ORDER XXXVIII

1THE SUPREME COURT RULES, 1978 1THE SUPREME COURT RULES, 1978. PART VII ORDER XXXVIII TAXATION. 1. The Registrar shall be the Taxing Officer of the Court. The Chief Justice may assign, and the Taxing Officer may with the approval of the Chief Justice delegate, to any other officer any function required by or under this Order to be exercised by the Taxing Officer. 2 The Taxing Officer shall allow all such costs, charges and expenses as appear to him to have been necessary or proper for the attainment of justice or for defending the rights of any party, and shall not allow any costs, charges and expenses which appear to him to have been incurred or increased unnecessarily or through negligence or mistake. 3 The Court may, in any proceedings where costs are awarded to any party direct payment of a sum in gross in lieu of taxed costs, and may also direct by and to whom that sum shall be paid. 4 Where, in the opinion of the Taxing Officer, the maximum fee allowed by these Rules is insufficient or a fee ought to be allowed for any matter not provided for in these Rules, he may refer the matter to the presiding judge of the Bench hearing the appeal, cause or matter, and the Judge may make such order thereon as to the allowance of the whole or any part of the amount proposed by the Taxing Officer as he thinks fit. 5 Where the Taxing Officer is of opinion that any costs have been injuriously or unnecessarily occasioned by the negligence or improper conduct of any Advocate on record he shall not allow any charge for the same. 6 In all cases of taxation as between party and party, the bill shall be lodged for taxation as between party and party and, unless the client expresses his desire to the contrary in writing, also as between advocate on record and client. 7 Every bill of costs lodged for taxation shall specify the exact number of folios contained in the bill lodged. 8 Every bill of costs shall be properly dated throughout and shall show in a column for the purpose the money paid out of pocket. 9 Every bill of costs shall be certified by the signature of the Advocate on record from whose office it is issued. 10 The fees for taxation and registration of every bill of cost shall be paid in court-fee stamps when the bill is lodged for taxation. 11 Every bill of costs shall, wherever possible, be accompanied by vouchers, and every item of disbursement and the cause thereof shall be distinctly specified, and no payment out of pocket shall be allowed except on production of the necessary voucher, or in the case of Advocate's fees, without the receipt of the Advocate that the fee has been paid: Provided that a Taxing Officer may dispense with the production of a receipt of fee paid to the Advocate General. 12 Within one month from the date of the signing of the judgment or order awarding costs, or within such further time as the Taxing Officer may for good cause allow, the party to whom the costs have been awarded shall lodge in the Registry the bill of costs and vouchers accompanied by a certified copy of the decree or formal order drawn up in the case. Where, in the opinion of the Taxing Officer, the filing of a bill or costs has been unduly delayed, the Taxing officer may return the bill and shall not receive or tax the same except by order of Court. 13 The party having the charge of the bill shall, within fourteen days or within such further period as the Taxing Officer may for good cause allow, serve on the opposite party a copy of the bill of costs and file in the Registry an affidavit of service. In default of the filing of such affidavit within the time aforesaid or within the further period allowed by the Taxing Officer, the Taxing Officer may return the bill and vouchers and shall not thereafter receive or tax the bill except by order of the Court: Provided that, where the Taxing Officer is satisfied that the party having the charge of the bill has made all reasonable efforts to have the copy of the bill served and has failed, the Taxing Officer may dispense with such affidavit and may receive and tax the bill. 14. As soon as the affidavit of service referred to in the last preceding rule has been filed; the Taxing Officer shall fix a date for taxation of the bill and shall notify the parties of the date fixed. 15. The Taxing Officer shall allow such costs of procuring the advice on evidence of an Advocate, and of employing an Advocate to settle pleadings and affidavits, as the Taxing Officer in his discretion thinks just and reasonable. 16 In cases of taxation as between the Advocate on record and client where the fees are payable by the client personally or out of a fund belonging entirely to him, the Taxing Officer shall allow, as fees to Advocate, all sums actually paid, but not exceeding those set out in the Second Schedule to these Rules, unless the written consent of the client is produced. 17. Where an Advocate on record acts for different parties to the same suit, appeal or matter, only one set of attendances shall be allowed unless Court otherwise directs. 