Skip to content


In Re: Arunachala Aiyar, Attorney High Court - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Reported inAIR1924Mad793
AppellantIn Re: Arunachala Aiyar, Attorney High Court
Cases ReferredKhetter Kristo Mitter v. Kally Prosunno Ghose
Excerpt:
- .....in the vakalat that no counter agreement was made between himself and the attorney, in respect of costs. the vakalat was accepted and filed and mr. arunachala aiyar, the attorney, appeared on record, for the counter-petitioner, during certain stage of the proceedings and subsequently there was a change of attorney and mr. v.v. devanathan was engaged as vakil. the attorney does not claim for any work done after the change of attorney and so far as i can see there is nothing to prevent the attorney from recovering fees due to him for work done by him, till there was a change. the attorney has filed an affidavit wherein he states that he appeared, that a number of affidavits, about 10 in number, were filed, that two witnesses were examined, that the application was on board for a number of.....
Judgment:

Kumaraswami Sastri, J.

1. This is an application by the Attorney, who appeared for the auction-purchaser, the counter-petitioner for an order that the petitioner should be declared to have a charge, on the premises, more particularly described in the schedule, in respect of the costs, which are due to the Attorney, the counter-petitioner having engaged him, for the purpose of appearing in the application, to set aside the sale of the property, wherein he was declared the purchaser. It is clear from the Vakalat, which the counter-petitioner admittedly executed in favour of the Attorrey that he engaged Mr. Arunachala Aiyar, the Attorney, to appear for him and get the sale confirmed and oppose the application for setting aside the sale and that he had agreed to pay him costs, according to the scale laid down by the High Court Fee Rules, 1902. The counter-petitioner declares in the Vakalat that no counter agreement was made between himself and the Attorney, in respect of costs. The Vakalat was accepted and filed and Mr. Arunachala Aiyar, the Attorney, appeared on record, for the counter-petitioner, during certain stage of the proceedings and subsequently there was a change of attorney and Mr. V.V. Devanathan was engaged as Vakil. The Attorney does not claim for any work done after the change of attorney and so far as I can see there is nothing to prevent the Attorney from recovering fees due to him for work done by him, till there was a change. The Attorney has filed an affidavit wherein he states that he appeared, that a number of affidavits, about 10 in number, were filed, that two witnesses were examined, that the application was on board for a number of days, that it was heard for two days, and that the sale was confirmed. He says that the costs of the application were taxed by him and that his costs, excluding Counsel's fees, came to Rs. 305 and that it has not been paid, in spite of demands. The Attorney states that at the request of the counter-petitioner he gave a change of attorney to Mr. V.V. Devanathan and that although the Attorney has been demanding payment of the fees due to him the counter-petitioner is executing the decree for costs but has not paid him anything.

2. The affidavit of the counter-petitioner states that it is false that he engaged Mr. Arunachala Aiyar, or that he agreed to pay him anything and that he took no instructions from him, in respect of the subject matter in dispute. He says that at the instance of the decree-holder, his son-in-law, Mr. P. Rajagopala Aiyangar, formally engaged the Attorney, so as to enable him to appear and do his best for his father-in-law, in the matter, that he does not owe anything to the Attorney and that the Attorney did nothing in the matter, that he gave a change of attorney to Mr. V.V. Devanathan voluntarily, that he paid large sums to Mr. V.V. Devanathan. He also says that Mr. V.V. Devanathan himself was overpaid by him. I find it difficult to believe the counter-petitioner's affidavit. It is not disputed that the Vakalat was filed and the terms of the Vakalat are clear. He agrees to pay the Attorney his regulation fee, under the Original Side Rules and distinctly states there was no counter-agreement between the Attorney and the counter-petitioner I do not think that in the face of the Vakalat, it is open to the counter-petitioner to plead that he never engaged the Attorney, and never agreed to pay him any amount. That the Attorney did appear when the case came on is not disputed and I think it is a matter of great regret that the allegations in paragraphs 2 and 3 should ever have been made. When a person engages a professional gentleman and signs a Vakalat for that purpose, it is impossible to allow him to be heard to say that the whole thing was merely a farce and that he is under no liability to pay the professional gentleman. Oral evidence of any agreement is inadmissible to contradict the terms of a written-contract. The bill of costs in this case has been taxed at Rs. 549,as between party and party and what the Attorney claims is the portion that is due to him for work done and this according to the petitioner amounts to Rs. 305. The costs have been taxed by the Deputy Registrar and I take it that the costs were the costs that were lawfully due to the Attorney. It is significant that the counter-petitioner is attempting to recover the costs so taxed from the other side, while he is denying liability to pay the Attorney.

3. Under these circumstances, there can be no doubt that the Attorney is entitled to Rs. 305, which is his due. Any over-payment to Mr. V.V. Devanathan, or any request by the decree-holder to contest the proceedings is a matter with which the Attorney has absolutely no concern. If the decree-holder asked the auction purchaser to contest and should there be anything in the nature of a promise by him to pay the costs incurred, it is open to the counter-petitioner to get the money from the decree-holder, and if Mr. V.V. Devanathan has been over-paid it is a matter between him and the counter-petitioner.

4. As regards the objection taken the I have no jurisdiction to make the order, I think the authorities, which Mr. Mockett has cited give the Court power where a party wants to defeat his Attorney's claim for costs, would only refer to Khetter Kristo Mitter v. Kally Prosunno Ghose [1898] 25 Cal. 887 where we have the high authority of Sir Lawrance Jenkins, as to the power of the Court to make the order in question. There is also a clear precedent in the judgment of Coutts Trotter, J., dated 24th April, 1917, in C.S. No. 100 of 1916, where the learned Judge held that the English case on the subject are applicable and pointed out the difference between the special lien over the property recovered in an auction and the general lien given by the Contract Act, entirely agree with the learned Judge. The English case, as regards the power of the Court, is stated in Halsbury, Vol. XXVI, p. 823 and the cases cited. There will be an order declaring that the petitioner Mr. Arunachala Aiyar, is entitled to a charge on the house and ground described in the schedule to the Judge's Summons' for the sum of Rs. 305. The counter-petitioner will pay the petitioner's costs.

5. I do not think I can, having regard to the decision of Wallis, C.J., and Oldfield, J., in O.S.A. No. 62 of 1916 give costs on a higher scale, though I think the counter-petitioner's allegations are unfounded. Certify for counsel.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //