JUDGMENT
Tendolkar, J.
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 Magistrate’s 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
his fees and can enforce his claim for the fees
in legal proceedings, whilst at the same time
he incurs the liability to be sued for negligence
by his client.
It must be noticed in this connection that the plaintiff in his plaint in terms pleads that he was engaged to appear, act and plead for the defendant, and normally a distinction has been made between acting and pleading, particularly on the Original Side of this Court where the dual system exists and the advocates on the Original Side only plead while the attorneys act.
Mr. Banaji for the defendant has urged that,
notwithstanding the provisions of the Legal
Practitioners (Fees) Act the plaintiff is not en
titled to sue for his fees because he is under a
personal disability by virtue of being a barrister. He has also urged that in any event the
Legal Practitioners (Pees) Act only applies to his
remuneration for “acting” and not for pleading
and since he both acted and pleaded for the de
fendant in this suit, his claim can only be good,
if at all, to the extent to which it relates to his
acting for the defendant.
5. Now, it appears that in the case of –‘Nihal Chand Shastri v. Dilawar Khan’, , a Full Bench of the Allahabad High Court took the view that the Legal Practitioners (Pees) Act of 1926 draws a distinction between fees for acting” and “pleading”, and the Pull Bench also took the view that if they had been obliged to hold that a barrister with whom they were concerned in that case could not contract for any fees for pleading or in any event could not sue for any fees for pleading, it would have been necessary to apportion the fees between acting and pleading.
With respect to their Lordships who took that view, I am unable to agree that the Legal Practitioners (Fees) Act distinguishes between “acting” and “pleading” in that matter at all. The word “act” used in Sections 3 must, in my opinion, be read in the light of Sections 2 (b) which is as follows:
“A legal practitioner shall not be deemed to ‘act’ if he only pleads, or to ‘agree to act’ if he agrees only to plead.”
Therefore, wherever we find the word “acts” we must substitute the words “who does not only plead.” So read, Sections 3 provides that any legal practitioner who does not only plead or agrees not only to plead shall be entitled to enter into a contract for his fees.
If he only pleads, he cannot enter into such a contract, or having entered into one, cannot seek to enforce it by legal proceedings; but if he does anything more than pleading, he is entitled to sue not only for the part of his work which constitutes ‘acting’ in the technical sense, but for the entire work done by him; and in my opinion, therefore, the second contention of Mr. Banaji that under the Legal Practitioners (Fees) Act, if it were applicable, the plaintiff can only sue for such portion of his fees as are properly apportionable to “acting” as against ‘pleading” is not sustain able.
The main question, therefore, that I have to determine is whether the plaintiff is under a personal disability to sue for fees, because unless he is, it appears to me that under the Legal Practitioners (Fees) Act he has a right to contract for his fees and to enforce his claim in a Court, of law by appropriate proceedings.
6. Reliance is placed by Mr. Banaji on certain observations of their Lordships of the Privy Council in the case of — ‘The Queen v. Doutre’, 1884-9 AC 745 (B) which was decided by a distinguished array of eminent Law Lords, viz. Lord Watson, Sir Barnes Peacock, Sir Robert P. Collier, Sir Richard Couch and Sir Arthur Hobhouse. The judgment of their Lorships was delivered by Lord Watson and the passage on which reliance has been placed is in the following terms (p 752):
“..A member of the Bar of England, in accordance with the law of that country and the rules of the profession to which he belongs, renders, and professes to render, services of a purely honorary character. If, in his professional capacity as an English barrister, he accepted a retainer to appear and plead before commissioners or arbitrators in a foreign country, by whose law counsel practising in its regular courts were permitted to have suit for their fees, that should not give him a right of action for his honoraria.
His client would have a conclusive defence to such an action, on the ground that he was employed as a member of the English Bar, and by necessary Implication, upon the same terms aes to remuneration upon which members of that Bar are understood to practise.”
These observations read without their context no doubt lend support to the submission made by Mr. Banaji that an English barrister carries with him the disability that he cannot sue for his fees wherever he practises. But it is obvious that the observations must be read in the context of the case, and when so read it will be realised that they are not susceptible of that meaning. The question which their Lordships were dealing with arose in the following manner.
