Sadanandaswamy, J.:— The petitioner is the City Improvement Trust Board, Mysore. These revision petitions are filed against the orders of the Additional Civil Judge, Mysore, in L.A.C Nos. 10 of 1969, 78 of 1971, 87 of 1970 and 203 of 1971 respectively, holding that the petitioner is entitled to the leave of the Courts to terminate the appointment of the Respondent as its counsel subject to the condition that the petitioner deposits Rs. 500 for payment to the Respondent within three weeks in each of these cases.
The facts are similar and the point involved is common. Hence, they are disposed of by a common order.
2. The respondent is the Advocate who had been engaged by the petitioner to appear in some Land Acquisition Cases on its behalf. It is stated that the Respondent had been appointed as the Legal Adviser of the petitioner in the year 1969 for one year. The term was extended by two years and it expired on 31st January, 1972. According to the Resolution dated 24th February, 1972 of the Board of Trustees of the Petitioner, the Respondent was appointed as their Legal Adviser for a further period of two years with effect from 1st July, 1972. The intimation sent to the Respondent states that his claim for legal services rendered will be according to the G.O No. LAW 64.LAG 60, dated 1st August, 1960 read with G.O No. PLM. 58.GCB 62, dated 20th February, 1963. The special Land Acquisition Officer, City Improvement Trust Board, Mysore, engaged the Respondent in the Land Acquisition Cases and the Respondent has filed into Court the Vakalat on his behalf. The Board of Trustees of the Petitioner, by Resolution dated 23rd May, 1973, terminated the services of the Respondent as the Legal Adviser with immediate effect and appointed Sri N.S Veerabhadriah, Advocate, Mysore as Additional Advocate of the Petitioner. The Special Land Acquisition Officer, City Improvement Trust Board, Mysore, filed memos in the Land Acquisition cases to the effect that the Respondent is no longer the Legal Adviser of the Petitioner with effect from 26th May, 1973 and that Sri N.S Veerabhadriah has been appointed as the Additional Advocate of the petitioner to appear in these cases on behalf of the petitioner. Sri N.S Veerabhadraiah, thereafter filed vakalats on behalf of the Special Land Acquisition Officer. The Respondent filed a memo stating that he has no objection to retire provided his full fee is paid by the petitioner. To this memo, the petitioner has filed objections. In the objection statement it is stated by the petitioner that the Respondent is not entitled to the full fee as the case is still pending before the Court, that the bills of the Respondent for the payment of his fee will be considered by the Petitioner according to the Government Orders and that therefore the memo filed by the Respondent may be rejected and he may be directed to retire from the cases.
3. Following the decision of this Court in The Commissioner under Madras Hindu Religious and Charitables Endowments Act v. Ratnavarma Hegde(1) the lower court held that the petitioner would be entitled to the leave of the Court for determining the Vakalat only after it makes payment of the full fees to which the Respondent is entitled under the contract. Since under the terms of the G.Os referred to in the communication sent to the Respondent by the petitioner the full fee payable in each of these cases is Rs. 500, the lower court held that the petitioner should deposit the sum of Rs. 500 in each of these cases before leave could be granted by the court to terminate the appointment of the Respondent.
4. The Government Order No. LAW 64.LAG 60, dated 1st August, 1960 states that the fees in the Land Acquisition Cases should be calculated at the rates prescribed thereunder subject to the maximum of Rs. 500 per case and where several cases are clubbed, together, the fee payable to the counsel shall be full fee in the case in which evidence is recorded and ¼th of the schedule fees in other cases subject to the total maximum of Rs. 1,000. It is not disputed on behalf of the petitioner that having regard to the value of the subject matter in dispute in each of these Land Acquisition Cases, the full fee payable to the respondent, in case there is no clubbing together of any of these cases, would be Rs. 500 in each of these cases if the respondent continued to appear for the petitioner till the cases were disposed of. What is contended on behalf of the petitioner is that the respondent is not entitled to the full fee payable in each of these cases but is entitled to be paid only a proportion of the same according to the stage at which the case was on the date the services of the respondent were terminated by the petitioner. It is contended that if the case in which the respondent had been engaged is at the stage of first hearing the respondent would be entitled only to a nominal fee and that if it is at the stage of evidence he may be entitled to a larger proportion of the full fee payable for the case and since all the above-said land acquisition cases are still pending in the lower court, the respondent would not be entitled to the full fee payable in each of these cases, but that he is entitled to only a proportion of the same to be determined by the petitioner.
