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TMI Blog1999 (9) TMI 996X X X X Extracts X X X X X X X X Extracts X X X X ..... one hand and the respondent on the other, the petitioners no. 3 and 4 discharged the respondent as their counsel with effect from 12-4-1992 and orally asked the respondent not to attend their case on their behalf and not to come from Delhi on 18-4-1992 which was fixed for hearing of the application exh. 5. The petitioners also sent a cheque for the amount of ₹ 1 lac to the respondent towards full and final settlement of professional fee and expenses out of pocket in connection with his work. The said cheque was sent with a covering letter dated 13-4-1992. The respondent accepted the said cheque and encashed the same. The respondent after receiving the amount of ₹ 1 lac sent the letter dated 22-4-1992 to the petitioner no. 1 stating therein that it was a mischievous act on the part of the petitioners to call the payment full settlement and he asked the petitioner to clear the outstanding amount of ₹ 4,77,000/- without any further delay. On 18-4-1992 the petitioners no. 1 and 4 made application exh. 77 seeking an adjournment on the ground that they had discharged the respondent as their advocate. The respondent moved an application exh. 78 on the same day protest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion and not sustainable in the eye of law. The petitioners have filed this writ petition for quashing the impugned order which is beyond jurisdiction. Where the parties have other alternative remedy it would be appropriate for the petitioners to choose and avail any them even alternative remedy by way of Revision Application u/s 115 of the Civil Revision Application was available to the petitioners. Such remedy is not efficacious remedy compared to the remedy by way of this petition under Article 226 and 227 of the Constitution of India. 6. I have heard learned counsel for the petitioner and respondent advocate in person and perused the relevant papers and considered carefully the contentions raised on behalf of the parties as stated above. 7. It is well settled rule of law that where any order is illegal, arbitrary or beyond jurisdiction or any material irregularity causing grave injustice has been committed, if the remedy of appeal or revision is provided in the Statute and illegality, arbitrariness jurisdictional error or material irregularity of an order can be decided, remedy of appeal or revision as the case may be provided therefor can only be remedy to be availed. No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he learned trial Judge was justified in passing the order at Annexure - J when the respondent was engaged only as an advocate by petitioners no. 3 and 4 and when he was not a party to the suit ? (iii) Whether the learned trial Judge has committed an error apparent on the face of the record in passing the impugned order in the absence of any prayer made by the respondent in the aforesaid applications ? (iv) Whether an advocate of a party has a legal right to make an application in a proceeding in which he appeared as an advocate for that party for an order for payment of fees and expenses to him without filing an independent proceeding for that purpose ? (v) Whether in a suit filed by a third party against the petitioners, the learned Judge could have passed an order on the applications filed by the respondent, which was wildly beyond her jurisdiction ? (vi) Whether the order passed by the learned trial Judge can be sustained on merits when the respondent has not produced any specific agreement or any other document with a view to show that the petitioners had agreed to pay the fees awarded by the learned trial Judge to the respondent for representing their case in the afor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) of the Civil Procedure Code or an intimation of discharging Advocate given to the Court would be sufficient ? (ii) Whether remuneration of an advocate can be taxed in the same proceedings in which he was engaged or he is required to file separate suit for recovery of his outstanding dues of his fees. If he is not required to file separate suit, then can he also claim his remuneration for his professional work done out side i.e. other suits or proceedings pending in the same Court or other Courts ? (iii) Whether quantum of fee of the advocate can be determined by the Court ? If it is so, how it is to be determined and the Court below is justified in determining the fee of the respondent advocate in the facts and circumstances of the case. (iv) Whether the Court has jurisdiction to order for taxing fee in a case where fee or remuneration of Advocate is not claimed for discharge and the Court below is justified to pass the impugned order ? 12. For the answer of this first question we have to see the relevant provisions in the Civil Procedure Code then to consider the case law on issue. 13. The impugned order has been passed under Order The impugned order has been pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e practice of the Calcutta High Court has always been that no order for change of attorney is made unless provision is made for payment of the Attorney except where the Attorney has by his own conduct or misconduct discharged himself. (F) A.V. Sundarmurthy Chethiar V. S. Muthiah Mudiah and Others, reported in AIR 1945 Madras 190 (Division Bench), wherein it has been held that in the absence of misconduct on the part of the Advocate engaged by a client to appear in a case the client is not entitled to the sanction of the Court for a change of the advocate who had the charge of the case till then without making a satisfactory arrangement to pay the advocate. 