ORDER
P. Venkatarama Reddi, J.
1. The second respondent herein filed a complaint before the National Consumer Redressal Commission (first respondent, hereinafter referred to as ‘the Commission’) against the petitioner who is an Advocate practising at Eluru seeking compensation of Rs.19,98,000/- and seeking return of the records and material papers in RCC No. 16 of 1987 and four other cases together with no objection endorsement on vakalats. The gist of the complaint is that the petitioner failed to extend the services expected of him in ensuring the implementation of interim order passed by the Rent Controller and in conducting various cases pending in the Court of Rent Controller and other Civil Courts in Eluru, that he did not hand over the case records despite the payment of settled fee nor did he give no-objection certificate, thereby preventing him from conducting the cases either personally or through other advocates. In the process, he had to suspend the business. The respondent goes to the extent of alleging that the petitioner persuaded him to give a share in his business and on his refusal to do so, he started harassing him. A fabulous sum of Rs.19,98,000/- is claimed as compensation for the “loss of prestige, mental agony, torture and loss of business caused by the opposite party” The complaint was registered as OP No.1 of 1991 and a notice was issued by the first respondent
Commission on 7-1-1991. Thereupon, the present writ petition was filed seeking a writ of prohibition prohibiting the Commission from proceeding with OP No.1 of 1991. It is the contention of the petitioner that the professional services of a legal practitioner are outside the ambit of Consumer Protection Act. This Court stayed the proceedings and directed notice to the A.P. Bar Council and A.P. High Courts Advocates Association and the Advocate-General. A Division Bench of this Court adjourned the writ petition on the ground that some matters having bearing on the present case were pending in the Supreme Court. Atlast, after a lapse of nine years, this case is being disposed of. In fact, the contention raised by the petitioner as regards the applicability of the Act and jurisdiction of the Commission to deal with the case could have been raised before the Commission itself which is presided over by a retired Judge of the Supreme Court. Anyway, as the case has been pending for so many years and a Division Bench felt that the case is of sufficient importance to be dealt with by this Court, we do not want to adopt that course at this stage and we would like to deal with the core contention raised before us on merits.
2. The Consumer Protection Act was enacted by the Parliament in response to a popular demand to provide for better protection of interests of consumers. The Act makes provision for the settlement of consumer disputes. A consumer can make complaint of any deficiency in the service. The expression ‘complaint’ insofar as it is relevant according to Section 2 (c) means an allegation in writing that the services hired or availed of or agreed to be hired or availed of by the complainant, suffered from deficiencies in any respect. Amongst others a consumer according to clause (ii) of Section 2(d), includes a person who hires or avails of any service including any beneficiary of such service for consideration.
A person who buys any goods for consideration is also a consumer within the meaning of clause (i). What is meant by ‘deficiency’ is spelt out by Section 2(g).
Deficiency means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of perfonnance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.
The definition of ‘Consumer’ insofar as it is relevant is as follows:- Section 2(d) “Consumer” means any person who-
(i)…..
(ii) hires any services for a consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment and includes any beneficiary of such services other than the person who hires the services for consideration paid or promised or partly paid and partly promised or under any system of deferred payment, when such services are availed of with approval of the first mentioned person”.
The crucial expression ‘service’ is defined by Section 2 (1)(o) as follows:
“Service means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board of lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.”
3. Thus, we have a comprehensive definition of the term ‘service’ and its wide amplitude is denoted by the phrase “service of any description”. After illustrating various services comprehended within the scope of ‘service’, the definition proceeds to exclude service rendered free of charge or under a contract of personal service. What is the nature and meaning of contract of personal service has been explained in Indian Medical Association v. V.P. Shantha, and in Dr. A.S. Chandra v. Union of India, .
