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1936 Supreme(SC) 20
Privy Council At Allahabad
Sir George Rankin, Shadi Lal, Justice Lord Blanesburgh , JJ.
Shiv Narain Jafa -Appellant
Versus
Judges of High Court, Allahabad -Resopndent
Appeal No. 100 of 1934, and Allahabad Appeal No. 46 of 1933
Decided On : 06-04-1936
W. Wallach, J.M. Parikh
Professional misconduct requires evidence of deception or bad faith. Filing a fee certificate based on a bona fide misapprehension of the law regarding the taxation of costs, without concealment of facts, does not constitute professional misconduct.
Headnote:(A) Indian Bar Councils Act, 1926 - Sections 10 and 12 - Legal Practitioners (Fees) Act, 1926 - Professional misconduct - Filing of fee certificate for taxation of costs - Inclusion of fee promised via promissory note instead of actual payment - Whether such act constitutes professional misconduct - If the practitioner did not conceal the nature of the payment and acted under a bona fide misapprehension of the law, it does not amount to deception or bad faith.
(B) Legal Practitioners (Fees) Act, 1926 - Right of practitioner to settle fees by private agreement and enforce the same - Distinction between the practitioner's right to recover fees from a client and the client's right to recover such fees as costs from the defeated adversary - The latter is governed by rules requiring actual payment.
Facts of the case:
An advocate was engaged to defend a suit. Due to the clients' financial condition and status as prisoners, the advocate obtained a promissory note for the balance of the fee with the permission of the trial court. He then filed a fee certificate stating the balance was received via promissory note. The trial court allowed this sum as costs to be paid by the defeated party. Subsequently, the High Court held that only actual payments are allowable as costs and found the advocate guilty of professional misconduct for filing an improper certificate, suspending him from practice for three months.
Findings of Court:
The court found that the advocate made no attempt to conceal the fact that the balance was a promise to pay rather than actual cash. The trial court had been informed and had permitted the arrangement. There was no personal advantage gained by the advocate through deception, as he already held a legally enforceable promissory note.
Issues: Whether the inclusion of a promised fee in a certificate for the taxation of costs, which was not actually paid, amounted to professional misconduct involving dishonesty or bad faith.
Ratio Decidendi: Professional misconduct requires an element of deception or bad faith. Where a practitioner acts under a bona fide misapprehension of the law, and the facts are transparently presented to the court, a mistake in interpreting the rules for taxation of costs does not constitute professional misconduct.
Result: Appeal allowed.
Act Referred
Legal Practitioners (Fees) Act, 21 of 1926
Legal Category Hierarchy
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practice and procedure
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professional ethics
- professional misconduct
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legal fees
- taxation of costs
- fee agreements
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professional ethics
Sir Shadi Lal:-
This appeal has been brought by an advocate of the High Court of Judicature at Allahabad from a judgment of that Court convicting him of professional misconduct and suspending him from practice for a period of three months. The appellant, Mr. Shiva Narain Jafa, was practising as an advocate at Badaun, a district situated in the United Provinces of India; and in the beginning of 1927 he was engaged to defend a suit instituted by one Bhagwant Singh, against two brothers, Bhau Singh and Lachhman Singh. On 22nd January 1927, he filed in the Court of the District Judge, who was hearing the case, a vakalatnama (power of attorney) signed by both the defendants. It appears that they were, at that time, undergoing imprisonment for certain offences, of which they had been convicted; and the appellant, who had been paid only a portion of his fee, submitted on 8th March 1927, an application to the District Judge in these terms :
In the above case it is submitted that I have been looking after this case on behalf of my clients almost from the beginning of January up to this time. The pairokars of the clients have, up to this time, paid me Rs. 140. Now a new Act has come into force from 1926 and according to it a vakil is entitled to get his legal fee and he can realize his money by filing a suit after the case is over. My clients are poor these days and actually they cannot pay up my full fee at present. If my clients will execute, in my favour, a promissory note for the amount of the remaining fee, I shall, according to law, file the certificate of fee and the defendants shall be entitled to recover the same from the plaintiff. If the promissory note is not executed, I shall not file the certificate and the defendants will suffer a double loss, because they shall have to make the payment to me and they shall not be entitled to recover the same from the plaintiff. Therefore the prisoners may be sent for and the matter may be explained to them. If they will execute the promissory note, it will be in their own interests.
Thereupon, the District Judge recorded on that day the following brief order : "Permitted." The defendants were then brought into the Court room, but they did not sign the promissory note, as it is explained, they being prisoners could not execute any document without the permission of the local authorities. Whether there is any justification for this explanation, their Lordships are not in a position to determine : but they observe that a promissory note was actually executed on that very day by Mt. Pania, the wife of Bhau Singh, who had given her a general power of attorney to act on his behalf. This instrument contained a promise by her to pay on demand Rs. 735, the balance of the fee due to the appellant. It is not disputed that be himself produced it before the District Judge for his perusal, and the latter placed it upon the record of the case. Having obtained the promissory note for the balance of his fee, the appellant filed a certificate, in which he stated that he bad received Rs. 140 in cash and Rs. 735 "by means of promissory note." On 10th March 1927, the District Judge delivered judgment dismissing the plaintiff's claim with costs. A decree, which followed upon the judgment, was duly prepared, and the sum of Rs. 735 was included in the amount of the costs to be paid by the plaintiff, Bhagwant Singh,to the defendants. To this decree no objection was taken by Bhagwant Singh, either at the time of the taxation of costs in the trial Court, or in the appeal which he preferred to the High Court on the merits of the case. It is to be observed that his appeal was ultimately dismissed for want of prosecution.
It was not until 21st August 1929, that Bhagwant Singh applied to the District Judge for an amendment of the decree on the ground that the appellant had filed a certificate for fee in excess of the amount which could be lawfully allowed as costs between party and party. The applicant denied his liabilit
