Report No. 14
15. To be allowed in taxation.-
We therefore favour a general amendment making such costs recoverable in all the States. The typing and stationery charges may be fixed by the High Courts concerned from time to time in accordance with local conditions or they may be made to correspond with the copying charges levied by the courts.
16. Rates of batta for witness.-
We would point out that the rates fixed for subsistence and travelling allowances, are very low in many States and need revision if the costs awarded are to correspond with the expenses actually incurred by the parties. In Bihar, the maximum diet allowance allowed per day to a witness of the lowest class is only 4 annas, which is obviously inadequate. This is true also of other classes of witnesses and of other States.
17. Expenses of witnesses brought without summons.-
We have in an earlier chapter recommended that parties should be permitted if possible, to bring their witnesses to court without taking out summonses or to serve the summonses themselves upon their witnesses.
However, in many States, the batta and travelling allowances of witnesses are not allowed on taxation, unless the witnesses have been summoned through the Court. We recommend an immediate amendment of this rule so as to encourage parties to bring their own witnesses without the issues of summonses by the Courts.
18. Costs of documents.-
Apart from the expenses of the issue of summonses to and the subsistence of witnesses, a party may have to incur expenditure upon the production of documentary evidence for use in court.
The form of decree in Appendix D of Schedule I of the Code of Civil Procedure, 1908 allows only the expenditure incurred on the stamp affixed to the exhibits as costs. The cost of obtaining the exhibit itself as distinct from the stamp duty upon it is not recoverable in many States. This is obviously unfair.
To obtain the necessary documents, searches have to be instituted in various sub-registry offices and copies of the documents taken. This necessarily involves expenditure on search fees and copying charges. The High Courts of West Bengal and Bihar have amended the decree forms and allow the recovery as costs not only of the stamp duty levied on exhibits but also the cost of obtaining them. In West Bengal the cost of copies made under the Bankers' Books Evidence Act, 1891 is also recoverable. We leave it to the High Courts to consider the advisability of adopting a similar rule, with such modifications and safeguards as they think necessary.
19. Expenses of parties.-
A striking defect of the present practice of awarding costs to which also reference was made by the Rankin Committee, is the omission to provide for the expenses of the parties themselves who have to attend the Court on a large number of occasions. Even if the case is taken up and tried from day-to-day, which is rarely done, parties are put to considerable expense in having to attend the court. They also suffer loss of their earnings.
In this connection the Rankin Committee Observed :1
1. Report of the Civil Justice Committee, p. 518.
"it is well-known that the costs awarded by courts under rules framed by the High Courts, do not make any provision for the loss of time caused to the successful party
The Committee recommended that a party should be paid his costs for attending a court as if he were a witness. The number of permitted attendances for the purpose of costs were to be three in a contested suit and two in an uncontested case. They recommended1 the allowance of similar expenses in execution petitions and in appeals.
1. Ibid., p. 519.
It is surprising that this recommendation should have been accepted only by the High Courts of Calcutta and Patna. In both West Bengal and Bihar an amendment has been made in the form in Appendix D of Schedule I to provide for the payment of subsistence and travelling allowance of the party, if allowed by the Judge.
In Bihar, the High Court has gone further than in West Bengal and has made provision for the allowance of such expenditure not merely in the case of a party but even in the case of his agent in appropriate cases.
We may point out that the need for such a provision as we have advocated has been emphasised by a number of witnesses including representatives of Bar associations.
20. Inspection charges.-
In the course of a suit or proceeding, it also becomes necessary for the parties to inspect the records of the Court, inspection charges are invariably levied for every such inspection and we would recommend that in proper cases the court should make such inspection charges also recoverable as costs.
21. Costs in appeal.-
We turn now to a consideration of the costs incurred by a party in an appeal. The form of appellate decree prescribed in the Civil Procedure Code, Appendix G of Schedule I allows only the stamp for the memorandum of appeal, vakalatnama the process fee and the pleader's fee.
