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Becharam Lahiry Vs. Sudebi Dasi - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1922Cal567,67Ind.Cas.874
AppellantBecharam Lahiry
RespondentSudebi Dasi
Cases ReferredIshan Chandra Kar v. Ram Charan Pal
Excerpt:
legal practitioners act (xviii of 1879), section 28, application of--suit by pleader for fee based upon agreement--fee, amount of, not fixed. - .....that section 28 was a bar. in sarat chandra roy v. chandi charan mitra 7 c.w.n. 300, to which i was referred, as also in the sane in sib kishore ghosh v. manik chandra nath 29 ind. cas. 453 : 21 c.l.j. 618, already referred to, there was no agreement. consequently, clearly the cases there did not fall within the provisions of section 28. i was also referred to the case of ishan chandra kar v. ram charan pal 26 ind. cas. 960 : 20 c.l.j. 445. it seems to me that that case decides that a suit by a pleader for fees based upon an alleged oral agreement, as here, cannot succeed because it is not a valid agreement as it is a special agreement and any special agreement is to be in writing under the provisions of section 28. i think that the true rule is that where a suit by a pleader for fees.....
Judgment:
ORDER

Greaves, J.

1. This Rule was granted at the instance of the plaintiff under the provisions of Section 25 of the Provincial Small Cause Courts Act. The plaintiff's suit was based upon an oral agreement whereby he says the defendant engaged him as Pleader and agreed to pay reasonable and proper fees for the work done. The claim of the plaintiff extends to a claim for compensation for the termination of his services, and it would, therefore, appear, although it is not actually stated, that the agreement relied on was one for employment of the plaintiff during the entire course of the work for which he was employed. The Subordinate Judge has rejected the claim on the ground that the suit cannot succeed by virtue of the provisions of Section 28 of the Legal Practitioners Act. Section 28 provides that no agreement entered into by a Pleader respecting the amount and manner of payment for services is to be valid unless it is made in writing signed by the persons to be charged and filed in the District Court or in some other Court within fifteen days from the date on which it is executed, But it is urged before me on behalf of the plaintiff that the agreement in question does not fall within the provisions of Section 28 because it is said that as the agreement was only to pay reasonable and proper fees no amount was fixed within the meaning of the word 'amount' in Section 28, and the learned Vakil for the plaintiff further contends that the agreement was not an agreement at all because the plaintiff is only suing for fees that he was entitled to, I suppose he means under Section 27, although it would not appear that these fees or, at any rate, all of them fall within the purview of Section 27.

2. So far as the second point is concerned, I do not think it is now open to the plaintiff to say that the agreement was not, in fast, an agreement. He has pleaded it in paragraph 4 of his plaint as an agreement and the case has been argued and decided on that footing.

3. So far as the other point is concerned, the plaintiff has relied upon the case of Sib Kishore Ghosh v. Manik Chandra Nath 29 Ind. Cas. 453 : 21 C.L.J. 618, as an authority for the argument that where there is no fixed and definite amount the agreement is not within the provisions of Section 28. But it seems to me that that case is not an authority for the proposition for which the plaintiff contends because, as is pointed out in the judgment, there was, in fact, no agreement alleged and consequently if no agreement was alleged there was nothing to attract the provisions of Section 28, I think, therefore, that Sib Kishore Ghosh v. Manik Chandra Nath 29 Ind. Cas. 453 : 21 C.L.J. 618 does not support the plaintiff's contention. Then on behalf of the defendant, I was referred to the case of Raghunath Saran Singh v. Sri Ram 28 A. 764; A.W.N. (1906) 235 : 3 A.L.J. 579: 1 M.L.T. 242 (F.B.). That was a Full Bench case and the suit was based on an oral promise to pay full legal fees and to engage the plaintiff as Pleader on behalf of the defendant. The Allahabad Court held that this agreement was barred by the provisions of Section 28 and Mr. Justice Richards, as he then was, states at page 767 that in his view Section 28 was intended to provide that all special agreements between a Pleader and his client should be in writing signed and filed according to the provisions of the section. It seems to me that if that case was rightly decided it covers the plaintiff's contention in the present application. There was no stated amount fixed in the agreement alleged and if the plaintiff's contention is right that would take him out of the provisions of Section 28, but in spite of that it was held that Section 28 was a bar. In Sarat Chandra Roy v. Chandi Charan Mitra 7 C.W.N. 300, to which I was referred, as also in the sane in Sib Kishore Ghosh v. Manik Chandra Nath 29 Ind. Cas. 453 : 21 C.L.J. 618, already referred to, there was no agreement. Consequently, clearly the cases there did not fall within the provisions of Section 28. I was also referred to the case of Ishan Chandra Kar v. Ram Charan Pal 26 Ind. Cas. 960 : 20 C.L.J. 445. It seems to me that that case decides that a suit by a Pleader for fees based upon an alleged oral agreement, as here, cannot succeed because it is not a valid agreement as it is a special agreement and any special agreement is to be in writing under the provisions of Section 28. I think that the true rule is that where a suit by a Pleader for fees against his client is based on an agreement he cannot succeed unless the agreement is both in writing signed by the party to be charged and filed as provided in the section. Consequently, no suit upon an oral agreement can succeed by virtue of the provisions of Section 28.

4. That being so, I think the Rule must be discharged with costs. I assess the hearing fee at one gold mohur.


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