Razi-Ud-Din v. Karim Bakhsh

Straight, J.:— This is a reference by the Judge of the Small Cause Court of Allahabad under s. 617 of the Civil Procedure Code. The suit to which it relates was instituted by the plaintiff, a pleader of the subordinate Courts, to recover a sum of Rs. 58-1-3, as his share of the amount of fees allowed upon taxation to the defendant as a successful party in a suit brought against him, in which the plaintiff with three other persons, acted as his pleader. No appearance was entered by the defendant to the suit, nor was any defence set up on his behalf. The point that has been taken by the learned Small Cause Court Judge, and which he refers for the decision of this Court, is very fully set out in the order of reference, from which I may quote the following passage:—

“It is admitted that there was no agreement in writing between the parties as to the plaintiff's fees. It is, however, stated in the plaint that there was an agreement to pay to the plaintiff his share of the ‘legal fees’ payable to the defendant by his adversary, and the plaintiff has deposed that the agreement was made orally.”

The question in terms referred to us is:—

“Whether an agreement between a legal practitioner and his client for the payment of the fees of the former at the scale prescribed by the High Court in respect of fees payable by a party for the fees of his adversary's legal practitioner, is valid unless made in writing and filed in Court, as required by s. 28 of the Legal Practitioners Act.”

[173] There is no doubt that the defendant did upon taxation receive into his hands in respect of the amount of pleader's fees allowed at that taxation against the unsuccessful adversary the sum of Rs. 232-5-0; and there is equally no question that the plaintiff's share of that amount was Rs. 58-1-3. The learned Subordinate Judge, having regard to the terms of s. 28 of the Legal Practitioners Act, is of opinion that as there was, upon the admission of the plaintiff, an oral arrangement between himself and the defendant that the remuneration of him, the plaintiff, should be limited to his share of the taxed costs allowed as against the unsuccessful party for pleader's fee, he cannot maintain this suit and it must be defeated because such agreement was not reduced into writing. His reason for referring this matter under s. 617 of the Civil Procedure Code is that there is a ruling of the Madras High Court in Rama v. Kunji which takes a contrary view, with which he was not disposed to agree. Before expressing my opinion with regard to the interpretation to be attached to s. 28 of the Legal Practitioners Act and the kindred sections connected with it, I am constrained to remark that I do not think that, in preparing his order of reference, the learned Small Cause Court Judge was right in referring to the objects and reasons which led to the preparation of the Bill which subsequently became the present Act. To say the least, it is an inconvenient practice, and, moreover, it is one that is quite irregular.

Now the provisions of the Legal Practitioners Act, with which I am more particularly concerned in disposing of this reference, are ss. 27, 28, 29 and 30 of that statute. S. 27 provides that this Court may by rules fix and regulate the fees payable by any party in respect of the fees of his adversary's advocate, pleader, vakil, mukhtar, & c, in the subordinate Courts, and those fees have been by rule of this Court declared and determined and are based on a particular rate in reference to the valuation of the suit. Having made that provision the statute then goes on, in ss. 28, 29 and 30 to provide not as to matters that relate to the opposite party or the [174] fees that he has to pay to the legal practitioner of the opposite party, but to provide what as between the pleader and his client shall be the method in which certain special arrangements are to be entered into; and in my opinion these sections do not relate to any arrangement or agreement which is made between a litigant and his own pleader as to the receipt of the fees which are actually allowed upon taxation. Otherwise this extraordinary state of things would arise, that, if there was no agreement, the pleader would get nothing though entitled to his fees; that is to say, he could not succeed in getting them because he had not entered into any written agreement with his client. The result would work grave mischief in this way, that as in the present case the litigant, having received the full amount of the taxed pleader's fee allowed against his adversary, could put them into his pocket and say:— “You, the pleader, are not entitled to a pice of the money, because there was no agreement to pay you the taxed fee, and therefore you have no claim against me.” I cannot believe that the Legislature ever contemplated or intended anything so absurd, or that they meant that in every case there was to be a written agreement. Until corrected by higher authority, I will not construe the statute in such a way as to make it appear so ridiculous. What these sections, in my opinion, did contemplate, was to make provision for agreements made between pleaders and their clients which relate to the payment of remuneration in excess of and apart from the amount allowed in the taxation. They were framed upon the principle which rightly recognises and regards with jealous scrutiny contracts brought about by persons holding positions of active confidence towards others, such as a pleader necessarily occupies in reference to his client. They were intended to protect necessitous, improvident or careless litigants from being taken advantage of by unscrupulous legal advisers. I think the justification of what I am saying is to be found in s. 29 of the Legal Practitioners Act, which says that where a suit is brought to enforce any such agreement as is mentioned in s. 28, it lies, as it always does lie, upon a person standing in the position of active confidence to show that the agreement was a fair and reasonable agreement; and if he does not do so, “the Court may reduce the amount pay-[175] able thereunder, or order it to be cancelled and the costs, fees, charges and disbursements in respect of the business done to be ascertained in the same manner as if no such agreement had been made.”

Now it seems to me that the very terms of that section give an index of the nature of the agreement in contemplation in s. 28; because the terms of s. 29 would be wholly inapplicable to a case in which a man had agreed to take only and nothing more than the amount allowed on taxation, as in such a case no question could arise as to the fairness and reasonableness of the agreement. That being so, and this being the fair construction to be placed upon these sections, I am very clearly of opinion that the ruling of the Madras High Court was a right ruling and that we ought to follow it. With this intimation I direct that this reference be returned to the Small Cause Court Judge for him to proceed with the case. The costs of this proceeding here will follow the result.

Brodhurst, J.:— I concur.