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Kamini Moni Debi Vs. Khettra Mohun Ganguli - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in13Ind.Cas.43
AppellantKamini Moni Debi
RespondentKhettra Mohun Ganguli
Cases ReferredKamini Debi v. Khetter Mohan
Excerpt:
legal practitioners act (xviii of 1879), sections 27, 28 pleader and client - fee payable by party to his own pleader--agreement to pay fee, how to be made--agreement in contravention of section 27, if of avail to pleader either as plaintiff or as defendant. - .....and the client and irrespective of the fees allowed by the court, the pleader is entitled to claim the fees settled, provided he carries out the terms of section 28 of the legal practitioners act. under these circumstances, in spite of the contrary view accepted by the learned judges of the madras and allahabad high courts, we are unable to adopt the restricted interpretation suggested by the learned vakil for the first defendant.6. it has been finally suggested by the learned vakil for the first defendant that some allowance might possibly be made to his client in the shape of reasonable fees for the services rendered. as was pointed out on a previous occasion, no such claim was put forward in the court below, possibly on the assumption that a claim in respect of an unascertained.....
Judgment:

1. This Rule was heard ex parte on the 6th December last and was made absolute. The opposite party, who was the first defendant in the suit, subsequently applied to us to allow him an opportunity to make his submissions on the matter, and we acceded to his request as it transpired that, through no fault of his learned Vakil, he had not been represented at the original hearing. We have now heard the parties at considerable length and examined all the arguments addressed to us.

2. The petitioner sued to recover from the first defendant a sum of money which the latter had withdrawn from Court where it had been deposited by the plaintiff. He resisted the claim on the ground that he was entitled to retain the sum withdrawn as he had a lien upon the money to the extent of Rs. 100, for fees due under an agreement for professional services rendered. The Court below came to the conclusion that the plaintiff was not entitled to succeed because fees were due from her to the first defendant and the latter was consequently entitled to appropriate the sum withdrawn from the Court in satisfaction of his dues.

3. This decision has been assailed on behalf of the plaintiff on the ground that the agreement set up by the defendant is in contravention of Section 28 of the Legal Practitioners Act, 1879, and is consequently of no avail whether the Pleader seeks to enforce the agreement as plaintiff or relies upon it in answer to the claim by the client. In support of this view, reliance has been placed upon the case of Sarat Chunder Roy Chowdhry v. Chundra Kant Roy 25 C. 805.

4. On behalf of the first defendant, it has been1 argued that Section 28 is restricted in it application to cases where the agreement is for payment of fees in excess of the fees prescribed by Section 27. It has been pointed out that the first defendant as the Pleader for the plaintiff in a proceeding under the Probate and Administration Act was entitled to receive at least Rs. 170 as fees, and that consequently an agreement to pay Rs. 100 is not within the scope of Section 23 of the Legal Practitioners Act, 1879. In support of this position reliance has been placed upon certain observations in the case of Sarat Chundra Chowdhry v. Chandra Kant Roy 25 C. 805 as also upon the decisions of the Madras High Court in the cases of Rama v. Kunji 9 M. 375; Krishnasami v. Kesava 14 M. 63; Anantoyya v. Padmayya 16 M. 278; Sundararaja Ayyangar v. Pattanathusamy 17 M. 306 and Subba Pillai v. Rama Saiomi Ayyar 27 M. 512 and of the Allahabad High Court in the cases of Razi-ud-din v. Karim, Baksh 12 A. 169; Raghunath v. Sriram 28 A. 764 : A.W.N. (1906) 235 : 3 A.L.J. 579 (F.B.) 1 M.L.T. 242 and Channu Lal v. Ashrafi Lal 4 A.L.J. 535. It may be conceded at once that the observations contained in the decisions of the Madras and Allahabad High Courts upon which reliance has been placed do tend to support the restricted interpretation of Section 28 suggested on behalf of the first defendant. We are not bound, however, to accept those decisions as authorities binding upon us, specially in view of the fact that in the most recent decision on the subject Channu Lal v. Asharfi Lall 4 A.L.J. 535 the learned Judge who followed the cases of Razi-ud-din v. Karim Baksh 12 A. 169; Raghunath v. Sriram 28 A. 764 : A.W.N. (1906) 235 : 3 A.L.J. 579 (F.B.) 1 M.L.T. 242; adopted the view previously taken with considerable reluctance and stated that if the matter were res integra he would have been. prepared to take the opposite view. It is, therefore, necessary that we should examine and construe the provisions of the Legal Practitioners Act on the subject.

