Court has a dual duty – to protect a litigant who desires to change the Advocate and to protect the Advocate for payment of his just fees

 It is in that regard that the Solicitor has
drawn my attention to the Gujarat High Court judgment in the case of
Alokik Trading and  Investment Pvt.  Ltd. & 3 Ors Vs. C.R.  Iyyer
2000(1) GLR 495.    It shows how the Court has a dual duty –   to
protect a litigant who desires to change the Advocate and to protect
the Advocate  for payment of his just  fees  and not  relegate him  to
filing   a   separate   suit.     The   right   of   discharge   must,   therefore,
complement  the right to fees.


        IN THE HIGH COURT OF JUDICATURE AT BOMBAY 
              ORDINARY ORIGINAL CIVIL JURISDICTION
CHAMBER ORDER NO.559 OF 2012
IN
SUIT NO.1839 OF 1988
Arvind N. Savani ­­ Plaintiff
V/s.
Maganlal Savani & Ors. ­­ Defendants

         CORAM :   MRS. ROSHAN DALVI, J.



Date of pronouncing the Order : 10
th
 September, 2012
ORDER
1. This   Chamber   Order   was   taken   out   by   defendant   No.1
before the Prothonotary and Senior Master of this Court for obtaining
discharge   of   his   Solicitors   and   for   handing   over   papers   and
proceedings.  The Papers and proceedings have already been handed
over to him by the firm of Solicitors (the firm) representing him.  That
matter has not been disputed.
2. The Defendant No.1 contended in the Chamber Order that
the firm has not given him the NOC for filing the Vakalatnama of the
new advocates, whom defendant No.1 seeks to appoint, on the ground
of   non   payment   of   certain   outstanding   fees   as   shown   in   the
correspondence between the parties.   The learned Prothonotary and
Senior Master  of  this Court  has  considered  the  contentions  of  the2 CHOL. No.559_2012
parties and held that the firm stood discharged by his order dated 25
th
July, 2012.  
3. It   is   that   order   which   is   sought   to   be   challenged   by
praecipe filed before this Court.  
4. It is contended by  the  firm  that  as officers of  the Court
their right to obtain reasonable and legitimate fees charged by them
to  their client must be protected by  the Court and subject  to  such
protection the order of discharge may be made with which the firm
would have no complaint. 
5. Defendant No.1 appeared in person against his own firm of
solicitors. He  showed  the Court  the  correspondence  between  them
and contended that its fees have been settled and paid as settled so
that  the  refusal  to  give discharge was unreasonable and hence  the
order of the Prothonotary and Senior Master must be upheld.   The
firm has  sent its bill  to Defendant No.1 under its letter dated 11
th
December, 1996. Defendant No.1 claims that he has challenged each
item of the firm's bill dated 11
th
 December, 1996 in his letter dated 8
th
July 1997 which has not been replied by the Solicitor.  He claims that
if that letter is read the Court would be satisfied that nothing is due
and   payable   and   hence   the   resistance   to   allow   discharge   of   the
Advocate by Defendant No.1 is inequitable and unjust.  
6. The Solicitor of Defendant No.1 has shown the bill sent to
Defendant No.1 under  the  firm's letter  dated  26
th
  December  2011.
There are various heads of charges for various matters for which the
firm represented Defendant No.1.   The item No.21 in the statement
annexed  to  the letter shows  the amount payable in  the above suit.
The  statement is made as of 9
th
  December 2011. The amount was
payable under the bill dated 11
th
  December 1996. The Solicitor has
also produced the letter dated 11
th
 December 1996 itself, which was3 CHOL. No.559_2012
annexed  to  the  bill  of  costs in  the  above  suit.    The  total  amount
claimed by the Solicitor was Rs.5.95 lakhs which was due and payable
on  the  date  of  the letter  after  giving  credit  of Rs.2.10 lakhs  paid
earlier by the defendant No.1. The statement shows Counsel's fees as
well as Solicitor's charges.  It is stated that even after this bill Rs. 2
lakhs has been paid by Defendant No.1 in part­payment of the bill.
There was,  therefore, no dispute with  regard  to  the Solicitor's  fees
until after December 1996.
7.  It is  the case of Defendant No.1  that in 1997 he was  to
settle the dispute and file consent terms.  He requested his Solicitor to
apply   for   consent   terms.     The   Solicitor   failed   to   apply   despite
instructions. He has waited for 15 years.  He now desires to settle the
dispute   through   another   Advocate.     He,   therefore,   applied   for
discharge of his Solicitor which has been granted.  
