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Judgment
Venkataraman, J.—The question, which has been raised by the Office, come up frequently, and accordingly it will be useful to give what
appears to me be the correct interpretation of the rules bearing on the question. The question is about the scale of an advocate''s fees in a mortgage
suit where the mortgagor-defendants filed a written statement, the issues were framed and the defendants after absenting themselves initially,
appeared again and eventually they did not force the trial to the end and a preliminary decree was passed by consent on 3rd April 1964, securing
to the plaintiff'' a sum of Rs. 21, 314 and costs to be taxed by the office. In the taxation of the cost, the plaintiff''s lawyer has claimed fees under
Order 5, rule 2(1)(c) of the High Court Fees Rules 1956, but the advocate for the defendants contends that fees could be allowed only under
Order 5, R. 2(1)(b) of the High Court Fees Rules. It is necessary to quote the relevant portions of Order 5, rule 2(1):
......... (a) where the suit is concluded prior to the date of the settlement of issues, or where issues are dispensed with, the date of the order
dispensing with the issues.........
(b) In cases where the suit is decided ex parte, the defendant not entering appearance of having entered appearance, not contesting....
(c) In cases not falling under clause (a) or (b)......
Admittedly the case does not come within Order 5, rule 2(1)(a). The question is whether it comes under rule 2(1)(b) or rule 2(1)(c) Sri Jagadisa
Aiyar, learned counsel for the defendants, contents that it comes under rule 2(1)(b), because according to him, this is a case of ""the defendant
having entered appearance not contesting. As a matter of grammar, this contention is not supported by the wording of the rule. The meaning
grammatically is that rule 2(1)(b) will apply only when the suit is decided ex parte and the further phrases are adverbial phrase envisaging the two
ways in which a suit may be decided ex parte. The first way is where the defendant does not enter appearance. The second is where he enters
appearance but does not contest. But in this case the suit has not been decided ex parte. On the contrary it has been decided by consent of
parties. Hence rule 2(1)(b) does not apply. The present case will, therefore, fall under rule 2(1)(c). Costs however are within the discretion of the
court, and the court will be justified in taking note of the fact that the decree was passed, by consent. The quantum of the practitioner''s fees to be
allowed will depends on the facts and circumstances of each case, in particular the stage at which consent was arrived at. So far as C. S. No. 147
of 1962 is concerned, the fees claimed by the plaintiff under Order 5, rule 2(1)(c) are Rs. 1090 and the fees under O. 5 R. 2(1)(b) would be half
of it. I think it right to fix a sum of Rs. 700 as advocate''s fees. Similarly in C. S. No. 165 of 1963. I think it rights to fix a sum of Rs. 400 as
advocate''s fees.