PETITIONER: R.D. SAXENA Vs. RESPONDENT: BALRAM PRASAD SHARMA DATE OF JUDGMENT: 22/08/2000 BENCH: K.T.Thomas JUDGMENT:
THOMAS, J.
The main issue posed in this appeal has sequential
importance for members 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 practicing for a
period of 18 months and a fine of Rs.1000/-. 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.
As the question involved in this appeal has topical
importance for the legal profession we heard learned counsel
at length. To appreciate the contentions we would present
the factual backdrop as under:
Appellant, now a septuagenarian, has been practicing
as an advocate mostly in the courts at Bhopal, after
enrolling himself as a legal practitioner with the State Bar
Council of Madha Pradesh. According to him, he was
appointed as legal advisor to the Madhya Pradesh State Co-
operative Bank Ltd. (Bank, for short) in 1990 and the
Bank continued to retain him in that capacity during the
succeeding years. He was also engaged by the said Bank to
conduct cases in which the Bank was a party. However, the
said retainership did not last long. On 17.7.1993 the Bank
terminated the retainership of the appellant and requested
him to return all the case files relating to the Bank.
Instead of returning the files the appellant forwarded a
consolidated bill to the Bank showing an amount of
Rs.97,100/- as the balance payable by the Bank towards the
legal remuneration to which he is entitled. He informed the
Bank that the files would be returned only after setting his
dues.
Correspondence went on between the appellant and the
Bank regarding the amount, if any, payable to the appellant
as the balance due to him. Respondent Bank disclaimed any
liability outstanding from them to the appellant. The
dispute remained unresolved and the case bundles never
passed from appellants hands. As the cases were pending
the Bank was anxious to have the files for continuing the
proceedings before the courts/tribunals concerned. At the
same time the Bank was not disposed to capitulate to the
terms dictated by the appellant which they regarded as
grossly unreasonable. A complaint was hence filed by the
Managing Director of the Bank, before the State Bar Council
(Madhya Pradesh) on 3.2.1994. It was alleged in the
complaint that appellant is guilty of professional
misconduct by not returning the files to his client.
In the reply which the appellant submitted before the
Bar Council he admitted that the files were not returned but
claimed that he has a right to retain such files by
exercising his right of lien and offered to return the files
as soon as payment is made to him.
The complaint was then forwarded to the Disciplinary
Committee of the District Bar Council. The State Bar
Council failed to dispose of the complaint even after the
expiry of one year. So under Section 36-B of the Advocates
Act the proceedings stood transferred to the Bar Council of
India. After holding inquiry the Disciplinary Committee of
the Bar Council of India reached the conclusion that
appellant is guilty of professional misconduct. The
Disciplinary Committee has stated the following in the
impugned order:
On the basis of the complaint as well as the
documents available on record we are of the opinion that the
Respondent is guilty of professional misconduct and thereby
he is liable for punishment. 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 8.11.95. No such attempt was made by him.
In this appeal 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 contended
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.
We would first examine whether an advocate has lien on
the files entrusted to him by the client. Learned counsel
for the appellant endeavoured to base his contention on
Section 171 of the Indian Contract Act which reads thus:
Bankers, factors, wharfingers, attorneys of a High
Court and policy- brokers may, in the absence of a contract
to the contrary, retain, as a security for a general balance
of account, any goods bailed to them; but no other persons
have a right to retain, as a security for such balance,
goods bailed to them, unless there is an express contract to
that effect.
Files containing copies of the records (perhaps some
original documents also) cannot be equated with the goods
referred to in the section. The advocate keeping the files
cannot amount to goods bailed. The word bailment is
defined in Section 148 of the Contract Act as the delivery
of goods by one person to another for some purpose, upon a
contract that they shall be returned or otherwise disposed
of according to the directions of the person delivering
them, when the purpose is accomplished. In the case of
litigation papers in the hands of the advocate there is
neither delivery of goods nor any contract that they shall
be returned or otherwise disposed of. That apart, the word
goods mentioned in Section 171 is to be understood in the
sense in which that word is defined in the Sale of Goods
Act. It must be remembered that Chapter-VII of the Contract
Act, comprising sections 76 to 123, had been wholly replaced
by the Sales of Goods Act, 1930. The word goods is
defined in Section 2(7) of the Sales of Goods Act as every
kind of movable property other than actionable claims and
money; and includes stock and shares, growing crops, grass,
and things attached, to or forming part of the land which
are agreed to be severed before sale or under the contract
of sale.
Thus understood goods to fall within the purview of
Section 171 of the Contract Act should have marketability
and the person to whom it is bailed should be in a position
to dispose it of in consideration of money. In other words
the goods referred to in Section 171 of the Contract Act are
saleable goods. There is no scope for converting the case
files into money, nor can they be sold to any third party.
Hence, the reliance placed on Section 171 of the Contract
Act has no merit.
In England the solicitor had a right to retain any
deed, paper or chattel which has come into his possession
during the course of his employment. It was the position in
common law and it later recognized as the solicitors right
under Solicitors Act, 1860. In Halsburys Laws of England,
it is stated thus (vide paragraph 226 in volume 44): 226.
Solicitors 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.
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 vs. The
Official Assignee of Madras, (AIR 1932 Madras 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 Court in Tyabji Dayabhai & Co. vs. Jetha
Devji & Co. (AIR 1927 Bombay 542) wherein the English law
relating to the solicitors lien was followed. Subsequently,
a Full Bench of the Madras High Court in 1943 followed the
decision of the Division Bench. A Full Bench of the Patna
High Court in In re B.N. Advocate in the matter of Misc.
