JUDGMENT

The two items allowed by the lower Appellate Court in favour of the respondent to which objection is now taken by the appellant's pleader are (i) an item of Rs. 94-1-0 being the share of Govinda Pillai, the appellant's deceased brother, in the sum drawn by the respondent from the Court in Small Cause Suit No. 1938 of 1895, and (ii) an item of Rs. 200 being the amount of a promissory note made by Govinda Pillai in favour of the respondent.

As regards the first item, the respondent's plea was that he appropriated the amount towards the fees due to him in Original Suit No. 14 of 1895, a suit for partition against the present appellant which abated on the death of Govinda Pillai, the plaintiff therein, and that he was also authorized by Govinda Pillai to do so. The lower Appellate Court refers to this question of authorisation as the third question for decision in the appeal before it and records (on it) a finding in the affirmative in favour of the present respondent. There is evidence in the case in support of this alleged authority and we accept the finding of the Subordinate Judge on this point. It is, therefore, unnecessary to consider whether even in the absence of such authority, the respondent would be entitled, as found by the Subordinate Judge, to appropriate this item, which was drawn in Small Cause Suit No. 1938 of 1895, for, fees due to him (by Govinda Pillai) not in that suit but in another suit, namely, Original Suit No. 11 of 1895.

As regards the second item, if the amount of the promissory note were in reality a sum advanced by way of loan to Govinda Pillai, the respondent's remedy would be only on the promissory note and he would have no lien under section 217 of the Indian Contract Act, on any sums received by him (from Court) On behalf of Govinda Pillai, his client, and the promissory note, would, not be invalid under section 28 of the Legal Practitioners Act. But reading the promissory note (exhibit I, dated the 11th November 1896) along with the letter (exhibit II, dated the 7th October 1896) of Govinda Pillai to the respondent, it is clear that the amount of the promissory note was not an amount advanced by way of loan, but an amount which, at the request of his client, the respondent disbursed for out-fees in the suit in which he was retained as vakil. In this view the questions arising for decision are whether the promissory note is invalid under section 23 of the Legal Practitioners Act and whether the respondent is entitled, under sections 217 and 218 of the Indian Contract Act, to a lien in respect of the amount and can deduct the same out of the sum received by him (from Court) on account of his client; it being conceded that the respondent's claim, if any, on the promissory note, whether by suit or by set off, was barred at the date of the suit.

We are clearly of opinion that the promissory note for payment on demand of the sum of Rs. 200 with interest thereon at one per cent. per mensem is, within the meaning of section 28 of the Legal Practitioners Act, an agreement respecting the amount of payment for charges incurred or disbursements made by the respondent, in respect of the suit in which he had been retained as a vakil; and as the same has not been filed in Court as required by the section, it is invalid. The section is general and there is nothing to restrict its operation to agreements which provide for the payment of a larger amount than the disbursements actually made for out-fees, or of any lump sum irrespective of such disbursements or for payment of pleader's fee in excess of what may be allowed as such on taxation between party and party in accordance with the rules framed under section 27 of the Legal Practitioners Act. We are, therefore, unable to concur in the contrary view taken by the Allahabad and the Calcutta High Courts [see Razi-ud-din v. Karim Bakhsh(1), Sarat Chunder Roy Chowdhry v. Chundra Kanta Roy(2)]. The policy of sections 28, 29 and 30 of the Legal Practitioners Act, corresponding to sections 4, 9 and 6 of the English Attorney and Solicitors Act, 33 & 34 Vict., cap. 28, is that whenever an agreement is entered into between a pleader and his client respecting his remuneration or payment for out-fees, such agreement should be reduced to writing and not only so, but also filed in Court and that when a suit is brought upon such agreement, the Court should have the power if, in its opinion, the agreement is not fair and reasonable to reduce the amount payable thereunder or order it to be cancelled, and, in the latter case, to award such amount only as would have been decreed in the absence of any agreement between the pleader and his client. Section 30, however, provides that a pleader shall not be entitled to claim anything beyond the terms of such agreement, except in respect of services fees, charges or disbursements expressly excepted from the agreement.

It seems therefore clear that, though an agreement entered into will be invalid unless reduced to writing and filed in Court, yet the pleader is not disentitled, in absence of any agreement, to claim reasonable remuneration in respect of his professional services or the repayment of out-fees advanced by him. This is the view taken in the decision of this Court in Rama v. Kunji in regard to a claim for pleader's fee; and the decision will be equally applicable to a claim for out-fees. The circumstance, however, that there was, in fact, an oral agreement or a written agreement which was not filed in Court, cannot, in our opinion, make any difference; and the pleader's rights and remedies will be just the same as if there had been no agreement at all. An oral agreement or a written agreement not filed in Court, being invalid under section 28 of the Legal Practitioners Act and therefore unenforceable, is ‘void’ [vide section 2, clause (g) of the Indian Contract Act], and cannot therefore preclude the pleader from maintaining a suit as if no agreement had been entered into at all. This is in accordance with the opinion expressed by this Court in Krishnasami v. Kesava.

The conclusion we, therefore, come to is that the Legal Practitioners Act does not enact that no claim by a pleader for professional services rendered or for recovery of out-fees (advanced) shall be sustainable, unless an agreement in writing for the same has been entered into with the client and filed in Court, but only that an agreement, if any, in respect thereto shall be void unless the same has been reduced to writing and filed in Court.

The promissory note (exhibit I) is therefore void and it hence becomes unnecessary to consider whether the lien which the respondent would otherwise have had (under section 217 of the Indian Contract Act) should be regarded as having been waived by his taking a promissory note, if the same had been filed in Court under section 28 of the Legal Practitioners Act. Independently of the promissory note, the respondent is entitled to recover the out-fees advanced by him and, under section 217 of the Indian Contract Act, he is entitled to retain the same out of the sums received by him to the credit of his client. The appellant's pleader admits that the amount actually advanced by the respondent for out-fees was Rs. 200 and it is therefore unnecessary to remit an issue for the purpose of taking an account as to the sums actually advanced by the respondent for out-fees.

The second appeal, therefore, fails and is dismissed with costs.