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TMI Blog2000 (8) TMI 1001X X X X Extracts X X X X X X X X Extracts X X X X ..... of the legal profession. The issue is this : Has the advocate a lien for his fees on the litigation papers entrusted to him by his client. In this case, the Bar Council of India, without deciding the above crucial issue, has chosen to impose punishment on a delinquent advocate debarring him from practising for a period of 18 months and a fine of Rs. 1,000. The advocate concerned was further directed to return all the case bundles which he got from his client-respondent without any delay. This appeal is filed by the said advocate under section 38 of the Advocates Act, 1961 ( the Act ). 2. As the question involved in this appeal has topical importance for the legal profession, we heard the learned counsel at length. To appreciate the contentions we would present the factual backdrop as under : The appellant, now a septuagenarian, has been practising as an advocate mostly in the Courts at Bhopal, after enrolling himself as a legal practitioner with the State Bar Council of Madhya Pradesh. According to him, he was appointed as legal advisor to the Madhya Pradesh State Co-operative Bank Ltd. ( the bank ) in 1990 and the bank continued to retain him in that capacity during the succ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. The complainant is a public institution. It was the duty of the respondent to return the briefs to the bank and also to appear before the committee to revert his allegations made in application, dated 8th November, 1995. No such attempt was made by him." 3. In this appeal, the learned counsel for the appellant contended that the failure of the Bar Council of India to consider the singular defence set up by the appellant, i.e., he has a lien over the files for his unpaid fees due to him, has resulted in miscarriage of justice. The bank conten-ded that there was no fee payable to the appellant and the amount shown by him was on account of inflating the fees. Alternatively, the respondent contended that an advocate cannot retain the files after the client terminated his engagement and that there is no lien on such files. 4. We would first examine whether an advocate has lien on the files entrusted to him by the client. The learned counsel for the appellant endeavoured to base his contention on section 171 of the Indian Contract Act, 1872, which reads thus : " General lien of bankers, factors, wharfingers, attorneys and policy-brokers. Bankers, factors, wharfingers, at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ury s Laws of England, it is stated thus ( vide para 226 in Vol. 44) : "226. Solicitor s rights . At common law a solicitor has two rights which are termed liens. The first is a right to retain property already in his possession until he is paid costs due to him in his professional capacity, and the second is a right to ask the Court to direct that personal property recovered under a judgment obtained by his exertions stand as security for his costs of such recovery. In addition, a solicitor has by statute a right to apply to the Court for a charging order on property recovered or preserved through his instrumentality in respect of his taxed costs of the suit, matter or proceeding prosecuted or defended by him." 7. Before India attained independence, different High Courts in India had adopted different views regarding the question whether an advocate has a lien over the litigation, files kept with him. In P. Krishnamachariar v. Official Assignee of Madras AIR 1932 Mad. 256 a Division Bench held that an advocate could not have such a lien, unless there was an express agreement to the contrary. The Division Bench has distinguished an earlier decision of the Bombay High, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble also to permit the counsel to retain the case bundle for the fees claimed by him. Any such lien, if permitted, would become susceptible to great abuses and exploitation. 9. There is yet another reason which dissuades us from giving approval to any such lien. We are sure that nobody would dispute the proposition that the cause in a Court/Tribunal is far more important for all concerned than the right of the legal practitioner for his remuneration in respect of the services rendered for espousing the cause on behalf of the litigant. If a need arises for the litigant to change his counsel pendente lite, that which is more important should have its even course flowed unimpeded. Retention of records for the unpaid remuneration of the advocate would impede such course and the cause pending judicial disposal would be badly impaired. If a medical practitioner is allowed a legal right to withhold the papers relating to the treatment of his patient which he thus, far administered to him for securing the unpaid bill, that would lead to dangerous consequences for the uncured patient who is wanting to change his doctor. Perhaps the said illustration may be an over-statement as a neces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as his remuneration. A party in a litigation may have a version that he has already paid the legitimate fee to the advocate. At any rate, if the litigation is pending, the party has the right to get the papers from the advocate whom he has changed so that the new counsel can be briefed by him effectively. In either case, it is impermissible for the erstwhile counsel to retain the case bundle on the premise that fees is yet to be paid. 13. Even if there is no lien on the litigation papers of his client, an advocate is not without remedies to realise the fee, which he is legitimately entitled to. But if he has a duty to return the files to his client on being discharged, the litigant too has a right to have the files returned to him, more so when the remaining part of the lis has to be fought in the Court. This right of the litigant is to be read as the corresponding counterpart of the professional duty of the advocate. 