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Roshan Lal Vs. Bhuramal - Court Judgment

LegalCrystal Citation
SubjectCivil;Contract
CourtRajasthan High Court
Decided On
Case NumberSecond Appeal No. 151 of 1953
Judge
Reported inAIR1956Raj25
ActsLegal Practitioners (Fees) Act, 1926 - Sections 4; Contract Act, 1872 - Sections 73 and 74
AppellantRoshan Lal
RespondentBhuramal
Appellant Advocate B.B. Desai, Adv.
Respondent Advocate U.M. Trivedi, Adv.
DispositionAppeal partly allowed
Cases ReferredLalji Lokman v. A.K. Ghatpande
Excerpt:
.....26th august and the 1st september, 1950, or about that time. i may add that an agreement between a legal practitioner & his client like any other private agreement is open to attack on the ground of fraud or undue influence or similar other circumstances established according to law but subject thereto it seems to me that a legal practitioner is entitled to recover the fees settled between him and his client wherever there is an express agreement for the purpose. this, in my opinion, excludes the operation of sections 73 and 74, contract act, in a case like the present, and i have no hesitation in saying, that the courts below have fallen into grave error in applying those sections to the present case. the principle is well settled that a general law must give way in the presence of a..........a part thereof as held by the courts below.4. the matter, in my opinion, is governed by section 4, legal practitioners (fees) act (no. 21) of 1926. section 4 runs as follows:'right of legal practitioner to sue for fees, any such legal practitioner shall be entitled to institute and maintain legal proceedings for the recovery of any fee due to him under the agreement, or, if no such fee has been settled, a fee computed in accordance with the law for the, time being in force in regard to the computation of the costs to be awarded to a party in respect of the fee of his legal practitioner.' the courts below seem to me to be wrong in construing this section as merely an enabling one and not having anything to do with the quantum of fees with a legal practitioner is entitled to receive from.....
Judgment:

Modi, J.

1. This is an appeal by theplaintiff Roshanlal, an advocate of this Court,against the judgment of the District Judge, Udaipur, dated 18-5-1953, in a suit for recovery ofcertain fees agreed between him and the defendant.

2. The material facts may be briefly stated as follows. It is alleged that on 25-8-1950, Bhuramal defendant who is a contractor of means met the plaintiff in the court premises at Udaipur and told' the latter that he wanted to institutea, suit against his son Hareshai and nephew Birdichand for a sum of Rs. 53,000/- and had tried to contact him more than once but was unsuccessful.

An appointment was arranged between the parties and the plaintiff's case is that on 26-8-1950, Bhuramal executed a document Ex. P-1 in favour of Roshanlal, in which he stated that he had engaged the said advocate to conduct the case filed against his son Harsahai and nephew Birdichand along with another advocate Mr. Trivedi and that his remuneration for the entire case was settled at Rs. 1000/-.

IT was further stated that there were certain other questions regarding which there was a dispute between the defendant and Harsahai and Birdichand, and the remuneration therefor was also settled at Rs. 1000/-. It may be pointed out here that the suit referred to in document Ex. P-l actually came to be filed on 29-9-1950.

According to the plaintiff, however, the defendant had obtained his signature on a Vakalatnama, and stated that he would get the same signed by the other advocate Mr. Trivedi and then arrange to present it in the court. Certain consultations appear to have taken place between the ' parties, and the plaintiff alleges to have given advice from time to time, and it is sufficient to state for the purposes of the present appeal that Bhuramal managed to secure a promissory note from Harsahai for a sum of Rs. 53,000/- or so, and it was on 29-9-1950, that a suit was actually instituted against Harsahai based on the said promissory note.

Meanwhile the defendant appears to have changed his mind for certain reasons which are not quite clear from the record, and gave a goby to the plaintiff Roshanlal. On 3-11-1950, and 22-12-1950, the latter appears to, have given written notices to the defendant asking for the payment of his remuneration (Ex. P-2 and Ex. P-3) and it is said that Bhuramal made oral promises to pay but only to break down. This resulted in the present suit.

The defendant resisted it mainly on the ground that he had brought his suit on the basis of the promissory note dated 31-8-1950, and that that had nothing to do with any cause of action which arose prior to that date or on 26-6-1950, which is the date of Ex. P-1. The defendant did not give any clear reply as regards the execution of Ex. P-l, and said that he had taken no advice or other work whatsoever from the plaintiff and, that the present suit was an attempt on his part to extract money by unprofessional methods and by misrepresentation.

Both courts below have held that the execution of Ex. P-l by the defendant was proved and that the defendant had engaged the plaintiff as counsel in connection with the suit for Rs. 53,000/-, which he intended to file against nis son and nephew; but that so far as the second part of the agreement was concerned, no dispute had arisen at all and the lower appellate court was clearly of the opinion that that part of the agreement was a contingent one.

