Citation Codes

Equivalent Citations

citation codes

Case Number

Judges

Shadi Lal
George Rankin

Acts

Section 10 of the Indian Bar Councils Act, XXXVIII of 1926.
Section 12 of the Indian Bar Councils Act,
Indian Bar Councils Act,
rule 2 of the Rules
(Fees) Act of 1926

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Smart Summary

Case Summary — Appeal by Mr. Shiva Narain Jafa (advocate)

Factual and Procedural Background

The appellant, Mr. Shiva Narain Jafa, an advocate practising at Budaun, was engaged in early 1927 to defend a suit instituted by Bhagwant Singh against Bhau Singh and Lachhman Singh. On 22 January 1927 a vakalatnama signed by both defendants was filed. The defendants were prisoners at the time, and the appellant received Rs. 140 of his fee in cash. On 8 March 1927 the appellant applied to the District Judge requesting that the prisoners be asked to execute a promissory note for the balance of the fee; the District Judge wrote "Permitted".

The defendants themselves did not sign, but Musammat Pania (wife of Bhau Singh), acting under a general power-of-attorney, executed a promissory note promising Rs. 735 on demand; the appellant produced this note to the District Judge and placed it on the record. The appellant filed a fee certificate stating he had received Rs. 140 in cash and Rs. 735 by promissory note.

On 10 March 1927 the District Judge dismissed the plaintiff's claim with costs and included the Rs. 735 in costs payable to the defendants. Bhagwant Singh took no objection during taxation or in his appeal on merits; his appeal was later dismissed for want of prosecution.

On 21 August 1929 Bhagwant Singh applied to amend the decree, contending that the Rs. 735 could not lawfully be allowed as costs because it had not been actually paid. The District Judge refused the application, holding that the promissory note executed with the sanction of the Court was tantamount to actual payment.

On revision, the High Court examined the taxing rules and concluded that only actual payment could be allowed as costs; it deleted the Rs. 735 from the costs (reported as Bhagwant Singh v. Bhan Singh (1932) I.L.R. 54 All. 490).

While revision was pending, Bhagwant Singh filed a disciplinary complaint (19 November 1930) against the appellant in the High Court alleging professional misconduct. The High Court referred the complaint to the Bar Council (under Section 10 of the Indian Bar Councils Act, XXXVIII of 1926). A Bar Council tribunal found the certificate improper but concluded the appellant had acted under a bona fide misapprehension and made an honest mistake.

The Bar Council's finding was submitted to the High Court; although no objection was taken by the Government Advocate under the applicable rules, the High Court held that the appellant had deliberately filed a non-conforming fee certificate and was not satisfied as to his bona fides. The High Court convicted him of professional misconduct and suspended him from practice for three months. This appeal challenges that conviction and suspension.

Legal Issues Presented

Whether the appellant, by including in his fee certificate a fee that was promised by means of a promissory note but had not been actually paid, acted dishonestly or under a misapprehension of the law such as to amount to professional misconduct.
Whether a promissory note executed (and placed on the record) in favour of an advocate amounts to "actual payment" for the purposes of taxation of costs between parties under the High Court's rules, or whether only actual payment in money qualifies.

Arguments of the Parties

Appellant's Arguments

The appellant obtained a promissory note executed by Musammat Pania (wife of one defendant, acting under general power-of-attorney) for Rs. 735 and produced it before the District Judge, placing it on the record.
He stated in his certificate that he had received Rs. 140 in cash and Rs. 735 "by means of promissory note"—he did not conceal that the balance was not paid in cash.
He believed, in good faith, that under the Legal Practitioners (Fees) Act, 1926, a legal practitioner may enforce a promise to pay and that an agreement to pay could, in effect, be treated (for purposes of his certificate and taxation) as establishing a right to recover the fee; he therefore thought the promissory note amounted to payment for that purpose.
He had no motive to deceive: he could enforce the promissory note in action if necessary and would not obtain personal advantage by deceiving the Court; any benefit would accrue to his clients.

Complainant / Bhagwant Singh's Arguments

Bhagwant Singh denied liability for the Rs. 735 because the sum had not been actually paid to the appellant and therefore could not properly be allowed as costs to the defendants.
He applied to the District Judge (and later to the High Court) to have the decree amended or revised to exclude the Rs. 735 from costs on the ground that it was not actual payment.