4. In IMA case, S.C. Agrawal, J., speaking for the Supreme Court explained the distinction between “contract of personal service” and “contract for personal service” in the following words:
“A ‘contract of service’ implies relationship of master and servant and involves an obligation to obey orders in the work to be performed and as to its mode and manner of performance. (See: Stroud’s Judicial Dictionary, 5th Edn., p.540; Simmons v Heath Laundry Co., (1910) 1 KB 543; and Dharangadhara Chemical Works (supra) at p. 159). We entertain no doubt that Parliamentary draftsman was aware of this well accepted distinction between “contract of service” and “contract for services” and has deliberately chosen the expression “contract of service” instead of the expression ‘contract for services’, in the exclusionary part of the definition of ‘service’ in Section 2(1)(o), the reason being that an employer cannot be regarded as a consumer in respect of the services rendered by his employee in pursuance of a contract of employment. By affixing the adjective ‘personal’ to the word ‘service’ the nature of the contracts which are excluded is not altered. The said adjective only emphasises that what is sought to be excluded is personal service only. The
expression “contract of personal service” in the exclusionary part of Section 2(1)(o) must, therefore, be construed as excluding the services rendered by an employee to his employer under the contract of personal service from the ambit of the expression ‘service’.
5. Distinction on similar lines was highlighted by this Court in Dr. A.S. Chandra ‘s case.
6. In Lucknow Development Authority v. M.K. Gupta, , Sahai, J., explained that the clause ‘service of any description’ has been used in a wider sense extending from one to all. Referring to ‘service of any description’ and ‘potential users’ coupled with the inclusive nature of definition in Section 2(1)(o), the Supreme Court pointed out the word ‘service’ should receive a wide meaning and connotation. Sahai, J., explained:
“The term has variety of meanings. It may mean any benefit or any act resulting in promoting interest of happiness. It may be contractual, professional, public, domestic, legal, statutory etc. The concept of service thus is very wide. How it should be understood and what it means depends on the context in which it has been used in an enactment”.
After extracting the definition, it was observed:
“It is in three parts. The main part is followed by inclusive clause and ends by exclusionary clause. The main clause itself is very wide. It applies to any service made available to potential users. The words ‘any’ and ‘potential’ are significant. Both are of wide amplitude. The word ‘any’ in dictionary means ‘one or same or all’. In Black’s Law Dictionary, it is explained thus, word ‘any’ has a diversity of meaning and may be employed to indicate ‘all’ or ‘every’ as well as ‘same’ or ‘one’ and its
meaning in a given statute depends upon the context and subject matter of the statute. The use of the word ‘any’ in the context it has been used in clause (o) indicates that it has been used in wider sense extending from one to all. The other word ‘potential’ is again very wide”.
In other words service which is not only extended to actual users but those who are capable of using it are covered in the definition. The clause is thus very wide and extends to any or all actual or potential users. But the legislature did not stop there. It expanded the meaning of the word further in modem sense by extending it to even such facilities as are available to a consumer in connection with banking, financing etc. Each of these are wide ranging activities; in day to day life. They are discharged both by statutory and private bodies. In absence of any indication, express or implied, there is no reason to hold that authorities created by the statute are beyond purview of the Act.”
Referring to inclusive part of the definition, it was said :
“The inclusive clause succeeded in widening its scope, but not exhausting the services which could be covered in earlier part. So any service except when it is free of charge or under constraint of personal service is included in it”.
In Dr. Chandra’s case, the following exposition of the definition clause in Section 2(1)(o) occurs:
” ‘Service’ is defined inclusively by clause (o) of sub-section (1) of Section 2 of the Act :
…………
………….
………….
Except services rendered free of charge or under a contract of personal services, all other services of any description made available to potential users are comprehended by the expression ‘service’. The definition is confined only to cases where consideration is charged for the services rendered”.
…..
The definition of service in Section 2(1)(o) is very wide. It covers services of any description made available to potential users; inclusively the definition clause specifies certain services-banking, financing, insurance, transport, processing, supply or electrical and other energy, board or lodging or both, entertainment, amusement or the purveying of news or other information”.
The intention of Parliament, in our view, was not and could not be to confine the definition of ‘service’ to what are specifically mentioned in clause (1)(o) of Section 2. The opening words of the clause, “service means service of any description….. “clearly bring out the intention of Parliament that service of every description is comprehended by clause (o); inclusively certain services are mentioned. By no stretch of reasoning can it be said that services mean only what are specified in that clause especially when the opening part comprehends service of any description. Therefore, in the context the expression ‘includes’ enlarges the meaning of word ‘service’ without confining it to what are specifically mentioned in the clause. The Act does not exclude services rendered by professionals. They are too numerous to be specified and that was the reason why inclusive definition was adopted.”
7. In Dr. Chandra ‘s case (supra), the Division Bench rejected the contention
that the second part of the definition of ‘consumer’ is not satisfied inasmuch as the services of private medical practitioner are not ‘hired’.
8. In IMA case (supra), the Supreme Court held that the services rendered to a patient by a medical practitioner (except where the Doctor renders the service free of charge or under a contract of personal service) by way of consultation, diagnosis and treatment both medicinal and surgical would fall within the ambit of service as defined in Section 21 (1)(o) of the Act. In Dr. S. Chandra’s case also, this Court held that the service rendered by private medical practitioner and private hospitals is a ‘service’ within the meaning of Section 2(1)(o) of the Act.
9. Viewed from the stand point of the wide interpretation placed on the two expressions ‘service’ and ‘consumer’ and the pertinent observations made while construing those two expressions in the aforementioned cases, we have no doubt that the engagement of legal practitioner for professional service on payment or on promise of payment of fee/remuneration falls within the ambit of Section 2(1)(o) read with clause (ii) of 2(1)(d) of the Act. In fact as already indicated much of the argument turned on the question whether a lawyer undertakes to render or renders any service within the meaning of Section 2(1)(o) The relevant definition clauses as interpreted in the decided cases coupled with the holding of the Supreme Court in IMA’s case that medical practitioners are covered by the provisions of the Act notwithstanding the fact that they are governed by the Indian Medical Council Act persuade us to take the view that when a person engages a legal practitioner for extending the professional assistance on legal matters on payment of fee paid or promise to be paid, he avails of the professional service for a consideration and therefore, the provisions of the Act
come into play. As elaborated later, we find no warrant to read down the wide definition of service’ to exclude the legal professional as a class from the purview of the Act.
10. There is direct authority of the Madras High Court in Srimathi v. Union of India, , to support our view. It was observed by Srinivasan, J., speaking for the Division Bench that the language in clause (ii) of Section 2(1)(d) is very wide as it uses the expression “avails of any service for consideration”. That will not certainly exclude the services rendered by an Advocate. The first part of the definition makes it clear that service of any description will fall within the scope of the Section. That will undoubtedly include the service of a lawyer to his client. Heavy reliance was placed on the decision in IMA case.
11. In IMA case the Supreme Court rejected the contention that medical practitioners being governed by the disciplinary provisions of the Indian Medical Council’s Act and the Code of Medical Ethics cannot be brought within the provisions of the Consumer Protection Act. Their Lordships of the Supreme Court after referring to the fact that the trend was towards narrowing down the immunity to the professionals including barristers, reiterated the accepted legal position that medical practitioners can be sued in contract or tort on the ground that they have failed to exercise reasonable skill and care. The Supreme Court then observed and held thus:
“Immunity from suit was enjoyed by certain professionals on the grounds of public interest. The trend is towards narrowing of such immunity and it is no longer available to architects in respect of certificates negligently given and to mutual valuers. Earlier, barristers were enjoying complete immunity but now even for them the field is limited to work done in Court and to a small category of
pre-trial work which is directly related to what transpires in Court.
…..
It would thus appear that medical practitioners, though belonging to the medical profession, are not immune from a claim for damages on the ground of negligence. The fact that they are governed by the Indian Medical Council Act and are subject to the disciplinary control of Medical Council of India and/ or State Medical Councils is no solace to the person who has suffered due to their negligence and the right of such person to seek redress is not affected.