The trial court, however, by applying the provisions of Sections 73 and 74, Contract Act, came to the conclusion that the plaintiff was entitled to receive a sum of Rs. 250/- as compensation, and decreed the plaintiff's suit with proportionate costs accordingly, and the learned District Judge on appeal upheld that decree. The plaintiff has filed the present appeal from the above, judgment and decree.

3. The principal contention raised in this appeal is that the courts below have entirely misdirected themselves in applying Sections 73 and 74, Contract Act or, as it was also stated, the principle of 'quantum meruit' thereto, and it was strenuously contended that the plaintiff was entitled to the entire sum of Rs. 2000/- which, had been settled between the parties by an express contract.

There cannot be, any dispute at this stage as regards the engagement by the defendant of the plaintiff for conducting a certain, litigation on his behalf. This is concluded by the findings' of the two courts below. Equally clearly, it is not open to question that the plaintiff gave advice to the defendant, looked into the, latter's books and did such work as he was called upon to do between the 26th August and the 1st September, 1950, or about that time.

Thereafter, however, the defendant appears to have given a cold shoulder to the plaintiff. The defendant appears to have made a halfhearted effort to show that he had lost his confidence in the plaintiff because the latter had threatened that he would walk over to the other side, namely, Harsahai and Birdichand, but the story has been disbelieved by the courts below and I entirely concur in that view.

In these circumstances the question in this appeal lies within a narrow compass, and that is, whether the plaintiff is entitled to recover the entire sum of Rs. 2000/- agreed to between him and the defendant even though 'the latter had abandoned him and filed the suit through another counsel Mr. Trivedi who remained in charge of it until, it appears, it was compromised sometime after. It is important to bear in mind that the plaintiff was throughout willing to act and plead for the defendant.

I may further point out that it was urged before me on behalf of the defendant that Ex. P-l had been executed by him under a mistake or some kind, of misrepresentation or undue influence, but there is no proof whatsoever on this record in support of these allegations. It is noteworthy that there is no clear allegation by the defendant in respect of the pleas now advanced nor any issue as respects them.

The lower appellate court appears to have taken for granted that the plaintiff, was a standing counsel for the defendant, and, therefore, the former stood in a position of considerable confidence towards the latter; but there is no proof on this record whatsoever that the plaintiff was defendant's standing counsel. It is true that the defendant had been utilising the plaintiff's professional services in some other cases also but that is all a different matter.

It is impossible, therefore, to come to the conclusion that it was on account of any fault of the plaintiff that the defendant had decided to terminate his services. It follows, therefore, that the plaintiff was entitled to file a suit for the recovery of his fees. -- 'Gour Chand v. Pradyumna Kumar', AIR 1951 Cal 478 (A) lends full support to the view taken by me. The question, however, is whether he is entitled to receive the whole of the sum of Rs. 2000/- agreed to 'between the parties or only a part thereof as held by the courts below.

4. The matter, in my opinion, is governed by Section 4, Legal Practitioners (Fees) Act (No. 21) of 1926. Section 4 runs as follows:

'Right of legal practitioner to sue for fees, Any such legal practitioner shall be entitled to institute and maintain legal proceedings for the recovery of any fee due to him under the agreement, or, if no such fee has been settled, a fee computed in accordance with the law for the, time being in force in regard to the computation of the costs to be awarded to a party in respect of the fee of his legal practitioner.'

The courts below seem to me to be wrong in construing this section as merely an enabling one and not having anything to do with the quantum of fees with a legal practitioner is entitled to receive from his client. The language of the section is plain enough and it provides that a legal practitioner in India shall be entitled to institute a suit for the recovery of any fee due to him from his client and secondly that the quantum of such fees would be as agreed between the parties, or, where no fee is settled, a fee according to the law in force for the computation of costs awardable to a party in respect of the fee of his legal practitioner.

I may add that an agreement between a legal practitioner & his client like any other private agreement is open to attack on the ground of fraud or undue influence or similar other circumstances established according to law but subject thereto it seems to me that a legal practitioner is entitled to recover the fees settled between him and his client wherever there is an express agreement for the purpose.

That there was an express agreement in the present case indeed cannot be questioned. The exact import of that agreement may again be a matter for determination where it is open to reasonable doubt but where this is not the case the agreement must prevail. This, in my opinion, excludes the operation of Sections 73 and 74, Contract Act, in a case like the present, and I have no hesitation in saying, that the courts below have fallen into grave error in applying those sections to the present case.

The principle is well settled that a general law must give way in the presence of a special law where the application of the latter is attracted, and the Legal Practitioners (Pees) Act to my mind contains a special provision which governs the [matter in dispute in the present case, it, further seems to me to follow that the principle of quantum meruit can, also have no application.. The first case to which I may refer in this connection is -- 'Keshav Govind v. Jamsetji Cursetji', 12 Bom 557 (B).

