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Thangammal Ayiyar Vs. Krishnan (Minor) and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1930Mad132; (1929)57MLJ756
AppellantThangammal Ayiyar
RespondentKrishnan (Minor) and anr.
Cases ReferredAnnada Mohan Roy v. Gour Mohan Mullick
Excerpt:
- - ' the calcutta, allahabad and patna high courts have placed a stricter interpretation upon section 28, holding that the object of the section would be defeated by allowing exceptions to its requirements. the claim of the plaintiff-respondent before us was, therefore, clearly maintainable......civil revision petition the only point urged before us is that, having regard to section 28 of the legal practitioners act, the agreement entered into between the petitioner's husband and the 1st plaintiff is not valid and binding and therefore the 1st plaintiff is not entitled to recover any sum as remuneration for his services. this argument is admittedly opposed to the decision in subba pillai v. ramasami aiyar i.l.r.(1903) m. 512 : 14 m.l.j. 274 which will be referred to presently. as the learned chief justice before whom the case came up for disposal doubted the correctness of that decision he has referred it to a bench with the following note:this case must be referred to a bench. sitting as a single judge here i have no power to refuse to follow subba pillai v. ramasami aiyar.....
Judgment:

Madhavan Nair, J.

1. The defendant is the petitioner. This Civil Revision Petition arises out of a suit instituted by the 1st plaintiff for the recovery of Rs. 500 as vakil's fees due to him in respect of his appearance as pleader on behalf of the defendant's deceased husband, the Zamindar of Nagaram, in Summary Suit No. 559 of 1923 on the file of the Revenue Divisional Officer, Pattukotta. The 1st plaintiff died subsequent to the filing of the suit and his undivided sons were added as his legal representatives, plaintiffs 2 and 3. The case of the plaintiffs is that the 1st plaintiff, the deceased vakil Appasami Aiyar, appeared in the above suit for 28 hearings and the late Zamindar of Nagaram agreed to pay him at a certain rate per diem, and that, even if the Court thinks that the agreement is not valid, the sum claimed should be paid on the basis of quantum meruit. The defendant pleaded that the contract set up by the plaintiffs is not true or valid, and that, even if the 1st plaintiff is entitled to any remuneration, the sum claimed was excessive. The two main issues in the case were: (1) whether there was a specific contract as alleged in the plaint, and (2) whether the plaintiffs can claim compensation on the principle of quantum meruit. On these issues the learned Subordinate Judge found in favour of the plaintiffs and gave them a decree for a sum of Rs. 390 according to the rate mentioned in the agreement.

2. In this Civil Revision Petition the only point urged before us is that, having regard to Section 28 of the Legal Practitioners Act, the agreement entered into between the petitioner's husband and the 1st plaintiff is not valid and binding and therefore the 1st plaintiff is not entitled to recover any sum as remuneration for his services. This argument is admittedly opposed to the decision in Subba Pillai v. Ramasami Aiyar I.L.R.(1903) M. 512 : 14 M.L.J. 274 which will be referred to presently. As the learned Chief Justice before whom the case came up for disposal doubted the correctness of that decision he has referred it to a Bench with the following note:

This case must be referred to a Bench. Sitting as a single Judge here I have no power to refuse to follow Subba Pillai v. Ramasami Aiyar I.L.R.(1903) M. 512: 14 M.L.J. 274 although I take the liberty of saying that I think that it amounts to an absolute departure from the plain words of the section of the Statute. But that must be said, if it is to be said with effect, by a Bench and not by a single Judge.

3. Section 28 of the Legal Practitioners Act is in these terms:

No agreement entered into by any pleader with any person retaining or employing him, respecting the amount and manner of payment for the whole or any part of any past or future services, fees, charges or disbursements, in respect of business done or to be done by such pleader shall be valid, unless it is made in writing signed by such person, and is, within fifteen days from the day on which it is executed, filed in the District Court or in some Court in which some portion of the business in respect of which it has been executed has been or is to be done.