8. The learned Prothonotary and Senior Master of this Court
granted  his  application essentially  considering  the judgment  of  the
Supreme   Court   in   the   case   of  R.D.  Saxena   Vs.     Balram   Prasad
Sharma 2000(7) SCC 264.   The judgment  relates not only  to  the
claim of lien, but to the moral obligation of the Solicitor in allowing
his client to change his Advocate.   It is observed that the litigant is
free  to change his Advocate when he desired and a lien cannot be
exercised by the Advocate.  
9.  The firm has not exercised lien over any papers.   All the
papers   are   stated   to   have   been   taken   away   by   Defendant   No.1.
Hence, the question is only of the obligation of the firm not to resist
discharge.   A  firm who charges an exorbitant  fee, which  the client
cannot and will not pay, certainly cannot resist its discharge, if the
client desires to change his Solicitor.  It is then that the judgment of
the Supreme Court would be applied. However,  a Solicitor is entitled  to charge his  fees.   This
would be the fees that he would command and not only demand. This
would, therefore, be all reasonable fees charged from time to time as
per   his   standing.     Those   fees  would   have   to   be   paid.   The   moral
obligation of  the Solicitor does not grant a licence  to  the client  to
discard his Solicitor at will after he has devoted his time, effort and
skill and put in hours of work  for which he has charged his client.
Such client would be allowed to obtain discharge only upon payment
of just fees of the Solicitor.   It is in that regard that the Solicitor has
drawn my attention to the Gujarat High Court judgment in the case of
Alokik Trading and  Investment Pvt.  Ltd. & 3 Ors Vs. C.R.  Iyyer
2000(1) GLR 495.    It shows how the Court has a dual duty –   to
protect a litigant who desires to change the Advocate and to protect
the Advocate  for payment of his just  fees  and not  relegate him  to
filing   a   separate   suit.     The   right   of   discharge   must,   therefore,
complement  the right to fees.
11. Defendant   No.1   sought   the   court's   permission   to   be
assisted by an advocate.  Though the firm had not been discharged, he
was allowed to be represented in this application by another advocate.
His advocate has been heard.  The firm through its counsel showed
the court the law with regard to obtaining discharge.  The position of
facts and law between the parties must be first considered.
12.. This Court cannot go in to the arithmetical calculation of
the amount of fees charged by the firm and paid or left unpaid by the
client to determine the amount of fees due and payable. However, a
letter of the firm dated 11
th
 December, 1996 sending their Bill of Costs
has been relied upon by both the parties and has been shown to the
Court.  This bill is in respect of above suit.  It refers to 179.5 hours of
work   of   the   firm   from   1988   to   1996   and   the   corresponding   fee
charged  for  such  hours  of work.    It  further  shows  fees  of various
counsel.   It   is   not   disputed   that   those   counsel   had   appeared   for
defendant No.1 at various stages in the suit.  The bill of 1996 has not
been disputed.  The bill is for Rs.8.05 lacs.  It gives credit for sum of
Rs.2.10 lacs.   The balance due and payable is shown to be Rs.5.95
lacs.  After the bill was received admittedly Rs.2 lacs have been paid.
In certain further correspondence relied upon by defendant No.1 he
claims that the Senior partner of the firm agreed to settle the dispute
if he withdrew certain allegations he made in his letter dated 8
th
 July,
1998.  Defendant No.1 accordingly withdrew the letter written to the
firm.  Thereafter he paid the settled amount of Rs.11,000/­ to the firm
by cheque.  That amount has not been credited.
13. The  firm refuted that there was any such settlement.   In
fact the affidavit in respect of Chamber Order does not show that that
the settlement was  for Rs.11,000/­.   Paragraph 4 of the affidavit of
defendant No.1 shows that the firm was to settle the dispute provided
he withdrew his letter dated 8
th
  July, 1997.   He withdrew  the said
letter.   If   that   was   so   no   consideration   was   payable   upon   such
withdrawal.  Yet he paid Rs.11,000/­.  The cheque of Rs.11,000/­ was
given   on   11
th
  December,   2000   and   has   been   returned   on   22
nd
February, 2001, about two months thereafter. The sum of Rs.11,000/­
is, therefore, seen to be paid by defendant No.1 of his own volition.  It
bears no reference to any amount claimed by the firm as the amount
of   outstanding   dues   being   settled.   When   the   bill   of   1996   shows
Rs.5.95 lacs out of which admittedly Rs.2 lacs are paid, the settlement
amount cannot be accepted  to be of Rs.11,000/­.   The affidavit of
defendant No.1 itself shows that it is a unilaterally given amount.
