John Wallis, C.J.
1. The first question in this appeal is, whether a suit for damages for cutting and carrying away trees is a suit for land or other immoveable property within the meaning of Clause 12 of the Letters Patent as held by Sankaran Nair, J., as, if so, the suit was properly dismissed as the land on which the trees were growing was situated outside the jurisdiction. I do not think the question whether a decision involving the question of title in such a suit would be res judicata in a subsequent suit for the land, is very relevant to an inquiry what is included in the words suit for land or other immoveable property,' and assuming that a suit for cutting and carrying away trees does not come within these words, a decision in such a suit on a question of title by a Court other than the Court within the limits of whose jurisdiction the land is situated would not in my opinion under Section 11 of the Code of Civil Procedure be res judicata in a subsequent suit in the proper Courts for the recovery of the land itself, as the first Court was not competent to try the subsequent suit. I cannot, therefore, agree with the learned Judge that the test of res judicata applies to a case like this.
2. English law had its writs of right, writs of entry, and assize of novel disseisin and the action of ejectment which superseded them, but knew of nothing so simple as, 'a suit for land or other immoveable property' and English decisions, therefore, threw little light on this expression which, so far as appears, is first found in the Civil Procedure Code of 1859 drafted under the advice of Sir Barnes Peacock, and was reproduced in the Letters Patent of the three High Courts with original jurisdiction. These words have been explained or expanded in the subsequent Codes and Section 16(e) of the present Code expressly includes suits for compensation for wrong to immoveable property among suits triable only where the immoveable property is situated. Alterations in the Code subsequent to the Letters Patent are, of course, of no assistance, except in so far as they can be regarded as merely declaratory of what was already included in these words when first enacted in the Code of 1859.
3. In Manappa Mudali v. S.T. Mc Carthy 3 M.P 192 it was held that suits for trespass to land were cognisable by the Court of Small Causes under the Act then in force which gave jurisdiction in suits for damages up to Rs. 500, and it was pointed out that the Act contained no such restriction as occurred in the County Courts Act 9 and 10 Vict., C. 95, Section 58, restricting them from taking cognisance of any suit, in which the 'title to any corporeal or incorporeal hereditaments, etc., shall be in question.'
4. In Nalum Lakshmikantham v. Krishnasawmy Mudaliar 27 M.P 157 Moore, J., following the Calcutta decisions held that a suit for sale on a mortgage was a suit for land, and expressed the opinion obiter that Section 16 of the Code as it now stands is only an amplification with details of the words in the Code of 1859 and the Letters Patent.
5. In Maturi Subbayya v. Kota Krishnayya 28 M.P 227 the Court distinguished the decision in John Young v. Mangalapilly Ramaiya 3 M.H.C.R. 125 on the ground that the latter case was decided under the Code of 1859 and not under the present Code, but the question is not discussed. In Vaghoji Kuverji v. Camaji Bomanji 29 B.P 249 : 6 Bom. L.R. 958 a suit for a declaration of title to land outside the jurisdiction of the Bombay High Court and for an injunction, Jenkins, C.J., observed that the words 'suit for land' must be wider than ejectment; and after referring to British South Africa Company v. Companhia DeMocambique (1893) A.C. 602: 63 L.J.Q.B. 70 : 6 R.P 1 : 69 L.T. 604 where it was held that a suit for trespass to foreign land would not lie in England where the title was in question, went on to say that this should make us pause before we put on the words 'suits for land' a construction that might require us to decide the title to land abroad. The later decision of Davar, J., in Zulekabai v. Ebrahim Haji Vyedina 17 Ind. Cas. 198 : 37 B.P 494 : 14 Bom. L.R. 846 where all the authorities are examined is also in favour of putting a wide construction on these words in the Letters Patent. Lastly, we have the very recent decision of Jenkins, C.J., and Woodroffe, J., in Sudamdih Coal Company Limited v. Empire Coal Company Limited 31 Ind. Cas. 581 : 42 C.P 942 on appeal from the decision of Fletcher, J., following his own decision of Lodna Colliery Company Limited v. Bipin Behari Bose 17 Ind. Cas. 500 : 39 C.P 739. The learned Chief Justice conies to the condition that a suit for trespass to land is a suit for land where the substantial question is the right to the land. This decision is in accordance with the view expressed by Moore, J., in Nalum Lakshimikantham v. Krishnasawmy Mudaliar 27 M.P 157 and with the recent trend of decisions in the Bombay High Court, and gives the Letters Patent a meaning which is in accordance with the general principles of jurisdiction and with convenience, and I am prepared to follow it.
