Supreme Court Rules 2013 - Order XLII | Order 42

 Supreme Court Rules 2013 and Supreme Court Rules 1966 (Repealed) 

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

Supreme Court Rules 2013: 

Order XLII

Special Reference Under Article 143 Of The Constitution

1. On the receipt by the Registrar of the Order of the President referring a question of law or fact to the Court under article 143 of the Constitution the Registrar shall give notice to the Attorney-General for India to appear before the Court on a day specified in the notice to take the directions of the Court as to the parties who shall be served with notice of such reference, and the Court may, if it considers it desirable, order that notice of such reference, shall be served upon such parties as may be named in the order.

2. Subject to the directions of the Court the notice shall require all such parties served therewith as desired to be heard at the hearing of the reference to attend before the Court on the day fixed by the order to take the directions of the Court with respect to statements of facts and arguments and with respect, to the date of the hearing.

3. Subject to the provisions of this Order, on a reference under article 143 of the Constitution, the Court shall follow as nearly as may be the same procedure as is followed in proceedings before the Court in the exercise of its original jurisdiction, but with such variations as may appear to the Court to be appropriate and as the Court may direct.

4. After the hearing of the reference under article 143 of the Constitution the Registrar shall transmit to the President the report of the Court thereon.

5. The Court may make such order as it thinks fit as to the costs of all parties served with notice under these rules and appearing at the hearing of the reference under article 143 of the Constitution.

Supreme Court Rules 1966: 

ORDER XLII

TAXATION

1. The Registrar, or such other officer as the Chief Justice may appoint for the

purpose, shall be the Taxing Officer of the Court.

2. The Taxing Officer shall allow all such costs, charges and expenses as appear

to him to have been necessary or proper for the attainment of justice or for defending

the rights of any party, and shall not allow any costs, charges and expenses which

appear to him to have been incurred or increased unnecessarily or through negligence

or mistake.

3. Where in the opinion of the Taxing Officer a fee ought to be allowed for

any matter not provided for in these rules or a question arises in taxation on which

he considers it necessary to obtain the directions of the Chamber Judge, the Taxing

Officer may refer such matter to the Chamber Judge for orders.

4. Where the Taxing Officer is of opinion that any costs have been injuriously

or unnecessarily occasioned by the negligence or improper conduct of any advocate

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on record, he shall not allow any charge for the same without the leave of the Court.

5. The Taxing Officer shall without delay bring to the notice of the Chamber

Judge any wrong charge which appears to him to have been wilfully made in any

bill of costs.

6. Every bill of costs lodged for taxation between party and party shall contain

a certificate from the advocate lodging the same that the fee paid to him by his client

or agreed to be paid to him is not less than the amount of fee claimed by him in the

bill.

7. Every bill of costs shall be properly dated throughout and shall show

in a column for the purpose the money paid out of pocket.

8. Every bill of costs shall be certified by the signature of the advocate on

record in the case.

9. The fee for taxation and registration of every bill of costs shall be paid in

Court-fee stamps when the bill is lodged for taxation.

10. Every bill of costs shall, wherever possible, be accompanied by vouchers,

and every item of disbursement and the cause thereof shall be distinctly specified,

and no payment out of pockets shall be allowed except on production of the

necessary voucher, or in the case of advocate’s fee, without the signature of the

advocate that the fee has been paid, or agreed to be paid.

11. Within eight weeks from the date of the judgment or order awarding costs,

or within such further time not exceeding four weeks as the Taxing Officer may for

good cause allow, the party to whom the costs have been awarded shall lodge in

the Registry the bill of costs and vouchers. He shall also serve on the opposite party

a copy of the bill of costs and file in the Registry proof of such service. The Taxing

Officer shall fix a date for the taxation of the bill and shall notify the parties of the

date fixed.

12. A bill of costs presented out of time shall be returned to the party

and the Taxing Officer shall not receive or tax the same except by order of the

Chamber Judge.

13. Except as otherwise provided in these rules or by any law for the time

being in force, the fees set out in the Second and Fourth Schedules to these rules

may be allowed to advocates and officers of Court respectively.

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14. No retaining fee to an advocate shall be allowed on taxation as between

party and party.

15. Where an advocate appears for different parties in the same suit, appeal

or matter only one set of fees shall be allowed unless the Court otherwise orders.

16. Where two or more appeals arising out of a single proceeding are heard

together and costs are awarded in both or all of them, only one set of advocate’s

fee shall be allowed for the hearing, unless the Court or the Chamber Judge otherwise

directs.

17. In defended appeals, suits and references under article 143 and 317 (1)

of the Constitution, the first day’s hearing fee shall be allowed in full, for the first

four and a half hours of the hearing or part thereof, in accordance with the Schedule

subject to the provisions contained in rules 19 and 20.

1

[18. No refresher shall be allowed unless the hearing has lasted for more than

two days i.e. nine hours, and the Taxing Officer shall have discretion to reduce the

refresher or to allow a refresher having regard to the duration of the hearing after

the first nine hours.

Provided that when a matter is adjourned without any arguments on merits,

no fee shall be charged for that day.]

19. Where the hearing of a part-heard case is held up on account of the Court

being occupied with any miscellaneous matters, the time taken in the hearing of such

miscellaneous matters shall be taken into consideration by the Taxing Officer for

the purposes of a refresher.

20. In cases involving less than twenty thousand rupees in value the Taxing

Officer shall have discretion to reduce the fees, including the first day’s hearing fee

and the ‘acting fee’ suitably according to the nature of the case.

21. Where an appeal is compromised prior to its being set down for hearing

the fees to be allowed to advocate under item 1 of Part I of the Schedule II shall

be half the amounts specified therein subject to the terms of the compromise.

