JUDGMENT
M.P. Verma, J.
1. Petitioner Lakhan Singh was the second party and Kishun Singh and others were members of the first party in a proceeding under Section 145 of the Code of Criminal Procedure, which ended in favour of the first party. While declaring the possession of the members of the first party, the learned Magistrate further ordered as follows:–
“I further hold that the first party is entitled to cost of pleader’s fee and witnesses to be paid by the second party.”
This order was passed on the 15th December, 1968. Sometime after, on the 17th February, 1969, the members of the first party filed a petition before the learned Magistrate to award them costs for the aforesaid two items to the tune of Rs. 1061/-. On this, petition, the learned Magistrate passed the following order :
“A petition is filed by the first party for realisation of cost amounting to Rs. 1061/-inchiding loss of Rs. 475/-. The loss incurred by the parties otherwise than pleader’s fee and cost of the witnesses and stamp is not admissible. This litigation started on 19-6-65 and ended on L5-12-68. The first party is awarded total cost of Rs. 500/-(five hundred) to be recoverable from the second party. Notice to the second party to deposit the cost by 7-3-69 failing which D. W. shall be issued against him,”
It is against this order that the present revision petition has been filed.
2. Mr. Jagdish Pandey, learned Counsel for the petitioner, has raised four points before this court. His first contention is that no notice was given to his client by the learned Magistrate while deciding the question of awarding costs. His main argument is that the second party should have been given an opportunity to raise his objection to the various items of costs claimed by the first party in their petition. It appears that in the petition of the first party dated the 17th February. 1969, the amount paid as Advocates’ and Advocates clerks’ fees and for feeding the witnesses who filed affidavits has been mentioned in detail. This amount comes to Rs. 586/-. The amount of loss was shown as Rs. 475/. The learned Magistrate it appears has not accepted the figure given by the first party in toto. He has allowed a sum of Rs. 500/- only. Section 148 (3) of the Code of Criminal Procedure does not lay down that, before passing an order under that sub-section, a notice has to be served on the other side. The principles of natural justice, however, require that a party should be heard before any adverse order is passed against it. It has, however, been held in some cases that an ex parte order, if it is passed after considering the application on merits, is not invalid. It has been further held that where the trial court passed an order without hearing the parties and the appellate Judge, on an application by one of the parties against that order, gave that party a full hearing and confirmed the lower Court’s order, the party cannot claim that it had no opportunity of being heard (vide Kapoor Chand v. Stiraj Frasad, AIR 1933 All 264 (FB)). In the instant case, of course, the learned Magistrate did not hear the petitioner before passing the order for costs. But it appears that he has applied his mind to the facts of the case and taken into consideration as to what should be the reasonable amount to be awarded to the first party. He has not accepted the claim of the first party in toto, but has considerably reduced it.
3. I have heard learned Counsel for the petitioner at great length on this point and
I am going to apply my own judgment on the facts of this case just with a view to find out as to what would be the reasonable amount of costs which may be ordered to be paid by the petitioner. So, whatever points the learned Advocate for the petitioner could have raised before the learned Magistrate have been raised before me by the learned Counsel appearing for the petitioner and, therefore, the petitioner second party should have now no grievance on this score. A similar procedure was adopted by a Division Bench of this Court in the case of Sarju Prasad Sao v. Ram Chandra Singh, AIR 1959 Pat 151. There, the learned Magistrate had awarded cost of more than Rs. 1500/- and odd. Their Lordships, on examining the records and finding that there was hearing in the case for 12 days, awarded a cost at the rate of Rs. 20/- for each day of the hearing.
4. The second point raised by Mr. Pandey is that the learned Magistrate should not have ordered that this amount of cost should be realised from the second party by issuing distress warrant. I may point out that, according to the provisions contained in Section 547 of the Code of Criminal Procedure Any money (other than a fine) payable by virtue of any order made under this Code, land the method of recovery of which is not otherwise expressly provided for shall be recoverable as if it were a fine.” There can be no doubt that the order for awarding cost is an order made under this Code, and there is no provision in the Act expressly providing the method of recovery. Consequently it has to be recovered as if it were a fine. Section 386 of the Code of Criminal Procedure lays down the procedure according to which the fine is to be realised, and it is in the discretion of the Court concerned to follow either of the two methods laid down in that section. I would, therefore, draw the attention of the learned Magistrate to the provisions contained in Section 386 of the Code and would direct him to follow the procedure laid down there.