Judl. Case No.18/33 (AIR 1933 Pat 571) held the view that
an advocate could not claim a right to retain the certified
copy of the judgment obtained by him on the premise that an
appeal was to be filed against it. Of course the Bench said
that if the client had specifically instructed him to do so
it is open to him to keep it.
After independence the position would have continued
until the enactment of the Advocates Act 1961 which has
repealed a host of enactments including Indian Bar Council
Act. When the new Bar Council of India came into existence
it framed Rules called the Bar Council of India Rules as
empowered by the Advocates Act. Such Rules contain
provision specifically prohibiting an advocate from
adjusting the fees payable to him by a client against his
own personal liability to the client. As a rule an Advocate
shall not do anything whereby he abuses or takes advantage
of the confidence reposed in him by his client,(vide Rule
24). In this context a reference can be made to Rules 28
and 29 which are extracted below:
28. After the termination of the proceeding, the
Advocate shall be at liberty to appropriate towards the
settled fee due to him, any sum remaining unexpended out of
the amount paid or sent to him for expenses, or any amount
that has come into his hands in that proceeding.
29. Where the fee has been left unsettled, the
Advocate shall be entitled to deduct, out of any moneys of
the client remaining in his hands, at the termination of the
proceeding for which he had been engaged, the fee payable
under the rules of the Court, in force for the time being,
or by then settled and the balance, if any, shall be
refunded to the client.
Thus, even after providing a right for an advocate to
deduct the fees out of any money of the client remaining in
his hand at the termination of the proceeding for which the
advocate was engaged, it is important to notice that no lien
is provided on the litigation files kept with him. In the
conditions prevailing in India with lots of illiterate
people among the litigant public it may not be advisable
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.
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 necessary
corollary for approving the lien claimed by the legal
practitioner. Yet the illustration is not too far-fetched.
No professional can be given the right to withhold the
returnable records relating to the work done by him with his
clients matter on the strength of any claim for unpaid
remuneration. The alternative is that the professional
concerned can resort to other legal remedies for such unpaid
remuneration.
A litigant must have the freedom to change his
advocate when he feels that the advocate engaged by him is
not capable of espousing his cause efficiently or that his
conduct is prejudicial to the interest involved in the lis,
or for any other reason. For whatever reason, if a client
does not want to continue the engagement of a particular
advocate it would be a professional requirement consistent
with the dignity of the profession that he should return the
brief to the client. It is time to hold that such
obligation is not only a legal duty but a moral imperative.
In civil cases, the appointment of an advocate by a
party would be deemed to be in force until it is determined
with the leave of the court, (vide order 3, Rule 4(1) of the
Code of Civil Procedure). In criminal cases, every person
accused of an offence has the right to consult and be
defended by a legal practitioner of his choice which is now
made a fundamental right under Article 22(1) of the
Constitution. The said right is absolute in itself and it
does not depend on other laws. In this context reference
can be made to the decision of this Court in State of Madhya
Pradesh vs. Shobharam and ors. (AIR 1966 SC 1910). The
words of his choice in Article 22(1) indicate that the
right of the accused to change an advocate whom he once
engaged in the same case, cannot be whittled down by that
advocate by withholding the case bundle on the premise that
he has to get the fees for the services already rendered to
the client.
If a party terminates the engagement of an advocate
before the culmination of the proceedings that party must
have the entire file with him to engage another advocate.
But if the advocate who is changed midway adopts the stand
that he would not return the file until the fees claimed by
him is paid, the situation perhaps may turn to dangerous
proportion. There may be cases when a party has no resource
to pay the huge amount claimed by the advocate 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.
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.
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 the context wherein
such term occurs. It literally means wrong conduct or
improper conduct.
Corpus Juris Secundum, contains the following passage
at page 740 (vol.7):
Professional misconduct may consist in betraying the
confidence of a client, in attempting by any means to
practise a fraud or impose on or deceive the court or the
adverse party or his counsel, and in fact in any conduct
which tends to bring reproach on the legal profession or to
alienate the favourable opinion which the public should
entertain concerning it.
The expression professional misconduct was attempted
to be defined by Darling, J., in In re A Solicitor ex parte
the Law Society [(1912) 1 KB 302] in the following terms:
It it is shown that an Advocate in the pursuit of his
profession has done something with regard to it which would
be reasonably regarded as disgraceful or dishonourable by
his professional brethren of good repute and competency,
then it is open to say that he is guilty of professional
misconduct.
In this context it is to be mentioned that the
aforesaid definition secured approval by the Privy Council
in George Frier Grahame vs. Attorney-General, Fiji,(1936 PC
224). We are also inclined to take that wide canvass for
understanding the import of the expression misconduct in
the context in which it is referred to in Section 35 of the
Advocates Act.
We, therefore, that the refusal to return the files to
the client when he demanded the same amounted to misconduct
under Section 35 of the Act. Hence, the appellant in the
present case is liable to punishment for such misconduct.
However, regarding the quantum of punishment we are
disposed to take into account two broad aspects: (1) this
court has not pronounced, so far, on the question whether
advocate has a lien on the files for his fees. (2) the
appellant would have bona fide believed, in the light of
decisions of certain High Courts, that he did have a lien.
In such circumstances it is not necessary to inflict a harsh
punishment on the appellant. A reprimand would be
sufficient in the interest of justice on the special facts
of this case.
We, therefore, alter the punishment to one of
reprimanding the appellant. However, we make it clear that
if any advocate commits this type of professional misconduct
in future he would be liable to such quantum of punishment
as the Bar Council will determine and the lesser punishment
imposed now need not be counted as a precedent.
Appeal is disposed of accordingly.