5. Exhibit C is an extract from the proceedings of the meeting of the Board of Trustees of the petitioner held on 21st February, 1978 and it shows that the Government had suggested the appointment of Sri N.S Veerabhadraiah as an Aditional Advocate of the petitioner. The Board recorded its opinion that since there was not sufficient work to its present Advocate there is no need for an additional Advocate for the time being and that the matter would be considered when the work load increases.
Exhibit D is the communication dated 27th April, 1973 from the Government to the Chairman of the petitioner Trust Board. The relevant portion reads as follows:—
“The present Advocate is stated to be therefore more than 10 years. Therefore, it would be expedient to give opportunity for others as a policy, once in two years, since the Mysore City Improvement. Trust Board, Mysore, has not called for applications from the Bar to assess the relative merits, the Resolution No. 449 dated 24th February, 1972 of the City Implement Trust Board, Mysore, for continuing the present Advocate is not good and accordingly, it is cancelled.
Further, the Resolution of the City Improvement Trust Board, Mysore, dated 21st February, 1972 is also hereby cancelled. Sri N.S Veerabhadriah should be appointed as Additional Advocate with immediate effect. Necessary orders in this behalf may please be issued immediately.”
After receipt of the above communication, the petitioner sent the following communication to the respondent on 26th May, 1973:—
“The services of Sri M.P Ramanna, B.A, L.L.B, Advocate, Mysore, who is working as Legal Adviser of the City Improvement Trust Board, Mysore, are ceased with immediate effect.
Sri N.S Veerabhadraiah, B.A, B.L, Advocate Mysore, is appointed as Additional Advocate of the Mysore City Improvement Trust Board, Mysore, with immediate effect.
Sri M.P Ramanna is requested to hand over all the cases and papers of the Board that are pending with him to Sri N.S Veerabhadraiah immediately. Further he is also requested to send a copy of the list showing the documents handed over to the Additional Advocate for reference of this office.
Pending recommendation for selection of a Legal Adviser to the Board after inviting applications from the Mysore Bar Association, Sri N.S Veerabhadriah will be in additional charge of the Legal Adviser of the Board.”
Under Clause (2) of Rule 4 of Order III of the Code of Civil Procedure, the Vakalat filed by an Advocate shall be deemed to be in force until determined by the leave of the Court by a writing signed by the client or the Pleader, as the case may be and filed in court or until the client or the Pleader dies or until all Proceedings in the suit are ended so far as regards the client. After considering the case law on the subject, it was observed by Tukol, J. in Commissioner Under M.H.R and C. v. Ratnavarma at page 371 as follows:—
“For the aforesaid reasons I have no doubt in my mind in holding that a client can seek leave to change his Advocate and when there is no proof of misconduct on the part of the Advocate or where the Advocate himself has not discharged the client, the client will be entitled to the leave after he makes full payment of the fees to which the Advocate is entitled either under the contract or under the appropriate rules.”
In that case, there was no agreement between the client and the Advocate as to the fee payable. Hence, relying upon the practice prevailing in the High Court, it was held that the fee prescribed for such an appeal, that is, a fee of Rs. 50 would be payable to the Advocate. But since the client in that case had expressed his willingness to pay Rs. 500, leave to terminate the engagement of the Advocate was granted subject to the condition that the client deposits Rs. 500 for payment to the Advocate.
