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Case Number

Civil Ref. No. 1 of 1954

Attorney(S)

S.C.Roy
M.Mohanty

Judges

Hon'ble Mr. Justice Lingaraj Panigrahi
Hon'ble Mr. Justice Paramkusam Venkata Balakrishna Rao
Hon'ble Mr. Justice Souri Prasad Mohapatra

Acts

Section 35 of the CPC.3. Apart from the provisions of S. 35 of the Code,
provisions of the Legal Practitioners Act, or the Bar Councils Act.
Sections 14 and 15 of the Legal Practitioners Act,
SECTION 14 LEGAL PRACTITIONERS ACT
LEGAL PRACTITIONERS ACT
L.P Act or the Bar Councils Act,

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Smart Summary

Structured Summary of the Opinion (Mohapatra, J.)

Factual and Procedural Background

The petition was filed by Sri A. Krishna Rao, a pleader who had been the opposite party in a reference decided by a Special Bench of the Court on 29-4-1954 (reported as State of Orissa … v. A. Krishna Rao, AIR 1955 Ori 46). The reference originated from an order of the District Judge of Cuttack under Section 14 of the Legal Practitioners Act and concerned allegations that the pleader had committed an act "which was grossly improper in the discharge of his professional duty."

The Special Bench found the pleader guilty of gross misconduct but, because he was an inexperienced junior, imposed only a reprimand. The Special Bench nevertheless ordered the pleader to pay the costs of the reference and assessed a hearing fee of Rs. 100. The present petition, brought by Mr. Mohanty on behalf of the pleader, challenged the validity of the order for costs.

The primary procedural contest before the Court concerned whether the High Court had jurisdiction to order costs in proceedings under the Legal Practitioners Act and whether costs could properly be awarded to the Advocate-General representing the State.

Legal Issues Presented

Whether the High Court had jurisdiction/power to award costs in a proceeding under the Legal Practitioners Act (particularly under Sections 13 and 14, and by analogy Section 15) when a pleader is found guilty of professional misconduct.
Whether the order for costs made by the Special Bench (hearing fee Rs. 100) was beyond the Court's jurisdiction.
Whether costs should be awarded to the Advocate-General when the State is a party (including whether the English Crown rule that the Crown neither pays nor receives costs applies in India and/or prevents the Advocate-General from receiving fees).
Whether the Code of Civil Procedure (specifically Section 35) or the High Court's inherent powers were applicable to award costs in proceedings under the Legal Practitioners Act, given that such proceedings are quasi-criminal in character.

Arguments of the Parties

Appellant's (Pleaser's Counsel, Mr. Mohanty) Arguments

The order for costs was without jurisdiction because the Legal Practitioners Act does not empower the Court to award costs in such proceedings; the Court's powers are confined to ordering acquittal, suspension, or dismissal under Section 14 of the Act.
The statutory power to award costs exists in Section 35 of the Code of Civil Procedure, but proceedings under the Legal Practitioners Act are quasi-criminal, so the CPC does not apply and Section 35 cannot be invoked to award costs.
Separately, Mr. Mohanty contended that no costs should have been awarded to the Advocate-General who appeared for the State, invoking the English Crown practice that the Crown neither pays nor receives costs, and suggesting that rule should be applied where the State is a party.

The opinion does not set out any detailed or discrete written arguments advanced on behalf of the State or the Advocate-General; it records that the Advocate-General was heard.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State of Orissa … v. A. Krishna Rao (reference decided by Special Bench dated 29-4-1954; reported AIR 1955 Ori 46)	Factual antecedent: Special Bench found pleader guilty of gross misconduct, reprimanded him and ordered payment of costs (hearing fee Rs. 100).	The order for costs made in that reference is the subject of the present petition; the Court upheld that order as within jurisdiction and dismissed the petition challenging it.
A Pleader of Agra v. Judges of the Allahabad High Court, AIR 1930 PC 60 (Privy Council)	Authority establishing that the High Court may award costs in proceedings under the Legal Practitioners Act; confirmation that an order for costs by the High Court was within jurisdiction.	The Court described this as "the best authority" on the point and relied on it to conclude that the order for costs in the present case was not without jurisdiction.
A Pleader, in the matter of, AIR 1943 Mad 250 (Special Bench)	Following the Privy Council, held that subordinate Courts lack power to award costs under sections 14 and 15 of the Legal Practitioners Act, but the High Court can, if it deems it just, order payment of costs.	The Court relied on the Madras Special Bench as a respectful and clear exposition supporting the view that the High Court has power to make orders for costs in proceedings under the Act.
Venkata Rao v. Motiram, AIR 1915 Mad 400	Statement that a District Judge has no power to award costs in a matter referred by him to the High Court under the Legal Practitioners Act; the High Court alone can award such costs.	Used to support the principle that the power to award costs in references under the Act lies with the High Court rather than subordinate courts.
Shantha Nand v. Basudevanand, AIR 1930 All 225 (Full Bench)	Held that a Court cannot, by its inherent power, award costs against an advocate personally for frivolous applications, because imposing such a penalty would amount to punishment which must be imposed only under the Legal Practitioners Act or the Bar Councils Act.	The Court distinguished this authority: it was held in a different context (power to penalise an advocate personally outside statutory disciplinary proceedings) and therefore was considered inapplicable to the present question of whether a Court disposing of proceedings under the Legal Practitioners Act may award costs.
Johnson v. King, 1904 AC 817 (House of Lords / Judicial Committee practice cited)	Headnote: the general rule that the Crown neither pays nor receives costs unless some statute governs the case or exceptional circumstances justify departure from the rule.	Panigrahi C.J. invoked this authority to explain the English rule and to consider whether it should prevent costs being awarded to the Advocate-General in proceedings where the State is a party; ultimately the Court held the English rule did not control in India for the reasons stated in the judgment.
Vaithinatha Pillai v. King Emperor, 18 Cal LJ 365 (Privy Council)	Illustrates a case where a claim for costs against the Crown in a criminal appeal was disallowed by the Judicial Committee.	Cited by Panigrahi C.J. as part of the discussion of the general English practice regarding Crown and costs; used to contrast with cases where costs were allowed against the Crown in exceptional circumstances.
Louis Edouard Lanier v. The King, 26 Mad LJ 1 (Privy Council)	An instance where the Judicial Committee allowed costs against the Crown in a criminal appeal, observing that "Looking to the exceptional nature of the case the Crown will pay to the appellant the costs of the appeal".	Panigrahi C.J. cited this as an example that the general rule regarding the Crown has recognized exceptions.
Azimullah Saheb v. Secretary of State, 15 Mad 405	Authority indicating that contractual or salary arrangements between the State and its counsel (e.g., that counsel receives a salary and also costs recoverable from third parties) do not affect a third party condemned in costs and are not contrary to public policy.	Relied upon by Panigrahi C.J. to support the proposition that there is nothing illegal in the arrangement under which the Advocate-General receives fees and out-fees and that a third party condemned in costs cannot object to that arrangement.
Mohd. Alim Oollah v. Secretary of State, 17 Mad 162 (Division Bench appellate judgment)	Reiterated the principle that an arrangement by which the State's counsel receives salary plus recoverable costs is not contrary to public policy and does not prejudice third parties bound to pay costs.	Relied upon to affirm that the Advocate-General may receive fees recoverable from third parties and that this does not render a costs order invalid.
Raymond v. Lakeman (1865) 34 Beav 584	Cited within the discussion in Azimullah Saheb and Mohd. Alim Oollah as a prior authority on the point.	Used indirectly through the cited Madras authorities to support the proposition about the validity of arrangements between State and its counsel concerning costs.

Court's Reasoning and Analysis

The Court proceeded by analyzing statutory provisions together with controlling precedents. The principal line of reasoning was:

