Beaumont, C.J:—

This is an appeal by the appellant against a decision of Mr. Justice Blackwell on a summons to review taxation of costs. The costs were incurred on an earlier summons to review. There are three items which arise in this appeal. The first two arise strictly in the appeal, and the third on cross-objections.

The first matter, which arises on the appeal, is an item of Rs. 1,000 allowed for “Instructions for brief”. The appellant contends, first, that the Taxing Master had no jurisdiction to allow anything for that item, and, secondly, that if he had jurisdiction, he allowed too high a figure. As I have said, the costs were incurred on a summons to review, which had been adjourned into Court, so that we are dealing with the costs on an adjourned summons. The item “Instructions for brief” is dealt with in Item 14 of the Table of Fees to be taken by the attorneys of this Court. That item reads as follows:

“Instructions for brief (including perusing of papers and examining witnesses) whether on final disposal at first hearing, settlement of issues, final trial or on appeals, arbitrations, accounts, or on motions.”

As the item formerly stood, it did not include the words “or on appeals, arbitrations, accounts.” So that it only dealt with “Instructions for brief whether on final disposal at first hearing, settlement of issues, final trial or on motions,” motions being generally interlocutory. Mr. Shamdasani contends that the item down to the words “final trial” only deals with instructions for brief in suits. He points out that the words “on final disposal at first hearing” appear to have reference to O. XV, which deals with the disposal of a suit at the first hearing, and the words “settlement of issues” appear to have reference to O. XIV, which deals with the settlement of issues in a suit, and he argues, therefore, that “final trial” must also refer to the final trial in a suit. The subsequent words “or on appeals, arbitrations, accounts, or on motions” may cover matters of such nature arising otherwise than in a suit, but the “final trial”, according to his argument, must be in a suit. I must confess that I think that the item is not happily worded. “Final trial” is not a very apt expression to use for the hearing of a chamber summons. The word “hearing” would be more appropriate than the word “trial,” but at the same time it is not inaccurate to say that a summons is tried, and there is nothing in the wording of the item which in terms confines “final trial” to the final trial of a suit. There is no other item in the Table of Fees, which covers “instructions for brief,” and there are many matters which may come before the Court, which are not suits, but which may involve the taking of oral evidence, and require the preparation of elaborate instructions for counsel. Lunacy matters, matters relating to minors, references under the Land Acquisition Act, company matters, and so forth, may require instructions to counsel, and it is difficult to suppose that the Table of Fees was not intended to include cases of that nature, and that no fee was to be payable for instructions in such matters. In my opinion, there is no sufficient reason for confining the words “final trial” to the final trial of a suit.

Mr. Shamdasani has further contended that this must be regarded as a chamber matter, because the summons originated in chambers and was adjourned to be heard in Court merely for the sake of convenience. I do not myself think that it makes any difference whether it is to be regarded as a chamber matter or a Court matter, so long as it is the final trial of the matter. We were referred to a dictum of Sir Norman Macleod in Parashuram Shamdasani v. Tata Industrial Bank, in which he said that this item would not apply to chamber matters, but he gives no authority or reason for that opinion, and the wording of the item does not draw a distinction between chamber matters and matters heard in Court. The essential thing is that there should be a final trial. No doubt, most chamber matters do not involve a final trial, and many of them are not of sufficient importance to justify instructions to counsel. But as I have already indicated, there are many matters, other than suits, which require instructions to counsel, and some of those matters are normally dealt with in chambers, e.g, disputes about minors, disputes about permission to trustees to compromise, and kindred matters. I think myself that there is no sufficient reason for confining Item 14 either to suits or to matters in Court. In my opinion, therefore, the Taxing Master was in allowing a fee for “instructions for brief.”

