NAGALINGAM S.P.J.-.

This appeal involves a question of some importance relating to the rights and obligations of a purchaser at a public auction of immovable property in regard to the notarial fees payable by him for having the conditions of sale attested.

The appellant was declared the purchaser of certain premises which were put up for sale by public auction at the instance of the owner by .a firm of auctioneers, and at the sale the appellant was declared the purchaser thereof at or for the price of Rs. 90,000.

That the auctioneer did, before the commencement of the sale, read out the conditions of sale, P1, is common ground. Of those conditions only two need be noticed. One is that where the purchase price exceeds a sum of Rs. 100, the purchaser should pay one-tenth of the purchase amount to the auctioneer at the conclusion of the sale ; the other is that the purchaser should also pay to the auctioneer his commission fixed at 2 1/2 per cent, and all advertisement and other charges " as also the notary's fees and value of stamps for conditions of sale, the costs of drawing conditions and the clerk's fee ".

The auctioneer's evidence is that before the auction the conditions of sale were read out " and the charges were left on the table for the would be purchasers to see ". But he significantly adds that at that stage not only could he not specify the one-tenth of the purchase money, the reason for which is obvious, but also the amount of the notary's fee, the reason not being so obvious in this case. He amplified this evidence under re-examination and expressly stated that if a purchaser saw him before the sale he would not have been able to tell him what the notary's fees would amount to. He again makes an enigmatic statement that he would not have found out from the notary either. Why he could not have found out he does not say. He however says that " after the sale whatever the notary asks I pay ".

On the auctioneer's evidence it is difficult to resist the conclusion that prior to the commencement of the auction he had no knowledge of what fee the notary would charge to attest the conditions of sale and consequently no would-be purchaser could have obtained that information even if he had made inquiries directed to that end.

The plaintiff's case is that after the sale had been concluded he was presented a bill setting out the amount due from him, which it is admitted contained the several items such as 1/l0th purchase money, auctioneer's commission, advertisement charges, notary's fees, &c, but the plaintiff says that he did not scan the bill for one reason that he had no knowledge of the English language, for another, that he assumed that he would be charged reasonable amounts under the various heads set out therein. He adds that he asked the auctioneer what the amount of the bill was and on being informed it was Rs. 12,086.50, he drew out a cheque for that amount and handed it to the auctioneer. On the following day he gave the bill to his clerk to make the necessary entries in his books of account, when he was informed and became aware for the first time that he had been charged no less than a sum of Rs. 500 as notary's fees for attesting the conditions of sale. Promptly, he says, he came to his proctor in Colombo and entrusted the matter to him asking him to take steps to recover what he regarded as the unconscionable excess of the notary's fees charged.

Mr. Vandersmagt who conducted the sale and Mr. McHeyzer, another auctioneer of standing, both expressed the view that a sum of Rs. 500 for attesting the conditions of sale in question they considered exorbitant. The learned Commissioner has accepted that evidence and though learned Counsel for the respondent has sought to challenge the finding of the Commissioner that a sum of Rs. 500 was in fact exorbitant, no adequate grounds have been adduced for differing from the view taken by the learned Commissioner.

The appellant, with a view to confer jurisdiction on the Court of Requ