1. This petition raises an interesting point of law, viz., whether in an appeal admitting of the appearance of both a senior and a junior practitioner, and the payment of fees to both, the senior practitioner should be on record in the appeal from the date fixed for the appearance of the respondent in the appeal before his fee can be claimed, as held by the learned District Judge of Anantapur.
2. The facts were briefly these. A. S. No. 139 of 1947 was valued at Rs. 5,000, and, of course, admitted, under the Rules, of a senior and a junior practitioner appearing. The junior, Mr. T. Kodanda Rama Rao, was admittedly on record from the date fixed for the appearance of the petitioner, respondent 1. But, as is usually the case, when the stage for final hearing (and arguments) came, on 3-4-1948, he indented on a senior, Mr. P. M. Srinivasa Aiyangar, who admittedly appeared and argued the appeal. Ultimately, the learned District Judge had to consider whether Mr. Srinivasa Aiyangar's fees, certified at Rs. 125, and Mr. Kodanda Rama Rao's fees, certified at Rs. 100 could both be passed. He held that as Mr. Srinivasa Aiyangar had not been on record from the date fixed for the appearance of respondent 1 in the appeal, both the fees could not be allowed, but only Rs. 125, as per Mr. Srinivasa Aiyangar's fee certificate, as he wanted to allow the higher of the two fees, as the maximum fee allowable even to one vakil was Rs. 350 in this appeal (which was valued at Rs. 5,000) and aa this was not objected to by the other side. There was both illogicality and incorrectness in this finding, as urged by Mr. Srinivasa Aiyangar for the petitioner, before me. If Mr. Srinivasa Aiyangar, as senior, should have appeared from the date fixed for the appearance of respondent 1 before the senior fee could be allowed, only Rs. 100, certified as received by Mr. Kodanda Rama Rao, the junior, should have been allowed, and not Rs. 125, as certified by Mr. Srinivasa Aiyangar, the senior. Therein lay the illogicality. Nor could Mr. Srinivaaa Aiyangar, the senior be razed down to junior status, when there was a junior already on record, for fees purposes, by the learned District Judge.
3. The incorrectness of the lower Court's order arose from its applying the provisions of Rule 33, Legal Practitioners' Fees Rules, applicable to juniors to seniors. Rule 33 runs as follows:
'In Courts subordinate to the High Court when the amount or value of the claim in a suit or appeal exceedsRs. 1000, an additional fee, calculated at one third the fee allowable under Rules 31 and 32 above, shall be payable to a junior practitioner engaged with a senior practitioner, provided that the junior practitioner was on record from at least the date of the settlement of issues in a suit or from the date fixed for the appearance of the respondent in an appeal.'
Obvioualy, it does not intend, and could not have intended, that a senior would be entitled to his fee only if he was on record from the date of the settlement of issue in a suit or from the date fixed for the appearance of the respondent in an appeal. Just as in grave medical cases a senior doctor comes on the scene usually only when the junior doctor feels doubtful about his own ability and calls him in, and the senior doctor's fees will have to be given, provided he appeared before death and examined the patient, 30 too, the senior lawyer will only be called in when the junior feels doubta about his own competence and engages a senior who appears at the final hearing, or even at the stage of arguments, and is on record only before the suit or appeal is finally heard and decided. Often, it is the case, in the mofussil, that a senior Madras counsel is indented on at the eleventh hour, after the evi-dence is over, just for arguing the case before the Judge on the materials on record, and that will be no reason whatever for disallowing the senior his fee. Indeed, on seeing a senior appearing on the other side a junior in the mofusail often takes an adjournment for engaging a senior on his side also, on the principle that a cannon must fight cannon. By the very nature of his status, a senior cannot be expected to be on record from the date of the settlement of issues or the date fixed for the appearance of the respondent in an appeal, and to be wasting his time unnecessarily there when a junior could do the job as well in the earlier stages; and it is also desirable to encourage him to do so, in the interests of cultivating his legal talents and preventing the waste of time of high-power senior legal practitioners. It is also clear to me that it is against reason and common sense alike to apply a rule, like Rule 33 expressly made applicable to juniors to seniors. A rule applicable to junior coparcener of a Hindu joint family cannot be applied to the manager. So too here. Such rules must be strictly limited to the persons they apply to, and not extended to others of a different category.
4. In the end, therefore, I am of opinion that, in the circumstances of this case, both the senior's and the junior's fees, allowable under the Rules, should have been allowed, i. e., RS. 125 for the senior, as certified by him, and Rs. 83-5-4 for the junior, being one-third of the fee allowable, which is Rs. 250 in this case. I am not impressed by Mr. P. M. Srinivasa Aiyangar's argument that the whole of Re. 100 should have been allowed for Mr. Kodanda Rama Rao, on the ground that he (Mr. Srinivasa Aiyangar) was only the second vakil, and not merely Rs. 83-5-4. The matter has all along proceeded on the basis that) Mr. Kodanda Rama Rao was the junior vakil, and that he had called in Mr. Srinivasa Aiyangar as senior. The petition before the learned District Judge was to amend the decree by including Rs. 125 the fee due to Mr. Srinivasa Aiyangar, the senior practitioner in addition to the Rs. 100 already allowed to the junior, Mr. Kodanda Rama Rao. I cannot now allow the new theory that both the practitioners were equal colleagues and acted as one unit. Of course, two, or even twenty vakils may appear for one party, and may appear as one unit or team, all being equal and joint, there being no senior or junior. In such a case, only one joint fees certificate will usually be filed, and one of the vakils so appearing will not be called senior and one junior, as here, and only one fee can be allowed, and not both the senior and the junior fees. That is not the case here. So, Mr. Kodanda Rama Rao, the junior must lose the excess of Rs. 16 10-8 claimed by him and for him, though, even if he is allowed the Rs. 100 in full, the total fees of junior and senior would only be RS. 225, or below Rs. 250, allowable even to one vakil under the rules. Of course, the senior, Mr. Srinivasa Aiyangar, could have stipulated fee and received a fee of Rs. 250, and certified to it. Then both his fee of Rs. 250 and the junior fee of RS. 83-5-4 would have been allowable. But the junior could only be allowed a maximum fee of RS. 83-5-4 (1/3 of the fee allowable) though he received RS. 100 and certified to it. Rule 33 must be strictly enforced here also, though it will operate against the petitioner, as it was applied earlier when it operated for him.
5. Mr. Umamaheswaram, for the plaintiff-respondent, urged that Rule 33 would apply only in a case where a senior practitioner engaged a junior practitioner, along with him, in an appeal, and the junior practitioner, so engaged, was on record from the date fixed for the appearance of the respondent in the appeal. But the phrasing of Rule 33 does not show that the senior should be first in the field, and that the junior must be engaged by him to assist him. The rule will equally apply to a case of a junior who is first in the field and engages a senior at the critical moment to aid him in the trial or arguments, as the case may be.
6. The phrase is: 'a junior practitioner engaged with a senior practioner' and not 'a junior practitioner engaged with a senior practitioner already on record.' The rule must, as already said, be interpreted strictly, and in itsnatural sense, be it for or against the petitioner or respondent.
7. In the end, therefore, the lower Court's order is modified and revised, and an additional fee of Rs. 83-5-4 for Mr. Kodanda Rama Rao, the junior, allowed the fees of Rs. 126, already allowed by the learned District Judge, held to be the senior's fees.
8. AS the point has not been shown to be covered by a direct decision of any High Court before, and is apparently decided by me for the first time. I direct all the parties to this petition to bear their own costs.