6. In Radhika Debi v. Ramasray Prasad Chowdhry(2) it was held that where the client did not want the case to be con ducted, by an Advocate and where the client did not establish sufficient cause for obtaining leave of the court, the client must nay the Advocates their full fees for the entire case, since the Advocates were prevented from being engaged by the other side. The Advocates for the client were directed to file an account showing the dues to the Advocate concerned. In Punkajkumar v. Sudheerkumar(3) it has been observed that the practice of that court was that no order for change of Attorney is made unless provision is made for payment of the Attorney except where the Attorney has by his own conduct or misconduct discharged himself. In A.V Sundaramurthy Chettiar v. S. Muthaiah Mudaliar(4) the appeal was posted for hearing before the High Court in the draft Cause List. At that stage, the client expressed his desire to charge his Advocate. The fee agreed in that case to be paid to the Advocate for the conduct of the appeal was Rs. 900. The petitioner had paid a sum of Rs. 450 towards the fee and other sums towards the expenses of preparation of the records. The contention of the client was that the amount which he had paid already is sufficient remuneration for the work already done by the Advocate, that he has no means to pay the balance and that he had been offered financial help on condition of his engaging a different Advocate. It was held that in the absence of misconduct on the part of the Advocate, the client is not entitled to the sanction of the court for change of the Advocate without making a satisfactory arrangement to pay the Advocate who was in charge of the case till then. Since there was no allegation of misconduct against the Advocate, the court directed the Advocates on record should be paid their full fee before the change of Vakalat is sanctioned. In Narayandas v. Narayandas(5) it was observed by Wadia, J. that it is a rule of the Court not to sanction a charge of solicitors when the former solicitor has not discharged himself so long as his costs remain unpaid. But in Dharmdas v. Kachudas(6) Mirja, J. differed from the above said view of Wadia, J. and held that it is not open to an Attorney to say that his client shall continue to employ him in the suit or proceeding until all the costs due to him are paid. In Hormusji K. Bhabha…(Original Plaintiff), Applicant; v. Nana Appa…(Original Defendant), Opponent*(7) it was been held that the contract between the Advocate on the Appellant side and his client is one governed by the rules of contract under the Indian Contract Act, that he may be sued for negligence as an agent and can sue for his fees, that he is a special kind of agent or an agent selected out of a special class, for whom this kind of agency contract is reserved by law but nevertheless governed by the law relating to agency. In The State v. Nrusinga Naik(8) it has been held that a Pleader is entitled to a fee for work done on the basis of quantum meruit in the absence of any specific agreement fixing a stipulated fee; and that such an agreement may be express or implied and can be the basis of a suit by the pleader.
7. It was contended by Mr. Hegde, on behalf of the petitioner, that this Court had in The Commissioner Under Madras Hindu Religious and Charitable Endowments Act v. Ratnavarma Hegade no occasion to consider a case like the present one entire case is payable to the Advocate and that the observations in that decision are not applicable to the present case. He also relied on he decision in Babui Radhika Devi v. Ramasray Prasda Chowdhry(9). This decision is a consequence of the direction issued in the decision reported in A.I.R 1930 Patna, 403 referred to above, to the client and the Advocate requiring their accounts to be produced. It has been held that the legal practitioner is entitled to recover his fee settled between himself and his client and that when he is not able to prove such a settlement he is entitled to the fee which is payable to a successful party under the rules. Since the fee payable to the Advocate was not settled with the client, it was held that the criterion of the compensation payable to the Advocates for the work done and for the loss sustained by them due to the termination of their engagement, would be at least that payable under the scale according to the rules of the Court. He next relied upon the decision in Sib Kishore Ghosh v. Manik Chandra Nath(10). In that case, it has been that where a party employ a Pleader without any agreement as to the amount of fees or the manner of payment thereof, the Pleader is entitled to recover in the basis of quantum merit which ought to be determined with reference to all the circumstances of the case. In Halsbury's laws of England, 3rd Edition, Volume 36, at page 73, it has been stated that where the client changes his solicitor during the pendency of a case, the court has jurisdiction to order payment of the amount found due as if the work had been fully preformed, further, that the solicitor will not be allowed the full amount of the remuneration agreed to be paid to him unless there has been no default, negligence, improper delay or the conduct on his part affording reasonable ground for the change of solicitor.
8. From the above discussion, it is clear that a client has the opportunity to change his counsel during the pendency of a case and is entitled to leave of the Court to do so. But that leave will be subject to the condition that he pays the fee determined by the court granting the leave. In case there is an agreement between the client and his Advocate with regard to the fee payable for the entire case and there is no proof of misconduct on the part of the Advocate or where the Advocate himself has not discharged the client, leave will be granted subject to the condition that the client pays the full fee agreed upon for the entire case. If there is no agreement between the client and the Advocate with regard to the fee payable to the Advocate, then leave will be sanctioned where the advocate himself has not discharged the client, on payment by the client of such fee which is found reasonable by the court on the basis of quantum meruit taking into consideration all the circumstances of the case.
