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Union of India (Uoi) Vs. Radhey Shyam and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. Petn. No. 52 of 1979
Judge
Reported inAIR1979Raj137; 1979()WLN85
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 - Order 3, Rule 4(2)
AppellantUnion of India (Uoi)
RespondentRadhey Shyam and ors.
Advocates: L.R. Bhansali, Adv.
DispositionApplication dismissed
Cases ReferredCity Improvement Trust Board v. M.
Excerpt:
.....not exercised jurisdiction not vested in him by law when he directed about the payment of fee so shri gaur.;(b) civil procedure code - order 3 rule 4 and terms of engagement of advocates for district court--clause 3(a)--payment 1/2 fee on filing of written statement--held, it is made of payment--civil court rightly directed payment of fall fee on terminating appointment of an advocate.;this clause deals with the mode of payment of the fee and it cannot be availed of when the party engaging the counsel, terminates his appointment.;it cannot be said that it is a case where there is m agreement, and so leave should be given on payment of such fee as the court finds reasonable on the basis of quantum meruit taking into consideration all the circumstances of the case.;i am, therefore,..........in civil original suit no. 22 of 1975. 2. shri radhey shyam gaur, advocate, bikaner (for short 'shri gaur), who is non-petitioner no. 1 in this revision was conducting a suit on behalf of the union of india. on may 10, 1978, shri lalit prashad, advocate submitted an application on behalf of the deputy general manager, northern railway, dated april 25, 1978 that leave may be granted for determining the power of shri gaur, and that he may be permitted to conduct the proceedings in the suit on behalf of the union of india. in reply to that application, shri gaur stated that he has no objection if his appointment is terminated, but he should be paid his full fee and expenses. on september 30, 1978, shri gaur submitted an application that the application filed for terminating his.....
Judgment:
ORDER

S.K. Mal Lodha, J.

1. This is an application in revision by the Union of India under Section 115, C.P.C. against the order dated Oct. 27, 1978, passed by the learned Civil Judge, Bikaner in Civil Original Suit No. 22 of 1975.

2. Shri Radhey Shyam Gaur, Advocate, Bikaner (for short 'Shri Gaur), who is non-petitioner No. 1 in this revision was conducting a suit on behalf of the Union of India. On May 10, 1978, Shri Lalit Prashad, Advocate submitted an application on behalf of the Deputy General Manager, Northern Railway, dated April 25, 1978 that leave may be granted for determining the power of Shri Gaur, and that he may be permitted to conduct the proceedings in the suit on behalf of the Union of India. In reply to that application, Shri Gaur stated that he has no objection if his appointment is terminated, but he should be paid his full fee and expenses. On September 30, 1978, Shri Gaur submitted an application that the application filed for terminating his appointment should be decided early. The learned Civil Judge, by his order dated Oct. 27, 1978 directed that the Railway Administration should pay full fee and expenses (if any) to Shri Gaur, that in future, Shri Lalit Prashad, Advocate, will act on its behalf in the suit and that the appointment of Shri Gaur is terminated.

3. Being aggrieved by the order, directing payment of full fee to Shri Gaur, Union of India has come up in revision to this Court with a prayer to delete the direction relating to the payment of the full fee to Shri Gaur.

4. Mr. L. R. Bhansali, learned counsel for the petitioner contended that while granting leave for determining the appointment of Shri Gaur, the learned Civil Judge had no jurisdiction to direct the payment of fee to him. He further submitted that according to the terms and conditions relating to engagement of Advocates for District Courts, prescribed by the competent authority, only half fee is payable after the written statement is filed, and, therefore, there was no occasion to order for the payment of full fee to Shri Gaur.

5. I have given my most anxious and thoughtful consideration to the aforesaid submissions made by Mr. Bhansali. I regret my inability to agree with him.

6. Order III, Rule 4 (2), C.P.C. which is relevant for the present purpose, reads as under:

'(2) Every such appointment shall be (filed in Court and shall, for the purposes of Sub-rule (1) be) deemed to be in force until determined with the leave of the Court by a writing signed by the client or the pleader, as the case may be, and filed in Court, or until the client or the pleader dies, or until all proceedings in the suit are ended so far as regards the client.'

According to Sub-rule (2) of Rule 4 of Order III, the appointment of a pleader may be put an end to by the client or the pleader but in either case this can be done only with the leave of the Court. The granting of leave for the termination of the appointment of the pleader/counsel/lawyer/Advocate being within the power of the court, the court may grant the leave subject to such conditions as it thinks fit.

