Karnataka High Court
Mahadev @ Ashok S/O Mahaling Savadi vs Bank Of India on 23 January, 2018
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 4TH DAY OF JULY, 2012
BEFORE
THE HON'BLE MR.JUSTICE RAM MOHAN REDDY
CIVIL REVISION PETITION NO. 1036 OF *2011*
BETWEEN:
MAHADEV @ ASHOK
S/O MAHALING SAVADI
AGE: 61 YEARS, OCC: ADVOCATE,
R/O 269/883, SATWAI ROAD,
NIPPANI, TQ: CHIKODI
... PETITIONER
(BY SMT. HEMALEKHA, ADV. FOR SRI. R M KULKARNI,
M K MURTHY & G.BALAKRISHNA SHASTRY ADVS.)
AND
BANK OF INDIA
BR. NIPPANI, REPTD: BY ITS MANAGER & PAH,
R/O OPP: S.T. BUS STAND,
PB ROAD, NIPPANI, A & P NIPPANI,
TQ: CHIKKODI
... RESPONDENT
THIS CIVIL REVISION PETITION IS FILED UNDER
SECTION 115 OF CPC, AGAINST THE JUDGMENT AND DECREE
DT. 4/1/2011 IN R.A.NO.38/2010 PASSED ON THE FILE OF THE
PRESIDING OFFICER, FAST TRACE COURT-I, CHIKODI,
DISMISSING THE APPEAL FILED AGAINST THE ORDER DT.
9/4/2010 IN O.S.NO.181/06 ON THE FILE OF THE 1ST ADDL.
CIVIL JUDGE (JR.DN.), NIPPANI, PARTLY DECREEING THE SUIT
FILED FOR RECOVERY OF MONEY.
*Corrected V.C.O.
Dated 23.01.2018.
Sd/-
(KSMJ)
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THIS CIVIL REVISION PETITION COMING ON FOR
ADMISSION, THIS DAY THE COURT MADE THE FOLLOWING:
ORDER
Petitioner, a practicing advocate, instituted O.S.181/06 before the I Addl. Civil Judge (Jr.Dn.), Nippani, for recovery of Rs.18,527.56 with interest at 8% per annum, on 22/11/2006 arraigning the respondent as defendant, asserting that the plaintiff when engaged by the defendant-Bank to file O.S.88/97 before the Civil Judge (Sr.Dn.), Chikkodi, though a practicing advocate at Nippani and Chikkodi, was on their panel of lawyers since 1983-84 until 17/11/2006. According to the plaintiff, the defendants in O.S.88/97 when reported to have died, sought information from the Bank over the details of legal representatives to file an application to bring them on record as also to seek appointment of a guardian since the LRs. were minors, the defendant-Bank though received the communication dt. 14/7/2005, nevertheless called upon the plaintiff to 3 extend a 'no objection' and hand over the case papers in O.S.88/97. Plaintiff having suffered from a heart ailment, it is said, was compelled to extend the 'no objection' with a request to the defendant-Bank to clear the remaining advocate's fee & expense which when not done despite a legal notice, instituted the suit.
2. Defendant-Bank entered appearance and resisted the suit by filing written statement while admitting that the plaintiff was engaged to file O.S.88/97, denied having engaged a junior advocate of the plaintiff and further that as the plaintiff was not keeping good health from 14/1/2004 onwards having suffered cardiac problems, was unable to attend the court at Chikkodi, hence a request was made by letter dt. 11/2/2004 to hand over the papers so as to engage another counsel. After having obtained the 'no objection certificate', the defendant, it is stated engaged one Sri.S.T.Munnoli, advocate filed an application to 4 appoint a guardian for the LRs. of the defendant who were minors in O.S.88/97, after obtaining 'no objection' from the plaintiff.
3. In the premise of pleadings of parties, the Trial Court framed issues, whereafterwards plaintiff was examined as PW-1 and another witness as PW-2 and marked Ex.P1 to P45, while for the defendant, one witness was examined as DW-1 and marked Ex.D1 to D5. The Trial Court having regard to the pleadings of the parties, more appropriately the admission of the plaintiff to have extended a 'no objection' to engage another counsel to prosecute O.S.88/97, coupled with the fact that plaintiff received ½ of the advocate's fee and miscellaneous expenses for instituting O.S.88/97 and there being no material on record to establish an agreement with the defendant-Bank for payment of TA & DA and keeping in mind that Ex.D3, circular relating to payment of fees to advocates on its panel permitting 5 50% of the advocate's fee to be paid on the filing of the suit and the balance 50% to be paid after the advocate furnishes the decree copy and as O.S.88/97 was not disposed of, declined to accept the plea of the plaintiff and accordingly answered the issues to decree the suit partly by directing payment of Rs.1,000/- with interest at 6% per annum from the date of institution of the suit until realisation, as claimed in item Nos. 2 & 3 in the bill dt. 1-2/9/2005, by Judgment and decree dt. 9/4/2010.
4. That Judgment and decree when carried in R.A.No38/10, the Presiding Officer, Fast Track Court-I, Chikkodi, on a re-appreciation of the material on record, concurred with the reasons, findings and conclusions arrived at by the Trial Court to dismiss the appeal by Judgment and decree dt. 4/1/2011. Hence this revision petition.
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5. The submission of the learned counsel for the petitioner that the courts below were not justified in declining the claim for balance of advocate's fee of Rs.1,043/-; expenses for typing I.As. Rs.296/-; travel expenses of Rs.4,000/-; and compensation of Rs.10,000/-, in addition to miscellaneous expenses of Rs.1,488/-, cannot be countenanced. The courts below having regard to the 'no objection' extended by the plaintiff to engage another counsel to represent the Bank in O.S.88/97, held, cannot be heard to complain that it was the defendant who had taken away the brief without rhyme or reason so as to be entitled to compensation of Rs.10,000/-. In accordance with the circular Ex.D3, providing for payment of advocate's fee, which is not in dispute, the plaintiff having received ½ of the fee on the filing of O.S.88/97 as also the expenses, was entitled to receive balance 50% of the fees only after the conclusion of the proceeding and on obtaining a decree copy. If that is so, then the plaintiff 7 cannot claim the balance of 50% of fees since O.S.88/97 is still pending consideration and in which one S.T.Munnoli, learned Counsel, is engaged by the defendant. In the absence of an agreement for payment of typing expenses on I.A. or the fee towards filing of I.As. as well as travelling expenses, the courts below were fully justified in rejecting the said plea.
6. Learned Counsel is unable to point to the material on record which would entitle the plaintiff to claim miscellaneous expenses of Rs.1,488/-. In the absence of relevant material, the rejection of that claim by the courts below cannot be faulted with. It must be borne in mind that though there was no agreement with the defendant-Bank by which the plaintiff could claim Rs.1,000/- as set out in item Nos. 2 & 3 in the bill dt. 1-2/9/2005, nevertheless the court below allowed the suit to that extent, which Judgment and decree is not questioned by the Bank.
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The Revision Petition being without merit is accordingly rejected.
SD/ JUDGE Rd/-