Jacob A. Chakramakkal vs Nelliampathy Estate Labour Congress by Secretary K. Chinnappa

Alagiriswami, J.—This is a petition to revise the order of the Bench of the Court of Small Causes, in N.T.A. 441 and 445 of 1963 in S.C.S. 2817 of 1963. The plaintiff in the suit is the petitioner before this Court. He filed the suit against the defendant for a sum of Rs. 1050 as fees due to him for the services rendered by him as advocate on behalf of the defendant before the Supreme Court. The trial Judge came to the conclusion that there was no agreement to pay any specified sum as fees and that a sum of Rs. 500 would be a reasonable fee and holding that a sum of Rs. 300 had already been paid passed a decree for Rs. 200. New Trial Applications were made by both the parties. The New Trial Application filed by the defendant was allowed and the suit dismissed on the ground that the Small Cause Court had no jurisdiction to entertain a suit of this nature. It is against that order that the present petition is filed.

The plaintiff is a junior advocate of the Supreme Court. He appeared before the Supreme Court on behalf of the defendant in a case before it. The case was ultimately disposed of ordering each party to bear its own costs. Thereafter, the plaintiff filed the suit out of which the present petition arises. The question to be decided in this petition depends upon an interpretation of Order XL of the Supreme Court Rules 1950. According to the defendant''s contention, which was accepted by the New Trial Bench, it is only the taxing officer of the Supreme Court that is competent to decide questions regarding the fees as between a party and his advocate, whether he is an advocate on record or any other advocate. According to the plaintiff, the question of taxation by the taxing officer of the Supreme Court is only as between an advocate on record and a party and not between any other advocate and a party. The defendant depends upon the definition of the words "advocate" and "advocate on record" in the rules, and referring to Rules 25, 26, 29 and 30 of Order XL contends that the rules provide for taxation as between a client and an advocate other than an advocate on record and that on such taxation, the order is executable by such Court as the Chamber Judge may direct. Now regarding the various rules in Order XL, it appears to me that Rule 12 and the subsequent Rules of Order XL , which relate to taxation, apply to cases where costs have been awarded between party and party. Therefore, we have then to come to Rule 24 onwards. Rule 24 clearly speaks of a dispute between an advocate an record and his client. So also does Rule 27. But Rules 25, 26, 29 and 30 refer merely to an advocate, which will mean a junior advocate or a senior advocate. There is a clear distinction in the rules between an advocate and an advocate on record. It is on this fact that the defendant relies to contend that when Rules 25, 26, 29 and 30 refer to an advocate, they refer to an advocate other than an advocate on record.

I shall deal with the further question whether advocate on record or any other advocate has no rights other than those provided by the Supreme Court Rules and be cannot resort to an ordinary Civil Court for the purpose of realising the fees due to him from his client later. From the proviso to Rule 28, it would be seen that the advocate on record might pay either to the senior or the junior advocate fees in excess of those prescribed in the schedule and that is also a matter which the taxing officer may deal with in the case of a dispute between an advocate on record and his client. It appears to me that the previsions of these rules contemplate only the advocate on record dealing with the Supreme Court. He can only appear and plead and he cannot do so except along with an advocate on record. That itself Would seem to imply that in the matter of taxation, a junior or senior advocate cannot apply for taxation directly to the Court. It is contended by defendant that in that case it is for the present plaintiff to apply for taxation through the advocate on record. The advocate on record in this case is unfortunately dead. That apart it appears to me that the fees payable to the junior advocate or the senior advocate has to be included by the advocate on record in the bill of costs, which the advocate on record has to produce before the taxing officer. That can only relate to the fees which have actually been paid to the senior advocate or the junior advocate. That is why the proviso to Rule 28 speaks of the advocate on record paying to the senior or other advocate, fees in excess of that prescribed in the schedule with the previous written consent of the client. Where no fee has been paid either to the senior or the junior advocate, the advocate on record cannot include any such item in the bill of costs to be filed by him. Where fees have been agreed to be paid to either a senior advocate, or a junior advocate, and they have not been so paid, it cannot naturally be included in the bill of costs to be filed by the advocate on record. Now do Rules 25, 26, 29 and 30 by implication provide for cases of dispute regarding nonpayment of fees to junior and senior advocates by clients? I am afraid not. It would require much more positive words than those found in those rules to lead to the implication that a senior or a junior advocate, who has not been paid his fees, can approach the Taxing Officer for the determination of the fees payable to him and for the fees so determined to be realised in execution. Those Rules also when they speak of an advocate seem to refer only to an advocate on record. That the word advocate need net necessarily always refer only to an advocate other than an advocate on record is clear front the fact that in Rule 1, Order I, the definitions, of the words "advocate" and "advocate on record" are only "unless the context otherwise requires". I think the context requires the word advocate in Rules 25, 26, 29 and 30 of O. XL to be read as referring to an advocate on record. The whole arrangement regarding the procedure in the Supreme Court where the advocate on record only deals with the Court and the senior or the junior advocate only acts through the advocate on record can lead only to this conclusion. It follows, therefore, that at least as for advocates other than advocates on record are concerned, Supreme Court Rules de not provide a machinery for realisation of their foes from their clients and therefore the decision of the New Trial Bench holding that the Small Cause Court has no jurisdiction to entertain the suit of this kind is not correct. The civil revision petition is allowed and the New Trial Bench will proceed to dispose of the other questions arising In the New Trial Applications. No costs.