In a suit for accounts, the subject-matter is not known or ascertained till the decree is passed and the fees of the pleader depend upon the result of the litigation. Therefore, an agreement between the pleader and his client for fees dependent on the result of the litigation is not against public policy and does not amount to professional misconduct.

JUDGMENT - 1. This is a reference made to us by the District Judge of Broach under the Bombay Pleaders Act. He has come to the conclusion that the pleader concerned has committed professional misconduct in his capacity as a pleader. The learned District Judge came to this conclusion on certain facts which are established before him. It appears that the pleader was employed by one Sakerlal Ramjibhai in a suit which he had filed. Suit No. 187 of 1945, against the Gujarat Gur Supply Co.

The suit was for accounts, the plaintiff contending that the defendant was his agent and had failed to account for the transactions which had taken place in the course of the agency. A preliminary decree was passed in that suit in favour of the plaintiff and on 29-11-1949 a final decree was passed when a sum of Rs. 20,045/12/- was found due by the defendant to the plaintiff. The decree also provided for the taxed costs of the plaintiffs pleader which were taxed at Rs. 534/-.

The pleader filed a suit, being Suit No. 146 of 1952, to recover from the plaintiff a sum of Rs. 5,011/8/- on the allegation that there was an agreement with regard to his fees between him and the plaintiff and under this agreement this amount was due. The agreement that was pleaded by the pleader in the suit was that the client had agreed to pay to him a minimum fee of Rs. 250/- and a further fee of an amount calculated at the rate of 25 per cent of the amount found due to the client at the foot of the accounts taken by the Court.

Further, the amount calculated at 25 per cent was to be paid to the pleader within one month of the date of the final decree passed by the Court. The trial Court raised a preliminary issue as to whether this agreement was against public policy. It held that it was and dismissed the suit. The pleader went in appeal to the District Court and the learned District Judge confirmed the decision of the trial Court.

The pleader preferred a second appeal to this Court which appeal is still pending. In the mean-while the client made an application to the learned District Judge to proceed against the pleader on the ground that he was guilty of improper conduct. The learned District Judge held the necessary inquiry and has made the reference to us which has now come up for hearing.

2. What has been urged by the Government Pleader in support of the reference is that this agreement entitles the pleader to receive remuneration which is wholly dependent upon the result of the litigation. If the plaintiffs suit were to be dismissed, apart from the minimum fee of Rs. 250/- the pleader would not receive anything at all. If a decree was passed in favour of the plaintiff, then the fees of the pleader would depend upon the quantum of the amount decreed in favour of the plaintiff.

According to the Government Pleader, it is now settled law that when a pleader charges fees on the basis of the result of a litigation, such conduct on the part of the pleader amounts to professional misconduct or improper conduct. In support of this contention reliance is placed on the recent decision of this Court reported in In re K.L. Gauba, 56 Bom. L. R. 838 : (AIR 1954 Bom 478) (A), which was affirmed by the Supreme Court in G. a Sr. Advocate of SC, In re, 56 Bom LR 1220 : (AIR 1954 SC 557) (B).

In that case Gajendragadkar and Vyas JJ. laid down that where an advocate agrees with his client to accept as his fees or professional remuneration a specific share in the subject-matter of the litigation upon the successful issue of such litigation, the conduct of the advocate in entering into such agreement amounts to professional misconduct. In that case the advocate had entered into an agreement with his client that he would get from the client 50 per cent of the amount recovered by his client from the opponent, and the advocate contended before the Court that under Section 3, Legal Practitioners (Pees Recovery) Act it was open to him to charge any fees which he thought proper.

The contention was that

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