Sib Kishore Ghose v. Manik Chandra Nath

1. This Rule was issued under Section 25 of the Provincial Small Cause Courts Act, 1887, on an application by the plaintiff in the suit, who is a Pleader by profession. His case is that he was engaged to resist the claim in a mortgage suit instituted against the defendant. He successfully defended the suit, which was dismissed with costs on the 3rd February, 1911. He alleges that the defendant paid him Rs. 5 only on account of fees and has refused to make any further payments. He consequently instituted this suit on the 29th January, 1914 for recovery of such sum as the Court may adjudge reasonable, and values the relief at Rs. 45. He states incidentally in the plaint that Rs. 50 would be a fair measure of remuneration, as that was the sum decreed in favour of the defendant as against his opponent in the mortgage suit. The defendant pleaded that the suit was not maintainable and, further, that the plaintiff had been paid whatever was lawfully payable to him. The Small Cause Court Judge did not investigate the case on the merits, but dismissed the suit on the authority of the decision of Kamini Moni Debi v. Khettra Mohan Ganguli . 1912 13 I.C 43. We are now invited to set aside the decree of dismissal, on the ground that the case mentioned is distinguishable and Section 28 of the Legal Practitioners Act, rightly construed, does not bar the claim.

2. Section 28 of the Legal Practitioners Act is in these terms:

“No agreement entered into by any Pleader…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 disbursements in respect of business done or to be done by such. Pleader…shall be valid, unless it is made in writing signed by such person, and is, within fifteen 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.”

3. It is plain that the agreement thus invalidated is an agreement respecting the amount and manner of payment of fees, charges and disbursements. In the case before us, there is no allegation that there was any agreement touching either the amount or the manner of payment of the fees. According to the plaintiff, the defendant asked him to act as his Pleader; nothing was said as to the amount of fees or as to the time when the fees should be paid. The very fact that the defendant asked the plaintiff to conduct his case necessarily implied that he would reasonably remunerate the plaintiff. The relation between the parties is contractual and the case is not governed by Section 70 of the Indian Contract Act, which finds a place in the fifth Chapter devoted to certain relations resembling those created by contract. That section, besides, defines the obligation of a person who has enjoyed the benefit of a non-gratuitous act. Here the defendant is bound to remunerate the plaintiff, who acted at his request, even though the act might not have been beneficial to the defendant; for instance, the defendant would have been bound to remunerate the plaintiff, even though the latter had been unsuccessful in his defence.

4. It is plain that if A requests B to do a piece of work for him, and B does it, not intending to act gratuitously, he is bound to pay B, even if he is not benefited thereby. The request implies a promise to pay reasonable remuneration. In this view, no question consequently arises as to the effect of Section 65 of the Indian Contract Act, which treats of the obligation of a person to make restitution or compensation for advantage received by him under an agreement that is discovered to be or becomes void. But it is worthy of note that if there had been an agreement as to the amount or manner of payment of fees, which was void because made in contravention of Section 28 of the Legal Practitioners Act, Section 65 of the Indian Contract Act would have been of no avail inasmuch as the agreement was void ab initio and on the face of it, and could not be aptly described as an agreement which has been discovered to be or has become void. To sum up the position: as the defendant employed the plaintiff without any agreement as to the amount of fees or the manner of payment thereof, the plaintiff is entitled to recover on an implied promise of reasonable remuneration, and the case is not touched by the principle embodied in Section 28 of the Legal Practitioners Act. This view is not opposed to the decision of Kamine Moni Debi v. Khettra Mohan Ganguli. There the Pleader claimed fees due under an agreement for professional services rendered; it was ruled that the agreement was void, as the requirements of S. 28 had not been fulfilled. In the case before us, there was no agreement between the parties either as to the amount or as to the manner of payment of fees. We need not, consequently, consider the question whether, if there had been such an agreement, which was void because contrary to the express provisions of the Statute, the Pleader could yet have claimed reasonable compensation. Upon that question, there has been a conflict of judicial opinion, as is clear from the decisions in Raghunath Saran Singh v. Sri Ram* . 1906 28 All. 764., Raziud-Din v. Karim Bakhsh . 1890 12 All. 169., Rama v. Kunji . 1886 9 Mad. 375., Krishnasami v. Kesava . 1891 14 Mad. 63., Anantayya v. Padmayya . 1893 16 Mad. 278., Sundaraja Ayyangar v. Pattanathusami Tevar . 1894 17 Mad. 306., Subba Pillai…(Plaintiff), v. Ramasami Ayyar…(Defendant), .* . 1904 27 Mad. 512., and Hazari Lal v. Tilok Chand . 1893 136 P.R 1893.. The observations in some of these cases, for instance, those in Subba Pillai…(Plaintiff), v. Ramasami Ayyar…(Defendant), .*, may, as has been argued with considerable force by the opposite party, practically render nugatory the salutary provisions of S. 28. Where there is an agreement, void under S. 28, the question may well require consideration, whether the Court should assist a person who has entered into a contract rendered void by positive law. No such question, however, arises where, as here, there is no agreement of the kind contemplated by S. 28. In the words of Sargent, C.J, in Keshav Govind Joshi v. Jamsetji Cursetji . 1888 12 Bom. 557., the Pleader, in the absence of an agreement, is entitled to a quantum meruit, which ought to be determined with reference to all the circumstances of the case. To the same effect are the observations in Sarat Chandra Roy v. Chandi Charan Mitra . 1903 7 C.W.N 300. and Mohendra Lal v. Akil Chandra Pakrashi . A.I.R 1914 Cal. 166. We hold accordingly that the present case is not within the scope of S. 28 and that the suit is consequently maintainable.

5. The result is that the Rule is made absolute, the decree of the Court below set aside, and the case remanded for trial on the merits. The petitioner is entitled to his costs in this Court, We assess the hearing fee at one gold mohur.

V.B/R.K

6. Rule made absolute.