14. Counsel on behalf of Defendant No.1 has contended that
thereafter the firm has not made a single demand for the outstanding
amount.   Hence he seeks to contend that that would show that the
amount payable as fees is settled.  
15. It  appears  that  after many years  certain mediation  took
place.    A  “mediation   award”  came  to  be  passed  which was  to  be
executed as a decree by way of certain consent  terms between  the
parties.  Though this aspect is not fully understood, it appears that the
parties had settled and an order in terms of the settlement had to be
obtained.   The  firm  refused  to act upon any such  settlement  for a
number of years and hence defendant No.1 sought to have the firm
discharged to appoint new advocates to represent him in ultimately
settling the suit.  It is then that the firm of solicitors has sent their bill
annexed  to  their letter  dated  26
th
  December,  2011  relied  upon  by
defendant No.1 in the affidavit in support of Chamber Order.  The bill
of   costs   show   the   outstanding   bill   of   defendant   No.1   for   various
matters including the above suit.  The amount payable in respect of
the suit is, however, the largest amount claimed.  This amount  bears
reference to the earlier bill sent in December, 1996. From 3.95 lacs
which   remained   payable   after   the   part   payment   of   Rs.2  lacs   was
made, a sum of Rs.58,000/­ is stated  to have been paid thereafter,
leaving a balance of Rs.3.37 lacs as the fees of the firm in the above
suit.     It   is  this   amount  that   the   firm   claimed   to   be   paid   to   give
discharge. It is fairly conceded that the other amounts claimed by firm
in the bill of costs cannot be claimed to obtain discharge.
16. It has to be seen whether discharge be given with or upon
payment of the aforesaid fees or a part thereof as reasonable fee of
the solicitors. Under Order 3 Rule 4(2) of the Civil Procedure Code
the appointment of a pleader  for a party in any suit or proceeding
would be  in force until it is determined with the leave of the Court as
shown  therein.   Hence it is contended  that  the appointment of  the7 CHOL. No.559_2012
firm must continue until  the Court grants leave.   The  fact  that  the
Court has to grant leave would mean and imply that the leave cannot
granted mechanically.  It has to be granted upon seeing the facts of
the case and the reasonableness of the application.  The application
for discharge may be made either by the pleader himself or by the
client.  If it is made by the client, as in this case, leave can be granted
upon   reasonable   conditions   being   complied.     This   would   be   with
regard to the payment of the fees of the pleader and papers of the
client. If the reasonable fees of the pleader are not paid, leave may be
refused and would have to be refused.
17. Indeed the provision of leave is seen to have been made
with   the   purpose   and   object   of   keeping   the   superintendence   and
supervision of the court over pleaders as well as their clients.
18. Under  Section 34 of  the Advocates Act 1961  the High
Court may make rules in this regard. 
19. The rules of the Original Side of the Bombay High Court
Rules framed under Section 34 of the Act are in Appendix VI. Rule 8
of  the Rules  to which my  attention  has  been  drawn,  refers  to  the
provisions of Order 3 Rule 4 of the CPC also.  The Rule 8 (5) of the
rules in Appendix VI provides that when party seeks to discharge his
advocate,   he   may   apply   to   the   Court   for   the   order   of   discharge
following the procedure prescribed and if the Court is satisfied, it may
pass orders discharging the advocate and while doing so impose such
terms and conditions as it may deem proper. The Court is, therefore,
required to be satisfied that the case for discharge is made out.   The
Court   would   have   to   consider   the   aspects   of   the   fees   of   the
pleader/advocate   and   the   papers   of   the   client.     The   terms   and
conditions that the Court may specify would be with regard to either
or both of these aspects.  A reading of the aforesaid rule also shows
that it would  be  upon  the  satisfaction   of  the  Court  that  both  the
pleader as well as client have been dealt with reasonably,    that an
order of discharge would be made.  It is common knowledge that the
pleader cannot, by simplicitor wanting  discharge, obtain a discharge.
He would have to inform the client, return the papers and then  claim
discharge.   Similarly, therefore, a client cannot simplicitor require a
pleader who has worked for him to be discharged to engage another
pleader   without   paying   the   fees   of   the   pleader.     That   would
tantamount to encouragement of abuse.  A pleader and advocate or
solicitor is an officer of the Court and must be as much protected as
the   litigant   himself   for   whom   the   Courts   are   established.