Whit regard to the quantum allowed, the Court normally does not interfere with the discretion of the Taxing Master as to quantum, unless he has misdirected himself. On the face of it a fee of Rs. 1,000 for “instructions for brief” on a summons to review seems to me difficult to justify. There must already have been a review before the Taxing Master, and the solicitors would not have to peruse many documents for the purposes of the application to the Court, nor is it likely that they would have to examine witnesses. They might, no doubt, have to tabulate the facts for the benefit of counsel, and instruct him as to the view which they wished to put forward. But it is difficult to see how work of that nature could be worth the sum allowed. When we asked to see the brief which the Taxing Master had valued in this way, the only substantial brief produced, which was that delivered to senior counsel, contained in extenso copies of the summons, affidavits and other documents in the case, and involved no work at all except for the copying. There were also concise observations for counsel, which cannot, I think, be valued as highly as the Taxing Master thinks. The learned Taxing Master in his reasons says that he has considered all the matters mentioned in r. 563, and taking those matters into account and also the fact that the hearing of the summons lasted for thirty-three and a half hours he thinks Rs. 1,000 a fair allowance. I think that in taking into account the length of time occupied by the hearing, the learned Taxing Master has misdirected himself. No doubt, as was pointed out by this Court in Shamdasani v. Tata Industrial Bank instructions to counsel may go on during the hearing, but the words of Item 14 are not “instructions for counsel” but “instructions for brief.” The delivery of a brief is a formal act. It confers upon counsel authority to appear in the case, and vests in him the responsibility of conducting the case in the way he thinks right. It also fixes the fee which he is to be allowed, and I cannot agree that the words “instructions for brief” mean the same thing as “instructions for counsel.” prima facie, instructions for brief must have been completed before the brief was delivered, although I do not dispute that matters might come to light after the brief was delivered, which might involve the delivery of a supplementary brief, a fee for which could be allowed under Item 14. But there is no evidence in this case of the delivery of a supplementary brief. I am not prepared to agree that instructions given, probably orally, to counsel in the course of the hearing can be included in “instructions for brief.” It is difficult for us to say what the Taxing Master ought to have allowed. We are satisfied that in taking into account the length of time the hearing occupied he misdirected himself, and we think that a fair order will be to allow half the item. So we reduce the Rs. 1,000 to Rs. 500. That disposes of the first point.

The second point raised on the appeal is as to the attendance of attorneys in Court, and two points are taken with regard to that. The Taxing Master allowed Rs. 15 for the first hour of each day and Rs. 10 for subsequent hours and parts of an hour on that day. It is objected that under Item 40 the allowance of Rs. 15 is for the first hour of the hearing, irrespective of the day, and after that first hour is finished, only Rs. 10 can be allowed for subsequent hours. Mr. Justice Blackwell was disposed to agree with the argument of the appellant on that point, but he felt himself bound to follow an unreported decision of Mr. Justice Rangnekar, in which that learned Judge seems to have held that under Item 40 solicitors were entitled to Rs. 15 for the first hour on each day of the hearing. Now, the item reads:

“Attendance of Attorney in Court on motion or on hearing of any suit, cause or matter including insolvency or criminal matters for first hour or part of hour—Rs. 15.”

Item 41 reads: “For every additional hour—Rs. 10.” It seems to me that the meaning of those items is perfectly plain. All that the Taxing Master has to do is to reckon the number of hours of attendance, irrespective of whether they took place on the same day, or in the same week, or in the same month. Having completed the first hour, for which a sum of Rs. 15 is allowed, all subsequent hours are allowed at the rate of Rs. 10. I cannot see the slightest justification for saying that a sum of Rs. 15 is to be allowed for the first hour on each day. The only argument in favour of that construction, which was suggested, is that attorneys do in practice prepare their bills on the basis of the work done for each day, but the existence of that practice affords no reason for giving to the words of the item a meaning which they do not bear. In my opinion, that objection must be allowed.

The other objection in respect of attendance is that in counting the hours of attendance the Taxing Master has included the midday adjournment of three-fourths of an hour. Mr. Justice Blackwell decided that practice was right on the authority of a decision of Mr. Justice Kania in suit No. 39 of 1931—Walter Campbell v. A. Trevor Robinson—which has not been reported. In my opinion, it is impossible to say that an attorney is attending Court at a time when the Court is not sitting. This Court takes an adjournment of three-fourths of an hour in the middle of the day, and a working day consists of five hours apart from that adjournment. The length of the adjournment might be curtailed or extended, if the Judges thought fit, but whatever the period of adjournment may be, it seems to me quite impossible to say that an attorney is entitled to be paid for attendance in Court when the Court is not sitting. Mr. Justice Kania based his decision upon the analogy of refreshers to counsel, but the wording of r. 567, which deals with refreshers, is quite different from the wording of Item 40, and I express no opinion upon the question whether refreshers are allowable for the midday adjournment. This objection also must be allowed.

The point taken on the cross-objections is with regard to refreshers to counsel. This summons lasted, according to the Taxing Master, thirty-three and a half hours, and the brief fee marked for counsel was nine G. Ms. If the appellant chose to take over six days to argue a summons, which could probably have been disposed of adequately in a few hours, I see no good reason, why he should not pay for the privilege, but we have to see whether refreshers to counsel, which the Taxing Master allowed, are permitted by the rules.

rule 567 of the rules of the High Court of Bombay in terms only authorises the payment of refreshers on the hearing of a suit or appeal which extends to more than one day. So that there is no express power to allow refreshers on an adjourned, summons. Mr. Banaji for the appellants on the cross-objections relies on Item 60 of the Table of Pees, which reads:

“All reasonable disbursements excluding conveyance and cooly hire.”

He argues that counsel's fees are disbursements, which no doubt is so, but the regular rule is that counsel's fee must be marked on the brief before he goes into Court. If counsel is to be entitled to a refresher, which means an additional fee calculated by the day, to my mind, there must be a special rule conferring that right, and if there is no such rule, I do not think that, a refresher fee can be regarded as a reasonable disbursement.