…..
We are, therefore, unable to subscribe to the view that merely because medical practitioners belong to the medical profession, they are outside the purview of the provisions of the Act and the services rendered by medical practitioners are not covered by Section 2(1)(o) of the Act.
…..
It cannot, therefore, be said that since the members of the Consumer Disputes Redressal Agencies are not required to have knowledge and experience in medicine, they are not in a position to deal with issues which may arise before them in proceedings arising out of the complaints about the deficiency in service rendered by medical practitioners.”
12. The Division Bench of the Madras High Court pointed out that the above decision of the Supreme Court is a complete answer to the question raised by the petitioner. We share the same view and we are inclined to follow the decision of the Madras High Court. We do not see much of difference in principle between the medical practitioner and a legal practitioner
vis-a-vis their professional status and the services required to be performed by them. The dicta and observations of the Supreme Court extracted supra will apply with equal force to the legal practitioners as well. However, it is pointed out by the learned Counsel for the petitioner as well as the Counsel for the State Bar Council and the High Court Advocates’ Association that certain aspects of lawyer’s peculiar position and the role played by him in the justice system have not been appreciated by the Madras High Court. Our attention has been invited to the passages in some of the decided cases and also the provisions of the Advocates Act and the rules made thereunder. The learned Counsel in effect submit that it would be misnomer to treat lawyer as merely rendering a professional service to his client for consideration. The lawyer has much more responsible rote to play and his relationship with the client does not have all the concomitants of a contractual relationship. The privileged position of a barrister in England and the exclusion of legal practitioner from the purview of the Consumer Protection enactments in USA have been projected to support their arguments.
13. In State of UP v. UP State Law Officers Assn., , Sawant, J., speaking for the Supreme Court made the following pertinent remarks on the nature of legal profession and the relationship between a lawyer and his client :
“The relationship between the lawyer and his client is one of trust and confidence. The client engages a lawyer for personal reasons and is at liberty to leave him also, for the same reasons. He is under no obligation to give reasons for withdrawing his brief from his lawyer. The lawyer in turn is not an agent of his client, but his dignified, responsible spokesman. He is not bound to tell the
Court every fact or urge every proposition of law which his client wants him to do, however irrelevant it may be. He is essentially an advisor to his client and is rightly called a Counsel in some jurisdictions. Once acquainted with the facts of the case, it is the lawyer’s discretion to choose the facts and the points of law which lie would advance. Being a responsible Officer of the Court and an important adjunct of the administration of justice, the lawyer also owes a duty to the Court as well as to the opposite side. He has to be fair to ensure that justice is done. He demeans himself if he acts merely as a mouthpiece of his client. This relationship between the lawyer and the private client is equally valid between him and the public bodies.”
14. In the Full Bench decision of Nayakam v. Menon, AIR 1968 Ker. 213, Mathew, J., observed:
“That Counsel is not a mere agent of the client would be made clear if we look at the nature of his duties and relationship with the public and the Court. Counsel has a tripartite relationship; one with the public, another with the Court, and the third with his client. That is a unique feature. Other professions or callings may include one or two of these relationships but no other has the triple duty.”
15. The Full Bench referred to the observations of Denning M.R. in the case of Rondel v. Worsely, 1967 (1) QB 443, which was later affirmed by Houses of Lords on a somewhat different reasoning.
16. In the Rules framed under Section 49(1)(c) of the Advocates Act, the standards of professional conduct and etiquette on various aspects are laid down. The preamble reads:
“An advocate shall, at all times, comport himself in a manner befitting his status
as an Officer of the Court, privileged member of the community, and a gentleman, bearing in mind that what may be lawful and moral for a person who is not a member of the Bar, or for a member of the Bar in his non-professional capacity may still be improper for an Advocate. Without prejudice to the generality of the foregoing obligation, an Advocate shall fearlessly uphold the interests of his client, and in his conduct conform to the rules hereafter mentioned both in letter and in spirit: The rules hereinafter mentioned contain canons of conduct and etiquette adopted as general guides, yet the specific mention thereof shall not be construed as a denial of the existence of others equally imperative though not specifically mentioned.”
In Section I, ‘Duty to the Court’, it is enjoined:
“(1) An Advocate shall, during the presentation of his case and while otherwise acting before a Court, conduct himself with dignity and self respect. He shall not be servile and whenever there is proper ground for serious complaint against a judicial officer, it shall be his right and duty to submit his grievance to proper authorities.
(4) An Advocate shall use his best efforts to restrain and prevent his client from resorting to sharp or unfair practices or from doing anything in relation to the Court, opposing Counsel or parties which the Advocate himself ought not to do. An Advocate shall refuse to represent the client who persists in such improper conduct”.
In Section II, ‘Duty to the Client’ it is laid down:
“…..
11. An Advocate is bound to accept any brief in the Courts or Tribunals or before any other authority in or before which he
professes to practise at a fee consistent with his standing at the Bar and the nature of the case Special circumstances may justify his refusal to accept a particular brief.
…..
15. It shall be the duty of an Advocate fearlessly to uphold the interests of his client by all fair and honourable means without regard to any unpleasant consequences to himself or any other. He shall defend a person accused of a crime regardless of his personal opinion as to the guilt of the accused, bearing in mind that his loyalty is to law which requires that no man should be convicted without adequate evidence”.
17. The position in England in 19th Century was that the engagement of a barrister was considered to be a purely honorary one conferring on him no legal right to remuneration and there was mutual incapacity of the Counsel and client from suing each other. Though by accepting the brief, the barrister undertakes a duty, he does not enter into any contract, express or implied. It was even held in the case of Roberson v. Macdonough, 1880, 6 LR 443, that an action for damages for non-attendance of barrister was not maintainable (vide para 66 of part 6, Vol.3 of Halsbury’s Laws of England). On the question of immunity from action for negligence, it is clarified in paragraph 66 of Part 6, Volume 3 of Halsbury’s that if a barrister acts honestly in the discharge of his duty, he is not liable to an action by his client for negligence or for want of skill, discretion, or diligence in respect of any act done in the conduct of a cause, or in setting drafts, or in advising. “The law requires of Counsel nothing but the honest discharge of his duty to the best of his judgment, and if he means what he does to be for the benefit of his client, he is not responsible to his client for anything he does”.
18. In a ‘Green Paper’ presented to the Parliament by the Lord High Chancellor in the year 1989, in Chapter VI – ‘Immunity from actions’, it is stated as follows:
“Recent cases have established that an advocate-whether barrister or solicitor is immune from an action for negligence at the suit of his or her client in respect of his or her conduct and management of a case in Court. Tin’s immunity extends to preliminary work connected with the hearing such as drawing of pleadings and to pre-trial work where the act in question is intimately connected with the conduct of the case in Court”.
“The main reasons for this immunity are that the administration of justice requires barristers and solicitors to be able to carry out their duty to the Court fearlessly and independently and actions for negligence against the barristers and solicitors in respect of advocacy work would make the retrying of the original actions inevitable and so multiply litigation. The Government accepts the cogency of these arguments and considers that this immunity from actions in negligence should in the future extend to all recognised advocates”.
19. In elaboration of what the Green Paper has set out, it is useful to refer to a few landmark decisions of House of Lords to perceive the winds of change that have overtaken this filed of law in England and the limited sphere within which the immunity operates presently.
20. The declaration in the Green Paper
has received statutory expression in the Courts and Legal Services Act, 1990. According to Section 62, the Advocates shall have the same immunity from liability for negligence in respect of his acts or omissions as he would have if he were a barrister. It is
further enjoined that no act or omission on the part of any barrister or other person which is accorded immunity from liability for negligence shall give rise to an action for breach of any contract relating to the provision by him of the legal services. Section 61 has abolished any rule of law which prevents a barrister from entering into a contract unless the General Council of the Bar makes rules providing otherwise.
