Stanley, C.J:— I have had an opportunity of reading the judgment of my brother RICHARDS, and I entirely agree with him that the oral agreement upon which the plaintiff brings his suit comes within the purview of section 28 of the Legal Practioners Act of 1879. The agreement is alleged to have been entered into at an interview between the general attorney of the defendant and the plaintiff. According to it the general attorney agreed to engage the plaintiff as a pleader on behalf of the defendant and promised to pay the plaintiff full legal fees. The agreement was therefore one respecting among other things the amount of payment for services. I therefore agree in holding that it ought to have been in writing and not having been reduced into writing it is not valid. I am disposed further to think that the agreement alleged is entirely too vague and uncertain to form the foundation of a suit. This, however, it is unnecessary to determine. I would therefore allow the appeal set aside the decree of the lower appellate Court and restore the decree of the Court of first instance with costs of this appeal, including fees in this Court on the higher scale and also costs in the lower appellate Court.
Knox, J.:— I also agree and have nothing further to add.
Richards, J.:— In this suit, the plaintiff, a pleader sues for damages for breach of an agreement as set forth in the second paragraph of the plaint. The plaint after referring to some contemplated litigation alleges the agreement in the following terms, After some talk he (“the defendant's agent”) “promised to pay full legal fees and engaged the plaintiff as a pleader on behalf of the defendant.” The plaint goes on to allege that notwithstanding this agreement the plaintiff employed another pleader to conduct the litigation to which the agreement referred and he claims damages for breach of contract. The damages are said to be measured at the sum that would be awarded to the defendant against his adversary if successful in the litigation. The defence is a denial of the agreement and a special defence that, even if the agreement was entered into it is void by reason of the provisions of section 28 of Act XYIII of 1879. The lower appellate Court has found in favour of the agreement, and accordingly in this second appeal we are bound by the finding and have only to consider the second defence to which I have referred. Section 28 is as follows:— “No agreement entered into by any Pleader, Mulch tar or Revenue agent with any person retaining or employing him, respecting the amount and manner of pay-merit 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, Mukhtar or Revenue agent 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.”
2. The plaintiff contends that on the true construction of this section, only agreements, providing for the payment of fees in excess of those fixed by the High Court under the preceding section of the Act, are rendered void, and that the present agreement, which was only an agreement for “full legal fees” is perfectly valid. The section is not very happily expressed and the words “respecting the amount” might perhaps suggest that the legislature had in mind agreements whereby the client rendered himself, liable for fees in excess of those fixed. On the other hand, if this was the sole intention of the legislature, it could very easily have said so in express words, and it is also to be remarked that section 27 only provides for the fixing of “party and party” fees. It makes no provision for fees in criminal cases or for what is known in England as “solicitor and client” costs, or for a pleader's remuneration in non-litigious matters. In England machinery is provided for the taxation of all costs whether between party and party or solicitor and client and whether the business be Civil or Criminal, litigious or non-litiggious. In India there is no or practically no corresponding machinery. If a pleader and bis client fail to adjust their accounts by mutual consent and payment the only conceivable course is a suit in the civil court by the pleader for work done. The civil court can then decide what work has been done and what is reasonable and fair remuneration for the services rendered, such a course unless prohibited by the legislature seems to me quite unobjectionable under existing circumstances in this country. To return to the present case it may be convenient to consider for a moment what the agreement set forth in the second paragraph of the plaint really meant. It did not merely mean that the plaintiff should be entitled to his “legal fees” for the work he actually did. It meant that the plaintiff should be employed throughout the litigation, no matter how much the defendant might wish to terminate the agreement. No other pleader could be employed unless the defendant was prepared to pay the plaintiff his full fees irrespective of whether the work was or was not done by him. In other words, the plaintiff, by the agreement, stipulated for considerably more than to be paid his legal fees for work and services actually performed and rendered. In my judgment the legislature intended by this section that all special agreements between a pleader and his client should be in writing, signed and filed according to the provisions of the section. It intended at the same time to leave the pleader his full right to recover from his client his reasonable and proper fees for work actually done for the client and also all moneys duly and properly disbursed on his behalf. If a pleader relies on an express or special agreement he must prove one made in accordance with the provisions of the section. It is impossible to say that the present agreement was not technically an agreement respecting “the amount and manner of payment” for services. It stipulated for “full legal fees” whatever that may mean. Construing the agreement in the manner it is necessary to construe it, in order that the plaintiff should succeed in this suit, it is an agreement within the mischief intended to be prevented by the section and should, in my opinion, have been in writing signed by the client and filed.
3. A number of cases have been cited in the course of the arguments but in none of them did a pleader sue for damages for breach of contract as in the present case. In the case of Razi-ud-din v. Karim Bakhsh(1), the plaintiff had done the work and the defendant had been actually allowed against the opposite party the fees sued for, and it was held that notwithstanding the provisions of the section the plaintiff could recover. The defendant had been allowed these fees on taxation against his adversary solely because he had paid or was liable to pay them to his own pleader, the plaintiff. The case is no authority against the view that I take, on the contrary it is in complete accord with it. In the case of Rama v. Kunji, the plaintiff only sued for his regular fees after the work was done. A decree was made in favour of the plaintiff. The learned Judges expressly say at page 376: “The plaint does not show that the cause of action is based on an oral agreement. Nothing is said about any agreement at all, the suit is framed as for work and labour clone.” In Sarat Chunder Roy Chowdhry, (Defendants, petitioners) v. Chundra Kanta Roy(2) plaintiffs, opposite party the plaintiff sued for fees in a criminal case and for work done. The Court held that the plaintiff could not succeed in the absence of a written agreement. The case was only argued, on one side, so far as the plaintiff's suit was based on a special oral agreement. I think it was rightly dismissed, I am not, however, prepared to say that the claim for work actually done ought to have been dismissed. In this respect the case is contrary to the rulings of the Court in these Provinces and in Madras.
4. In Subba Pillai v. Rama Sami Ayyar (defendant) respondent(3), the Court held that a promissory note given for fees was void not having been filed according to the provisions of the section. The learned Judges say at page 516:— “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 reason able remuneration in respect of his professional services or the repayment of out fees advanced by him.” The argument based on hardship has no force. If a pleader enters into a fair and reasonable agreement with his client which the latter understands and approves of, there is no great hardship in having it reduced to writing and in filing it in Court. In my judgment the utmost the plaintiff was entitled to was a reasonable sum for the preparation of the plaint. He does not, however, sue for this. It does not appear that the plaint was ever made any use of. I very much doubt that the plaintiff refused to act for the other side. If the allegations in the plaint are true, there was certainly no obligation on him, legal or moral, to do so. It is somewhat significant that the defendant (after, as the plaintiff says, leaving important documents with him) was able so easily to go to another pleader. Possibly the Rs. 16, which the plaintiff accepted at the time was not altogether insufficient remuneration for the work done. This suit is not, however, brought for work clone, it is a suit for damages and the liability of the defendant for those damages has been the issue between the parties.
5. I would allow the appeal.
6. By The Court.:— The order of the Court is that the decree of the lower appellate Court be set aside and the decree of the Court of first instance restored with costs of this appeal including fees in this Court on the higher scale and also costs in the lower appellate Court.
7. Appeal dismissed.