Anwar Ahmed Patel vs B.C. Gandhi

Aniruddha P. Mayee, J

The present Civil Revision Applications arise out of the impugned judgment and order dated 2.8.2001 passed by the learned Assistant Judge, Bharuch in Misc. Civil Applications No. 44 of 2001 and 43 of 2001.

1.1 Since both the Civil Revision Applications raise common issues, the same are disposed of by this common judgment.

The brief facts are as under:-

2.1 That the applicants are agriculturists whose lands were acquired along with other persons for setting up G.I.D.C. Estate in Bharuch district. That on 29.8.1983, the Special Land Acquisition Officer gave his award in respect of the lands acquired including the land of the applicants herein. That all the claimants filed Land Acquisition Reference Case Nos.255 of 1986 to 361 of 1986 in the Court of learned Assistant Judge, Bharuch. That the applicants herein had filed Land Reference Case Nos. 282 of 1986 and 283 of 1986.

2.2 That the learned Assistant Judge, Bharuch passed a common judgment and order dated 21.4.1989 awarding compensation to the claimants. The Officer on Special Duty challenged the common judgment and order by filing First Appeals in this Court. The said First Appeals were decided by common judgment and order dated 1.3.1999 by this Court.

2.3 Pursuant to the judgment, the compensation came to be deposited in the District Court, Bharuch on 2.6.2001.

2.4 That on 16.6.2001, the respondent advocate herein filed Misc. Civil Application Nos.43 of 2001 and 44 of 2001 before the District Court, Bharuch against the applicants herein with a prayer that the said amount of compensation may not be paid to the applicants herein without first paying the balance professional fees of the respondent advocate.

2.5 By the impugned judgment and order, the learned Assistant Judge, Bharuch passed an order that the respondent advocate be paid 4% of the compensation amount as deposited and the balance amount be paid to the applicants herein.

2.6 Aggrieved, the applicants herein have preferred the present Civil Revision Applications.

Mr. J.A.Adeshra, learned advocate appearing for the applicants herein has, at the outset, submitted that during the pendency of the present Civil Revision Applications, learned advocate – respondent herein has since expired and there were many such Civil Revision Applications pending against him, in some of the cases, his legal heirs have been represented. He fairly states that in the present case, the legal heirs have not entered any appearance. He submits that the same issue has been decided by this Court in Civil Revision Application No.416 of 2004 on 13.6.2013 against the same respondent advocate herein. He submits that the same issue was further decided by this Court vide order dated 29.2.2016 in Civil Revision Application Nos.275 of 2003 and other connected matters. He submits that thereafter vide order dated 11.10.2022 in Civil Revision Application No.1187 of 2002, the same issue has also been once again decided and the impugned orders have been set aside. He submits that in view thereof, the present Civil Revision Applications be disposed of accordingly by allowing the same.

Heard learned advocate for the applicants at length and perused the documents on record.

The only issue which requires consideration in the present Civil Revision Applications is whether by the impugned order, the Court below could have directed to pay an amount of 4% of the compensation to the claimants towards the professional fees of the respondent advocate herein.

This Court in judgment dated 13.6.2013 in Civil Revision Application No.416 of 2004 has observed as under:-

“7. Having considered the arguments advanced by the parties and perused the impugned order, the impugned order cannot be sustained even for a minute for the following reasons:

7.1 When the client of an Advocate signs a Vakalatnama and the Advocate agrees to represent his case by putting his signature in the Vakalatnama, a contract is constituted. Under that contract, the Advocate may orally prescribe the fee or may raise a written bill. For the fees recovered or recoverable, the advocate is bound to render services and, if there is a deficiency of service or there is allegation of deficiency of service, the client of an advocate may have appropriate remedy. Being an Officer of the Court, the advocate is bound to represent the case of his client with due diligence and efficiency and assist the Court to reach to a rightful conclusion. The duty of the Court then is to pronounce the judgment or order after appreciating the facts, evidence and the arguments, if any, advanced by the parties. Beyond that, no law cast a duty upon the Court to order for the recovery of Advocate’s fee which might have been agreed by the two. Neither such any legal provision is pointed out by the learned Counsel for the respondent except the case of Alaukik (Supra). It is true that in that case after referring to various provisions of CPC and reasoning that Advocate was the Officer of the Court and therefore the Court can order for recovery of the Advocate’s fee asking the party to deposit it in the Court, without relegating the Advocate to the appropriate legal remedy. However, in A K Saxena (Supra), the Hon’ble Supreme Court was concerned with almost similar issue. In that case in paragraph No.6, the following observations were made:

“6. This case is fully covered by a decision of this Court in R. D. Saxena v. Balram Prasad Sharma wherein this Court has held that advocates have no lien over the papers of their clients. It is held that at the most the advocate may resort to legal remedies for unpaid remuneration. It has been held that the right of the litigant to have the files returned to him is a corresponding counterpart of the professional duty of the advocate and that dispute regarding fees would be a lis to be decided in an appropriate proceeding in court.”

7.2 The said observations answer both the submissions made by the learned Counsel for the respondent and also lays down that at the most the unpaid Advocate may resort to appropriate legal remedy for recovery of his remuneration. It is held in that case that neither High Court nor the Supreme Court can order for recovery of the Advocate fees by asking the party to deposit the same before it. These observations will apply with equal force in case of trial Court as well.

7.3 Even, the legal provision in the nature of rules referred to herein above, particularly Rule 9 and 20 respectively prohibits the Advocate to plead in any matter in which he is pecuniarily interested and also prohibits him from stipulating for a fee contingent on the result of litigation or agree to share the proceeds thereof. In the instant case, the learned Advocate asked or the Court awarded 4% of the award as fees. Thus, he had a pecuniary interest, inasmuch as more the award was more would be his fees. Such a stipulation was therefore in clear violation of Rule 9 and 20.

7.4 Rule 25 and 26 obliges Advocate to maintain accounts as to amount of fees received by him and Rule 27 obliges him to issue a receipt of the fees received by an Advocate as early as possible and the copy of the client’s account is required to be furnished to him on demand under Rule 30. Thus, it is crystal clear that the relation between the learned Advocate and his client are governed by contract as well as the relevant rules referred to herein above. The Courts while hearing the suit or proceedings instituted by an Advocate on behalf of his client, therefore, have no authority to get the contract executed by compelling party to a suit /proceedings to make a deposit though he may not be willing to deposit for reasons more than one. The client may have grievance for deficiency of service against the Advocate. The advocate may have a dispute on the fees agreed or for some other dispute. The fact that the petitioner contended that no fee was outstanding indicated that an arguable issue was likely to arise, if the suit was instituted by the respondent. In such set of circumstances, directing the client to pay the remuneration irrespective of his dispute would be causing a miscarriage of justice to him and predetermining an issue and driving him to an uncalled for litigation.

In view of the above discussion, the Court below was in serious error of jurisdiction and therefore the impugned order cannot be sustained. The same is therefore quashed and set aside. Accordingly, this Revision Application is allowed. It goes without saying that the amount ordered to be deducted by the Court towards Advocate’s fee shall be paid by the Court to the petitioner with accrued interest, if any.”

6.1 Relying on the very same observations, this Court has allowed Civil Revision Application Nos.275 of 2003 and other connected matters by order dated 29.2.2016 and Civil Revision Application No.1187 of 2002 along with other connected matters vide order dated 11.10.2022.

In view of the settled legal position and the issue being decided in favour of the applicants by the three Coordinate Benches of this Court, the present Civil Revision Applications also are allowed. This Court is in respectful agreement of the judgment passed by the Coordinate Benches.

In view of above, the present Civil Revision Applications are allowed. The impugned judgment and orders are, accordingly, quashed and set aside. If any amount is retained pursuant to the impugned orders, the same shall be paid to the claimants or the legal heirs after due verification.

The present Civil Revision Applications are accordingly disposed of. Rule is made absolute to aforesaid extent.