6. The next question, which is one of importance to all classes of the legal profession, relates to the claim of the defendant to recover from the plaintiff as part of the costs of the suit the fee paid to the Counsel who appeared with the Vakil in, the case, a claim which the learned Judge allowed. As is well known the Original Side of the Chartered High Courts has succeeded to the jurisdiction of the three Supreme Courts in which the right of practice was confined to Attorneys and Barristers or Advocates according, to the provisions of the Supreme Court Charter.
7. On the 1st of October 1863 after the passing of the Indian High Courts Act, 1861, and the Charter of 1862 the High Court framed rules admitting Vakils to practise on the Original Side of the Court under the provisions of Section 8 of the Charter, which empowered them to admit Vakils to appear and act for the suitors of the High Court subject to the rules and directions of the said High Court. The corresponding Clause 9 of the Charter of 1865 is much more specific and expressly provides that 'such Advocates, Vakils and Attorneys shall be and are hereby authorised to appear for the suitors of the said High Court, and to plead or to act, or to plead and act for the said suitors according as the said High Court may, by its rules and directions, determine and subject to such rules and directions'. In 1875 in In the matter of the petition of the Attorneys 1 M.P 24 it was contended that Clause 9 was ultra vires as not in accordance with the High Courts Act and that the rules made thereunder were consequently invalid, but this contention was overruled and the validity of the rules upheld by the Court.
8. On the 5th of July 1866 fresh rules had been issued by the High Court pursuant to the powers conferred by this clause. Rule 2 provided that the rules of the 1st October 1863 made under the Charter of 1862 as to the qualification and admission of Advocates, Attorneys and Vakils should be read as part of these rules.
9. Rules 4 and 5 were as follows: Upon all applications and proceedings in chambers and upon the first hearing of original suits of every kind, Advocates may appear and plead, and Vakils admitted under the rules of the 1st October 1863 and Attorneys may appear, plead and act for the suitors, provided that the fee of the Advocates shall not be allowed upon taxation as between party and party unless the Judge shall certify that the case was a proper one for the attendance of an Advocate.'
Except as in the last rule is provided, Advocates may appear and plead, Vakils admitted under the rules of the 1st October 1863 may appear, plead and act, and Attorneys may appear and act for the suitors in all matters over which the Court has any jurisdiction.
10. The effect of these rules was to give Advocates the right to appear and plead, Attorneys the right to appear and act, and to plead in chambers and to give Vakils the right to appear and plead and act in Court and chambers, subject to the provision in Rule 4 as to the fee of an Advocate for appearance at the first hearing or in chambers not being allowed upon taxation as between party and party without a certificate of the Court, leaving his fees otherwise to be recovered by the Attorney upon taxation between party and party in the usual manner.
11. Now at this time and for sometime forty years afterwards it was never suggested that an Advocate could appear uninstructed by an Attorney, and even assuming that the rule does net in terms preclude his so appearing, it is quite plain to my mind that it was never contemplated in these rules to give facilities for the recovery from the opposite side of fees paid to him unless these fees had been paid through the recognized agency of the Attorney. The creation of a single agency by the admission of Vakils to appear, plead and act on the Original Side, however necessary and expedient, was an invasion of the exclusive rights of practice previously, enjoyed by the double agency of Counsel and Attorneys, and that is no reason to suppose that it was then or in any subsequent modification of the rules intended to go further and confer upon Vakils the further right of acting as recognised agents for the purpose of briefing Counsel and recovering from the other sides the fees paid on the brief, or that it was intended to enable a party to brief Counsel himself without the intervention of an Attorney and recover the costs from the other side. The object of the rules was to establish the single agency of the Vakil as an alternative to the double agency of the Counsel and Attorney, and not to authorise the Vakil to substitute himself for the Attorney in the work of the double agency. When the rules of 1863 and 1866 were framed, it was thought desirable that a Vakil should be allowed to appear along with Counsel and Attorney in a certain class of cases, and this was specially provided for by a rule which has since been repealed apparently because it was not acted upon, and at present an Attorney and a Vakil cannot both appear on the record at the same time. Rule 534 of the Original Side Rules. Without the exclusive right of briefing Counsel and recovering his fees as part of the costs from the other side it may be doubted if Attorneys could long exist as a separate order. It is well settled they could only be deprived of such an exclusive right under statutory authority [In the matter of the Sergeants at Law 3 St. Tr. N.S. 1294], and in clear and unambiguous terms.