This was a case which arose before 1926 when the Legal Practitioners (Pees) Act was enacted for the first time. But even there, Sargent C. J., held that it was only in the absence of an agreement that the pleader was entitled to a quantum meruit, which ought to be determined with reference to all the circumstances of the case. The matter would now appear to fall within the second part of Section 4, Legal Practitioners (Pees) Act.

In Sib Kishore v. Manik Chandra', AIR 1916 Cal 669 (C), again, there was no express agreement and it was held that the pleader was entitled to recover on an implied promise of reasonable remuneration. In -- 'Roopji & Sons v. Dyer Meaken & Co. Ltd.', AIR 1930 All 545 (D), the parties were not a legal practitioner and a client but a principal and an agent. But the principle was laid down that the plaintiffs could not claim on the quantum meruit because they had chosen to tie themselves down with the express terms of an agreement. Reliance was placed on two English cases -- 'Martin v. Tuckre', I885-I TLR 655 (E); and -- 'Lott v. Outhwaits', (1893) 10 TLR 76 OF), and it was laid down that there could be no implied con. .sract where there was an express contract.

In 'Liladhar v. Mathuradas', AIR 1934 Bom 158 (G), which was also a case of a principal and an agent, the same principle was upheld. In -- 'Hargovind v. Shrikishendas', AIR 1937 Nag 32 (H), no fees had been settled between a legal practitioner and his client and a contention was raised that' the former was only entitled to a reasonable remuneration. This contention was repelled and it was held that he was entitled to a fee to be computed in accordance with the law laid- down in Section 4, Legal practitioners (Fees) Act and not to reasonable remuneration only. The same view was taken in --'Mt. Babui Radhika Debi v. Ramasray Prasad', AIR 1931 Pat 137 (I).

Learned counsel for the respondent invited my attention to certain observations in -- 'Lalji Lokman v. A.K. Ghatpande', AIR 1954 Nag 253 (J), at p. 254 in para. 6 where a learned single Judge after holding that it was the client who had prevented the practitioner from discharging his obligation under the agreement by taking away the papers, and, therefore, he was entitled to receive the balance of his remuneration further observed as follows:

'Even if the case be viewed as entitling 'the non-applicant to compensation & not the balance of the fees settled, the sum decreed cannot be considered unreasonable in the circumstances of the case.'

With great respect, it seems to me that the observation in question was wholly unnecessary andin any case not an accurate statement of theposition in law in view of Section 4, Legal Practitioners(Pees) Act.

5. In view, of the authorities discussed by me above, I have come to the conclusion that the plaintiff would be entitled to recover his fees in the present case according to the express agreement subsisting between the parties and not on the basis of the principle of quantum meruit or the principles embodied in Sections 73 and 74, Contract Act.

6. The only other question that remains to decide is what is the exact import of that agreement. So far as the suit against Harsahai for Rs. 53,000/- is concerned, the matter is perfectly plain and the agreement between the parties was that the plaintiff would be entitled to a sum of Rs. 1000/- for his services in that connection. I hold, therefore, that there must be judgment for him so far as that amount is concerned.

The matter, however, is not free from difficulty so far as the second part of the agreement is concerned. There is a vague sort of reference to 'certain questions relating to Harsahai and Birdichand'. No particulars have been given, and it is said that a fee of Rs. 1000/- was settled with regard to them. When the plaintiff came into the witness-box, however, he has thrown further light in this connection and he has stated that the defendant had told him when Ex. P-l was written that Harsahai and Birdichand would also raise certain disputes regarding partition: between the parties and try to re-open it; and that in the event 'of such disputes being raised, a further fee of Rs. 1000/- was, to be paid by the defendant to the plaintiff.

It seems to me 'to be obvious therefore that this additional sum of Rs. 1000/- was to be paid only on certain other disputes arising regarding which the defendant entertained an apprehension but which clearly had to be raised by the opposite parties and not by the defendant himself. That also explains, to my mind, why the remuneration of Rs. 2000/- was split into two parts' in Ex. P-1. If this is the correct meaning of the agreement between the parties, as I think it is, then the plaintiff should have shown that these further disputes had also been raised and that he was ready to lend his services to the defendant in connection with- them.

There is, however, nothing on this record to show that such disputes had at all been raised by Harsahai and Birdichand. In this view of the matter, I am of opinion that the plaintiff is not entitled to recover the further sum of Rs. 1000/-, and the courts below were perfectly right in rejecting his claim to that extent.

7. For the foregoing reasons, I partially allow this appeal, modify the judgments of the courts below and hereby award a decree for Rs. 1000/- against the defendant respondent. The plaintiff will be entitled to receive proportionate costs on the aforesaid sum in all the courts.


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