21. To complete the narrative of the evolution of the law relating to privileges of barristers and Advocates in England, it is necessary to refer to certain important decisions.
22. In Rondel v. Worsley, 1969 (1) Appeal Cases 191, the House of Lords decided that a Barrister was immune from any action for professional negligence in respect of acts or omissions during the trial of criminal proceedings against his client. This view was approved in the landmark decision of House of Lords in Saif Ali v. Sydney Mitchell, 1980 Appeal Cases 198, though some of the Law Lords have given different reasons for upholding such immunity in Saif Ali’s case, the question which came up for consideration before the House of Lords was whether the barrister’s immunity covers pre-trial acts or omissions in connection with civil proceedings brought by the client.
23. Lord Wilberforce, Lord Diplock and Lord Salmon approved of the test laid down by McCarthy P. in Rees v. Sinclar, 1974 (1) NZLR 180, that :
“each piece of before-trial work should, however, be tested against the one rule; that the protection exists only where the particular work is so intimately connected with the conduct of the cause in Court that it can fairly be said to be a preliminary decision affecting the way that cause is to be conducted when it comes to a hearing. The protection
should not be given any wider application than is absolutely necessary in the interests of the administration of justice…..”
24. The Law Lords differed in their conclusions whether in that particular case, the immunity was available to the barrister. The majority denied the immunity. At the same time, it was made clear that the Solicitor acting as an Advocate in Court enjoys the same immunity as barrister. The following conclusions reached by their Lordships may be noted:
“Finally, as to the present case …..an
oversight, or failure to consider the consequences of not adding Mrs. Sugden as a defendant before the limitation period expired, if such took place, may have been defensible, but in my opinion falls well outside the immunity area”. (Per Lord Wilberforce)
“The work which the barrister in the instant case is charged with having done negligently, viz., in advising as to who was to be a party to an action and settling pleadings in accordance with that advice, was all done out of Court. In my view, it manifestly falls outside the limited extension of the immunity which I have just referred to” (per Lord Diplock).
Lord Salmon opined :
“In my opinion, however, it can only be in the rarest of cases that the Law confers any immunity upon a barrister against a claim for negligence in respect of any work, he has done out of Court; and this case is certainly not amongst them”.
25. Lord Russell and Lord Keith dissented holding that the immunity should apply to all aspects of barrister’s work in connection with the litigation including pre-
trial work. Lord Salmon’s speech exposes the facile nature of the theories propounded in 19th Century to confer a blanket immunity on a barrister in a tortious action. The following excerpts from his speech are instructive:
“I cannot however understand how any aspect of public policy could possibly confer immunity on a barrister in a case such as the present should he negligently fail to join the correct persons or to advise that they should be joined as defendants; or for that matter should he negligently advise that the action must be discontinued. It seems plain to me that there could be no possibility of a conflict between his duty to advise his client with reasonable care and skill and his duty to the public and to the Courts. I do not see how public policy can come into this picture…… Once it is clear that the circumstances are such that no question of public policy is involved, the prospects of immunity for a barrister against being sued for negligently advising his client vanish into thin air, together with the ghosts of all the excuses for such immunity which were thought to exist in the past”.
“The theory that because the barrister had no contractual relationship with his client, he could not be liable for negligent advice causing financial loss, vanished with Hedley Byrne & Co. Ltd v. Heller & Partners Ltd., (1964) A.C. 465”.
“The other theories supporting a barrister’s supposed blanket immunity from liability for negligence in respect of – any paper work cannot survive in the realistic atmosphere of the late 20th Century. These were based on the fact that a) a barrister cannot sue his client for his fees and b) he is obliged to accept briefs relating to a field of law in which he normality practices, providing he is offered a proper fee”.
