the Sub-divisional Officer to be the successor of Mr. R. N. Sinha.
The opposite party tiled an application on 15-9-1954, before the Sub-divisional Officer for assessment o£ the costs. By an order dated 8-12-1955, the bub-divisional Magistrate has assessed the costs payable by the petitioner to the opposite party at Rs. 1,596/-. This application in revision is directed against that order.
2. Appearing on behalf of the petitioner, Mr. Kailash Rai has raised three points. His first point is that the Magistrate who passes an order under Section 145, Section 146 or Section 147 must himself pass an order under Sub-section (8) of Section 148 for payment of costs by one party or the other, and that he must also assess the amount of costs. In my opinion, this argument is not quite correct. Sub-section (3) of Section 148 reads:
"Order as to costs: When any costs have been incurred by any party to a proceeding under this Chapter the Magistrate passing a decision under Section 145, Section 146 or Section 147 may direct by whom such costs shall be paid, whether by such party or by any other party to the proceeding, and whether in whole or in part or in proportion. Such costs may include any expenses incurred in respect of witnesses, and of pleaders' fees, which the Court may consider reasonable."
A perusal of this sub-section makes it perfectly clear that the direction for one party or the other to pay costs and to pay it in whole or in part or in a certain proportion must be given "by the Magistrate passing a decision under Section 145" or the other sections of Chap. 12. There is nothing in this provision to show that even the actual assessment cannot be made by another Magistrate. Sub-section (1) of Section 559 reads :
''Subject to the other provisions of this Code, the powers and duties of a Judge or Magistrate may be exercised or performed by his successor in office." It seems to be manifest that a successor Magistrate can, under Section 559(1), do the actual work of assessment of costs in accordance with the direction of the Magistrate who passed the final order under Section 145, 146 or 147. I am unable to find any legal objection to this course being adopted.
3. I may now refer to some of the decisions which have been cited at the bar. The earliest decision of the Calcutta High Court, which has been cited, is the one in Bhojal Sonar v. Nirban Singh, ILR 21 Cal 609. A Division Bench consisting of Beverley and Hill, JJ. held that even where a Magistrate, who passed the final order under Section 145, directed the payment of costs by one party, his successor had no jurisdiction to assess the actual amount of costs more than two years after the date of the original order.
4. The same question came up for decision before Beverley and Banerjee, JJ, in Giridhar Chatter-fee v. Ebadullah Naskar, ILR 22 Cal 384. Beverley, J., who delivered the judgment, Banerjee, J. concurring, did not follow the decision in Bhojal Sonar's case ILR 21 Cal 609 and stated that what had mainly influenced him in that case was that the order for payment of the actual amount of costs after assessment was passed a long time after the original direction was given by the Magistrate, who decided the case under Section 145. It was held that, where the Magistrate passing the order under Section 145 gives a direction for payment of costs, there is no objection to the actual amount of costs being afterwards assessed by a successor Magistrate if an application for that purpose is made to him within a reasonable time.
5. Another bench of the Calcutta High Court considered the question in Mahomed Ershad Ali Khan Choudhary v. Saroda Prosad Snaha, ILR 2a Cal 37. In that case, their Lordships reiused to follow the decision in Bhojal Sonar case ILR 21 Cal 609 and expressly followed that in the case of Giridhar Chatterjee, ILR 22 Cal 384.
6. In Nafar Chandra Pal v. Sidhartha Krishna Mozumdar, AIR 1920 Cal 320, a bench of the Calcutta High Court held that the Magistrate, who passes an order under Section 145, may legally pass subsequently an order for payment of costs under Sub-section (3) of Section 148. The question whether a successor of that Magistrate could or could not assess the actual amount of costs did not arise for consideration.
7. Mr. Rai has cited only one decision of this Court and that is Mangulu Sahu v. Ramdhani Tamboli, AIR 1929 Pat 93. A learned single Judge of this Court held in that case, following the decision in Narar Chandra Pal's case, AIR 1920 Cal 320, that an order under Section 148 must be made by the Magistrate who tried the original case, although it can be passed subsequent to the delivery of the final Judgment in the proceeding under Section 145. This decision does not, therefore, support the contention that the successor Magistrate cannot assess the actual amount of costs.