5. Chapter VI of the Legal Practitioners Act consists of five Sections which deals with the question of remuneration of Pleaders, Mukhtiars and Revenue Agents. The first of these, Section 27, authorises the High Court and the Chief Controlling Revenue Authority in any place to fix the fees in Civil and Revenue Proceedings. These are fees payable by any party to his opponent in respect of the fees of the Advocate, Pleader, Vakil, Mukhtiar, Attorney employed by his adversary. It cannot be disputed that Section 27 has no reference to the fees payable by a party to his own Advocate, Pleader or Vakil. That payment is necessarily regulated by the agreement between the parties concerned. Section 28 deals with cases of this description, namely, agreements by Pleaders with clients for payment for services rendered. That Section provides that no agreement entered into by any Pleader, Mukhtiar or Revenue Agent 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 disbursement in respect of business done or to be done by such Pleader, Mukhtiar or Revenue Agent shall be valid, unless, it is made in writing, signed by such person, and is within 15 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. It is obvious, therefore, that an agreement between a Pleader and his client respecting the amount and manner of payment for the whole or any part of services fees in respect of business done or to be done must be embodied in an instrument in writing signed by the client and filed within a specified period in a proper Court. Section 29 then authorises the Court to modify or cancel such an agreement; that is, an agreement between a Pleader and his client as mentioned in Section 28. Section 30 provides that an agreement of this description excludes further claims. Section 31 deals with cases of negligence on the part of the Pleaders and need not be considered for our present purposes. Now, it cannot be disputed that Section 28 is, by the very generality of its language, comprehensive enough to include every agreement between a Pleader and his client for the payment of fees for professional services. It has been argued, however, that the scope of the Section ought to be narrowed and that it ought to be applied only to cases in which the agreement is for the payment of fees in excess of those prescribed under the rules framed under Section 27. Two objections, each of them insuperable, may obviously be taken to such a restricted interpretation. In the first place, there is no good reason why we should construe the words 'no agreement' in Section 28 as equivalent to the expression 'no agreement for payment of fees in excess of those prescribed by the rules framed under Section 27'. If we were to accede to the contention of the first defendant, we would have to insert in the statute words not to be found there. In the second place, whereas Section 28 refers not merely to the payment of fees but also to the payment of charges or disbursements in respect of business done, Section 27 deals only with the fees payable by a party to his adversary on account of fees due to Pleaders, Advocates or Vakils. Consequently, if Section 28 is restricted to the case of fees in the light of the provisions contained in Section 27, the same restrictions would have to be placed in the case of payments, charges or disbursements, although Section 27 does not deal with those matters at all. In our opinion, Section 28 embodies an extremely salutary Rule and it would not be right for us to restrict its scope and operation in the manner suggested by the learned Vakil for the first defendant. There is no question of hardship when the terms of the statute are perfectly plain. But we are not satisfied at all that even the most liberal interpretation and stringent application of Section 28 would really cause any hardship to an honest professional man. A Pleader can always protect himself by a faithful adherence to the provisions of the law on the subject, which cannot cause him any inconvenience. We may add that Section 27 deals only with the question of fees payable by a party to his adversary. Those fees have no relation to the fees actually paid by the adversary to his own Pleader, Vakil or Attorney. It is well known that the fees allowed in conformity with the rules framed under Section 27 of the Legal Practitioners Act do not by any means represent the fees which litigants have to pay to their own Pleaders, Vakils or Advocates. They are as a rule very much in excess of what has been described before us as 'legal fees' but sometimes they may be less. Unless the Pleader agrees with his client that he would accept whatever may be allowed by the Court as against the adversary, the fee is a matter of agreement between the Pleader and the client and irrespective of the fees allowed by the Court, the Pleader is entitled to claim the fees settled, provided he carries out the terms of Section 28 of the Legal Practitioners Act. Under these circumstances, in spite of the contrary view accepted by the learned Judges of the Madras and Allahabad High Courts, we are unable to adopt the restricted interpretation suggested by the learned Vakil for the first defendant.

6. It has been finally suggested by the learned Vakil for the first defendant that some allowance might possibly be made to his client in the shape of reasonable fees for the services rendered. As was pointed out on a previous occasion, no such claim was put forward in the Court below, possibly on the assumption that a claim in respect of an unascertained sum could not have been urged by way of defence to a suit for recovery of a specified amount. It is, therefore, not necessary for us to consider whether if such a claim had been put forward, the defendant would have been entitled to succeed. The oases of Raghunath v. Sriram 28 A. 764 : A.W.N. (1906) 235 : 3 A.L.J. 579 (F.B.) 1 M.L.T. 242; Razi-ud-din v. Karim Bakhsh 12 A. 169 and the decisions of the learned Judges of the Madras High Court to which we have already referred, seem to support the view that, under such circumstances, a Pleader may be entitled to a reasonable remuneration for the services rendered. But it is worthy of note that the contrary view has been maintained by the learned Judges of the Punjab Chief Court. Hazari Lal v. Tilok Ohand 136 P.R. 1898.

7. It is worthy of note that the decision of this Court in the case of Sarat Chandra Roy Chowdury v. Chandi Charan Mitra 7 C.W.N. 300 is not contrary to the view we adopt. In that case, the learned Judges came to the conclusion that there was no agreement for payment of any fees by the client to his Pleader and that, consequently, the only amount which the Pleader could legitimately claim was the amount paid by the adversary of his client in conformity with the rules framed under Section 27 of the Legal Practitioners Act; and we may observe that this amount was directed by the Court to be divided equally amongst the four Pleaders who had been employed by the successful litigant. In the case before us, the defence can succeed only upon proof of the alleged agreement for the payment of Rs. 100 as fees by the plaintiff to the first defendant. That agreement is in contravention of the provisions of Section 28 and is, therefore, one of which the law will take no notice if it is sought to be enforced by the Pleader or set up in defence to a claim by the client for recovery of her money in the hands of her Pleader. Upon a consideration, then, of the authorities to which our attention has been drawn and upon the true construction of the statute, we are clearly of opinion that the previous judgment, to which one member of this Bench was a party Kamini Debi v. Khetter Mohan 15 C.W.N. 681 : 11 Ind. Cas. 382 is correct, and that decision will consequently stand. The first defendant must pay the plaintiff his costs in this Court. We assess the hearing fee for the two occasions at two gold mohurs.


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