Then, the learned Law Lord explained that the said grounds are not infallible and observed thus :
“Unless what seems to me to be an untenable proposition is accepted, namely that public policy always requires that a barrister should be immune from liability for his neglect or incompetence in respect of all paper work, he is rightly in no better position than any other professional man who is sued for negligence”.
Lord Diplock prefaced his speech with the following words:
“My Lords, the decision of this House in Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd., (1964) A.C. 465 cast doubt upon the facile explanation, which has been current for 100 years, that a barrister’s immunity from liability for economic loss sustained by a client in consequence of his incompetent advice or conduct was due to his incapacity as Counsel to enter into a contractual relationship with his client. In 1967 these doubts were tested in your Lordships House in Rondel v. Worsely and the explanation, which would have covered all work undertaken as a barrister, however remote from litigation it might be, was rejected as legal folklore. If the immunity in respect of any part of his professional work was to be maintained, some other legal justification would be needed for it…”
26. Lord Diplock expressed his reservations to accept the reasons that weighed with the House of Lords in Rondel v. Worsely, in the following words:
the light of the developments of the law of negligence which have taken place since 1967. I could not readily find today in the reasons that I have so far discussed convincing ground for
holding that a barrister ought to be completely immune from liability for negligence for what he does in Court in conducting criminal or civil proceedings-let alone for anything that he does outside Court in advising about litigation whether contemplated or pending or in settling documents for use in litigation.”
27. However, the real reasons, according to the learned Law Lord, for conferring immunity on barrister are two fold. The first is that “the barrister’s immunity for what he says and does in Court is part of the general immunity from civil liability which attaches to all persons in respect of their participation in proceedings before a Court of justice- Judges, witnesses, Court Officials, parties, Counsel and solicitors alike”. This immunity is based on public policy. The second reason is the need to maintain the integrity of public justice. The action for negligence against a barrister for the way he conducted the case in Court founded upon the supposition of lack of skill and care would involve a re-trial of the issue in the previous action and that would not be conducive to the sound administration of justice.
28. The argument founded on the
barrister’s competing duties to the Court and client upon which the House of Lords so strongly relied in Rondel v. Worsely, according to the learned Law Lord, “loses much of its cogency when the scene of the exercise of the barrister’s judgment as to where the balance lies between these duties is shifted from the hurly-burly of the trial to the relative tranquility of the barrister’s chambers”. The learned Lord drew a distinction between an error that was so blatant as to amount to negligence and an exercise of erroneous judgment.
29. In Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd., 1963 (2) All ER 575, Lord Morris said:
“It should now be regarded as settled that if someone possessed of a special skill undertakes, quite irrespective of contract, to apply that skill for the assistance of another person who relies on such skill, a duty of care will arise”.
30. The legal proposition as enunciated above has become the basis for imposing on the solicitors a tortuous duty of care to their clients. The theory that any action for negligence against the solicitors must be in contract, not in tort, has now been discarded in England, Australia, Canada and other countries.
31. In our country as in U.K. the legal practitioner may in one sense be an Officer of the Court as he or she is a part of justice system and does not act as a mere mouth-piece or agent of the client. But, that is far from saying that no service whatsoever is rendered by the Advocate to his client or that the client does not avail of his or her service for consideration. Having regard to the wide and extensive definition of service and the ruling of the Supreme Court in IMA case that medical practitioners governed by the Indian Medical Council Act and the Code of Conduct laid down by the Medical Council of India must still be deemed to be rendering service for consideration, there is no reason why the legal practitioners should be excluded from the purview of the Act. We do not find any qualitative difference between medical practitioner and an Advocate in this regard-be it from the point of view of his status, duties and regulatory control by a statutory body. The fact that the Doctors are permitted to advertise with a view to promote practice, is not, in our view, a point of real distinction. The scope for suing a legal practitioner for negligence may be more limited than what it is in the case of a medical doctor. Even this will make no real difference. The fact that the Advocates are governed by the statutory enactments and the rules framed
thereunder and are subject to the disciplinary
control of a statutory body does not in our view, take them out of the net of Consumer Protection Act. The Madras High Court in the aforementioned case explicitly and rightly pointed out that there is no provision to enable the Bar Council to deal with the dispute between the client and the advocate in an action for damages or refund of money paid. Thus, the Bar Council cannot give effective redressal to the client concerned by way of compensating him monetarily for the loss he would have sustained on account of dishonest act and conscious breach of obligation on the part of the Advocate.