A member of the Quebec Bar, which was a section of a body of legal practitioners incorporated by chap. 72 of the Consolidated Statutes
of Lower Canada under the title of the “Bar of Lower Canada,” had been engaged by the Government of Canada as one of their counsel to appear before the Fishery Commission which was sitting in Nova Scotia. According to the law of Quebec a member of the bar was entitled to sue for and recover his fees.
A part of his fees were paid by the Government of Canada and with regard to the balance-the counsel presented a petition under the Canada Petition of Rights Act, 1876, and claimed the fees from the Crown. The Supreme Court of Canada consisting of six Judges was equally divided; as various questions of law were raised and each one of the Judges appears to have taken the view that on one question or the other the claim could be disposed of. The petition, had originally been decreed, and as the Supreme Court was equally divided, the appeal was dismissed.
The appeal before their Lordships of the
Privy Council was filed by the Government of
Canada, Now, the plea that was advanced be
fore their Lordships was that although accord
ing to the law of Quebec a member of the bar
could contract lor his fees and sue for them,
according to the law of Ontario which was the
seat of the Canadian Government as well as ac
cording to the law of Nova Scotia where the
work was to be done by the counsel and where
the Commission was to meet, a member of the
Bar could not sue for his fees, the plea being
that where the Common law of England prevail
ed, the members of the Canadian Bar could
not have any action for their fees nor could they
make a valid agreement as to their fees unless
the right had been conferred upon them by the
statute.
In dealing with these contentions Lord Watson pointed out that were it necessary to decide these points, questions of much nicety would arise and in particular his Lordship pointed out (p. 751):
“..Their Lordships are willing to assume that the law of England, so far as it concerns the right of the Bar of England to sue or make agreements for payment of their fees, was rightly applied in the case of — ‘Kennedy v. Brown,’ (1863) 13 CB (NS) 677 (C); but they are not prepared to accept all the reasons which were assigned for that decision in the Judgment of Erie, C. J. It appears to them that the decision may be supported by usage and the peculiar constitution of the English Bar, without attempting to rest it upon general consider aliens of public policy.
Even if these considerations were admitted, their Lordships entertain serious doubts whether. In an English colony where the common law of England is in force, they, could have any application to the case of a lawyer who is not a mere Advocate or pleader, and who combines In his own person the various functions which are exercised by legal practitioners of every class in England, all of whom, the Bar alone excepted, can recover their fees by an action at law.”
It is clear, therefore, that in so far as their Lordships express any opinion at all on the disability under which a member of the English bar practising in any English Colony where the Common law of England is in force, their Lordships entertain serious doubts as to whether the law that he cannot sue for his, fees would have any application when he not only pleads but acts and pleads in the Colony.
Having pointed this out, however, their Lordships proceed to state that it is unnecessary to determine this question because their Lordships took the view that the right .of the counsel to sue for remuneration did not depend either upon the place where the employment was given, viz. Ontario or upon the law of the place where the work was done, viz. before the Commission at Nova Scotia. Then Lord Watson proceeds to observe (p. 752):
“….When an advocate or other skilled practitioner is, by law and the custom of his profession, entitled to claim and recover payment for his- professional work, those who enagage his services must, In the absence of any stipulation to the contrary, express or implied, be held to have employed his upon the usual terms according to which such services are rendered. That is the implied condition of every contract of employment which is silent as to remuneration; and it is a condition dependent upon the professional statute and rights of the person employed, and not upon the Jaw of the place where his services are to be given, so long as he is employed in his professional capacity.”
And thereafter follows the passage which I have set out above on which Mr. Banaji has relied. Read in this context the passage can only have one meaning, it does not refer to members of the English bar who ordinarily practise outside England; But it refer to members of the bar of England, i.e. those who ordinarily practise in England. If any one of such persons was to be employed for doing any legal work in a foreign country, then notwithstanding the fact that the law of such .country permitted a lawyer to file a suit for his fees, the English barrister would not be entitled to sue for his fees, because those who engage the services of the English barrister must be held to have employed him upon the usual terms according to which his services are rendered in England.
On that basis their Loddshlp held that the counsel must be deemed to have been employed for work in Nova Scotia under a, contract made in Ontario on the usual terms on which he rendered his services in Quebec; and since the Quebac law allowed him to sue for his fees, he was entitled to sue for his fees. I am, therefore, quite unable to read the passage on which Mr. Banaji has relied as laying down the broad proposition that a barrister who does not ordinarily practise at the English bar but has got himself enrolled In another country carries with him a personal disability not to sue for his fees in any circumstances.