9. It is contended on behalf of the petitioner that the appointment of the Respondent was for a particular period, that the respondent has no right to say that he should continue to appear for the petitioner after the termination of his services. It is to be seen that the communication dated 10th March, 1972 marked Exhibit ‘A’ states that the respondent is appointed as Legal Adviser for a further period of two years from 1st February, 1972. It is not clear whether the respondent would be required to continue to appear in the cases pending as on the date of termination of the said period or not. It is stated on behalf of the respondent in this court that when he was first appointed as legal Adviser to the petitioner, he was not asked to appear in any case of the petitioner pending as on that date. In the statement of objections filed by the petitioner in the lower court, it is not stated that the respondent was engaged to appear for the petitioner in the cases of the petitioner pending on the date of his first appointment in any court. In the absence of any such allegation or material to support the same it cannot be assumed that there was an implied agreement between the client and the Advocate that the Advocate would cease to appear in pending cases for the petitioner on the termination of the period of his appointment as legal adviser or that he should handover the papers relating to the cases pending as on the date of the termination of his services to the petitioner without payment of the full fee payable for the entire case in such cases. Hence, the agreement between the client and the Advocate in these cases must be construed as one relating to the fee in all cases entrusted to the respondent. Hence, under Order III, Rule 4 C.P.C leave can be granted to the petitioner to engage another Advocate in the pending cases only on the payment of the full fee agreed upon for the entire case. The decision in A.I.R 1933 Bombay 182, no doubt states that it is not incumbent on the court to insist upon the client paying the full costs of the Attorney before he is allowed to change his Attorney. In this respect, it has differed from an earlier decision of the same court in A.I.R 1932 Bombay 363. But the view of other High Courts referred to above is to the effect that leave could be granted only subject to the condition that the client pays the full fee for the entire case where there is agreement between the client and the Advocate with regard to the fee payable, provided the Advocate has not himself discharged and there is no proof of misconduct on the part of the Advocate. Hence, I prefer to follow the view taken by the majority of the High Courts.
10. In the present case, the termination of the services of the petitioner, that according to the G.Os prescribing the sale of issued to the petitioner Trust Board based on a policy. There is no suggestion of any misconduct or want of capacity on the part of the respondent. It is contended on behalf of the respondent, that the appointment of the respondent as Legal Adviser means that the services of the respondent were engaged not only to appear in the cases of the petitioner in the courts but also to give legal opinion, to issue notices, for drafting documents etc. And that the period of appointment could only relate to the services of the respondent otherwise than appearing in the cases pending in the courts. It may be so. In the absence of a specific allegation in that behalf in the objections filed by the petitioner in the lower court, the respondent had no opportunity to meet the same.
11. It is further contended by Mr. Hegde, appearing for the petitioner that according to the G.Os prescribing the sale of fees, the maximum fee payable to the respondent in each land acquisition case is Rs. 500, but that amount is subject to the second condition, namely, that if the cases are clubbed, the maximum payable for such clubbed cases would be Rs. 1,000 only. It is stated that it is not possible to know at the present time whether any of the pending land acquisition cases would be clubbed with other cases or not and that it would be against the terms of the agreement to direct the petitioner to pay Rs. 500 in each of these cases. There is much force in this contention. The respondent will be entitled to Rs. 500 in each of these cases only if they are not clubbed with other cases. If two or more of the pending land acquisition cases are clubbed together or with other cases, the respondent would be entitled to claim the full fee of Rs. 500 in the case in which evidence is recorded and one fourth of the schedule fee in other cases subject to a total minimum of Rs. 1,000 towards remuneration in respect of such clubbed cases. Hence, the petitioner will deposit Rs. 500 towards fee payable to the respondent in each of these cases. Leave will be granted to the petitioner to engage another Advocate subject to the said condition. But the respondent will be allowed to withdraw the sum of Rs. 500 in such of those cases which are not clubbed with other land acquisition cases. In case two or more of such cases are clubbed together or with other land acquisition cases, the respondent will be allowed to withdraw such sum he is entitled to as stated herein above.
12. In the State v. Nrusingha Naik SB it has been observed that Section 16 of the Contract Act raises a presumption against the person who stands in a juduciary relationship to another and it would be extremely difficult for the lawyer to establish the bona-fides of an agreement even if it is reduced to writing and that it is desirable that the Bar Council should devise a machinery by which a Tribunal could be established wherever a Bar Association exists and that disputes between a lawyer and his client with regard to the fee payable might be settled by reference to such Tribunal without their being brought to the notice of the Court. The following observations of Sulaiman, C.J in Re—Ranjit Singh(11) were cited with approval.
“It would increase the dignity of the profession as well as its purity if a common practice grew up under which the exact terms of the contract of engagement of counsel were reduced into writing, preferably signed by the client and maintained in the Advocate's office. Such a contract would make it impossible for any dispute or misapprehension to arise later.”
I am also of the opinion that it would be in keeping with the dignity of the profession if the exact terms of the agreement is reduced to writing and signed by the client and a machinery is devised by the Bar Council to settle such disputes between the client and his Advocate without allowing them to be agitated before the court.
13. With the above said modification in each of the orders of the lower court the orders of the lower court are confirmed. The parties shall bear their own costs in these revision petitions.