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In Re: Mirza Afzal Beg Vs. Jyoti Swarup and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in9Ind.Cas.130
AppellantIn Re: Mirza Afzal Beg
RespondentJyoti Swarup and ors.
Excerpt:
.....' there is no doubt that there is a strong justification for the conclusion of fact at which the learned judge arrived. as already pointed out, the parties to the agreement clearly contemplated its being filed under section 28. this section provides that unless the document is duly filed, no money can be recovered by the party in whose favour it is made. in my opinion, the learned judge was perfectly right in the order which he made, and i do not think that the facts and circumstances of the case call for any action of the high court in the matter. 4. i agree in the order which my learned brother proposes to be passed in this case for the simple reason that the circumstances of the case make it clear to my mind that the two pleaders concerned entered into the agreement in good faith..........was abandoned in the argument before us. but the first ground has been strongly pressed. the learned judge held, on the authority of ganga ram v. davi das 61 p.r. 1907 : 45 p.w.r. 1907 : 33 p.l.r. 1907 (f.b.) that the agreement was illegal having regard to the fact that it provided for payment of the fee only in the event of success. the learned judge however, came to the conclusion that the agreement was never acted upon, and that, therefore, he could not hold that there were any sufficient grounds for reporting the matter to the high court. he says at the conclusion of his judgment: the agreement must be considered as cancelled and the improper conduct, which it embodied, although contemplated has not been persevered with.' there is no doubt that there is a strong justification.....
Judgment:
ORDER

Richards, J.

1. This is an application under Sections 13, 14 and 15 of the Legal Practitioners Act. The facts are set forth in the petition of Mirza Afzal Beg and the judgment of the District Judge, dated the 13th of July, 1910. It appears that one Mirza Karim Beg died leaving the petitioner and other persons as heirs and representatives.

2. There was a certain woman who was called Basanti alias Karimunissa and she had, or alleged she had, a right to be recognized as the lawful widow of Mirza Karim Bag, and that she as such together with her children had claim on the estate under the Muhammadan Law. Whether or not her claim was well-founded is a matter on which we are not called to express any opinion. The is an appeal in a suit in which that issue was raised pending at the present time. The two respondents entered into an agreement with Basanti alias Karimunissa, the effect of which is set forth in the petition. It provided for the payment to the respondents, who were pleaders, of a sum of Rs. 7,000 in the event of their being successful in obtaining for the alleged widow and her children a decree against the estate of Mirza Karim Beg. The agreement appears to have contemplated a suit to recover the widow and children's shares which she valued at Rs. 70,000. There is also a reference made at the conclusion of the agreement to the widow's claim for dower. The fifth Clause provides that all the shares of the widow and her children and her right to dower shall stand hypothecated for the payment of the said sum of Rs. 7,000 to the respondents. This agreement was duly registered and the final clause shows clearly that when it was executed, the respondents or whoever was acting for them had in view the filing of the agreement according to the provisions of Section 28 of the Legal Practitioners Act. Musammat Basanti alias Karimunissa has never made any complaint against the respondents. A suit for dower was instituted against the petitioner and a decree in the Court of first instance was obtained. On appeal the decree was reversed and the suit was dismissed. A second appeal is now pending. The agreement was never filed according to the provisions of Section 28 and, of course, having regard to those provisions it could never be enforced. The petitioner submits that the two pleaders have been guilty of grossly improper conduct in the discharge of their, professional duty within the meaning of Section 13 Clause (5) of the Legal Practitioners Act. It is alleged in the petition that the agreement was champertous and wagering and, secondly, that it was an extortionate agreement affecting the property of minors. This second ground was abandoned in the argument before us. But the first ground has been strongly pressed. The learned Judge held, on the authority of Ganga Ram v. Davi Das 61 P.R. 1907 : 45 P.W.R. 1907 : 33 P.L.R. 1907 (F.B.) that the agreement was illegal having regard to the fact that it provided for payment of the fee only in the event of success. The learned Judge however, came to the conclusion that the agreement was never acted upon, and that, therefore, he could not hold that there were any sufficient grounds for reporting the matter to the High Court. He says at the conclusion of his judgment: The agreement must be considered as cancelled and the improper conduct, which it embodied, although contemplated has not been persevered with.' There is no doubt that there is a strong justification for the conclusion of fact at which the learned Judge arrived. As already pointed out, the parties to the agreement clearly contemplated its being filed under Section 28. This section provides that unless the document is duly filed, no money can be recovered by the party in whose favour it is made. Mr. Porter, on behalf of the Petitioner, strongly contends that when the agreement was entered into the offence was committed, that the two pleaders were guilty of misconduct, and that everything done or omitted to be done after that should merely go to enhance or mitigate the punishment. Whether or not an agreement, which provides for the payment of a pleader's fees only in the event of his being successful, is necessarily illegal is a question which has not been argued before us otherwise than by citing the ruling of the Punjab Chief Court Ganga Ram v. Davi Das 61 P.R. 1907 : 45 P.W.R. 1907 : 33 P.L.R. 1907 (F.B.) just referred to. In my opinion such agreements, if not actually illegal, are certainly as a general rule highly objectionable. I think, however, that even if we assume that the provision in the agreement rendered it illegal it can hardly be said under the circumstances that the learned Judge was wrong, in refusing to report the case to the High Court and that the respondents were guilty of grossly improper conduct in the discharge of their professional duty.' Everything was done openly. There was no secrecy about the agreement. It Was openly registered, and if the Registrar did his duty he must have seen that the lady fully understood what she was doing. The agreement could never have been acted upon because it was never filed in Court once the period of 15 days had expired. In my Opinion, the learned Judge was perfectly right in the order which he made, and I do not think that the facts and circumstances of the case call for any action of the High Court in the matter. I would dismiss the application.

Griffin, J.

3. Assuming the facts set out in the order of the learned District Judge to be correct. I would agree with the view which he has taken. No attempt was made to act upon the agreement which has given rise to the present complaint against the pleaders concerned. This being so I think the case is not one which calls for the exercise by this Court of the powers conferred upon us by Section 14 of the Legal Practitioners Act. I would dismiss this application.

Tudball, J.

4. I agree in the order which my learned brother proposes to be passed in this case for the simple reason that the circumstances of the case make it clear to my mind that the two pleaders concerned entered into the agreement in good faith and without any idea that they would thereby be guilty of grossly improper conduct. There are further indications to show that this was probably brought to their notice and for that reason they cancelled the whole matter, and did not act upon it. For this reason, I fully agree with the order which is proposed to be passed in the case.

5. The order of the Court is that the petition be dismissed.


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