P L D 1964 Dacca 298 (PLP)

Nemo in support of the Reference. This is a Reference by Mr. A. M. Hossain, Sessions Judge, Pabna‑Kushtia recommending the order of the Magistrate award ing cost in favour of the first party in a proceeding under section 146 of the Code of Criminal Procedure should be set aside. In this case a proceeding under section 145 of the Code of Criminal Procedure was drawn and after hearing the parties and going through the evidence adduced by them the learned Magis trate made final order and found possession of the disputed property with the first party. After the final order was made, on the prayer of the first party, notices were duly issued to the second party in the said proceeding and objections to awarding costs were heard. The first party claimed a sum of Rs. 1,103‑3‑0 as costs from the second party. The learned Magistrate expressed himself in the following terms :‑

"The 1st party has laid the claim at Rs. 1,102‑3‑0 (sic) and they have furnished an account therefore. On going through the records and the accounts, it seems to me that the claim of the 1st party is unjustified and unreasonable. The account furnished is not supported by any voucher, receipt etc. The proceeding of course continued for a fairly long time, but the 1st party is not entitled to get lawyer's fee, etc., for all the days of hearing. I have gone through the order sheets carefully. In this case it is not possible in the absence of evidence to calculate the exact amount of money legally spent by the 1st party. So I am inclined to award a cost at lump sum. Accordingly I award cost of Rs. 250 only for the 1st party. The second party is to pay that amount to the 1st party as costs of the proceeding."

3. Mr. Behtar Ali, the learned Advocate of the first party, appears in opposition to the Reference and submits that the learned Magistrate applied his mind to the materials placed before him and his observation with regard to the vouchers, receipts etc., indicates such application of mind. The learned Advocate further submits that the Magistrate has reduced the amount con siderably and this also indicates the application of his mind. The learned Magistrate has not given costs for all the days the lawyers had to appear. Having regard to the lengthy proceeding, time and expenditure involved in the proceeding, the learned Magis trate was justified in awarding a lump sum as costs. In support of his submission the learned Advocate has rightly placed his reliance on the following observation occurring in the case of Brij Pal Singh and another v. Ram Naresh Singh and others (A I R 1932 All. 325). "It is not suggested that the sum awarded is unreasonable but merely that it should have been an exact sum proved in the ordinary manner. But it is extremely difficult to prove the exact sum spent in costs in a semi‑criminal case such as one under section 145, Criminal P. C. In such cases I consider that the Court may very well use its discretion in awarding an amount which it considers reasonable."

4. I have no hesitation to say that the contention of the learned Advocate has substance. The learned Magistrate could not refuse awarding costs when he came to the conclusion that the first party was entitled to the same in this case and having regard to the materials before him, he awarded a lump sum as costs to the first party. The learned Magistrate has noted that he went through the order sheet carefully and made a proper appreciation of that situation with regard to the cost. Therefore the case of Debendra Nath Kaan v. Dhanmoni Dasi and others (37 C W N 849), is easily distinguishable from the present case. The learned Magistrate has considered the vouchers and receipts etc., sub mitted by the first party and therefore, he has, in fact, on the material before him awarded lump sum. Therefore the aforesaid case does not apply to the facts of this case. For the reasons stated above, the Reference is rejected. S. Q. Reference rejected.