32. Whatever may be said regarding the manner in which the case is conducted and the standard of care expected in handing of the case, one thing is clear. An Advocate if he breaches an obligation to be honest and duteous towards the client, he cannot plead immunity. The immunity is undoubtedly not absolute and has never been absolute. There may be good grounds of defence in an action for negligence which may not be available to other professionals. But, that is something different from immunity from civil action whether it be founded on the breach of contractual or tortuous duty. In fact, it has not been pleaded at the Bar that the legal practitioners in our country are totally immune from an action for negligence in respect of their acts and omissions in connection with the briefs entrusted to them or the legal advice sought.
33. Incidentally, we may mention that the” Supreme Court in M. Veerappa v. Evelyn Sequeira, , having referred to the provisions of Legal Practitioners (Fees) Act, 1926, held that the legal practitioners are liable to be sued for negligence in the performance of their duties. With respect, we must point out that the Supreme Court did not notice the fact that the Act of 1926
was repealed by the Advocates Act, 1961. Hence, that decision is not of any assistance.
34. There may be divergence of views and scope for some debate on the question whether a Counsel can be sued for negligence for and in respect of the conduct of a case in a Court-room, whether the duty towards the client is contractual or tortious and to what extent an advocate is liable for the acts or omissions in relation to legal matters unconnected with Court litigation. But, it is clear that immunity in absolute form does not exist.
35. The relationship between an Advocate and client originates from a contract which is most often an implied contract. An authority is conferred on the Advocate to appear in the case by executing the Vakalat. The Advocate has a right to sue for fee and he can even exercise the right of lien in appropriate cases to recover the fee. He does not enjoy blanket immunity from being sued for negligence or tortious acts. It may be on account of acceptance of the brief, certain duties are super-imposed on the Advocate, the foremost among which are the duties towards the Court. The fact that an Advocate can be truly regarded as an Officer of the Court or becomes part of the justice system, does not obliterate his basic role of doing service to his client for monetary remuneration. There is no dichotomy between the concept of service and the obligation to assist the Court in dispensation of justice. The special feature of an Advocate playing the role of an Officer or friend of Court has not been considered to be a bar against suing the Advocate either in this country or elsewhere. In England, the absolute immunity available to a barrister at one point of time is only a thing of the past. That being the case, we see no special reason why a speedier and cheaper statutory remedy to get the monetary redressal of injury caused by an errant advocate should be viewed with disfavour. We repeat that
the circumstances in which an advocate can be accused of deficiency in service may be limited, having regard to the special nature of professional duties expected of him, but that is besides the point. Provision of additional and more efficacious remedy cannot be faulted on any germane ground. Instead of the same action being laid in a Civil Court, the forum is shifted to a body functioning within the framework of the statute. We do not therefore see any objection or anomaly in providing such remedy. We find no compelling reason to read down the definition of ‘service’ so as to exclude the legal practitioners from the purview of Consumer Protection Act.
36. Before parting with the case, we would like to make it clear that we have not gone into the merits of the complaint made by the respondent against the petitioner-Advocate. The contention of the learned Counsel that there is no deficiency of service and in any case, the claim is highly exaggerated, is not without force. But, it is for the National Consumer Forum which is seized of the matter to look into these aspects. We cannot at this stage keep the controversy at bay by foreclosing further proceedings before the National Consumer Forum.
37. For the foregoing reasons, the writ petition fails and it is hereby dismissed
without costs. The stay already granted must be deemed to have been vacated.