The origin of refreshers was discussed by the Court of Appeal in England in Easton v. London Joint Stock Bank, and it was there pointed out that the practice of allowing refreshers had originated, because in actions heard with witnesses it was impossible for a solicitor, when he was delivering his brief to counsel, to estimate within reasonable limits the length of time the case was likely to last. Therefore, it was unreasonable to expect him to arrive at a fee for counsel which would prove to be fair, and so, in cases heard with witnesses, the practice had grown up of allowing counsel to receive extra remuneration at so much per day, and that practice was embodied in a rule in England, and is covered by our rule 567. But the Court pointed out that even if there was no authority to allow refreshers to counsel, it was open to the Taxing Master in his discretion to allow an additional brief fee, if he thought that for some reason or another the solicitor had not been able to calculate, and had not in fact correctly calculated, the length of time the case was likely to last. I quite agree with that latter proposition, and I think that in this case if the Taxing Master had been asked to do so, he could properly have allowed a further brief fee, because the solicitor could not have supposed that a summons to review taxation would be likely to last for more than thirty-three hours; but the Taxing Master was not asked to deal with the matter in that way. Fees to counsel were claimed as refreshers allowed by the rules, and the Taxing Master allowed refreshers, and the learned Judge in review disallowed them. I think that the learned Judge was right on that point, and that the refresher fees must be disallowed.

Then the only question is whether we are entitled to send the case back to the Taxing Master to consider whether he ought to allow something by way of an additional brief fee on the principle indicated above. This Court held in Parashuram Shamdasani v. Tata Industrial Bank (supra) that such a course could not be adopted. In that case the learned Judge, who heard the summons to review, had taken the view of the matter which we take, namely, that refreshers on a summons are not allowable, but that the brief fee might be increased, and he had increased the brief fee. In the Court of Appeal the Court held that the summons which had been adjourned to the hearing, had merged in the hearing, a view which, if I may say so, seems to me a curious one; but the Court then went on to say that, on the footing that costs were payable as costs of a summons, the Judge was wrong in increasing the brief fee from twenty to thirty G. Ms. thus diminishing the effect of his disallowance of the refreshers by ten G. Ms., and that no increase of charges could be allowed on a review of taxation over those charged in the bill of costs. Sir Norman Macleod, who delivered that judgment, had himself, I believe, been at one time Taxing Master, and he was no doubt familiar with, the practice of the office, and I think that we ought to follow his view, although technically it was only a dictum. The proper course for the solicitors was to ask the Taxing Master to increase the brief fee, having regard to the unexpected length of time the case had taken; but as that course was not adopted, I think we cannot now increase the fee or ask the Taxing Master to do so.

The result, therefore, is that the appeal is allowed as to half the brief fees, though it fails on the question of jurisdiction to allow instructions for brief. It succeeds a to the two points relating to the attendance of attorneys, and the cross-objections fail.

B.J Wadia, J.:—I agree. With regard to the first objection raised by the appellant I think that a chamber summons adjourned into Court cannot be described merely as an interlocutory application or as a chamber matter. It becomes really a Court matter, and it appears on the daily Board as a Court matter, and Court fees are payable for it as such. With regard to the further point that an allowance for Instructions for Brief is inadmissible under the terms of “item 14” at page 414 of the Rules of the High Court of Bombay, it is true to say in the first place that item has not been Very happily worded. It should in my opinion be recast. It does not, however, appear to me as if it was the intention of the framers to restrict the words “final trial” only to the final trial of a suit. Ordinarily we do not speak of the final trial of a chamber summons even when the summons is adjourned into Court; we generally refer to the final hearing of a summons. But an inappropriate word or expression in the “item” ought not in my opinion to override the intention and meaning of all the words taken as a whole. It was conceded in argument that the word “appeals” in the same “item” included appeals from orders made on chamber summonses, and it would be somewhat anomalous if an allowance for instructions could be given for an appeal from an order on a chamber summons adjourned into Court and not for the hearing of the summons itself. Moreover, there are in addition to chamber summons adjourned into Court many matters which are tried in Court as Court matters, e.g, misfeasance summonses, matters under the Companies Act, Land Acquisition References, petitions under the Lunacy Act and Guardians and Wards Act, petitions under the Trusts Act and under the Patents and Designs Act, under the Specific Relief Act, and also other matters. If “item 14” is to have the limited scope placed by the appellant upon it, for which he contended before the Taxing Master and in Court, the Taxing Master would be debarred from allowing instructions for brief in respect of many of these matters heard in Court which sometimes take up a long time and involve difficult questions both of law and of fact. Rule 563 of the High Court Rules gives a wide discretion to the Taxing Master to take Various factors into consideration in respect of suits as well as matters, and I do not agree with the appellant's contention put forward in his memorandum of appeal that the word “matter” in r. 563 of the High Court Rules should be construed as referring only to appeals, arbitrations, accounts and motions, being the four matters expressly mentioned in “item 14”. We were referred to the dictum of the Appeal Court in Parashuram, Shamdasani v. Tata Industrial Bank where the learned Chief Justice observed that the charge for instructions in chamber matters was certainly not discretionary. In my opinion that statement has been put rather too wide, but in any event it does not apply to the matter before us, because in that case the summons was not adjourned into Court, but was merely adjourned to the hearing of the suit itself.