18 Where two or more appeals arising out of a single proceeding are heard together and costs are awarded in both or all of them, only one set of counsel's fee shall be allowed for the hearing unless the presiding judge or the Bench hearing the appeals otherwise directs. 19 Where, on the taxation of the bill of costs payable out of a fund or out of the assets of a company in liquidation, the amount of the professional charges and disbursements contained in the bill is reduced by a sixth part or more, no costs shall be allowed to the Advocate on record lodging the bill for taxation for drawing or copying it nor for attending the taxation. 20. Where, on taxation of an Advocate on record's bill of costs as between Advocate and client, the. amount of the bill is reduced by a sixth part or more, the Advocate on record shall pay the costs of taxation including the cost of the Advocate on record employed in contesting the bill and the same shall be reduced by the Taxing Officer; but the Taxing Officer may certify any special circumstances relating to the bill or taxation and the Court may, upon application by the Advocate on record whose bill has been taxed, make any such order as the Court may think just and equitable with respect to the costs of the taxation. 21. No court fees shall be payable by an applicant to proceed in forma paupris except the fee for the petition to proceed. 22 In the taxation of costs as between party and party, the costs of an incidental to the attendance by an Advocate on summons or other matters in Chambers shall not be allowed unless the Court certifies that it was a fit case for the employment of an Advocate. 23. Unless specially allowed by the Taxing Officer, no allowance shall be made in party and party taxation for work done before the commencement of proceedings in the Court, except for necessary letter of demand and the reply thereto, if any, for receiving instructions to sue, to defend, or to appeal, and searches necessary for the purpose. of instituting or defending proceedings. 24 In every case of taxation as between Advocate on record and client, the client shall be duly summoned by the Taxing Officer to attend the taxation unless the Taxing Officer sees fit to dispense with his attendance. 25 No retaining fee to an Advocate shall be allowed on taxation as between party and party. 26 Any party who is dissatisfied with the allowance or disallowance by the Taxing Officer of the whole or any part of the items in a bill of costs may apply to the Taxing Officer to review the taxation in respect thereof. 27, (1) An application to review shall be made within a week from the date of the passing of the bill by the Taxing Officer. (2) The application shall contain objections in writing specifying concisely therein items or parts of the bill allowed or disallowed and the grounds for the objection. 28 The Taxing Officer shall serve fourteen days notice of the application on the opposite party, and a copy of the application shall accompany the notice. 29 Objections which were not taken at the time of the taxation shall not be taken at the stage of review unless allowed by the Taxing Officer. 30. The Taxing Officer may, where he thinks fit, issue, pending the consideration of any objections, a preliminary allocation for or on account of the remainder of the bill of costs. 31. Upon application to review, the Taxing Officer shall reconsider his taxation upon the objections carried in and may, where he thinks fit, receive further evidence in respect thereof, and shall state in a certificate the grounds of his decision thereon and any special facts or circumstances relating thereto. 32 Any party dissatisfied with the decision of the Taxing Officer on review may, not later than seven days from the date of the decision or within such further time as the Taxing Officer or the Court may allow, apply to the Court for an order to review the decision of the Taxing Officer and the Court may thereupon make such orders as may seem just; but the taxation of the Taxing Officer shall be final and conclusive as to all matters which shall not have been objected to in the manner aforesaid. 33. No evidence shall be received by the Court upon the review of the Taxing Officer decision which was not before the Taxing Officer when he taxed the bill or reviewed his taxation unless the Court otherwise directs. 34 The certificate of the Taxing Officer by whom any appeal has been taxed shall, unless it is set aside or altered by the Court, be final as to the amount of costs covered thereof. 35. Except as otherwise specially provided in these Rules, the fees set out in the Second and Fourth Schedules to these Rules may be allowed to Advocates, Advocate on record and officers of the Court. 36 In defended appeals, suits and special references the first day's hearing fee shall be allowed in full as fixed under the Second Schedule, for the first four and a half hours of the hearing or part thereof, subject to the provisions contained in rules 33 and 39. 