Consequently   the   satisfaction   of   the   Court   with   regard   to   the
protection of both these parties is required.  
20. In   the   case   of  Naryandas   Sundarlal   Rathi   Vs.
Narayandas Harbhagal AIR 1932 Bombay 363 this court sought to
protect   the   costs   incurred   by   the   Solicitor   before   he   could   be
discharged by a lien which could be claimed by the Solicitor upon the
funds, money and property received for his client and a general lien
upon the papers and documents of his client.  
21. In the later case of  Dharamdas Kachudas Vs. Kachudas
Makanji AIR 1933 182  this Court disagreed with the earlier case in
that it held that the attorney could not insist on being employed by
the client even after the client did not desire  to employ him as his
attorney.  It held that the attorney has lien upon the papers but could
not insist upon it to retain himself.  Hence if the attorney's fees were
not paid, the papers may not be returned and the attorney may claim
for his unpaid costs, but a change of attorney would be allowed.
22. The  Division   Bench  of   Calcutta   High   Court   in   the   case
Pankajkumar Ghose Vs. Sudheerkumar Shikdar AIR 1934 Calcutta
58  considered   order   3   Rule   4  of   the   CPC,  1908.     It   came   to   be
observed  that  there  could  be  no  change when  the  attorney's  costs
were not provided  for in  the order  for change unless  the  attorney
discharged himself by his misconduct. Referring to the earlier case of
Nagendar   Chunder   Ghose   Vs.   Greendur   Chunder   Ghose  of   the
Supreme Court of Calcutta of 1858 the rule laid down by Supreme
Court of Calcutta came to be cited.  It required the payment of costs
as  condition  precedent  to  granting  of  orders  of  the  change  of  the
attorney.  Hence it came to be concluded that no order for change for
attorney may by made unless provision was made for payment to the
attorney.  
23. New India Assurance Company Ltd. V/s. A.K. Saxena AIR
2004 SC 311  as also  the case of  RB Saxena supra  relied upon by
defendant No.1 this aspect was considered. It held that the advocate's
fees   could   not   be   adjusted   against   the   advocate's   own   personal
liability to the client.  That aspect, dealt with in Paragraph 12 of the
judgment, in the case of R B Saxena supra is wholly different.   Both
these judgments only speak about the lien which cannot be claimed by
an advocate under the Advocates Act and the Bar Council Rules.  They
do not speak of the professional fees of attorney who has otherwise
not misconducted himself.  It is not the case of defendant No.1 that
his solicitor has misconducted himself.  The only aspect in this case to
be seen is whether their fees have been fully settled or whether they
remained due and payable for the work done since many years prior
to discharge being claimed.
24. The case of Basudeo  Ram Govind V. Vachha & Co. AIR
1955(4) Bom. 126  related to a solicitor seeking to proceed against
the client of the opposite party with whom his client sought to settle
the dispute without the assistance of the solicitor and before payment
of the fees of the solicitor.  Though the solicitor was held entitled to
claim the amount deposited in the Court which was to the credit of
the suit, he was held not entitled to proceed against the opposite party
simplicitor upon the settlement of the suit by his client with the other
side in the absence of collusion between the parties.  In Paragraph 14
of  the Judgment,  to which my attention was drawn by counsel on
behalf   of   the   firm,   Chief   Justice   Chagla   enumerated   the   various
facilities which the court granted to a solicitor as its officer;  his costs
could be  taxed, he could get a pay order  from  the chamber Judge
which  he  could  be executed  as  a  decree.  The  Court  gave its  own
officer who is the solicitor  “equitable interference” by the Court. That
would be  the equitable jurisdiction exercised by  the Court  to grant
leave   under  Order   3   Rule   4(2)  of   the   CPC.   In   exercise   of   such
equitable jurisdiction the Court may allow the solicitor to recover the
fees even from opponent but only when collusion between those two
parties to deprive the solicitor of his claim of costs was seen or if the
solicitor had given notice to the other party in that behalf.  Upon the
abolition of the dual system (which was then prevalent) the solicitor
would be left with neither of these remedies.  He would require to file
a suit against the client to recover his costs.  It is in this regard that
the leave to be granted under Order 3 Rule 4(2) of the CPC would
assume importance.   The Court would protect its officer against his
client seeking the discharge if his fees are not paid.  That would be the
only   protection   now   left   to   a   firm   of   advocates   representing   the
litigant in this Court. 