In my opinion the learned Chamber Judge was right in disallowing the appellant's objection as to the allowance for Instructions for Brief to the respondents under “item 14.”

With regard to the question of the quantum, I have held in a case that was argued at great length before me, namely, Gorakhram v. Pirozsha (No. 1), that as a rule the Chamber Judge does not interfere with the discretion of the Taxing Master, except in extreme cases where there has been gross abuse, or a serious mistake, or when the Taxing Master has acted on a wrong principle, or applied an altogether wrong construction. That the Court has a right to interfere with the discretion of the Taxing Master is not denied, and it has been held in the case which I have referred to before in 27 Bom. L.R 1195, following the English rules of taxation, that the decision of the Taxing Master is not final even on the question of the quantum. It was in my opinion a mistake to unduly insist on considering in a discretionary item the length of the hearing of the summons in Court. That is a matter along with other matters which may be taken into consideration, because it often happens that when a matter is heard in Court for a considerable length of time, questions do crop up for further elucidation during the hearing which necessitate sometimes the handing of further instructions in supplemental briefs to counsel. We have not been referred in this case to any such supplemental briefs. Before the Taxing Master takes such supplemental briefs into consideration, he has to satisfy himself that there were new matters which required further “instructions for brief”, using the expression mentioned in “item No. 14.” I think that the allowance of Rs. 1,000 was excessive, and the discretion Vested in the Taxing Master has not been in my opinion justifiably exercised. I, therefore, agree with the learned Chief Justice that a fair and reasonable amount to allow for instructions would be a sum of Rs. 500.

With regard to the third objection as to the allowance for solicitors' attendance in Court and the question of the midday adjournments, I entirely agree with what has been said by the learned Chief Justice, and I have nothing to add.

With regard to the cross-objections on the question of refreshers which were allowed by the Taxing Master to the extent of Rs. 585, I may mention that when the matter went up before the learned Chamber Judge on a review of taxation, the only argument that was advanced was that amount was covered by item 60 which deals with “reasonable disbursements”. I do not think that if it was the intention to include refreshers in matters other than suits or appeals in the expression “reasonable disbursements”, it would have been left to be implied, and not referred to more definitely. No application was made to the learned Chamber Judge to have the matter sent down again to the Taxing Master to consider whether an extra allowance should not be made, not on the ground of allowing “refreshers”, which, as Lord Justice Cotton pointed out in Easton v. London Joint Stock Bank, was an unfortunate term, but on the ground that the extra costs incurred after the first five hours might be allowed as additional or increased fee over and above that marked originally on counsel's brief, as was pointed out in that case. It does happen at times that there is a miscalculation by the attorney and the fee is under-marked at the inception of the trial. No such application was made, and I do not think that we should now at this stage, following the observations of the Appeal Court in 27 Bom. L.R 1195, allow the matter to be sent back to the Taxing Master. I quite agree that r. 567 which refers to refreshers and the amount of refreshers in the case of suits or appeals, may often work hardship in matters other than suits or appeals which take up a very long time in hearing. This is more, an argument for reconsideration of the rule in the future rather than for allowing the cross-objections at present. In my opinion the learned Chamber Judge was right, and the cross-objections must be dismissed.

Per Curiam. With regard to costs, the appellant succeeded in one or two matters in the Court below, but failed on a majority of the points raised, and the learned Judge directed him to pay the costs of certain items which had not been fought, and to pay three-fourths of the costs of the items which had been fought. In this Court he has succeeded on most of the points, but has failed on one point, and he has succeeded on the cross-objections. Cross-objections would have to be dismissed with costs, if we made a strict order. We are Very reluctant to make a complicated order for taxation, giving the costs of certain items to one party and of other items to the other party. From such figures as the parties have supplied to us, rough figures, no doubt, as to what they expect to get under the orders which stand and possible orders, we think that the two sides would about balance each other on a strict order for taxation of costs of separate items. Therefore, we propose to make no order as to costs in the Court below and in this Court. Each party to bear their own costs in the lower Court and in this Court both of the appeal and cross-objections. There is to be no payment on either side in respect of the whole matter.

Attorneys for respondents: Messrs Payne & Co.

Appeal allowed in part: cross-objections dismissed.

N.K.A