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Report No. 14

High Courts-original Civil Jurisdiction

I have dealt with this question with the question regarding the Original Side, and I have said, so far as the Calcutta High Court is concerned, there is no justification in maintaining the Original Side with its exclusive jurisdiction over a class of cases. I might point out that the objectives to the Original Side of the High Court principally turn on two factors,-firstly, the discrimination between different classes of lawyers and secondly, excessive costs involved not only in compulsory engagement of two sets of lawyers in every case but also for the taxing rule of the Original Side.

I am afraid that the findings on the question of costs proceed on the view that in the City Civil Court or in the Mufassil courts, the costs allowed in the decree are only fraction of the actual costs incurred in the lawyer's fees. That is a fact. But in the Original Side of the High Court also, Senior Counsel engaged in the case do not work on the scale of fees allowed by the taxing rules. They receive fees in some cases fancy fees, including such things as, sticking fees which are not taxed. The taxed cost falls very short of the fancy fees paid to the very distinguished lawyers. It has been said that there is no taxing rules on the Appellate Side and the Advocates can charge any fee far in excess of what is charged in the Original Side, while on the Original Side the entire costs are limited by the taxing rules.

This also is not accurate. Costs not included within the Tax bill have to be incurred by the parties in contentious litigations and further there are such a multitude of items included in the taxing rules which enable a Solicitor to increase the bill by many unnecessary applications and correspondence for every bit of it which costs are billed. Those who suggest that the costs of the Original Side are absolutely fixed by the tax bills are labouring under a delusion. On the contrary, the taxing bills may be inflated by unnecessary items.

On the whole there can be no doubt that the taxing rules provide no protection against inflating the costs.

Under these tax rules the costs of a Commission for examination of a witness or on a reference for accounts and similar items, the fees are extraordinarily high. No document can be put in and not even the report of the Commissioner, the examination of a witness could be brought before the Court except in payment of costs which are sometimes very heavy. I am afraid that those who say that the costs on the Original Side are not heavy evade the real issues without full investigation.

The very fact that it is compulsory for a litigant in a suit of very small value which has to be brought in the Original Side has to pay two sets of lawyers necessarily increases the cost. There may be advantages in having two sets of lawyers, but it ought to be left to the discretion or capacity of the litigant to incur the cost for the luxury of two lawyers. There are cases which can be very efficiently managed by a single lawyer. There is no reason why every body is required to pay for two if he wants justice from the Original Side of the High Court.

I do not say that the Original Side of the High Court should be abolished. I would be quite content if the High Court follows the procedure laid down in the Civil Procedure Code just like all other Civil Courts. It has been pointed out that if there is a superior efficiency in the procedure laid down in the High Court rules, one would suggest that the same procedure ought to be applied by other courts also. There should not be any discrimination between the High Court and Mufassil Courts. If the High Court procedure leads to more efficient administration of justice, there is no reason why it should not be extended to all Courts, at any rate, in a limited number of cases.

It is not impossible to have the same procedure followed in the High Court in other courts in a limited number of cases and give the Mufassil litigants the advantage of a decision of a High Court standard which can be achieved by providing for circuits with judges of the High Court held in Mufassil courts accompanied by this set of lawyers and administering the same laws according to the same procedure. The costs incurred on the procedure, if it is more efficient, need not be a bar. In point of fact, as it has bean pointed out in another part of the Report, the Government is making lot of jtrofit from the litigants by way of court fees. They might discard the profit and pay for the benefit of the litigants. My conclusion, therefore, is not that the High Court Original Side should be abolished, but that its procedure should be brought into lines with other Courts of the country.

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