25. My attention has been  further drawn to paragraph 23 of
the Judgment of Justice J.C. Shah in the case of Basudev supra. The
observation in the paragraph is that the solicitors have always been
regarded   an   officials   entitled   to   special   protection   in   respect   of
recovery   of   their   costs   from   their   clients.     This   jurisdiction   was
inherited from the Supreme Court Judicature at Bombay (which was
well before the Bombay High Court was itself established in 1862)  A
solicitor would be entitled to lien as also for recovery of costs payable
to him by his client and that order would be enforceable as a decree
so that he would not be required to file a suit to recover that amount.
26. Though the institution of solicitors  has been abolished, the
requirement of leave of the Court under  Order 3 Rule 4(2)  of CPC
has  not  been  amended.     Though  the   solicitor's   costs  need  not  be
taxed, leave of  the Court which is  required  to be  granted is upon
similar principles.  Hence the reasonable costs of the solicitor would
have to be paid or would have to be shown to have been paid by the
client who seeks to appoint another solicitor or advocate so that the
Court   may   grant   leave   to   do   so   and   discharge   the   solicitor   or
advocate.  Similarly under the rules of the original side of the High
Court the discharge may be granted upon the terms and conditions as
may be deemed to be proper.
27. In this case the bill of costs has been submitted.  We are
not concerned with the costs of other matters. This Court would be
concerned only with the costs incurred in this suit.  The costs in this
suit   remained   unpaid.     According   to   the   firm   it   is   Rs.3.37   lacs.
According   to   defendant   No.1   it   was   Rs.11,000/­.     Rs.11,000/­   is
shown to be a unilateral payment.  It is made after his letter dated 8
th
July, 1997 was withdrawn by him.  He has not shown any writing to
show that his  fees were settled. Payments of cheque of Rs.11,000/­
against the bill of Rs.3.37 lacs cannot be accepted as payment made in
full and final settlement to settle all the disputes between the solicitor
and  the   client.  This  cheque   has  not  even   been  encashed.    It  was
returned  after  about  two months.    The  solicitor  did  not  serve  the
client thereafter.   When the client insisted upon service, the firm of
solicitors insisted upon payment its  fees.   There was nothing more
that the firm could do. The matter remained at that.    
28. Now that discharge is sought, the Court may grant leave to
Defendant   No.1   to   determine   the   appointment   of   the   firm   upon
payment   of   reasonable   amount   of   fees   remaining   unpaid.     As
aforesaid, the Court cannot go in to detailed arithmetics of the claim.
However, the claim shows the payment of counsel fees of Rs.2.85 lacs.
Even if Rs.2 lacs are paid thereafter and have to be adjusted towards
counsel fees, Rs.85,000/­ remain admittedly due and payable for the
counsel   who   appeared   for   defendant   No.1   in   the   suit.     The
correspondence of defendant No.1 shows the dispute with regard to
the number of hours of work put in by firm of solicitors. Whereas the
firm claimed to have put in 179.5 hours, defendant No.1 claims that
the firm put in only 28.5 hours of work including conferences in the
letter dated 8
th
  July, 1997 of defendant No.1 addressed to the  firm
which later came to be withdrawn by him. Even that amount has not
been paid.   The solicitor's bill of costs shows Rs.5.20 lacs for about
180 hours.   About 30 hours of work would constitute 1/6
th
  of  that
amount.    Even if  that much  work was  done  by  solicitor  it would
require payment of another 85,000/­ on that score.   A total sum of
approximately 1.70 lacs would be due and payable since 1996 and left
unpaid.  This computation is only upon seeing the admitted amounts
unpaid and not upon what the firm has claimed.  The firm would be
entitled  to  atleast  some more  amount  for  the  work  done  prior  to
December, 1996 which is not challenged.  
29. Hence considering this fact along with aforesaid law leave
may be granted to defendant No.1 for discharge of the firm upon the
condition that defendant No.1 pays a sum of Rs.2 lacs to his firm of
solicitors. 
Hence the following order.
1. Upon defendant No.1 paying Rs.2 lacs  to his present  firm of
solicitors, the firm of solicitors shall stand discharged.
2. Defendant No.1 shall thereafter be entitled to be represented by
any other firm of advocates. 
3. The order of the Prothonotary and Senior Master of this Court
dated 25
st
 July, 2012 is modified to that extent. 
( ROSHAN DALVI, J.)