020-NLR-NLR-V-59-PINENCIHAMY-et-al.-Appellant-and-WILSON-et-al.-Respondents.pdf
L. XV. do Srr.VA, A.J.—Pxnencihamy v. Wilson
71
1957Present : K. D. de Silva, J., and L. W. de Silva, A.J.PINENCIHAAIY et at., Appellants, and WILSON et al., Respondents8. C. 170—D. G. (Inly.) Tangalla, 192/L
Costs—Claim in rcconvention—Enhancement of value of subject mailer of action—CivilProcedure Code, Schedule II, Part I.
. YVhero there is a claim in recon von tion, its value must be added to the valuoof the subject matter of the plaint in order to determine the Class of the actionand the scale of costs as sot out in the Second Schedule (Part I) of the CivilProcedure Code…
jA.PPEAL from an order of the District Court, Tangalla.A. Ij. Jayasuriya, for plaintiiTs-appellants.
W. D. Gitnasekera, for defendants-respondents..
Cur. adv. vult.
July 3, 1957. L. W. de Silva, A.J.—t
This appeal raises the question in what class the plaintiffs’ proctor’scosts should be taxed. The plain tiffs-appellants instituted this actionfor a declaration of title to certain immovable property, valuing thesubject matter at Rs. 500 inclusive of damages. The 1st defendant-respondent in his answer prayed for a dismissal of the action and madea claim in reconvention in a sum of Rs. 500. The value of the subjectmatter of the action was thus enhanced to Rs. 1,000. In the result,there was an increase in the stamp duty payable on processes. The
72
L. AY. do SILVA, A.J.—Pinencihamy v. Wilson
stamp duty on other matters was not affected by the enhancement of theclass of the case. 'The plaintiffs succeeded in the action and the defendant’sclaim in reconvention was dismissed. • The decree ordered the defendantsto pay “ half the stamps and proctor’s costs to the plaintiffs. ” Theirproctor thereupon filed the bill of costs according to the enhanced valueof the action but the defendants objected to the taxation of the proctor’scosts in the enhanced Class iii, alleging that these should be in Class ii inwhich the action was instituted. After an inquiry, the learned DistrictJudge made an order upholding the defendants’ objection and ruled thatthe plaintiffs’ proctor’s costs should be taxed according to Class ii andnot Class iii.
The matter is governed by the Second Schedule (Part I) to the CivilProcedure Code (Cap. S6) which sets out the scale of costs and chargesto be paid to proctors in the District Courts as well between party andparty as between proctor and client. It is quite clear from this Schedulethat the Class is determined by the cause of action, title to and or property,value of estate or subject matter of the action. Since the value of thesubject matter was raised from Rs. 500 to Rs. 1,000 and thus came withinClass iii, it is quite impossible to reconcile the learned District Judge’sorder with the plain requirement of the Code. The increase in thevalue was an increase for all purposes and did not have the effect ofconfining the plaintiffs’ costs to the Class in which the action was brought.In Ramalingam v. Ramalingam cl al. 1 where a similar question arose,this Court held that the unsuccessful defendant must pay all the additionalcosts incurred by the successful parties as a result of the enhanced claim.
We make an order that the plaintiffs-appellants’ proctor is entitled tohis costs according to Class iii of the Second Schedule of the CivilProcedure Code (Cap. S6) and not according to Class ii in which the actionwas instituted. The appeal is allowed and the order of the learnedDistrict Judge is set aside with costs both here and in the Court below.
Iv. D. de Silva, J.—I agree. ..
'■.Appeal allowed.
1 (1933) 35 N. L. P. 174 al 179.