12. The present Rule 533 on which Sankaran Nair, J., relies merely re-enacts in slightly altered form the provisions of Rules 4 and 5 of the rules of 1866.
13. Turning now to the fee rules, Order V relates exclusively to Attorney's fees and it is under that head that Counsel's fees are dealt with. Rule 63 of Order VI of present rules as originally passed made Order V applicable to Vakil's costs in certain cases but was repealed before it came into force. It expressly provided that Vakils should not be entitled to any fee incidental to employing Counsel, thus showing that it was not intended to infringe the Attorney's exclusive rights in this matter. The present Rule 63 which was substituted for it continued the existing system, and provided that the fees allowed to Vakils should be calculated according to the scale of fees prescribed for Pleaders on the Appellate Side, being rules HO to 40 of the rules under the Legal Practitioners Act as from time to time amended.
14. Rule 40 (now re-numbered 41) provides that the fee allowed is intended to cover all proceedings up to decrees, and did not permit of a second Vakil's fee being allowed even in heavy cases; and though this has since been amended, the amendment does not apply to suits instituted on the Original Side of the Court. It clearly did not contemplate the allowance of any fees for Counsel in cases in which a Vakil appears, or for any reduction of the Vakil's fee when Counsel appears with him.
15. As to the circumstances which have given rise to the present question, the number of Advocates, and more especially of Indian Barristers, has increased of late years while, on the other hand, the larger number of cases on the Original Side of the Court are Vakil's and not Attorney's cases. In 1908 an Advocate claimed the right to be heard in a case in which he had not been instructed by an Attorney, and following the decision of the Court of Queen's Bench in Doe d Bennett v. Hale and Davis (1850) 15 Q.B. 171 : 19 L.J.Q.B. 353 : 14 Jur. 830 : 117 E.R. 428 : 81 R.R. 540 and having regard to the terms of Rule 533, I held that I could not refuse to hear him. Subsequently Advocates have from time to time appeared in cases in which they were not instructed by Attorney.
16. The present attempt to recover from the other side as part of the costs of the suit the fees paid to them is naturally opposed by the Attorneys Association, and has also been opposed by Mr. Ramaswami Aiyar as prejudicial to the interests of the Vakils. At present we are only concerned with the question whether under the existing rules such fees can be recovered from the other side. For the reasons already given I am of opinion that they cannot, and I abstain from expressing my opinion as to whether the existing rules affecting the different classes of practitioners on the Original Side are susceptible of improvement. The order allowing Counsel's fees is reversed. Otherwise the appeal is dismissed.
Seshagiri Aiyar, J.
17. The suit is for damages by a Receiver. He complains that the defendants unlawfully cut and carried away the casuarina trees belonging to the estate. The land on which the trees stood is outside the jurisdiction of the Original Side of the High Court, but the defendants live within its local limits. Mr. Justice Sankaran Nair held that the compensation claimed was covered by the term land in Section 12 of the Letters Patent and that consequently the High Court had no jurisdiction to try the suit. In dismissing the suit on this ground, the learned Judge awarded costs to the Advocate who was instructed by a Vakil.
18. The appeal is against the said decree. There are two questions: (a) whether a claim for compensation for the value of the trees cut and carried away by the defendants is a claim for land, and (b) whether a party engaging an Advocate through a Vakil is entitled to the costs of Counsel.