7. A Division Bench of the Calcutta High Court in Firm Mohan Lal Sewlal v. Probodh Krishna, AIR 1950 Cal 576. observed as under (at p. 576):

'It is true that before the Court grants the leave to discharge a lawyer under Order 3, Rule 4 C.P.C. the Court is entitled to make suitable provisions for the payment of the sums due to the outgoing pleader in respect of the service rendered by him and in respect of the costs incurred by him on behalf of his client. We also agree with Mr. Ghosh that as a subterfuge the petitioner cannot engage another lawyer without formally discharging the previous lawyer and without arranging for payment of the sums due to him.'

The provisions of Order III, Rule 4 came up for consideration before a Division Bench of Nagpur High Court in In re Application of an Advocate to retire from the case, AIR 1951 Nag 278. In para 6 of the report, it was observed as under:

'The leave of the Court is, however, necessary for the termination of the appointment of a counsel once made. The granting of leave being within the power of the Court, the court may grant the leave subject to such conditions as it deems fit. One of such conditions, having regard to the circumstances of a particular case, may be payment of fee to the counsel whose appointment the party wants to terminate.'

In the Nagpur case, a decision of the Calcutta High Court in Punkaj Kumar Ghose v. Sudheer Kumar Shikdar, AIR 1934 Cal 58 was referred.

8. A learned single Judge of the Karnataka High Court in City Improvement Trust Board v. M. P Ramanna, AIR 1974 Kant 88 has examined in detail the provisions of Order III, Rule 4 (2), C.P.C. It was held that a client has the opportunity to change his counsel during the pendency of a case and is entitled to leave of the Court to do so. To quote the learned Judge (at pp. 91, 92):

'But that leave will be subject to the condition that he pays the fee determined by the Court granting the leave. In case there is an agreement between the client and his Advocate with regard to the fee payable for the entire case and there is no proof of misconduct on the part of the Advocate, or where the Advocate himself has not discharged the client, leave will be granted subject to the condition that the client pays the full fee agreed upon for the entire case. If there is no agreement between the client and the Advocate with regard to the fee payable to the Advocate, then leave will be sanctioned, where the Advocate himself has not discharged the client, on payment by the client of such fee which is found reasonable by the Court on the basis of quantum meruit taking into consideration all the circumstances of the case.'

It is, therefore, clear that while granting leave, the Court can impose the condition of the payment of fee to the counsel whose appointment, the party wants to terminate. The reason is that it is not open to a client to engage anotherlawyer without paying the fee to theoutgoing lawyer.

9. In these circumstances, in my opinion, the learned Civil Judge has not exercised jurisdiction not vested in him by law when he directed about the payment of fee to Shri Gaur.

10. It was next contended by Mr. Bhansali that the learned Civil Judge has further exercised jurisdiction not vested in him by law when he directed that full fee of the suit should be paid to Shri Gaur. He referred to Clause 3 (a) of the Terms of Engagement of Advocates for District Courts, Clause 3 (a) is as follows:

'Half of the total fee shall become payable soon after the written statement is filed and the remaining half shall be payable at the conclusion of the suit after judgment is announced.'

Suffice it to say that this clause deals with the mode of payment of the fee and it cannot be availed of when the party, engaging the counsel, terminates his appointment aS held in City Improvement Trust Board's case (AIR 1974 Kant 88) that where there is an agreement between the client and his Advocate with regard to the amount of fee payable for the entire case and there is no proof of misconduct on the part of the Advocate, or where the Advocate himself has not discharged the client, leave will be granted subject to the condition that the client pays the full fee agreed upon for the entire case.

11. Clause (1) of the Terms of Engagement of the Advocates for the District Courts provides for fee for conduct of contestable cases (suits and appeals) and it lays down that it will be paid according to the schedule of the respective High Courts subject to minimum of Rs. 15 per case.

12. In these circumstances, it cannot be said that it is a case where there is no agreement, and so leave should be given on payment of such fee as the Court finds reasonable on the basis of quantum meruit taking into consideration all the circumstances of the case.

13. Both the contentions raised by the learned counsel for the petitioner are devoid of force. I am, therefore, unable to hold that the learned Civil Judge while directing the payment of full fee to the outgoing Advocate Shri Gaur at the time of granting leave for the termination of his appointment, has exercised jurisdiction not vested in him by law.

14. The revision application has no force and it is, accordingly, dismissed summarily.


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