The Court recognized Mr. Mohanty's contention that the Legal Practitioners Act (Sections 13 and 14, and by analogy Section 15) prescribes the disciplinary framework and that the powers expressly mentioned in Section 14 relate to acquittal, suspension or dismissal. Mr. Mohanty argued that Section 35 of the Code of Civil Procedure contains the statutory power to award costs, but that the CPC does not apply to quasi-criminal disciplinary proceedings under the Legal Practitioners Act.
Rather than resolving the matter purely on statutory text, the Court relied on authoritative precedents. The Privy Council decision in A Pleader of Agra v. Judges of the Allahabad High Court (AIR 1930 PC 60) was described as the best authority on the point and treated as establishing that the High Court may award costs in proceedings under the Legal Practitioners Act; the Privy Council had confirmed an order for costs made by the Allahabad High Court.
The Court also referred to the Madras Special Bench decision (AIR 1943 Mad 250), which followed the Privy Council and explicitly stated the proposition that subordinate courts lack power to award costs in proceedings under Sections 14 and 15 of the Legal Practitioners Act, but the High Court can itself order payment of costs where it deems it just. The Court treated this as a clear and unambiguous statement supporting the High Court's jurisdiction to award costs.
The older Madras decision in Venkata Rao v. Motiram (AIR 1915 Mad 400) was cited for the principle that a District Judge has no power to award costs in a reference under the Act and that the High Court alone can award such costs, reinforcing the view that the power properly resides in the High Court.
The Court considered, then distinguished, the Full Bench Allahabad decision in Shantha Nand v. Basudevanand (AIR 1930 All 225). That Full Bench dealt with whether a Court could, in ordinary proceedings, penalise an advocate personally by ordering costs for frivolous applications (a penal consequence), concluding that penalising the advocate personally could be done only under the Legal Practitioners Act or the Bar Councils Act. The Court held that Shantha Nand was inapposite to the present question (which concerned the power to award costs when disposing of a disciplinary reference under the Legal Practitioners Act).
On the question of costs payable to the Advocate-General when the State is a party, Panigrahi C.J. examined the English rule (Johnson v. King and related authorities) that the Crown neither pays nor receives costs except where statute or exceptional circumstances apply. He noted that the Code of Civil Procedure (Section 82) expressly provides for execution by and against Government in India, that English Crown practice could not be mechanically applied in India, and that there exist authorities where costs were allowed against the Crown in exceptional circumstances. The Court further observed that arrangements under which the Advocate-General receives a salary and is also remunerated by costs recoverable from third parties have been held not to be contrary to public policy (citing Azimullah Saheb and Mohd. Alim Oollah).
On the cumulative basis of these authorities and considerations — especially the Privy Council authority and the Madras High Court authorities following it — the Court concluded that the order for costs made by the Special Bench was within jurisdiction and was not improper, particularly as the State was a party and the Advocate-General had been heard.

Holding and Implications

Holding: The petition challenging the Special Bench's order for costs was dismissed. The Court held that the order for costs was not without jurisdiction, relying principally on the Privy Council decision in A Pleader of Agra and supportive Madras decisions. The petition was dismissed with costs, and the hearing fee of the petition was assessed at Rs. 50.

Implications:

The direct effect is that the Special Bench's order (which had reprimanded the pleader and ordered payment of costs, hearing fee Rs. 100) stands; the challenge to the costs order failed and the petitioner must pay the costs of this petition and a hearing fee of Rs. 50.
The Court relied on existing authorities (Privy Council and Madras High Court decisions) to confirm that the High Court has power to order costs in proceedings under the Legal Practitioners Act; the opinion does not state that it is establishing a novel principle or overruling prior authority. Therefore, the decision functions as an affirmation of the previously recognized line of authorities rather than as a newly declared precedent in itself.

Disposition: Petition dismissed (with costs). Hearing fee assessed at Rs. 50.

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A. Krishna Rao v. State Of Orissa Opposite Party.

Mohapatra, J.:— This petition has been filed by Sri A. Krishna Rao, a pleader practising in the Court of the District Judge of Cuttack, who was the opposite party in — ‘State Of Orissa… v. A. Krishna Rao…Opposite Party.’, AIR 1955 Ori 46 (A) which was disposed of by a Special Bench of this Court the judgment being dated 29-4-1954. That was a reference made by the District Judge of Cuttack under Section 14 of the Legal Practitioners Act, in a proceeding against the pleader, Sri A. Krishna Rao, for having committed an act which was grossly improper in the discharge of his professional duty.