19. The second point was argued by Mr. Ramaswami Aiyar first. It is a question of great importance. I shall, therefore, deal with it at once. The learned Judge for whose, opinions I entertain a high regard starts with the proposition that a party is 'prima facie entitled to recover all the reasonable coots incurred by him.' In his view, the right to be reimbursed is the inherent right of every litigant who comes to Court. I am unable to find any authority for this position. The right to have costs from the losing side is given by the Statute. Every man has the inherent or Common Law right to claim redress from a tribunal established by the Sovereign authority. He is entitled to plead his own cause before the Judge; but the right to be represented by another in stating his claim is a privilege. This has been conferred on litigants by Sovereign authority. Section 10 of the Letters Patent and Order III of the Code of Civil Procedure deal with this question. In a very instructive essay by Mr. Nagabhushnam, a learned Vakil of this Court, the history in this country of the concession to be represented by another in the conduct of a case is fully given. The British Government had traditions in this behalf reaching to ancient times. Consequently it was early enacted that parties were entitled to have the assistance of Pleaders in placing their claims before the Court. I do not think there is any ground for holding that this right to representation is anything more than a statutory right conferred on litigants by the Sovereign power, although it is a privilege hallowed by authority and recognised as just and right by every civilised nation.
20. As regards the costs to be paid to the successful litigant, in my opinion, it is more in the nature of a penalty imposed on the losing party for having compelled the successful party to seek redress in a Court of law than it is in the nature of a right. The Court does not award the winning party all the expenses incurred by him, but only such costs as, in its opinion, are sufficient compensation for the trouble he has been put to. The disability to which the losing party is subjected is the result of statutory law; and Courts should exercise this power to mulct the judgment-debtor in costs within the limits imposed by the statute. If the rules made in this behalf contemplated remuneration to a particular class of practitioners only when they are instructed in a particular way, we are not justified in extending them by analogy to other cases. Mr. Justice Sankaran Nair concedes that the rules had not the case of an Advocate instructed by a Vakil in contemplation. There can be no doubt about the correctness of this statement'. On this hypothesis, it seems to me that a penalising provision such as the one as to costs should not be extended by analogy to cases which were not intended to be provided for. After all what we have to see is not that an Advocate, Vakil or Attorney gets his fees, but that the losing party is not made to pay more to the other side than what the law compels him to pay. Section 35 of the Code of Civil Procedure makes the award of costs to depend upon prescribed conditions and limitations, and on provisions of law in that behalf for the time being in force.' Under this section, the Court can deprive a successful litigant of his costs, but cannot make the losing party pay more than what the rules have prescribed.
21. I was curious to ascertain why the system of payment of Pleader's fees by the ad valorem system was introduced into this country by a Government only familiar with the taxation of costs for work done. Once again, I must acknowledge my indebtedness to Mr. Nagabhushanam for the quotations from Sukranitisara which he has made in the essay which I have already referred to. Apparently, the system of paying a particular percentage was prevalent in this country. The fee of a Nyogita shall be l/16 of the value of the subject-matter or a twentieth thereof, or a half of the twentieth or a half of that half or a half of that. The fee shall thus vary inversely as there is increase in the value of the subject-matter.' Very likely the British Government adopted these principles in fixing the fee of the practitioners. I am not sure whether under the ancient Hindu polity, the remuneration paid by a litigant was recoverable from the adversary. 1 find that in the days of Chandra Gupta all that the judgment-debtor can be compelled to pay was the cost incurred by the judgment-creditor in summoning witnesses (page 132, Narendra Nath Law's studies in ancient Hindu Polity, Vol. I.) The rate fixed in the Sukranitisara was apparently intended to regulate the scale of fees as between Pleader and client.