Bar Council / Tribunal Finding and High Court Position

The Bar Council tribunal found that, in light of the High Court's view on the taxation rule, the appellant's fee certificate was improper; but the tribunal concluded the appellant had acted under a bona fide misapprehension and had therefore committed an honest mistake rather than deliberate misconduct.
The High Court, after receiving the Bar Council's report, took the view that the appellant "deliberately filed a fee certificate which was not in accordance with the High Court rules" and that his explanation did not satisfy them regarding his bona fides and straightforwardness; on that basis it convicted and suspended him.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Bhagwant Singh v. Bhan Singh (1932) I.L.R. 54 All. 490	The High Court decision interpreted the rule for taxing costs as contemplating actual payment of fee and not a mere promise to pay, even if contained in a promissory note or similar instrument.	The Bar Council tribunal felt bound by this High Court decision in declaring the appellant's fee certificate improper; the appellate court considered the decision but concluded that, on the facts, there was no evidence of deception or bad faith by the advocate.

Court's Reasoning and Analysis

The appellate court proceeded by first acknowledging the legal framework: the Legal Practitioners (Fees) Act, 1926 permits a legal practitioner to make a private agreement with a client for the payment of fees and to enforce that agreement by proceedings for recovery. However, the court recognized that the right of a successful party to recover a practitioner's fee from the defeated adversary depends on the taxing rule framed by the High Court, which the High Court had interpreted as allowing only fees actually paid before the hearing to be taxed as costs.

The court then focused on the central factual and moral question: whether the appellant's inclusion of the unpaid fee (supported by a promissory note) in his certificate amounted to dishonest conduct or a misapprehension of the law.

Key analytical steps in the court's reasoning (as contained in the opinion):

The format of the appellant's certificate differed in some respects from the High Court's prescribed form, but there was no material difference concerning the statement of the fee.
The appellant did not attempt to conceal that he had received only Rs. 140 in cash and that the balance was by promissory note; he expressly stated the nature of the payment.
The appellant produced the promissory note in Court and placed it upon the record; he did not hide the instrument or its terms.
At the time of taxation and on appeal, neither the plaintiff nor his counsel objected that the defendants could not be allowed the promised but unpaid fee; only after a lapse of more than two years did the plaintiff seek to disallow the sum.
The District Judge had accepted the promissory note as tantamount to payment; the appellate court found no evidence that this acceptance resulted from any deception by the appellant.
The court observed that the appellant had a lawful remedy to enforce the promissory note in action if payment were not made, which diminished any motive to deceive the Court for personal gain.
The Bar Council tribunal had viewed the conduct as an honest mistake; the appellate court regarded that view as persuasive and noted that many others apparently shared the same misapprehension about the legal effect of the promissory note.
Although the court reaffirmed the propriety of the principle that only fee actually received should ordinarily be mentioned in a certificate for taxation between party and party, it concluded that the facts did not establish deception or bad faith by the appellant.

The court therefore concluded that the High Court's finding of deliberate misconduct was not supported by the facts: the appellant had acted under a bona fide belief, shared by others, about the legal effect of a promissory note and his conduct lacked the necessary element of dishonesty.

Holding and Implications

Holding: The appellate court concluded that the charge of professional misconduct against the appellant could not be sustained. Accordingly, the judgment of the High Court was set aside and the appeal was allowed.

Immediate consequences and implications (as set out in the opinion):

The appellant's conviction for professional misconduct and the three-month suspension from practice imposed by the High Court were overturned.
The court emphasized two legal points of significance that informed its decision: (a) the Legal Practitioners (Fees) Act, 1926 permits a practitioner to agree for future payment and to enforce that agreement by proceedings; and (b) whether such a promised fee can be realized from a defeated adversary for taxation as costs depends on the High Court's taxing rules, which the High Court had interpreted as requiring actual payment.
The appellate court did not find, on the facts before it, any evidence of deception or bad faith warranting professional discipline; it also stated that it was unnecessary to express an opinion on whether the procedure adopted by the High Court in receiving the Bar Council's finding contravened the rules made under the Indian Bar Councils Act.

Note: The opinion limits itself to the facts of this case and the application of the existing statutes and the High Court's taxing rule as they relate to those facts. The court's decision restates relevant principles but adjudicates the issue on the specific factual record rather than announcing a broad new rule beyond these circumstances.

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Shiva Narain Jafa v. The Judges Of The Allahabad High Court

1. This appeal has been brought by an advocate of the High j Court of Judicature at Allahabad from a judgment of that Court convicting him of professional misconduct and suspending him from practice for a period of three months.