2. In the judgment D/- 29-4-1954, the Special Bench found the pleader clearly guilty of gross misconduct in the discharge of his professional duty and, as such, he is liable to disciplinary action under the Legal Practitioners Act. But on account of the reason that the pleader is an inexperienced junior lawyer an order of reprimand was thought adequate to meet the ends of justice. The Special Bench, however, ordered the pleader to pay the costs of the reference and assessed the hearing fee at Rs. 100/-. It is against this order for payment of cost the present petition has been filed by Mr. Mohanty on behalf of the pleader. Mr. Mohanty strenuously contends that the order for costs is without jurisdiction as there is no such power given to the Court under the provisions of the Legal Practitioners Act. The proceeding was started under S. 13 of the Act for professional misconduct of pleader and order was passed under S. 14 of the Act. According to Mr. Mohanty, the powers of the Court are confined to pass an order “to acquit, suspend or dismiss” the pleader or muktear as contained in S. 14 of the Act. He further argues that the statutory provisions conferring powers to award costs are contained in Section 35 of the CPC; but the proceedings under the Legal Practitioners Act being quasi criminal, the Code of Civil Procedure has no application and the Court could not pass an order for costs in exercise of its powers under Section 35 of the CPC.

3. Apart from the provisions of S. 35 of the Code, the High Court has wide discretion in exercise of its inherent powers to award costs in suitable cases, if it finds it necessary in the interest of justice to do so. Without discussing the matter any further, we may observe the matter is covered by the best authority on the point that is, a decision of their Lordships of the Privy Council in the case of — ‘A pleader of Agra v. Judges of the Allahabad High Court’, AIR 1930 PC 60 (B).

4. In that case the pleader who was the Standing Counsel for the Agra United Mills Limited, for 6 years, was guilty of gross misconduct in having accepted a brief for the plaintiffs debenture-holders and filed the suit on 14-5-27 against the aforesaid company. The High Court of Allahabad suspended him from practising for 4 years and further passed an order that the legal practitioner must pay costs of Rs. 1100/-. Their Lordships of the Privy Council modified the order of suspension passed by the Allahabad High Court for 4 years to the effect that the order of suspension which was to commence from 23-1-1928 is to cease on 22-11-1929. But their Lordships of the Privy Council made it clear “but without any variation in that order so far as it relates to costs”.

5. It appears manifest that the order for costs passed by the Allahabad High Court was confirmed by their Lordships of the Privy Council as being within their jurisdiction and a contrary contention was never taken before their Lordships even though a very eminent counsel like A.M Dunne was appearing on behalf of the appellant legal practitioner in the case. This decision was cited before a Special Bench of the Madras High Court consisting of Leach C.J, Lakshmana Rao and Krishnaswami Ayyangar, JJ. in the case reported in ‘A Pleader, in the matter of’, AIR 1943 Mad 250 (SB) (C) in support of the contention that the High Court has power to award costs in a proceeding under the Legal Practitioners Act. This very point arose for determination in the case, as it appears from the very first sentence of the judgment of Leach C.J:

“This question raises the question whether the Court has power to award costs against a pleader charging him with professional misconduct”.

6. The judgment of the Allahabad High Court does not appear in the report published in ‘AIR 1930 PC 60 (B)’. But a copy of the judgment of the Allahabad High Court was obtained and placed before their Lordships of the Madras High Court. Their Lordships, respectfully following the decision of the Privy Council laid down the proposition in unambiguous terms that in a proceeding under Sections 14 and 15 of the Legal Practitioners Act, a subordinate Court has no power to award costs, but the High Court can, if it deems it just, itself pass an order for the payment of costs. The case before the Madras High Court was one under S. 15 of the Act and their Lordships observed that when the High Court has power to award costs under S. 14 of the Act as is transparent from the judgment of their Lordships of the Privy Council, it must also have power to make an order for costs in a case under S. 15 of the Act. There is also another decision of the Madras High Court reported in — ‘Venkata Rao v. Motiram’, AIR 1915 Mad 400 (1) (D) where Kumaraswamy Sastri J. observed:

“A District Judge has no power to award costs in a matter referred by him to the High Court under the Legal Practitioners Act. The High Court alone in disposing of the reference has power to award costs incurred even in the proceedings before the District Judge.”