8. The only other decision, which has been cited, is the one in the case of Bagavandas Moopanar v. Muhammad Gani Rowther, AIR 1943 Mad 478. That is the decision of a single Judge. All that has been held in that case is that it is only the Magistrate, who gives the decision in the case under Section 145, who can pass an order for payment of costs by one party or the other. The learned Judge has, however, observed:
"As no time limit is laid down in Section 148 (3) there is no objection to an order as to costs being passed on a subsequent application; and since that sub-section relates only to a direction as to by whom such costs shall be paid and whether in whole or in part, there can be no objection to a succeeding Magistrate assessing the costs regarding which an order has already been passed."
9. It will thus be seen that the decisions in the cases of Giridhar Chatterjee, ILR 22 Cal 384, Mahomed Ershad Ali Khan ILR 23 Cal 37 and Bagavandas Moopanar, AIR 1943 Mad 478, fully support the view which I have already expressed. I, therefore, hold that as Mr. R. N. Sinha gave the necessary direction as required under Sub-section (3) of Section 148 in the judgment, by which he decided the case under Section 145 finally, there is no legal objection to the Sub-divisional Officer having subsequently made the actual assessment of costs in accordance with Mr. Sinha's directions.
10. The second point which Mr. Rai has raised is that the Sub-divisional Officer's order of assessment of the costs should be set aside because it was passed after an unreasonable delay of about two years from the date of the final judgment in the case under Section 145. In support of this contention, he has drawn my attention to three of the cases which I have already referred to. Beverley, J has stated in Giridhar Chatterjee's case, ILR 22 Cal 384 that he took objection to the order in question in Bhojal Sonar's case, ILR 21 Cal 609 because of the delay of two years after which the order of assessment of costs was passed.
No period of limitation is prescribed for assessment of costs in Section 148 (3) or any other provision of the Code. Once, therefore, a direction for payment of costs has been made by the Magistrate passing the final order, I do not see why any delay, which is caused in the proceeding for assessment of costs, should preclude the successful party from getting what the Magistrate, who decided the case under Section 145, directed that he would get. In the present case, the opposite party filed their application for assessment within a year from the date of the final order in the case under Section 145 and I do not consider that to be an unreasonable delay.
11. The other decisions which Mr. Rai has relied upon arc those in the cases of Nafar Chandra Pal, AIR 1920 Cal 320 and Mahomed Ershad Ali Khan, ILR 23 Cal 37. In both those cases, the direction for payment of costs was itself given after a long delay. That is not what has happened in this case, because the direction for payment of costs was given in the final judgment itself. Those cases have, therefore, no application.
12. I am satisfied that there is no substance in Mr. Rai's contention and that the Sub-divisional Officer's order cannot be set aside on the ground of its having been passed after an unreasonable delay.
13. The last contention which Mr. Rai has raised, is that the amount awarded as costs by the Sub-divisional Officer is unreasonable and that he has acted illegally and also contrary to the directions of Mr. R. N. Sinha in including certain items for the purpose of arriving at the total amount of costs. In my opinion, this argument is well-founded. The direction which Mr. R. N. Sinha gave was only to the effect that the first party would pay pleader's costs incurred by the second party.
The Sub-divisional Officer has allowed certain amounts as expenses of the second party on witnesses and miscellaneous things. He could not allow these amounts. He has also allowed the costs incurred by the second party in the High Court. A successful party is not entitled under Section 148(3) to get the costs incurred by him in the revisional court. In allowing the pleader's fees for work done in the proceeding under Section 145 before the Magistrate, he has allowed rather large sums for each date.
In my opinion he should have allowed a reasonable cost as pleader's fees for each date. As was said in Langar Mahton v. Radha Mahton, AIR 1954 Pat 135, Sub-section (3) of Section 148 gives "a very wide discretion to the Magistrate for the assessment of the amount of costs and the only restriction which this sub-section appears to place upon the Magistrate's discretion is that the costs must be reasonable". I may only add to this restriction by stating that a successor Magistrate, who is assessing coats in accordance with the direction given by the Magistrate, who decided the case under Section 145, cannot depart from the letter and spirit of that direction.
As the learned Magistrate has in this case allowed unreasonable amounts as pleader's fees and as he has further allowed certain amounts, which he was not legally entitled to allow, his order of assessment has to be modified. I find that the case was heard on fourteen dates. In my opinion, a sum of Rs. 20/- for each of these dates on account of pleader's fees would be quite reasonable. The opposite party are not entitled to anything except pleader's fees.
14. In the circumstances mentioned above, I allow this application in part and modify the amount of costs awarded by the Sub-divisional Officer to a sum of Rs. 280/-. The petitioner would pay this amount as costs to the opposite party.
H.K. Choudhuri, J.
15. I agree.