4. It is argued that the contract in this case, being an oral one, contravenes the provisions of this section and is void and so the decree of the Lower Court should be set aside. In support of this argument reliance is placed on the decisions in Kumar Kamakshya Narayan Singh v. Kalyan Singh I.L.R.(1927) Pal. 614 and Sarat Chunder Roy Chowdhry v. Chundra Kanta Roy I.L.R.(1898) C 805 both of which support the petitioner's contention; but the trend of the decisions of this Court is to the effect that, even if the agreement is opposed to the provisions of Section 28 of the Legal Practitioners Act and is invalid the pleader is still entitled to recover remuneration for his services, either in full as under the agreement or a reasonable portion thereof. The leading decision on the question is the one in Subba Pillai v. Ramasami Aiyar I.L.R.(1903) M. 512 : 1903 14 M.L.J. 274 which refers to Rama v. Kunji I.L.R.(1886) . M. 375 and Krishnaswami v. Kesava I.L.R.(1890) M. 63. two earlier decisions of this Court. In Rama v. Runji I.L.R.(1886) . M. 375 remuneration for services was decreed to a pleader in the absence of an agreement under Section 70 of the Indian Contract Act. In Krishnaswami v. Kasava I.L.R.(1890) M. 63 the plaintiff based his claim for fee on a promissory note which was not filed in Court in that suit and it was held that, though the promissory note was invalid under Section 28 of the Legal Practitioners Act, as it was not filed in any Court within fifteen days of its execution as required by that section, yet, the plaintiff was entitled to recover the amount to which he was found to be entitled for his labour. A similar view was taken in Anantayya v. Padmayya : (1892)2MLJ247 . In Sundararaja Aiyancjar v. Pattanathusami Thevar I.L.R7.(1894) M. 306. and Narasimhachariar v. Sinnavan I.L.R.(1896) M. 365 this Court held that Section 28 of the Act is no bar to a decree being passed for such reasonable remuneration as may be found due on the principle of quantum meruit. The question has been discussed at some length with reference to the principle in Subba Pillai v. Ramasami Aiyar I.L.R.(1903) M. 512 : 14 M.L.J. 274 which was also a case where a claim for fees was made by a pleader based upon a promissory note which had not been filed in Court as required by Section 28 of the Legal Practitioners Act and was in consequence invalid. It was held in that case that, though the contract was void, the pleader was still entitled to recover the out-fees advanced by him. In holding so, the learned Judges stated that the Legal Practitioners Act does not enact that no claim by a pleader for professional services rendered or for recovery of out-fees advanced shall be sustainable unless an agreement made in writing for the same has been entered into with the client and filed in Court, but only that an agreement, if any, in respect thereto, shall be void unless the same has been reduced to writing and filed in Court. This decision has been followed in Natesa Mooppan v. Ramachandra Aiyar : AIR1915Mad688 . The learned Judges in Subba Pillai v. Ramasami Aiyar I.L.R.(1903) M. 512 : 1903 14 M.L.J. 274 seem to base their decision on the policy of Sections 28, 29 and 30 of the Legal Prac-titioneis Act, corresponding to Sections 4, 9 and 6 of the English Attorney and Solicitors Act, 33 and 34 Viet. c. 28. The policy underlying those Sections and their conclusion based upon that policy is thus stated by the learned Judges:

The policy of Sections 28, 29 and 30 of the Legal Practitioners Act, corresponding to Sections 4, 9 and 6 of the English Attorney and Solicitors Act, 33 and 34 Viet. c. 28 is that, whenever an agreement is entered into between a pleader and his client respecting his remuneration or payment for out-fees, such agreement should be reduced to writing and not only so, but also filed in Court and that, when a suit is brought upon such agreement, the Court should have the power if, in its opinion, the agreement is not fair and reasonable to reduce the amount payable thereunder or order it to be cancelled, and, in the latter case, to award such amount only as would have been decreed in the absence of any agreement between the pleader and his client. Section 30, however, provides that a pleader shall not be entitled to claim anything beyond the terms of such agreement, except in respect of services, fees, charges or disbursements expressly excepted from the agreement.