22. The fees provided in items 3 to 8 of Part I of the Second Schedule shall

be subject to reduction in the discretion of the Taxing Officer according to the nature

of the case.

1. Subs. by G.S.R. 409, dated 3rd July, 1990 (w.e.f. 7-7-1990).

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RULES RELATING TO ADVOCATES AND CLIENT TAXATION

23. Where a dispute arises between the advocate on record and his client as

to the fees and charges payable to the advocate, either party may apply to the

Chamber Judge for an order to have the bill taxed and, on an order for taxation

being made, the Taxing Officer may proceed to tax the bill. The application when

made by the advocate, shall be accompanied by a copy of the bill sought to be

taxed:

Provided that where the client has expressed his consent in writing to the taxation

of costs between himself and his advocate on record in any proceeding, the advocate

may present his bill of costs in that proceeding for taxation without an order of the

Chamber Judge, and the Taxing Officer shall thereupon proceed to tax the bill.

24. In every case of taxation between advocate and his client, the client shall

be duly summoned by the Taxing Officer to attend the taxation, and the summons

shall be served on the client at least two weeks prior to the date fixed for taxation.

25. Subject to any agreement in writing to the contrary, the rules regulating

the taxation of costs between party and party shall be applicable as far as may be

to taxation between advocate and client.

26. No agreement between the advocate on record and his client to pay fees

higher than those prescribed in the Second Schedule shall be recognised unless the

same has been recorded in writing and is signed by the client and has been filed

before the commencement of the hearing.

Explanation:- For the purpose of this rule “agreement in writing” shall include

the correspondence between the advocate on record and his client from which such

an intention may be gathered.

27. Where the Taxing Officer is of the opinion that any such agreement filed

as aforesaid is unfair or unreasonable, he may place the matter before the Chamber

Judge 1

[for orders] and the Judge may make such order as he may think just, and

the taxation shall proceed in accordance with such order:

Provided that where fees are payable by the client personally or out of a fund

belonging entirely to him, any fees actually paid by the advocate on record to the

senior or other advocate in excess of the fees prescribed in the Schedule shall not

be called in question if the payment of such fee is duly authorised by the client.

1. Subs. by G.S.R. 410, dated 26th February, 1968 (w.e.f. 26-2-1968).

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28. Where the amount of a bill of costs between advocate and client is reduced

by l/6th or more, the advocate’s fee for attending taxation shall be disallowed.

29. An advocate whose bill against his client has been taxed may apply to the

Chamber Judge for an order against his client or his legal representative for payment

of the sum allowed on taxation or such sum thereof as may remain due to him. The

order so made may be transmitted for execution to such Court as the Chamber

Judge may direct.

REVIEW OF TAXATION AND MISCELLANEOUS PROVISIONS

30. Any party who is dissatisfied with the allowance or disallowance by the

Taxing Officer of the whole or any part of the items in a bill of costs may apply to

the Taxing Officer to review the taxation in respect thereof.

31. An application for review shall be made within three weeks and a copy of

the application shall be served on the opposite party.

32. Objections in writing specifying concisely the items or parts of the bill

objected to and the grounds for the objections shall be served with the notice on

the other party, and a copy thereof shall at the same time be carried in before the

Taxing Officer.

33. Objections which were not taken in at the time of the taxation shall not be

taken in at the stage of review, unless allowed by the Taxing Officer.

34. Upon application to review his order, the Taxing Officer shall reconsider

his taxation upon the objections carried in and may, where he thinks fit, receive further

evidence in respect thereof, and shall state in a certificate the grounds of his decision

thereon and any special facts or circumstances relating thereto.

35. Any party dissatisfied with the decision of the Taxing Officer on review

may, not later than seven days from the date of the decision, or within such further

time as the Taxing Officer or the Chamber Judge may allow, apply to the Chamber

Judge for an order to review the decision of the Taxing Officer and the Chamber

Judge may thereupon make such order as may seem just.

36. No evidence shall be received by the Chamber Judge upon the review of

the Taxing Officer’s decision which was not before the Taxing Officer when he taxed

the bill or reviewed his taxation unless the Chamber Judge otherwise directs.

37. The certificate of the Taxing Officer by whom any bill has been taxed shall

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unless it is set aside or altered by the Chamber Judge, be final as to the amount of

the costs covered thereby.

38. The allowance to be made to witnesses per diem shall be such as the Taxing

Officer may think reasonable having regard to the profession or status of the witness.

39. Witnesses residing more than five miles from the place where the Court

sits shall be allowed travelling expenses according to the sums reasonably and actually

paid by them and shall also be allowed such sums for subsistence money and carriage

hire as the Taxing Officer, having regard to the daily allowances under rule 38,

considers reasonable.

40. Every person summoned to give evidence shall have tendered to him with

the summons a reasonable sum for his travelling expenses (if any) and for the first

day’s attendance and shall, if obliged to attend for more than one day, be entitled,

before giving his evidence, to claim from the party by whom he has been summoned

the appropriate allowances and expenses for each additional day that he may be

required to attend.

41. Witnesses who have not been paid such reasonable sums for their expenses

as the Court allows by its rules may apply to the Court at any time in person to

enforce the payment of such sum as may be awarded to them.

42. For the purposes of these rules, a folio shall be deemed to consist of two

hundred words; seven figures shall be counted as one word; and more than half a

folio shall be reckoned as a folio.

43. Where the costs of any proceeding which terminated prior to the 26th of

January,1954, have to be taxed, such costs shall be taxed in accordance with the

taxation rules which were in force prior to the said date