Saukat Ismail Patel vs B.C. Gandhi, Advocate

G.R. Udhwani, J.—Partly aggrieved by order dated 02/08/2001 passed by the learned Assistant Judge, Bharuch in Misc. Civil Application No. 45 of 2001 in LAR No. 285 of 1986 insofar as it directs deduction of 4% of the award towards advocate fees, this Revision Application has been instituted praying to quash and set aside the said order. Learned Advocate Mr. B.C. Gandhi, Ankleshwar, Bharuch was engaged by the petitioner for conducting the above land reference proceedings. The award was passed and the matter was taken to the High Court. On High Court''s rendering decision, the awarded amount came to be deposited before the District Court. Before the said amount can be disbursed, learned Advocate Mr. B.C. Gandhi moved an application for recovery of his fees at the rate of 4% of the total award as it was his case that he was an unpaid Advocate by the petitioner. While passing the impugned order, the Reference Court directed a payment of Rs. 9,98,435/- to the petitioner. It also ordered the payment of 4% of the amount i.e. Rs. 41,600/- to the Advocate.

During pendency of the revision application, learned Advocate Mr. Gandhi has expired and is being now represented by his legal heirs.

The short issue raised before this Court is as to whether it was permissible for an Advocate to prescribe a fees in percentage after the award is determined and, in the event of non-payment whether it is permissible for the Court to order such payment in the proceedings instituted by a client, without relegating the unpaid learned Advocate to appropriate remedy?

Learned Counsel for the petitioner relied upon Rules 9, 20, 24, 25, 26, 27, 30, 31 and 32 of the Bar Council of India Rules and contended that the Advocates are obliged to raise the bills, maintain the account and recover the unpaid fees in accordance with the legal procedure including the civil suit, but cannot urge before the Court, which is seized with the case instituted by an Advocate at the instance of his client. He also contended that the learned Advocate was not entitled to stipulate for the fee contingent on the result of litigation or agree to share the proceeds thereof. The contention is that the Courts have no authority in law, unless the suit was filed, to order for the deposit of the Advocate fees. It was submitted that when the learned Advocate signs the Vakalatnama with the signature of his client, he enters into a contract and in case of breach of contract, the civil suit is the only remedy and no short-cut can be resorted to by moving the Court in the proceedings instituted at the instance of his client. Learned Counsel for the petitioner also submitted that the fact that the amount was outstanding was disputed by the petitioner even in the Court below. However, without giving any legal opportunity to the petitioner, the Court presumed that there existed a contract for payment of fees at the rate of 4% of the award that may be made by the Court. It was also submitted that no documents or accounts in support of so-called agreement was produced before the Court below. He, therefore, submitted that the order giving the direction to pay 4% Advocate fees of the awarded amount is required to be quashed and set aside.

4.1. Learned Counsel for the petitioner relied upon New India Assurance Co. Ltd. Vs. A.K. Saxena, wherein the Hon''ble Supreme Court has laid down the proposition of law that dispute with regard to Advocate''s fee cannot be agitated before the High Court or Supreme Court in a writ petition and that Advocate has no lien over the papers of his client in the event of non-payment of Advocate''s fee.

As against that, learned Counsel for the respondent would submit that for want of fees the learned Advocate was entitled to retain the case papers filed by his client and in the instant case without properly discharging the respondent, another Advocate was engaged by the petitioner and thus since the contract was not terminated at any point of time, the respondent was entitled to full fees and that the trial Court while relying upon Alaukik Trading and Investment Pvt. Ltd. and 3 Vs. C.R. IYER, has rightly awarded the advocate fees to the respondent and that this is not a case where High Court can interfere u/s 115 of the CPC.

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:

6.1. 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:

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.

6.2. 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.

6.3. 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 pecuniary 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.

6.4. 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.