Mt. Babui Radhika Debi vs Ramasray Prasad Chowdhry

In pursuance of the order of this Court, (see Babui Radhika Debi Vs. Ramasray Prasad Chowdhry and Others, .), dated 1st April 1930, the advocates concerned have filed the accounts showing what sum as compensation should be paid to them for the work done and which was still expected to be done by them in pursuance of their appointment as advocates by the appellant. The petitioner has not filed any accounts as to what is due to the learned advocates concerned, as directed by the order in question. Mr. T.N. Sahay appearing on behalf of the appellant-petitioner wants time to furnish the account in question. The order of 1st April was passed in the presence of the petitioner''s advocate and the garpardaz and the direction to furnish an account was definitely made. There is no reason to give any further time.

We have scrutinized the accounts furnished by the learned advocates concerned. The work done by them as set forth in their accounts in respect of which the charges have been made is not denied by the petitioner.

The first and the foremost account in order of importance is that of Mr. R.K. Jha. He was in charge of the case from the very beginning and drew up the grounds of appeal. In the bill he has charged Rs. 110 for this work. Under the High Court rules in the scale of fees allowed to a successful party in Ch. 13, Rule 14, Rs. 100 is allowed for drawing up grounds of appeal where the valuation of the appeal exceed Rs. 20,000. The value of the present appeal exceeds Rs. 1,00,000.

The second item is for opposing an application for security filed by the respondents. The charge is Rs. 55. Mr. T.N. Sahay says that it should be reduced to Rs. 32. Similarly with respect to the work done and referred to in Items 3, 4 and 5, Mr. Sahay says that the proper charge should be Rs. 96, Rs. 32 and Rs. 16, respectively, as against Rs. 200, Rs. 150 and Rs. 100, respectively. According to Mr. Jha his charges for the work mentioned in the aforesaid items come to Rs. 615, whereas according to Mr. Sahay the amounts should not be more than Rs. 276. Mr. Sahay says that Mr. Jha should have given the figure with respect to the amounts actually paid to him by his client and should have produced his account of such payment. Mr. Jha says that his account of the sums received by him cannot be had, inasmuch as his clerk who used to keep his account is no longer in his service; but he says that he had received about Rs. 100 in all. This figure must be accepted as correct in view of the fact that no account has bean produced on the other side to show what sum was actually paid to Mr. Jha. Mr. Jha says that in the circumstances of the case for the work referred to in items 1 to 5 ha is prepared to accept Rs. 250, or such sum as the Court may fix; whereas deducting Rs. 100 which was admittedly paid to Mr. Jha, according to Mr. Sahay Rs. 176 is still due to Mr. Jha for the work done by him as aforesaid.

Then comes the question of the hearing-fee. There is not much difference between the parties as to the length of time the appeal is likely to take at the hearing. The paper book is bulky and the case is somewhat complicated and important. The estimated time that may be occupied in the hearing of the appeal is stated to be 15 days. Mr. Jha says that he expected that he was entitled to gab Rs. 3,000 at the rate of Rs. 200 per day. In any case his fee could not be less than Rs. 90 or Rs. 100 per day which Mr. Sahay himself is charging from his client and considering the status of the learned advocate concerned in the case. Calculated at this rate, the fee which Mr. Jha expects to earn at the time of hearing would amount to Rs. 1,350 to Rs. 1,500. Thus the difference between the charges for the fees, both for past and future services as estimated by Mr. Jha and Mr. Sahay, is not much after making deductions for the payments made and reducing the daily fee from Rs. 200 to Rs. 90 or Rs. 100. According to Mr. Jha after the aforesaid deductions it would come to Rs. 1,750, and, according to Mr. Sahay, Rs. 1,626. The legal fee payable to a successful party in this appeal according to the aforesaid scale would amount to about Rs. 1,475, including Rs. 100 for drawing up the grounds of appeal. At least this much Mr. Jha is entitled to get u/s 4, Amended Legal Practitioners Act (Act 21 of 1926). This is upon the ground that the fee payable to Mr. Jha and the other advocates concerned was not settled with the client u/s 3 of the said Act and, consequently, u/s 4 they are entitled only to such fee as would come to on computation

in accordance with the law for the time being in force in regard to the computation of the costs to be awarded to a party in respect of the fee of his legal practitioner.

The law in the present Section 4 referred to above has given effect to the conflict of views that existed in respect of the interpretation of Section 28, Legal Practitioners Act 1879 (Act 18 of 1879). The law as it now stands is that a legal practitioner is entitled to recover his fee settled between himself and his client. When he is not able to prove such a settlement he is entitled to the fee which is payable to a successful party under the rules. The case of Mr. Jha and the other advocates concerned at least comes under the last part of Section 4. They are entitled at least to the legal fee taxable under the scale referred to in the aforesaid rule of the Court. That would be the criterion of the compensation payable to these advocates for the work done and for the loss sustained by them in case their services are dispensed with by the client.