2. The appellant, Mr. Shiva Narain Jafa, was practising as an advocate at Budaun, a district situated in the United Provinces of India; and in the beginning of 1927 he was engaged to defend a suit instituted by one Bhagwant Singh, against two brothers, Bhau Singh and Lachhman Singh. On January 22, 1927, he filed in the Court of the District Judge, who was hearing the case, a vakalatnama (power-of-attorney) signed by both the defendants. It appears that they were, at that time, undergoing imprisonment for certain offences, of which they had been convicted; and the appellant, who had been paid only a portion of his fee, submitted on March 8, 1927, an application to the District Judge in these terms :-

In the above case it is submitted that I have been looking after this case on behalf of my clients almost from the beginning of January up to this time. The pairkoers of the clients have, up to this time, paid me Rs. 140. Now a new Act has come into force from 1926 and according to it a Vakil is entitled to get his legal fee and he can realize his money by filing a suit after the case is over. My clients are poor these days and actually they cannot pay up my full fee at present. If my clients will execute, in my favour, a promissory note for the amount of the remaining fee, I shall, according to law, file the certificate of fee and the defendants shall be entitled to recover the same from the plaintiff. If the promissory note is not executed, I shall not file the certificate and the defendants will suffer a double loss, because they shall have to make the payment to me and they shall not be entitled to recover the same from the plaintiff. Therefore, the prisoners may be sent for and the matter may be explained to them. If they will execute the promissory note, it will be in their own interests.

Thereupon, the District Judge recorded on that day the following brief order :-" Permitted ".

3. The defendants were then brought into the Court Room, but they did not sign the promissory note, as, it is explained, they being prisoners could not execute any document without the permission of the local authorities. Whether there is any justification for this explanation, their Lordships are not in a position to determine; but they observe that a promissory note was actually executed on that very day by Musammat Pania, the wife of Bhau Singh, who had given her a general power-of-attorney to act on his behalf. This instrument contained a promise by her to pay on demand Rs. 735, the balance of the fee due to the appellant. It is not disputed that he himself produced it before the District Judge for his perusal, and the latter placed it upon the record of the case.

4. Having obtained the promissory note for the balance of his fee, the appellant filed a certificate, in which he stated that he had received Rs. 140 in cash and Rs. 735 " by means of promissory note ". On March 10, 1927, the District Judge delivered judgment dismissing the plaintiff's claim with costs. A decree, which followed upon the judgment, was duly prepared, and the sum of Rs. 735 was included in the amount of the costs to be paid by the plaintiff, Bhagwant Singh, to the defendants. To this decree no objection was taken by Bhagwant Singh, either at the time of the taxation of costs in the trial Court, or in the appeal which he preferred to the High Court on the merits of the case. It is to be observed that his appeal was ultimately dismissed for want of prosecution.

5. It was not until August 21, 1929, that Bhagwant Singh applied to the District Judge for an amendment of the decree on the ground that the appellant had filed a certificate for fee in excess of the amount which could be lawfully allowed as costs between party and party. The applicant denied his liability for the payment of Rs. 735, because that sum had not been actually paid to the appellant and could not be allowed as costs to the defendants. The learned Judge overruled the contention, holding that the applicant had failed to show that the accepting of " the promissory note in lieu of actual payment was contrary to any provision of the law." He accordingly decided that " the execution of the promissory note with the sanction of the Court was tantamount to actual payment".

6. This view was not, however, accepted by the High Court, who, on an application made by Bhagwant Singh for revising the order of the District Judge, examined the rule framed for the guidance of the Subordinate Courts in taxing costs, and reached the conclusion that the rule contemplated actual payment of fee, and not a mere promise to pay, even if such promise was contained in a promissory note, bond, or any other instrument. The learned Judges accordingly granted the application and deleted the sum of Rs. 735 from the costs payable to the defendants. The judgment of the High Court is reported in Bhagwant Singh v. Bhan Singh (1932) I.L.R. 54 All. 490.

7. While the application for revision was pending in the High Court, Bhagwant Singh invoked the disciplinary jurisdiction of that Court by making a complaint on November 19, 1930, against the appellant, charging him with professional misconduct. The Court referred the complaint to the Bar Council for an enquiry under Section 10 of the Indian Bar Councils Act, XXXVIII of 1926. The enquiry was made by a tribunal composed of three members of the Bar Council, who, after hearing the evidence adduced by the parties, found that, according to the decision of the High Court on the application for revision preferred by Bhagwant Singh, which they were bound to follow, the certificate of fee filed by the appellant should be held to be improper, as it infringed the rule prescribed by the High Court on the subject. They were, however, of the opinion that the appellant had acted " under a bona fide misapprehension and misinterpretation of the rule", and had, therefore, committed " an honest mistake ".