5. The third contention of Mr. Pandey is that Section 547 of the Code of Criminal Procedure is ultra vires of the provisions contained in Article 14 of the Constitution, and for this purpose he wants to rely on the case of Ramzan Mian v. Executive Engineer, P. W. D., Dehri on Sone, 1969 Pat LJR 241. That was a case concerning some provisions of the Bihar Public Land Encroachment Act, 1956. After a discussion of the various provisions, their Lordships observed that Section 5 of the Act which empowers the Collector to pass an order for removal of the encroachment on the public land, as defined in Section 2 (3) of that Act, is violative of the provisions of Article 14 of the Constitution. That case was decided on altogether different facts. There it was held that a discrimination had been made concerning
the procedure according to which citizen can be removed from his land and this was prejudicial to some of the citizens. The procedure under the Code of Civil Procedure, where a person gets an opportunity of a trial by an ordinary Civil Court presided over by a judicial officer cannot certainly be equated with a decision given by an executive officer, either original, appellate or revisional. The procedure under the Bihar Public Land Encroachment Act was held to be more drastic and prejudicial than one under the Code of Civil Procedure.
In the present case, there is no such consideration. Here no discrimination is being made between one class of citizen against the other class. All persons who have to pay any fine, in view of Section 547 of the Code of Criminal Procedure, have to be guided by the same principle, and it cannot be argued that, for the realisation of fine or any cost awarded by a Court under the Code of Criminal Procedure, the procedure of the Code of Civil Procedure should be followed or that this provision is in violation of Article 14 of the Constitution. , This contention of Mr. Pandey must, therefore, be overruled.
6. Learned Counsel also drew my attention to the case of Baijnath Prasad Singh v. State of Bihar, 1956 Pat LR 490 = (1957 Cri LJ 677). In that case, it was distinctly held that the order which had been passed by the Magistrate was not a judicial order, but an executive order. There a portion of the bid money had not been deposited and it was found that the order for recovery of that sum was not under the Code of Criminal Procedure at all and it was doubtful whether it could possibly be considered to be a judicial order. It was further held that the order must be deemed to be an executive order and nothing else and that Section 547 of the Code of Criminal Procedure had no application whatsoever. In my judgment, this case law does not give any benefit to the petitioner.
7. The last contention raised is that the amount of cost allowed by the learned Magistrate is unreasonable. It was pointed out to me that three Advocates of Sasaram Court had given receipts for having been paid their fees by the members of the first party. Shri Raghuraj Bahadur has given a receipt for Rs. 41/-, Shri Ekbal Narain Sinha for Rs. 227/- and Shri Ramsinghasan Singh for Rs. 30/-. The total comes to Rs. 298/-. Annexure “5” to the revision application is a copy of the application filed by the first party before the learned Magistrate on the 17th February, 1969. It shows that the case lasted for more than three years and on several dates only hazri or a petition for time had been filed. The chart given by the first party, no doubt, shows that they had paid Rs. 10/- or Rs. 8/- to the lawyers on the dates when they filed
only a petition for time or hazri. This amount is rather very heavy in view of the facts of this case. As a matter of fact, I find that in his receipt Shri Ekbal Narain Sinha, who had received a bulk of the pleader’s fee, has appended a list showing the various dates on which he received his fees. He has shown Rs. 4/- or Rs. 5/- only on the dates on which he filed hazri or a petition for time. On some other dates when he did some important work, e.g., filing affidavit or advancing some argument, he had received about Rs. 10/- or Rs. 15/-.
Learned Counsel for the petitioner has submitted that these receipts should not be relied upon because they were obtained by the party. Mr. Thakur Prasad, learned Counsel for the opposite party, has argued that to disbelieve the receipts granted by the lawyers would., in fact, tantamount to consider them as having committed forgery. I do not propose to go to that length. Those lawyers were not examined on oath and no opportunity was given to the petitioner to cross-examine them. It is quite possible that they may have received this heavy amount of fee every day even when they did no work other than filing hazri or petition for time. The real question to be considered is whether the amount of fees which they are said to have received should be allowed by the Court as being reasonable. To give a concrete example, suppose a very eminent lawyer from Bombay, who has very lucrative practice, is engaged in a Munsif’s Court in a petty suit. Naturally, he will charge his fees at a very high figure. Can the Court be justified in allowing cost to the successful party including therein that huge amount which had been actually paid to the Bombay lawyer? In my opinion, certainly not.
A party may engage any lawyer of his choice, or pay any lee to him. But the Court, while awarding the costs, will have to consider the reasonableness of the lawyer’s fee which could be allowed in the circumstances of the case. In the instant case, there is no doubt that the entire proceeding lasted well over three years and several dates were fixed in the case. In Civil cases, parties are not allowed cost on account of the Court fees paid by them on petitions for time filed by them. Considering all these facts and circumstances, I think the reasonable amount, including lawyers’ fees and costs incurred on witnesses, would be Rs. 275/- only. The petitioner will, therefore, be directed to pay this sum of Rs. 275/- to the first party or to deposit the same to their credit in Court, failing which the same shall be realised from him through due process of law.
8. Subject to the above modification in the amount of cost, the revision application is dismissed.