It seems, therefore, clear that, though an agreement entered into will be invalid unless reduced to writing and filed in Court, yet the pleader is not disentitled, in absence of any agreement, to claim reasonable remuneration in respect of his professional services or the repayment of out-fees advanced by him.

5. It is argued that this view amounts to an absolute departure from the plain words of Section 28 of the Statute and that 'if an oral agreement or a written agreement not filed in Court, being invalid under Section 28 of the Legal Practitioners Act and therefore unenforceable, is void' (vide Section 2, Clause (g) of the Indian Contract Act), as pointed out by their Lordships, then, the plaintiff is not entitled to any relief. I am not inclined to accept this contention in all its entirety, but I agree with it to this extent, that I am prepared to say, with due respect to the learned Judges, that the reasoning on which their conclusion is based does not appear to me to be sound. Having held that the suit contract was void, i.e., unenforceable owing to the provisions of Section 28 of the Act, the learned Judges held that the pleader was entitled to recover the amount mentioned in the agreement, apparently acting on the policy underlying Sections 28 to 30 of the Act, which they thought justified them in dealing with the case as if it was one in which there was 'an absence of an agreement,' i.e., in which no agreement was pleaded by the parties. It is open to question whether the policy underlying Sections 28 to 30 of the Act is intended to enable the Court to deal with the case in this manner, when the agreement which is the basis of the suit is void under Section 28. These Sections refer specifically to 'such agreements,' i.e., agreements valid under Section 28 and provide that in enforcing such agreements Courts may modify or cancel them and that such agreements shall exclude further claims of the pleader, etc., I find it difficult to extract from these Sections any policy of the Legislature which would justify the Court in ignoring the provisions of Section 28 when the plaintiff relies on an 'agreement' as the basis of his claim. Thus far, I agree with the contentions of the appellant; but having regard to the uniform course of decisions in this Court, I think it must be held that it is too late to give effect to the arguments now urged; and to decline to give the plaintiffs any relief in respect of the 1st plaintiff's claim especially so; as I am prepared to hold that, though the contract is void, the respondent in Subba Pillai v. Ramasami Aiyar I.L.R.(1903) M. 512: 14 M.L.J. 274 is entitled to succeed having regard to the provisions of Section 65 of the Indian Contract Act which deals with the obligation of a person to restore any advantage received by him under an agreement which is 'discovered to be void' or to make compensation for it. The section runs as follows:

When an agreement is discovered to be void ... any person who has received any advantage under such agreement or contract is bound to restore it, or to make compensation for it, to the person from whom he received it.

6. The expression 'discovered to be void' in this section has caused some difficulty in its application. In Sibkisor Ghose v. Manik Chandra (1915) Cri.L.J. 618. Mr. Justice Mukerjee pointed out that an agreement which is opposed to Section 28 of the Legal Practitioners Act being ab initio void cannot be said to be an agreement discovered to be void within the meaning of Section 65. Since then it has been held by the Privy Council that an agreement 'discovered to be void' would include an agreement ab initio void. In Harnath Kuar v. Indar Bahadur Singh (1922) L.R. 50 IndAp 69 : I.L.R. A. 179 : 44 M.L.J. 489 (P.C.) their Lordships held that an agreement 'discovered to be void' within the meaning of this section is one discovered to be not enforceable by law, and, on the language of the section, would include an agreement that was void in that sense from its inception as distinct from a contract that becomes void. This decision has been approved by the Privy Council in Annada Mohan Roy v. Gour Mohan Mullick in which their Lordships held that the time at which an agreement is discovered to be void within the meaning of Section 65 of the Indian Contract Act is in the absence of special circumstances the date of the agreement. In the case before us, the agreement in question was manifestly void from its inception as it contravened the provisions of Section 28 of the Legal Practitioners Act, and as such an agreement can be described to be one discovered to be void within the meaning of Section 65 of the Indian Contract Act as explained by the Privy Council the defendant's husband was bound to make compensation to the 1st plaintiff for the advantage which he has received under the contract. It has not been argued before us that the sum awarded to the respondents by the Lower Court is excessive or disproportionate to the services rendered by the 1st plaintiff. The decree awarding the plaintiff Rs. 390 can be thus justified under Section 65 of the Indian Contract Act.

