Rajinder Kumar Sharma and Another vs State of H.P. and Others

Kurian Joseph, C.J.—The petition is filed with the following prayer.

The applicants be reinstated with consequential benefits as they were drawing before disengagement dated 5.1.1994, Annexure A-7 or in alternative the full payment of fee to the tune of Rs. 3,79,200/ - pertaining to the 1264 undecided cases still pending/ being contested in which the applicants have/ had appeared from 8 to 10 times.

In paras 6(i) to 6(iv) of the reply, it stated thus:

6(i) It is admitted that the applicants were engaged to defend the cases of the Pong Dam Oustees in the Revenue Courts at Raisinghnagar and Suratgarh in (Rajasthan).

(ii) The averments made in this para are not admitted. Originally there were in all 1731 cases but the number subsequently increased to 2108 as per record available in the office of the D.C. (R and R) Talwara. Out of these 493 cases were decided ex-parte as is evident from Annexure A-4 of this O.A. which shows that the concerned counsels did not oppose the ex-parte proceedings otherwise the cases would have been decided on merits.

(iii) Admitted to extent that a sum of Rs. 450/ - per case was fixed as fee including Rs. 50/ - on account of charges for stationery, photo copies and typing etc. for defending the cases of the Pong Dam Oustees by the Deputy Commissioner, Kangra out of the Pong Dam Oustees Development Agency Fund as is clear from Annexure A-5 of this O.A. The fee was fixed per case and not per hearing. The sharing of the fee by the Advocates was their mutual agreement.

(iv) As stated under Para 6(ii) there were 2108 cases of the Pong Dam Oustees pending in the courts of Sub Divisional Magistrates Raisinghnagar and Suratnagarh under Rule 6-A of 1992 and Rule 6(4), 6(5) and 6(6) of old Rules of 1972. Out of these only 36 cases were decided in favour of the Pong Dam Oustees and 324 cases were rejected on account of mutual agreement between the allottee/oustees and the purported transferees. 493 cases were rejected on account of ex-parte orders against the oustees. The ex-parte decisions are not only detriment to the interests of the Pong Dam Oustees but also against the provisions of amended Rule 8-AAA of allotment-R, which provides that no order shall be passed under the sub-rule without affording an opportunity of being heard to the original allottee and the purported transferees. The counsels have claimed fees for the cases decided in favour of purported transferees on the basis of mutual agreement and the cases decided ex-parte where they had nothing to contest, obviously, the cases were not properly contested other-wise, the same could be decided on merits. Therefore, their claim for fee in such cases is not maintainable. As for other cases which were pending and in which they had put in their appearance, they have no claim to change fee as according to the fee settled with them vide Annexure 5-A of this O.A., it was per decided case and not per hearing. Therefore, they are not entitled to any fee for pending cases also.

We are afraid the stand taken in the reply cannot be appreciated. Even if the contesting Respondents are set ex-parte, the counsel appearing for the Revenue/ Project/ State has to discharge his duty of arguing the matter to its logical end. Thus having participated in the proceedings, the counsel is entitled to the fees unless otherwise prescribed in the rules to the effect that when a case is not contested by the other side, fees will not be paid. Prima facie, we do not find any prescription in the rules. There will be a direction to first Respondent to look into the matter afresh with notice to the Petitioners and take appropriate action to settle the eligible benefits to the Petitioners for the work they have done as entrusted to them within a period of three months from the date of production of copy of this judgment by the Petitioners. The benefits, if any, to which they found eligible shall be disbursed to them within another two months.

With the above observations, the writ petition stands disposed of so also the pending application(s), if any.