Judgment

B. K. MUKHERJEA, J.: This application is for review of a decision of the Taxing Officer, presented by Shri. S. Subramania, an Agent of this Court, under the provision of O. 40, R. 35 of the Supreme Court Rules. There is no controversy about the facts which are material for purposes of this application and they lie within a very short compass. Shri. Subramania acted as an Agent for the respondent in Civil Appeal No. 102 of 1949 which was disposed of by this Court on 19-3-1951. The appeal was dismissed and the appellants were directed to pay to the respondent the costs of the appeal.

The taxation proceeding then began before the Taxing Officer and it transpired in course of these proceedings that there was an agreement between Shri Subramania and his client at the time when he was engaged as an Agent by the latter that he would be paid, as his remuneration, a consolidated sum of Rs. 300/-, to which all out-pocket expenses would be added; but that in the event of the as being decided in favour of his client, he would have the benefit of the taxed costs. The question that arises for consideration is, whether in taxing costs between party and party the appellants should be directed to pay to the respondent only what the latter agreed to pay to his Agent, or the respondent would have the full benefit of the taxed costs that are normally allowed in such cases? The Taxing Officer has held that the respondent can have from the appellants not the ordinary taxed costs, but a sum of Rs. 300/- only plus the out-pocket expenses incurred by his Agent. It is the propriety of this decision that has been challenged before me in this application for review.

2. It is conceded by both sides that there is no provision in our rules exactly covering a case of this description. Under O. 40, R. 2 of the Supreme Court Rules the Taxing Officer is bound in such circumstances to be guided by the Rules and practice of the Supreme Court in England.

3. Mr. Umrigar, who appears in support of this application, put forward a two-fold contention on behalf of his client. It was argued in the first place that the English practice, as has been described by the Taxing Officer and upon which his decision is based, is not the settled practice under the Rules of the Supreme Court in England. The practice referred to by the Taxing Officer has its origin in certain statutory enactments and there is controversy regarding it even now. The second point urged is that even if the Taxing Officer is right in his decision, as the Agent entered into this agreement under a bona fide mistake and there was no rule or authoritative pronouncement of this Court to guide him in this matter; I should in the exercise of my discretion allow the taxed costs in the present case; though once the practice is settled, they may be disallowed in future in cases of this description.

4. The second contention is apparently devoid of any substance, and as regards the first 1 do not think there is any doubt or controversy regarding the English practice. The question, however, still remains to be decided as to whether the application of the English rule to the facts of the present case leads to the conclusion that has been arrived at by the Taxing Officer. As this is the first case of its kind which has come up for decision before the Court, it is necessary that the matter should be examined with some care.

5. Prior to any statutory provision, a Solicitor, under the general law of England, was not incapable of entering into an agreement with his client regarding remuneration for his professional business; but if such agreement was unfavourable to the client, the Court would not enforce it unless it was satisfied that it was made in circumstances precluding any suspicion of an improper attempt to gain benefit at the client s expense. Vide Clare v. Joseph , 1907-2 KB 369 (A); Halsbury s Laws of England, 2nd Edition, Vol. XXXI page 165.

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