8. The finding of the Bar Council was duly submitted to the High Court; and, though no objection was taken to it by the Government Advocate in accordance with rule 2 of the Rules made by the High Court under Section 12 of the Indian Bar Councils Act, the learned Judges held that the appellant had " deliberately filed a fee certificate which was not in accordance with the High Court rules, in order that a fee, which had not actually been paid to him, might be taxed "; and that his explanation had not succeeded in satisfying them " about his bona fides and straight-forwardness ".

9. This is the judgment, the correctness of which is challenged on this appeal. Their Lordships consider it unnecessary to express any opinion as to whether the procedure adopted by the High Court contravened the rules framed under the Indian Bar Councils Act, as they are clear that the facts, as set out above, do not establish any charge of deception or bad faith against the advocate. While they consider that it is a salutary rule that only the fee actually received by a practitioner should be mentioned by him in his certificate for the purpose of the taxation of costs between party and party, they observe that vis-a-vis his own client he has recently been placed in an advantageous position. A statute of the Indian legislature, called the Legal Practitioners (fees) act xxi of 1926, not only allows a legal practitioner to settle, by a private agreement with his client, the terms of his engagement and the fee to be paid to him for his professional services, but also authorises him to enforce that agreement by legal proceedings taken for the recovery of the fee due to him. There can, therefore, be no doubt that the Indian law does not now require a legal practitioner to receive the whole of his fee before the hearing of the case, but permits him to make an agreement for the payment in future of the whole or part of his fee.

10. The statute, while conferring upon a legal practitioner the right to recover the fee promised by his client, does not authorise the latter to realise it from his defeated adversary. The right of a successful party to recover the fee from the opposite party depends upon the rule framed by the High Court, which contemplates that only the fee actually paid before the hearing can be allowed as costs on taxation.

11. The question, which their Lordships have to decide, is whether the appellant, by including in his certificate the fee promised, but not actually paid, to him, acted dishonestly or under a misapprehension of the law. A perusal of the printed from of the certificate used by him shows that it differs, in certain respects, from the certificate prescribed by the High Court, but there is no material difference in so far as the statement of fee is concerned. It is beyond dispute that he made no attempt to conceal the fact that he had received only a portion of his fee in cash, and that for the balance of his fee he had obtained a promissory note which he produced in the trial Court. If he thought that the execution of the promissory note amounted to a payment of the fee, he was not the only person who made that mistake. It is significant that neither the plaintiff nor his counsel suggested, at the time of the taxation of costs, that the defendants could not be allowed the fee which, though promised, had not yet been paid by them. Nor did the plaintiff urge, in his appeal to the High Court, that the appellant was not justified in entering in his certificate the fee which he was to recover on the promissory note. There can be little doubt that, at that time, none of the persons concerned saw any impropriety in the conduct of the appellant; and that it was after the expiry of more than two years that the plaintiff or his adviser discovered that the sum promised to be paid should not have been allowed as costs. But, as stated, this objection was repelled by the District Judge; and it cannot be maintained that the view taken by the learned Judge was the result of any deception practised by the appellant.

12. Indeed, there is no valid reason why the appellant should have acted in a dishonest manner. He had already obtained a promissory note for the fee due to him, and could, in the event of default by the promisor, enforce his claim by action. There was, therefore, no personal advantage to be gained by deceiving the Court.

13. It is true that his clients would benefit, if the whole of the fee were allowed to them as costs; but that would be hardly an adequate motive which would impel him to take the serious risk of exposing himself to condemnation in his professional career. This aspect of the question has, it seems, been overlooked by the learned Judges of the High Court.

14. The circumstances of the case point to the conclusion that the entry in the certificate, upon which the charge of misconduct is founded, was due to the belief that, as the new law enacted by the Legal Practitioners (Fees) Act of 1926 had imposed upon his clients the obligation of paying the fee due on the promissory note, they should have the corresponding right to recover it from the defeated party, which they could do only if it was stated in the certificate and allowed on taxation. This belief was honestly entertained by him, and was apparently shared by many other persons.

15. Their Lordships do not think that the charge of misconduct can be sustained against the appellant. Accordingly they will humbly advise His Majesty that the judgment of the High Court should be set aside, and that the appeal be allowed.

Shiva Narain Jafa v. The Judges Of The Allahabad High Court

Case Summary — Appeal by Mr. Shiva Narain Jafa (advocate)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Complainant / Bhagwant Singh's Arguments

Bar Council / Tribunal Finding and High Court Position

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Shiva Narain Jafa v. The Judges Of The Allahabad High Court

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