Mr. Sahay contended that this legal fee of Rs. 1,475 should be divided equally amongst all the advocates engaged in the case and whose services are now being dispensed with and that each of them will not be entitled to get the fee separately. This argument is based upon Sarat Chandra Roy Chowdhry v. Chandi Charan Mitra [1903] C.W.N. 300. This view was not accepted in the case of Vellanki Ramakrishna v. P. Venkataramyya [1917] 38 I.C. 210, where it was held that when there are several gentlemen retained by a client in the same vakalatnama, each of the vakils is entitled to claim from his client the full fee stipulated for by him and not merely a share in the single fee allowed as against the losing party. The view taken by the Madras High Court seems to be reasonable. The present Section 4 has apparently given effect to that view, inasmuch as it expressly says that any "such legal practitioner" shall be entitled to the fee, etc. Therefore, each of the learned advocates concerned is entitled to the full fee. Considering, however, the fact that the appeal has not yet been heard and, although their services are being dispensed with, they are not precluded from accepting other work on the same dates and, considering the circumstances of the present case, we reduce the claim of Mr. Jha to Rs. 1,100 in all, and that of Mr. Roy to Rs. 300 and Mr. K.P. Upadhaya to Rs. 150. This nearly brings the total amount payable by the appellant to the fee mentioned in the scale of fees referred to in the aforesaid rule.

As regards the latter two gentlemen Mr. Roy and Mr. "Upadhaya, Mr. Sahay raises further objections. He says that Mr. Upadhaya did not sign the vakalatnama, either the one filed by Ajodhya Chaudhury or his widow Bhawani Chaudhrain on 7th November 1927, and 29th April 1929, respectively, and that, therefore, he is not entitled to any fee. The argument has no substance, inasmuch as both the aforesaid vakalatnamas filed by the client mentioned his name and they engaged him. It only remained to be accepted by him. For the purpose of acting he could do so by signing the vakalatnama. For the purpose of pleading he could do so by filing only a memo of appearance under the amended rule in Order 3, Rule 4, Clause (5). As a matter of fact, he did accept it because he filed the memo, of appearance on 29th April 1929, and from what Mr. Jha says, it is certain that the karpardaz who was in charge of the case was told by Mr. Jha that he would take the assistance of Mr. Upadhaya and he did consent to it.

Mr. Roy was engaged from the very beginning and he assisted in the preparation of the grounds of appeal and appeared on 23rd February 1923, in opposing the application of the respondents for security for costs and before the Registrar in Lawazima matters; so he was an active worker as junior of Mr. Jha in this case and, for all that, he is entitled to charge his fee which, according to Mr. Sahay himself, is not very high. The charge is Rs. 80 for all the work done by him, out of which he has already received Rs. 8, the balance remaining unpaid being Rs. 72. He estimates his future loss at Rs. 55 par day during the hearing of the case. This is also not unreasonable for an advocate of his position. We have however reduced the charge as aforesaid to Rs. 300 in his case,

Whether the vakalatnama has been signed or not, the advocates concerned are entitled to their remuneration for the work done by them on the principle of quantum meruit as stated by Sargent, C.J., in Keshav v. Jamsetji [1888] 12 Bom. 557 which was in the following words:

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.

This case has bean referred to with approval by Mookerjee, J., in the case of Sibkisor Ghose v. Manik Chandra Nath [1915] 29 I.C. 453. We are not at present taxing the fees as in a case of terminated litigation but we are assessing the remuneration for the work done and for the loss that the learned advocates themselves would suffer on account of the cessation of their services by their client and that compensation is within the discretion of the Court to be assessed upon the circumstances of the case and need not necessarily be upon the scale of fees fixed by the rules to be charged against a losing party. We have, however, taken into consideration all this in assessing the compensation to be paid to the learned advocates concerned before the appellant discharges their services. We accordingly make the order as aforesaid and order that unless and until the aforesaid fees are paid the vakalatnamas in question will not be cancelled. All the three advocates concerned have been served with notices by the appellant as regards cancellation of their vakalatnamas. These vakalatnamas will remain in full force unless and until the compensation assessed above is paid by the petitioner to the learned advocates concerned. We assess the hearing fee of this application payable to the learned advocates concerned at two gold mohurs each.

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The petitioner subsequently applied to withdraw her application to cancel the vakalatnama, which was allowed on condition that petitioner do deposit Rs. 1,550 and withdraw allegations against the advocates.