7. I would uphold the decision of the Lower Court and dismiss this Civil Revision Petition with costs.

Cornish, J.

8. I agree. The agreement made between the pleader and his client as to the pleader's remuneration was a verbal agreement, and, therefore, a compliance with the requirements of Section 28, Legal Practitioners Act, was impossible. That, however, according to the construction put upon the section by the rulings of this Court (see Rama v. Kunji I.L.R.(1886) . M. 375 Krishnaswami v. Kesava I.L.R.(1890) M. 63 Anantayya v. Padmayya : (1892)2MLJ247 and Subba Pillai v. Ramasami Aiyar I.L.R.(1903) M. 512 : 1903 14 M.L.J. 274) does not preclude the pleader from recovering the amount which he could properly claim for work done and disbursements made by him on behalf of the client in pursuance of the agreement. The abovementioned decisions make no distinction between a verbal agreement, which is incapable of being filed in accordance with the requirements of Section 28, and an agreement in writing which is invalid because it has not been filed. The view taken by this Court is that the purpose of Section 28 is to give the Court a control over agreements between pleaders and their clients with respect to fees and costs, and is not intended to make the right of the pleader to recover his fees, etc., conditional upon the agreement fulfilling the requirements of the section. A Section for this view is to be found in Section 29, which enables the Court to order an agreement, otherwise in order 'to be cancelled if the agreement is not proved to be fair and reasonable, and the costs, fees, charges and disbursements in respect of the business done to be ascertained in the same manner as if no such agreement had been made.' The Calcutta, Allahabad and Patna High Courts have placed a stricter interpretation upon Section 28, holding that the object of the section would be defeated by allowing exceptions to its requirements. But even assuming the stricter interpretation to be preferable it is certainly too late now to resist the current of authority of this Court.

9. There is no doubt that the relations of the parties are contractual notwithstanding that the agreement is invalid by virtue of Section 28. In the cases where the question has arisen, although it has been recognised that the pleader is entitled to recover, the precise footing upon which he can do so has been left in some uncertainty. In Rama v. Kunji I.L.R.(1886) M. 375 it seems to have been considered by the Court that the suit by the pleader being for work and labour done, might lie under Section 70, Indian Contract Act. The question was further considered in Sibkisor Ghose v. Manik Chandra (1915) Cri.L.J. 618 and it was there pointed out that Section 70 could not apply to a claim based on contract. The learned Judges in that case expressed the further opinion that Section 65, Contract Act, would be unavailing in aid of a claim arising out of an agreement void by Section 28 of the Legal Practitioners Act, for the reason that the agreement being void ab initio could not be aptly described as an agreement which has been discovered to be, or has become void. All doubt upon this point has, however, been resolved by the ruling of the Judicial Committee in Harnath Kuar v. Indar Bahadur Singh (1922) L.R. 50 IndAp 69: I.L.R. 1922 A. 179: 1922 44 M.L.J. 489 (P.C.) where their Lordships laid down that an agreement discovered to be void is one discovered to be not enforceable by law, and on the language of Section 65 would include an agreement that was void in that sense from its inception as distinct from a contract that became void. And in Annada Mohan Roy v. Gour Mohan Mullick their Lordships emphasise this principle that an agreement is discovered to be void from the date of the agreement. The claim of the plaintiff-respondent before us was, therefore, clearly maintainable.


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