7. What the position would be with regard to work done on the Original Side of the High Court where a barrister enrolled as an advocate can only plead & not act except in certain specified cases, I am not called upon to determine and I do not wish to determine in this case. I am dealing here with work done in relation to a litigation which was not on the Original Side of the High Court; and in respect of such litigation it does not appear to me that a barrister of England merely by reason of the fact that he has been called to the bar in England and has availed himself of such call for being enrolled as an advocate in India is under a personal disability which prevents him from contracting for his fees or enforcing his claim by instituting legal proceedings.
8. The Advocate-General has advanced a somewhat different argument and his plea-is that where a ‘client engages a barrister who practises
ordinarily on the Original Side of the High Court and is enrolled as such, he must be deemed to have employed him upon the usual terms according to which such services are rendered on the Original Side, and since on the Original Side of the High Court there is a dual system and an advocate can only plead and not act and consequently therefore he fulfils the same function as a barrister does in England, he cannot contract for his fees or sue for them; and therefore if he is employed to do work outside the Original Side of the High Court, on the analogy of an English barrister being engaged for work in a foreign country he cannot sue for his fees.
Now, as I have said earlier, I do not wish to determine more than is necessary in this case, and I do not wish to determine whether an English barrister who practises on the Original Side of the High Court, can or cannot sue for his fees. But assuming that he cannot, that can at best be in relation to work where he pleads only and does not act. Indeed it would appear prima facie that the provisions of the Legal Practitioners (Fees) Act, 1926, cannot apply to services so rendered by an advocate because that Act does not empower an advocate to contract for his fees for pleading only; but it seems to me difficult to hold that because the plaintiff is enrolled on the Original Side of the High Court where he is not allowed to act but can only plead, when he is by statute allowed to practise in other Courts both in the sense of acting and pleading, he is precluded from suing for the fees.
If a barrister does not carry with him the disability that he shall not act from which he suffers in England there is no particular reason why the disability that he cannot sue for his fees be imposed’ or the right that he shall not be sued for negligence which is enjoyed by a barrister in England should be conferred on him. In my opinion, therefore, the argument that because he is an advocate (O.S.) who in his practice on the Original Side of the High Court cannot act and perhaps cannot sue he cannot sue for his fees for work done outside the Original Side of the High Court has no substance in it. .
9. So far as the decisions which are relevant for determining the issue before me are concerned, there are in the first instance certain decisions under the Stamp Act in which it has been held that a receipt given by a barrister for fees, is exempt from stamp as the fee is an honorarium only; and there is also a decision in — ‘Smith v. Guneshee Lall’, 3 NWP HCR 83 CD), in which it was held that a barrister advocate cannot sue for his fees. All these decisions were considered by the Full Bench of the Allahabad High Court in ‘AIR 1933 All 417 (FB) (A)’, and the Pull Bench came to the conclusion that those cases had been wrongly decided and that in any event so far as a barrister practising in Allahabad was concerned, where a dual system does not exist, the rule that a barrister cannot sue did not apply to him.
In my opinion the position of a barrister enrolled on the Original Side of the High Court whilst practising not on the Original Side but elsewhere is exactly similar to the position of a barrister practising in Allahabad where the dual system does not exist; and with respect to the Full Bench, I am in agreement with the , view taken by the Full Bench that there is nothing to prevent a barrister practising in India in a Court in which the dual system does not exist from entering into a contract for his fees or adopting legal proceedings to enforce such a contract. That
decision was given in 1933 and I am not aware of
any later, decision of any other High Court in India taking a countrary view.
10. A reference was made in the arguments by Mr. Banaji to R. 19 of the rules of the Bombay Bar Association which I have set out earlier in my judgment. No doubt the Bar Association has chosen to adopt the rules of etiquette of the English Bar in so far as they are not opposed to any local practice; but I cannot see that a rule of the Bar Association can have the force of law or can be given effect to in a Court of law. If the Bar Association is of opinion that any of its members is contravening the rule, it is a matter between, the Association and such member but a Court cannot take cognizance of the rules of a private body and seek to enforce those rules. That would be giving to those rules the effect of legislation which they undoubtedly are not. That rule, therefore, appears to me to be quite irrelevant for purposes of determining the issue before me.
11. The result, therefore, is that issue No. 2 shall be answered in the affirmative.
12. Order accordingly.