7. Mr. Mohanty, however, relies upon a Full Bench decision of the Allahabad High Court reported in — ‘Shantha Nand v. Basudevanand’, AIR 1930 All 225 (FB) (E) in support of his contention. To our mind, this decision has absolutely no application to the pertinent question before us. In the Allahabad High Court the question arose whether in a case heard by the Court, when the Court finds an application to be frivolous, whether it has power to award costs against the advocate personally. Their Lordships found that to award costs against the advocate personally would tantamount to inflicting a punishment on the advocate which can be done only in accordance with the provisions of the Legal Practitioners Act, or the Bar Councils Act. Without starting proceedings under the L.P Act or the Bar Councils Act, the Court cannot exercise its inherent power to penalise a legal practitioner. This proposition has nothing to do with the question before us that whether, on the termination of the proceedings under the L.P Act, if the Court finds the legal practitioner guilty, it has power to award costs.

8. On a consideration of the above features, and particularly relying upon the decision of their Lordships of the Privy Council, we are definitely of the view that the order for costs was not without jurisdiction. We may observe further that when the State of Orissa was a party to the reference and we had the advantage of hearing the Advocate General in the reference, the order for costs cannot be taken to be improper as well.

9. In conclusion the petition fails and is dismissed with costs. Hearing fee of this petition is assessed at fifty rupees (Rs. 50/-).

Panigrahi, C.J:— I agree.

10. Mr. Mohanty contended that no costs should have been awarded to the Advocate-General who appeared for the State in the proceedings. It was urged that the Crown in England neither pays, nor receives, costs from litigants, and that rule should be applied to cases where the State is made a party. It is true that the general rule is that the Crown neither receives nor pays costs except when that is provided for by some statute or under exceptional circumstances. In — ‘Johnson v. King’, 1904 AC 817 (P) the headnote reads thus:

“In future the Board will adhere to the practice of the House of Lords and the rule as to costs in a case between the Crown and the subject will be that the Crown neither pays nor receives costs, unless the case is governed by some local statute or there are exceptional circumstances justifying a departure from the ordinary rule.”

11. See also — ‘Vaithinatha Pillai v. King Emperor’, 18 Cal LJ 365 (PC) (G), where a claim for costs against the Crown in a criminal appeal was disallowed by the Judicial Committee. But in another case reported in — ‘Louis Edouard Lanier v. The King’, 26 Mad LJ 1 (PC) (H) the Judicial Committee in a criminal appeal allowed costs, against the Crown and observed thus:

“Looking to the exceptional nature of the case the Crown will pay to the appellant the costs of the appeal”.

12. Whatever may be the rule in regard to Criminal cases, the Code of Civil Procedure makes provision for the execution of a decree by and against Government in S. 82. The English rule therefore can have no application to proceedings where the State is made party in India. But though the Sovereign by reason of his prerogative does not pay costs to a subject and does not receive them as it is beneath his dignity, there are instances in the practice of English Courts, in which the Attorney-General generally receives costs such as in proceedings relating to charities. The Advocate-General similarly receives costs in cases relating to trusts and is entitled to be remunerated for representing the State in these proceedings.

13. This argument also cannot stand as it is a contract between him & the State and a third party cannot take advantage of the peculiar arrangement between Govt. & their employee-See — ‘Azimullah Saheb v. Secy. of State’, 15 Mad 405 (I), decided by Wilkinson J. and the appellate judgment of a Division Bench reported in — ‘Mohd. Alim Oollah v. Secy. of State’, 17 Mad 162 (J), where their Lordships observed as follows, following, ‘Raymond v. Lakeman’, (1865) 34 Beav 584 (K):

“Assuming, however, that the arrangement is that he should receive a salary and, in addition, the costs recoverable from third parties in these cases in which costs are awarded to Government, we are unable to see how that arrangement can affect a third party who is condemned in costs. The arrangement does not appear to be contrary to public policy and there is no Act under which it is made illegal”.

14. There are rules framed by the Government regulating the relations between the Advocate-General and the State. The Advocate-General receives a certain fee for his attendance in Court besides the monthly retainer fixed by the State. There is nothing illegal or opposed to public policy in such an arrangement. But it is unnecessary to consider that question. The only question here is whether the Advocate General who appeared not only for the state but also as the representative of the legal profession, should be denied his fees and out-fees merely because he appeared for the State. I see no reason why such a course should be adopted.

P.V.B Rao, J.:— I agree.

K.S.B

15. Petition dismissed.

A. Krishna Rao v. State Of Orissa Opposite Party.

Structured Summary of the Opinion (Mohapatra, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's (Pleaser's Counsel, Mr. Mohanty) Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

A. Krishna Rao v. State Of Orissa Opposite Party.

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