22. Before I deal with the rules specifically, I wish to say a few words upon another matter. Mr. Tirunarayana Chariar contended that a Vakil has in him the capacities of both a Solicitor and an Advocate and that in the former capacity he is competent to instruct an Advocate. I do not read the qualifications of a Vakil in that light In the English Courts, a Solicitor was not competent to plead in Court. In this country, the authorities apparently thought that the litigants will not always be able to pay for the double agency. It was for that reason that the Vakil was enabled both to act and plead, the object aimed at being that the acting Vakil must be the Solicitor to his pleading self. The two functions were never intended to be divorced. The learned Advocate suggested that when a Vakil engages Counsel with himself in appeals from the Mofussil, he was briefing the Advocate. I entirely demur to this contention. No Vakil, whether he works with a senior Vakil or an Advocate, ever engages his Pleader in the sense that he makes himself responsible for the latter's remuneration. It is the party that engages both. I am, therefore, of opinion that this argument is not open to the respondent.
23. The learned Judge relies on the language of Rule 533 for the position that the Taxing Officer is competent to allow the fee of an Advocate instructed by a Vakil in the same way that he is empowered to allow Counsel's fee for attendance at Chambers. The rule is not happily worded, but a reference to the rule which it supersedes makes the meaning clear (old Rule 318). A party is not ordinarily entitled to recover from the other side fees paid to Counsel for attendance in chambers, because that is work which can ordinarily be done by the Solicitor; but in exceptional cases, the Taxing Officer on the certificate of the Judge to that effect can allow his fee. This rule furnishes no authority for the proposition that a Vakil-instructed Advocate can, on the certificate of a Judge, claim that his fees should be taxed. Another rule commented upon is Rule 191. As I stated already, we must find the right to costs within the four corners of the rule framed by the High Court. If under Rule 191 the Vakil is not entitled to produce the allocation of the Taxing Officer, he is not entitled to tack on the fees of the Advocate whom he has instructed.
24. The learned Judge relies on the judgment of the learned Chief Justice while sitting on the Original Side, wherein it was held that an Advocate is competent to plead without instruction from an Attorney. This ruling was based on the dictum of Lord Campbell, C.J., in Doe d Bennett v. Hale and Davis (1850) 15 Q.B. 171 : 19 L.J.Q.B. 353 : 14 Jur. 830 : 117 E.R. 428 : 81 R.R. 540. The ruling in question only gives a right of audience to Counsel even though not instructed by a Solicitor. It is no authority for the position that the costs of such a Counsel can be taxed as between party and party. The rules do not provide for taxation by the litigant of the costs, if any, paid to his Advocate nor of the costs paid to his Vakil. Mr. Tirunarayana Chariar relied on Order IV, Rule 21. The right of the party to present a bill in person for taxation is subject to Rule 532. A party may appear in person and if he incurs any costs in taking out summonses, etc., he may get them taxed; but he ceases to have any locus standi to present a bill the moment he engages either a Solicitor or a Vakil. Then we shall have to refer to the rules by which their presentment pi bills is concerned. While Order V allows an Attorney to present bills including the fees paid by him to Counsel, Order VI which deals with Vakil's fees contains no such provision. Order LXII makes it clear that a Vakil's remuneration is governed by the scale of fees prescribed in that behalf. Rule 31 of the Fee Rules framed under Section 27 of Act XVIII of 1879 says that the consolidated ad valorem fee is the only remuneration which the losing party is bound to pay to the adversary's Vakil. The fee under Rule 31 extends up to decree (see Rules 40 & 41). That only one set of fees is allowable to the Vakil is also clear. For sometime there was a rule in force to the effect that the fees of the Vakils engaged in conducting an Original Side suit may be allowed. That was soon abolished. In Civil Suit No. 45 of 1905 it was decided that only the fee of one Vakil was allowable. On the Appellate Side there is a special rule for granting an extra remuneration to a second Vakil in heavy cases. From these rules, the matter is placed beyond doubt that only one fee is allowable to a Vakil and that he is not entitled to divest himself of his function as a Pleader and to claim to act as Solicitor because he chooses to engage an Advocate. The position of the Vakil on the Original Side has been the result of prudential considerations on the part of the authorities both from the point of view of the litigant public and of the Pleaders themselves. The party is benefited because he is not obliged to have recourse to the double agency of Solicitor and Counsel which in the majority of cases would be very costly. The Vakils as a class enjoy the advantage of pleading without looking to instructions from others. If they want to give up this advantageous position, they should not aspire to plead, but should enroll themselves as Solicitors. From a fairly intimate knowledge of the aspiration of the Vakils, I can say that they consider that it would in no way conduce either to their prestige or to advance their cause that they, while still desiring to plead, should, on occasions, claim to act as Solicitors. Mr. Tirunarayana Chariar argued that the position of the Vakils was analogous to that of the Solicitors who were allowed to act and plead in County Courts. The simple answer to that is that Vakils are allowed to plead in the higher Courts in the same way as Advocates and consequently the analogy suggested is not relevant. I am clearly of opinion that under the rules as they stand, the learned Judge had no power to grant the fee of an Advocate who was instructed by a Vakil.
