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Report No. 240

4.2 Order XXA

(a) Order XXA starts with the phrase "without prejudice to the generality of the provisions of the Code relating to costs". Then, it proceeds to set out certain items which may be included in the costs to be awarded. The enumerated items are

(i) expenditure (obviously, legal fees) for any notice required to be given by law or otherwise, prior to the institution of the suit;

(ii) expenditure on typing or printing of pleadings;

(iii) charges for inspection of court record;

(iv) expenditure incurred by the party for producing witnesses, though not summoned through court; and

(v) charges incurred for obtaining copies of judgments and decrees to be filed with the memorandum of appeal. As seen from the opening phras.- "without prejudice to the generality", these items are by no means exhaustive.

The items set out in Rule 1 of Order XXA are by and large those items which may escape the attention of the rule making authority or the taxation officer of the court. In Salem Advocate Bar Association case (supra), the Supreme Court adverted to certain items of costs including those set out in order XXA. The following passage deserves notice:

"The costs have to be actual reasonable costs including the cost of the time spent by the successful party, the transportation and lodging, if any, or any other incidental cost besides the payment of the court fee, lawyer's fee, typing and other cost in relation to the litigation. It is for the High Courts to examine these aspects and wherever necessary make requisite rules, regulations or practice direction so as to provide appropriate guidelines for the subordinate courts to follow."

(b) Obviously, the expression "actual reasonable/realistic costs", an expression used in Sanjeev Kumar Jain's case, supra, is meant to convey the idea that the costs should be based on actuals in regard to certain items and secondly, the scale of costs awardable should be realistic, not fanciful or meagre. The word 'actual' ought to be read as a separate word and not descriptive of 'realistic/reasonable costs'. Otherwise, it would not make proper sense. It may be mentioned that the same expression has been repeated in Sanjeev Kumar Jain's case (supra).

However, the Court explained that the "actual realistic costs should bear a correlation to costs which are realistic and practical." Further, it was clarified: "even if actual costs have to be awarded, it should be realistic which means what a normal advocate in a case of such nature would charge normally in such a case". The observation at paragraph 22 that "the object is to streamline the award of costs and simplify the process of assessment, while making the costs 'actual and realistic' " gives an indication that the two words 'actual' and 'realistic' are to be read separately.

For instance, it has been pointed out that as far as the advocates' fee is concerned, the emphasis should be on 'realistic' rather than 'actual'. This idea was further elaborated by stating thus at para 22. "While ascertainment of actuals is necessary in regard to expenditure incurred (as for example, travel expenses of witnesses, cost of obtaining certified copies, etc.), in so far as advocates' fee is concerned, the emphasis should be on realistic rather than actual".

Costs in Civil Litigation Back

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