22. Not adequate. No uniformity.-
Other items of expenditure which a party has necessarily to incur in prosecuting or defending an appeal are not provided for in the appendix. We have examined a certain number of decree forms in use in the several States and are struck by the total lack of uniformity in this regard and the striking variation in the costs actually allowed.
23. Charges for obtaining copies of decree and judgment.-
In view of the provisions of Order XLI, rule I every memorandum of appeal has to be accompanied by a copy of the decree appealed from and also the judgment on which it is founded. The appellant, therefore, has inevitably to incur expenditure in obtaining copies of these documents. In many States the cost of obtaining such certified copies is not allowable on taxation in the appeal although some Courts allow the value of the stamps which have to be affixed on the decree and the judgment to be included in the costs recoverable in the appeal.
We, therefore, recommend that the rules should be suitably amended and that provision should be made as has been done in Andhra Pradesh, Madras and some other States to allow as a part of the recoverable costs the charges for copies of the decree or Order and the judgment on which it is founded as well as the stamps affixed thereon.
24. We have not thought it necessary to examine the other numerous items of costs such as, costs of summary records in appeals, cost of papers for the appeal, adjournment costs, costs of filling process forms, etc., for which some High Courts have framed rules. Though charges under some of these heads are levied by the Courts, it is not always that they are made recoverable as costs by the successful party. The levy of some of these charges does not appear to be justified. It would therefore be desirable that the High Courts should examine these and other items of charges and consistently with the principle of indemnity we have set out, revise or amend their rules in this regard.
25. Courts to be "costs conscious".-
Apart from the specific recommendations made by us, what is mainly needed is that the Courts should be "costs conscious"-and that presiding officers should apply their minds to the task of awarding costs and not leave it in the hands of the ministerial staff. Even in the existing state of the law and under the present rules of the High Courts, much can be achieved if only judges would realise that they have a large amount of discretion in awarding costs and that the items of costs at the foot of the forms of the decree are not exhaustive, and exercise the discretion they have in a judicial manner.
26. Summary of recommendations.-
We may summarise our recommendations under the head of costs as follows:
(1) The system of awarding costs to the successful party, subject to the discretion of the Courts, should continue.
(2) The costs so awarded should be adequate to indemnify the successful party for all necessary expenses incurred by him in connection with the litigation.
(3) The costs at present awarded by Courts in India do not afford such indemnity and need to be revised for this purpose.
(4) A party should be entitled to recover the costs of any notice which he is required by law to give before instituting a suit.
(5) The courts might also be empowered in accordance with such rules as the High Courts may frame, to award notice charges, in appropriate cases, in suits filed against private individuals.
(6) In States where the scales of lawyers' fees have risen for legitimate reasons, the High Courts may examine the possibility of revising the percentages prescribed for calculating the fees allowed on taxation.
(7) A party should be allowed as in West Bengal and Bihar to recover the expenses of typing pleadings and other documents that are filed in court. The High Courts should fix the scales that can be allowed for this purpose.
(8) Rates of batta and travelling allowances admissible to witnesses should be revised.
(9) parties should be allowed to recover the charges of producing witnesses who have not been summoned through Court.
(10) The High Courts might consider the advisability of allowing the expenses incurred in securing documentary evidence such as search fees, copying charges, etc., as costs as in West Bengal and Bihar.
(11) A party to a suit should be allowed to recover in taxation the costs of his own attendance in Court for a certain number of hearings. In proper cases, these expenses may be allowable even when an agent attends the Court on behalf of the party.
(12) An appellant should be entitled to recover the costs of obtaining certified copies of the decree and judgment which are filed along the memorandum of appeal as well as the stamps affixed.
(13) The High Courts may examine their rules, regarding various charges levied by them and also items of costs allowed on taxation and revise them to the extent it is necessary, consistently with the principle of indemnity set out by us in this chapter.
(14) Courts should be more "costs conscious" and realising that they have a large discretion in these matters, apply their minds to the task of awarding, costs and not delegate it to the ministerial staff.