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1955 Supreme(Bom) 170
IN THE HIGH COURT OF BOMBAY
Tendolkar S.R, J.
Appellants: K.L. Gauba
Vs.
Respondent: J. Vasica
O.C.J. Suit No. 88 of 1951
Decided On: 10.02.1955
Counsels:
For Appellant/Petitioner/Plaintiff: A.R. Malhotra and M.G. Mani, Advs.
For Respondents/Defendant: H.D. Banaji and M.P. Laud, Advs.
For Bar Association: M.P. Amin, Advocate-General
A barrister enrolled as an advocate on the Original Side of the Bombay High Court is entitled to maintain a suit for fees for work done in other courts.
Headnote:
LEGAL PRACTITIONERS - FEES - BARRISTER ENROLLED AS ADVOCATE - RIGHT TO SUE FOR FEES - LEGAL PRACTITIONERS (FEES) ACT, 1926, SECTIONS 2(A), 3, 4, 5 - BAR COUNCILS ACT, SECTION 9(2)(A) - BOMBAY HIGH COURT RULES, PART I, RULE 40 - BOMBAY BAR ASSOCIATION RULES, RULE 19.
Fact of the Case:
Plaintiff, a barrister enrolled as an advocate on the Original Side of the Bombay High Court, sued the defendant for fees for work done partly in the Chief Presidency Magistrates Court at Bombay and partly in the Simla High Court. The defendant raised a preliminary issue as to whether the plaintiff, being a barrister, was entitled to maintain the suit.
Finding of the Court:
The court held that the plaintiff was entitled to maintain the suit. The court found that the Legal Practitioners (Fees) Act, 1926, empowered legal practitioners, including barristers enrolled as advocates, to contract for their fees and to sue for their recovery. The court also found that the plaintiff was not under a personal disability to sue for fees merely because he was a barrister.
Issues: Whether a barrister enrolled as an advocate on the Original Side of the Bombay High Court is entitled to maintain a suit for fees for work done in other courts.
Ratio Decidendi: The court held that the plaintiff was entitled to maintain the suit because: * The Legal Practitioners (Fees) Act, 1926, empowered legal practitioners, including barristers enrolled as advocates, to contract for their fees and to sue for their recovery. * The plaintiff was not under a personal disability to sue for fees merely because he was a barrister.
Final Decision: The court answered the preliminary issue in the affirmative and held that the plaintiff was entitled to maintain the suit.
1. This is a suit filed by a barrister-at-law for the recovery of his fees. The work in respect of which these fees became payable was done by him partly in the Chief Presidency Magistrates Court at Bombay and partly in the Simla High Court, and he appeared, acted and pleaded for the defendant in all these matters.
2. A preliminary issue, being issue No. 2, has been raised as to whether the plaintiff being a barrister is entitled to maintain this suit. As this issue was of considerable importance to the Original Side Bar, I directed that a notice be given to the Advocate-General and the Bar Association, and in response to the notice the Advocate-General has appeared at the hearing of this issue.
2a. Now, it is common ground that the plaintiff who is a Barrister was enrolled as an advocate on the Original Side of this High Court in March 1948. Section 9, Bar Councils Act empowers the Bar Council, with the previous sanction of the High Court, to make rules to regulate the admission of persons to be advocates of the High Court; and Sub-clause (2) (a) in particular empowers the Bar Council to provide for the qualifications to be possessed by persons applying for admission as advocates.
In exercise of the power conferred upon it, the Bar Council has framed rules which are published in the Bombay Government Gazette, Part I, dated 8-8-1940. Rule 1 (iii) provides inter alia that a barrister shall be qualified to present an application for being admitted as an advocate of the High Court of Bombay, and it is under this rule that the plaintiff has been enrolled as an advocate.
It is further to be noticed that so far as the Original Side of the High Court is concerned, R. 40 of Part I of the High Court Rules provides that advocates shall not, except in certain matters which are specifically excepted, act for a party in any matter on the Original Side of this Court or in any appeal from such matter. It is also admitted that the plaintiff is a member of the Bombay Ear Association and the rules of that Association contain as R. 19 the following rule:
"The rules of etiquette governing the English Bar printed in the Annual Practice 1930 pages 2400-2425 shall apply to members in so far as they are not inconsistent with the aforeaid rules or with established local practice."
3. Now, it is common ground that a barrister practising in England can generally speaking only plead and not act, he cannot sue for his fees nor can he be sued for negligence by his client; and the plea advanced on behalf of the defendant in the present case is that since the plaintiff is a barrister he is not entitled to sue for his fees.
4. Now, the proper approach in determining the right of the plaintiff to sue is to look at the relevant provisions of Indian law in the first instance; and those are to be found in" the Legal Practitioners (Fees) Act, 1926. Section 2 (a) provides that the expression "legal practitioner" shall have the same meaning in this Act as it has in the definition given in Sections 3, Legal Practitioners Act, 1879. When one turns to Sections 3, Legal Practitioners Act of 1879, the definition is as follows:
" legal practitioner means an advocate, vakil or attorney of any High Court, a pleader, mukhtar or revenue-agent."
It is undoubted that the. plaintiff is a "legal practitioner" within this definition. Then Section 3, Legal practitioners (Pees) Act provides as follows:
"Any legal practitioner who acts or agrees to act for any person may by private agreement settle with such person the terms of his engagement and the fee to be paid for his professional services."
And Section 4 provides that such a legal practitioner shall be entitled to institute and maintain legal proceedings for the recovery of any fees due to him. Section 5 provides that the legal practitioner in his turn is liable to be sued for negligence. It is clear, therefore, that to the extent to which the plaintiff "acted" or agreed to act" for the defendant, he was competent to contract for
