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Issues Involved:
1. Taxation of court-fees in proportionate cost orders. 2. Taxation of advocate's fees in proportionate cost orders. Detailed Analysis: Issue 1: Taxation of Court-Fees in Proportionate Cost Orders The primary issue addressed is whether court-fees should be taxed based on the claim actually allowed in the appeal or in proportion to the entire claim by finding a percentage of success. The judgment clarifies that the prevalent practice in the High Court of Bombay, continued by the Gujarat High Court, is to tax court-fees on the part of the claim that succeeded. This practice was upheld by the Division Bench in First Appeal No. 1033 of 1960, which found it just and fair to award costs based on the claim allowed, as if the appellant had restricted his appeal to that part of the claim. The Full Bench concurs with this view, emphasizing that court-fees should be taxed on the amount of the claim actually allowed, as this method aligns with the principle of indemnity. The appellant is entitled to recover the amount of court-fees paid on the successful part of the claim, ensuring no penalty for claiming a larger amount initially. Issue 2: Taxation of Advocate's Fees in Proportionate Cost Orders The second issue pertains to whether advocate's fees should be taxed on the amount of claim allowed or disallowed, or on a percentage basis. The earlier Division Bench ruling in 1967 had adopted a different standard for advocate's fees, suggesting that they should be taxed on the whole amount claimed in the appeal and then apportioned based on the success percentage. The Full Bench agrees with this approach, noting that advocate's fees are incurred by both parties and should be divided proportionately. This method ensures fairness and indemnifies parties for legitimate expenditure incurred in prosecuting and defending the appeal. The judgment highlights that while court-fees are strictly adhered to based on a slab system, advocate's fees often exceed the prescribed rates in practice, justifying the need for proportionate apportionment. Conclusion: The Full Bench concludes that the current practice of taxing court-fees on the claim allowed and advocate's fees on the entire claim, apportioned based on success, is just and proper. This approach aligns with the fundamental principle of indemnity and ensures fair recompense for legal expenses. The judgment reaffirms the established practice, emphasizing its consistency and fairness over the past decade. The matter is referred back to the Division Bench for necessary orders in light of these observations. Judgment Summary: - Question 1: Court fees are to be taxed according to the slab system on the claim actually allowed in the appeal. - Question 2: Advocate's fees are to be taxed as per the table of fees on the entire claim in the appeal and apportioned based on the percentage of success.
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