25. On the question of jurisdiction, I am of opinion that the decision of the learned Judge is right. The Legislature in this country has thought fit to amplify the expression land to be found in the 1859 Code of Civil Procedure into the various clauses which we find in Section 16 of the present Code of Civil Procedure. Clause (e) of that section covers the present case. In relation to land, there are three classes of cases: (a) claims to recover possession; (b) claims to recover money by sale or otherwise of the property, this has been compendiously described as claims operating on the land; and (c) claims personally enforceable for injuries done to immoveable property. The first two classes of cases are now conceded to be covered by the expression land. The difficulty arises with reference to the third class. In ascertaining the quantum of damages, the right to immoveable property will often be in question. It was said that a decision on the point would be res judicata in a subsequent litigation and that consequently the proper forum for adjudicating the claim as to damages should be the Court which has direct jurisdiction over immoveable property.. There are two answers to this objection. The High Court on its Original Side is not competent to entertain suits to recover immoveable property situated entirely outside its local limits. Consequently under Section 11 of the Code of Civil Procedure its adjudication will not operate as res judicata. In the second place, the Judge sitting on the Original Side will certainly not be less competent to decide the question as to title than the Judge sitting in a Mofussil Court; and parties will not be prejudiced by a pronouncement by a Judge of the High Court on a question of title. Therefore, I do not feel pressed by the argument based on this ground. On the authorities, there is no decision directly bearing on the question in Madras. The point was not directly in issue in Viraraghava v. Krishnasami 6 M.P 344 and in Maturi Subbayya v. Kota Krishnayya 28 M.P 227. On the other hand Crisp v. Watson 20 C.P 689; Lodna Colliery Company Limited v. Bipin Behari Bose 17 Ind. Cas. 500 : 39 C.P 739 and Sudamdih Coal Company Limited v. Empire Coal Company Limited 31 Ind. Cas. 581 : 42 C.P 942 are directly in point and favour the view taken by the learned Judge. The dictum of Moore, J., in Nalum Lakshimikantham v. Krishnaswmy Mudaliar 27 M.P 157 is also in favour of the respondent. Zulekabai v. Ebrahim Haji Vyedina 17 Ind. Cas. 198 : 37 B.P 494 : 14 Bom. L.R. 846 regards, a claim for title-deeds as a suit for land, where as Puttangowda Mallangowda v. Nilkanth Kalo Deshpande 20 Ind. Cas. 974 : 37 B.P 675 : 15 Bom. L.R. 773 which resembles the present case holds the other way. I do not propose to examine the authorities any further. It is desirable to have a uniform rule of practice on a question of this kind. There can be no question that the balance of convenience, if that is any element in deciding this question, is in favour of declining jurisdiction. Although the defendant may be within the local limits, the witnesses to the trespass will not be ordinarily local residents; if a Commissioner is to be appointed to make a valuation after examining the property, it could better be done by a man on the spot. One other consideration may be mentioned. If the claim is for damages between Rs. 2,000 and Rs. 2,500, the City Civil Court which is governed by the Civil Procedure Code will not have jurisdiction, although if the claim exceeds that pecuniary limit, the High Court will have jurisdiction, if the decision is in favour of giving jurisdiction to the High Court. Such an anomaly should be avoided, if possible. For all these reasons, I agree with the learned Chief Justice in holding that the Original Side of the High Court has no jurisdiction in suits of this description.