14. Misconduct envisaged in section 35 of the Advocates Act is not defined. The section uses the expression misconduct, professional or otherwise . The word misconduct is a relative term. It has to be considered with reference to the subject-matter and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... punishment imposed now need not be counted as a precedent. Appeal is disposed of accordingly. R.P. Sethi, J. I had the privilege of going through the lucid and informative judgment prepared by my esteemed brother Thomas, J. I agree both with the reasoning and the conclusions. However, realising by the importance of the issue involved and its implication on the legal profession in relation with litigant public, I wish to add a few words by my own to this judgment. 2. While dealing with the moneys or any other article or document entrusted, an advocate is expected to always keep in mind the high standards of profession and its values adopted and practiced for centuries. Professional obligations of a lawyer are, distinguished from the business commitments followed by trading community. The legal profession owes social obligations to the society in discharge of the professional services to the litigants. The Bar Council of India Rules say that : "An advocate shall, if at all times, compose himself in a manner befitting his status as an officer of the Court, a privileged member of the community and a gentleman, bearing in mind that what may be lawful and moral for a pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ypes namely : ( 1 ) a retaining lien , i.e. , a right to retain property already in his possession, until he has been paid costs due to him in his professional character; and a lien on property recovered or preserved , i.e. , a right to ask the Court to direct that personal property recovered under a judgment obtained by his exertions stand as security for his costs of such recovery. 4. According to Cordery, "On Solicitors" - Seventh edn., the retaining lien is founded on the general law of lien which springs from possession and is governed by the same rules as other cases of possessory line. Per Evershed M.R. in Barratt v. Gough-Thomas [1950] 2 All ER 1048 observed: "It is a right at common law depending (it has been said) upon implied agreement. It has not the character of an incumbrance or equitable charge. It is merely passive and possessory, that is to say, the solicitor has no right of actively enforcing his demand. It confers upon him merely the right to withhold possession of the documents or other personal property of his client or former client. It is wholly derived from and, therefore, co-extensive with the rights of the client to the documents or other pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herwise the lien extends to the property whatever the occasion of delivery, except that where a solicitor acts for both mortgagor and mortgagee and the mortgage is redeemed the solicitor cannot set up a lien on the deeds against the mortgagor." It is further stated that such a lien extends only to the solicitor s taxable costs, charges and expenses incurred on the instructions of the client against whom the lien is claimed and for which the client is personally liable including the costs of recovering the remuneration by action or upon taxation. It follows, therefore, that even under the common law, no lien can be claimed with respect to the case file and such documents which are necessary for the further progress of the lis filed in the Court. Even in England the right of retention has been much diluted by various exceptions created by decisions, chiefly by the Courts of equity on the basis of what may be just and equitable as between the parties with conflicting interests. 6. Alfred H. Silvertown in The Law of Lien states that where documents are delivered by a client to solicitor for a specific purpose, no lien is created unless there is an agreement to the contrary. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... next lexicographer, it is defined to be movables in a house; personal or immovable estates; wares, freight, merchandise. Webster defines the word goods thus : "Goods, noun, plural; ( 1 ) movables; household furniture; ( 2 ) personal or movable estate, as horses, cattle, utensils, etc. ( 3 ) wares; merchandise; commodities bought and sold by merchants and traders." 9. This Court in Union of India v. Delhi Cloth General Mills Co. Ltd. AIR 1963 SC 791 held that to become goods an article must be something which can ordinarily come to the markets to be bought and sold. In Collector of Central Excise v. Eastend Paper Industries Ltd. [1989] 4 SCC 244, it was stated that goods are understood to mean as identifiable articles known in the markets as goods and marketed and marketable in the market as such. Where the Act does not define goods , the Legislature should be presumed to have used that word in its ordinary dictionary meaning, i.e. , to become goods it must be something which can ordinarily come to the market to be bought and sold and is known to the market as such. Thus, looking from any angle, it cannot be said that the case papers entrusted by the client ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tedly, a social duty is cast upon the legal profession to show the people beckon light by their conduct and actions. The poor, uneducated and exploited mass of the people need a helping hand from the legal profession, admittedly, acknowledged as a most respectable profession. No effort should be made or allowed to be made by which a litigant could be deprived of his rights, statutory as well as constitutional, by an advocate only on account of the exalted position conferred upon him under the judicial system prevalent in the country. It is true that an advocate is competent to settle the terms of his engagement and his fee by private agreement with his client but it is equally true that if such fee is not paid, he has no right to retain the case papers and other documents belonging to his client. Like any other citizen, an advocate has a right to recover the fee or other amounts, payable to him by the litigant by way of legal proceedings but subject to such restrictions as may be imposed by law or the rules made in that behalf. It is high time for the legal professions to join heads and evolve a code for themselves in addition to the mandate of the Act, rules made thereunder and th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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