15. On the basis of statutory provisions of Order III Rule 4 (2) of the Civil Procedure and the decisions of the various Courts as stated above, it is a well settled principle of law that engagement of an advocate on behalf of the party continues until it is determined by the advocate or by the party, but that requires leave of the Court. For the leave of the Court the advocate or the party will have to move the Court in writing under his signature by the client or the advocate, as the case may be, the advocate will be deem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t declines to pay, why he should not be entitled to come to the Court and ask for a common order to get the bills taxed by the Taxing Master. (iii) Tyagji Dayabhai and Co. V. Jetha Devji and Co. reported in AIR 1927 Bombay 542, wherein it has been held as under : The lien of a solicitor is grounded on the principle that it is not just that the client should get the benefit of the solicitor's labour without paying it ..... I am further of the opinion that there is nothing substantial in the contention that the parties ought to be left to a separate suit. (iv) M/s. Moti Natarwarlal and Others V. M/s. Raghvayya Nagin Das and Co., reported in AIR 1977 SUPREME COURT 1778, wherein it has been held as follows: We have already mentioned that in M/s. Pereira Fazalbhoy and Co. (1963) 65 Bombay Law Reporter 87 Mody J., held that an Attorney was entitled to have his bills taxed on the original side scale even in respect of work done by him outside High Court. For various reasons mentioned above we endorse that view 17. On the basis of the proposition of law laid down by the different Courts as stated above, I am of the view that the advocate is an officer of the Court. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vocate himself has not discharged, the client on payment by the client of such fee which is found reasonable by the Court on the basis of the quantum meruit taxing into consideration of all the circumstances. (iii) Damodardas Agrawal and Others V. Badrilal and Others, reported in AIR 1987 Andhra Pradesh 254 (Division Bench), wherein it has been held that in the absence of any allegation of misconduct on the part of the advocate or any dispute regarding fee due or payable, the Court is justified in ordering payment of fee or a reasonable amount of fee if the fee is not fixed when client wants to seek the leave to terminate the services of the advocate in the case. (iv) Government of Tamil Nadu V. R. Thillaivillalan, reported in AIR 1991 SC 1231, wherein it has been held as under : After hearing learned counsel of both the sides the order that commands itself as appropriate having regard to all the circumstances of this case is to direct the Corporation to pay sum of Rs. one lac lump sum to the respondent which shall include ₹ 84,212-21 determined by the High Court as well as the liability for any interest thereon. In other words the liability for interest is limite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have agreed to pay the professional fee on the above basis. After the visit for 5 days, he visited Baroda again for 9 days from 12-2-92 to 20-2-92. After second visit when he came to Baroda on 6-3-92 to appear in civil suit he submitted his bills dated 5-3-92 personally to Shri M.N. Khade, Secretary of the defendant no. 1 - Company. On that day, the defendants were also conveyed in writing his professional charges which was originally conveyed orally to them. The respondent submitted his bill on 5-3-92 to the Secretary of the Company and in writing he also conveyed to the other defendants. The petitioners have not raised any objection regarding the charges at the rate of ₹ 20,000/- per day. Later on, the respondent submitted his bill with his affidavit in the Court. Both the petitioners have filed their reply to the written submissions of the respondents on 1-4-94. The petitioners have not stated in their reply that the respondent had not submitted the bills dated 5-3-92. If the bills have already been received by the petitioners and intended to discharge the respondent and to get adjournment, their intention is only that they were avoiding the fees of the respondent settled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t where there are allegations against the counsel, the counsel has no legal right to claim his fee in the proceedings. But in the present case, there are no allegations against the respondent that he has committed an act amounting to misconduct or he has committed any fraud or irregularity or has not argued the case to the satisfaction of the court. As such, the Trial Court was fully justified in holding that the Court can pass the order directing the petitioners to pay fee to the respondent. 22. So far as the fourth question whether the advocate sought to be discharged has not claimed his remuneration or if the Court has jurisdiction to award his fee is concerned, the Court is required to see the real intention of the parties whether the advocate has claimed his fee by way of the objection raised by him. In the present case, the petitioners have not sought for leave to discharge the respondent advocate. They simply informed the Court by the applications exh. 77 and exh. 79 dated 18-4-92 and 20-4-92 respectively that they have discharged the respondent advocate. In reply, exh. 83 the respondent advocate in para 7 stated that his dues have not been settled. In para 7 he made it c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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