Patna High Court
Babui Radhika Debi vs Ramasray Prasad Chowdhry And Ors. on 1 April, 1930
Equivalent citations: 128IND. CAS.350, AIR 1930 PATNA 403
ORDER
1. This is an application by Musammat Bhawani Choudhrain as guardian of minor appellant Babui Radhika Debi asking for leave to cancel the vakalatnamah, dated the 29th April, 1929, in favour of Mr. Ram Krishna Jha and the other Advocates of this Court. The appeal was filed in this Court on behalf of the said minor Babui Radhika Debi through her father-in-law Ajodhya Choudhuri as guardian in 1927 through the said Advocate Mr. R.K. Jha. Ajodhya Choudhuri died in February or March, 1929, and after his death the petitioner Musammat Bhawani Choudhrain, his widow and the mother-in-law of the appellant, Babui Radhika Debi, was appointed guardian. Then another vakalatnamah was filed by her in favour of Mr. R.K. Jha, on the 29th April, 1929, which was accepted by the learned Advocate on the 30th April, 1929. The present petition for cancelling the vakalatnamah and discharging the Advocates concerned was filed on the 29th of January, 1930. It purports to have been signed by the lady, and was sworn to by Surajmani Das, patwari and karpardaz of the lady. This Surajmani Das also appears to have been newly engaged in place of his father who used to be the karpardaz of the husband of the lady. During the last three years that the case has been pending in this Court the paper-book has been prepared and the case is ready to be heard; and Mr. R.K. Jha says that he had got the brief and was preparing himself for arguments. He has filed a sworn counter-affidavit in which he says that the reason for filing the petition in question for his discharge is due to the fact that one Babu Lall Rai came to him to give some instructions in the case; but he refused to receive any instructions from him inasmuch as from the allegations made in the plaint he found that Babu Lal Rai was acting adversely to the interest of the minor in question. Mr. R.K. Jha says in his affidavit that this probably enraged the man and he caused this petition to be filed; whereas the lady herself had no reason to file the petition in question inasmuch as he received a letter from her which he has filed showing that she had still confidence in him and wanted him to continue to act for the minor. Mr. R.K. Jha further says that he had in December, 1929, met the lady herself whom he knew from before and she assured him of her confidence in him and that she had no intention of discharging him. The petition in question was, however, filed subsequent to the aforesaid letter and the aforesaid conversation and, therefore, it seems that the lady still wants to do away with the services of Mr. R.K. Jha, and the other Advocates who were engaged in the case in the beginning. No reason has been alleged in this petition for discharging the said Advocates. Surajmani Das, who was directed to come to this Court, has been asked about the reason and he says that Mr. R.K. Jha demanded a very high fee which the lady said she was not able to pay and that is the reason why she wanted to discharge him and appoint another Advocate in his place. The provision regarding the discharge of a Pleader, or an Advocate is laid down in Order III, Rule 4, sub-r. (2) of the Civil Procedure Code and it runs as follows:
Every such appointment shall be filed in Court and shall be deemed to be, in force until determined with the leave of the Court by a writing signed by the client or the Pleader, as the case may be, and filed in Court, or until the client or the Pleader dies, or until all proceedings in the suit are ended so far as regards the client.
2. Thus the appointment may be determined either by the client or by the pleader, but in every case it can be done only with the leave of the Court and if it is not determined then the appointment continues until all the proceedings in the suit are ended. The point came to be considered in the case of Atul Chunder Ghose v. Lakshman Chunder Sen 2 Ind. Cas. 830 : 36 C. 609 : 13 C.W.N. 1172 where it was held that unless the appointment was determined under the aforesaid rule of the Civil Procedure Code the attorney was entitled to all his costs till the case terminated with the preparation of the decree. In that case one of the defendants wrote to the attorney that the circumstances did not allow him to bear the expenses necessary to conduct the case and giving him notice not to act further on his behalf. The attorney replied that on the strength of his appointment he had engaged Counsel and had instructed them and he could not accede to the request contained in the letter and asked the client to settle matters with the other defendants. The defendant then definitely wrote to the attorney referring to the previous letter and stating that be was not responsible for the costs or Counsel's fee from that date. The attorney objected to it and continued to work in the case; and it was held that he was entitled to his costs.
3. The learned Advocate, who appears upon a transferred brief from Mr. Rai T.N. Sahay, says on behalf of the lady that there was a typed copy of an affidavit in reply to the counter-affidavit of Mr. R.K. Jha, but he is not in a position to say whether it was sworn to or not. He says that that copy contains an allegation that the reason for the lady discharging Mr. R.K. Jha was that she was informed that Mr. Jha had been accompanied by a karpardaz of the opposite party when he saw the lady in November or December last and that he asked the lady to compromise the case. If that is so, it should have been put forward in the sworn petition of the 29th of January, 1930. Mr. Jha denies it altogether and considering the position that Mr. Jha occupies as an Advocate of this Court we must accept this as true as against the allegation not formally put forward in Court on behalf of the lady. Mr. Jha was incharge of the case and even if he asked the lady to compromise the case he must have done so in the interest of the minor in question. Be that as it may, we do not think that sufficient ground has been shown for giving leave of the Court under the aforesaid rule of the Civil Procedure Code to allow the lady to discharge the Advocates in question in whom her husband, had full confidence and who carried on the work for three years. Even if she does not want the case to be argued or conducted by Mr. Jha and the other Advocates who were originally engaged by her, she must pay them their full fees for the entire case, inasmuch as it is not possible at this stags that they can be engaged or may be permitted to be engaged by the other side.
4. We, therefore, direct that if the lady wants that Mr. R.K. Jha and others should have nothing to do with the case she should pay them their full fees and she will then be at liberty to have the case conducted by any other Advocate. In the circumstances of this case the Advocates are entitled to the costs of this hearing in addition to their fees in the case. We assess the costs at two gold mohurs to each of the Advocates concerned, as the case lasted several days. An account must be filed by the learned Advocates concerned as to what are their dues, and the lady should also file her amount to show what is due to the learned Advocates according to her.