37 No refresher shall be allowed unless the hearing has lasted for more than four and a half hours, and the Taxing Officer shall have discretion to reduce the refresher or to allow an additional refresher having regard to the duration of the hearing after the first four and a half hours. Provided that the refresher shall not be reduced by more than one half. 38 Where the hearing of a part heard case is held up on account of the Court being occupied with any other matter, the time taken in the hearing of such matter shall be taken into consideration by the Taxing Officer for purposes of a refresher. 39 In cases involving less than fifteen thousand rupees in value, the Taxing Officer shall have discretion to reduce the fees, including the first day's hearing fee and the fee of the Advocate on record suitably according to the nature of the case. 40. Save as otherwise provided in these Rules, the fees provided in the Second Schedule, other than items 1 and 2 of Part I shall be subject to reduction in the discretion of the Taxing Officer according to the nature of the case. 41 The allowances to be made to witnesses per diem shall be such as the Taxing Officer may think reasonable having regard to the profession or status of the witness, but shall not exceed Rs. 50 per diem unless the Court otherwise directs. 42 Witnesses residing more than five miles from the place where the Court sits shall be allowed travelling expenses according to the sums reasonably and actually paid by them, and shall also be allowed such sums for subsistence money and carriage hire as the Taxing Officer, having regard to the daily allowances fixed under rule 41, considers reasonable. 43. Every person summoned to give evidence shall have tendered to him with the summons a reasonable sum for his travelling expenses (if any) and for the first day's attendance, and shall, if obliged to attend for more than one day, be entitled before giving his evidence, to claim from the party by whom he has been summoned the appropriate allowance and expenses for each additional day that he may be required to attend. 44. Witnesses who have not been paid such reasonable sums for their expenses as the Court allows by its Rules may apply to the Court at any time in person to enforce the payment of such sum as may be awarded to them. 45. For the purposes of this Order a folio shall consist of one hundred words; seven figures shall be counted as one word and part of a folio exceeding fifty words shall be reckoned as a folio. A document consisting of less than one hundred words shall count as one folio. 46 Where the party having the charge of the bill does not appear on the date fixed for taxation, the Taxing Officer may make an order that the bill be rejected. An application for the restoration of the bill shall be made within fourteen days from the date of the rejection of the bill, and the Taxing Officer may for sufficient cause shown receive and tax the bill. 47 A party dissatisfied with the order of the Taxing Officer under the last preceding rule may, not later than seven days from the date of the order, or within such further time as the Taxing Officer or the Court may allow, apply to the Court for an order that the bill be restored. 48 Subject to any agreement in writing to the contrary, the rules regulating the taxation of costs between party and party shall be applicable, as far as may be, to taxation between Advocate and client. 49. If an Advocate makes an agreement in writing with his client as to his remuneration in respect of any business done or to be done by him in any proceedings in this Court, the amount payable under the agreement shall not be received by the Advocate until the agreement has been examined and allowed by the Taxing Officer, and if, the Taxing Officer is of opinion that the amount is unfair or unreasonable, he may seek the direction of the presiding judge of the bench hearing the appeal, cause or matter and the Judge may reduce the amount payable thereunder, or order the agreement to be cancelled and the costs covered thereby to be taxed as if the agreement had never been made. 50. Where a dispute arises between the Advocate and his client as to fees and charges payable to the Advocate in any proceeding before the Court, either party may apply to the Taxing Officer for an order to have the bill taxed in accordance with the provisions of this Order. The application, when made by the Advocate, shall be accompanied by a copy of the bill sought to be taxed. 51. The Advocate whose bill against his client has been taxed may apply to the Court for an order against his client or his legal representative for payment of the sum allowed on taxation or such sum thereof as may remain due to him. The order so made may be transmitted for execution to such Court or tribunal as the Court may direct. 52 Where it is necessary to enforce payment of costs under a direction of the Registrar, an order for that purpose shall be obtained from 'a Judge. Application for such order may be made, without notice, by petition, supported by a certificate of the Registrar. 53 The Court may, on the application of a client or his representative in interest, direct an Advocate to deliver up any documents or papers to the possession of which the applicant may be entitled, and pass such other orders in this behalf as the circumstances of the case may require, including orders as to the costs of the application.