Lancelot Sanderson, C.J.

1. This is an appeal by the defendant from the judgment ofmy learned brother Mr. Justice Page.

2. The defendant had acted as attorney for the plaintiffs ina suit in the High Court in which the present plaintiffs were defendants. Thepresent plaintiffs succeeded in the suit and in the appeal which was filed bythe plaintiffs in that suit.

3. This suit was brought by the plaintiffs to recover twosums of Rs. 245-10-3 and Rs. 3,837-1-0. The first of these sums was alleged tobe the balance due to the plaintiffs from the defendant, in respect of paymentsmade by the plaintiffs to the defendant on account of costs after deducting theamount allowed on taxation.

4. The second amount was part of a sum of Rs. 4,237-1-0, thetaxed costs of the previous suit as between party and party, which was paid bythe plaintiffs in the previous suit to the defendant under an order of theCourt as a condition for a stay of execution pending the determination of theappeal.

5. In respect of this amount it was alleged that thedefendant had paid the" plaintiffs a sum of Rs. 400, leaving a balance ofRs. 3.837-1-0 due to the plaintiffs.

6. The defendant paid into Court the sum of Rs. 1,724-2-3which he alleged was all that was due to the plaintiffs.

7. The defendants defence was as follows:

2. That for the proper conduct of the said suit and appealthis defendant engaged various Counsel to represent his said clients thereinand he agreed to pay them certain fees under the express authority of his saidclients and after duly informing them that the whole of such fees could not beallowed upon taxation but this defendant owing to his close relationship withthe said clients did not take any written, authority from them for the paymentof the said fees to Counsel.

3. That thereafter this defendant paid various fees toCounsel under such verbal authority of his said clients as aforesaid andincluded the same in his bills of costs as will appear from such bills whenproduced but the Taxing Officer of this Honourable Court disallowed a portionof the said fees so paid on the ground of absence of written authority from thesaid client in that behalf.

4. That this defendant at the request and under theinstructions of his said clients also expended on their behalf in the said suitand appeal various other sums of money and did certain work for them in respectof a mortgage and reconveyance which was reasonably worth Rs. 290-14-0 but thedefendant did not include the said sums so expended and the costs of the saidwork so done in his said bills of costs, as under the taxation rules of thisHonourable Court it is not the practice to do so.

6. That after giving credit to the plaintiffs for thevarious sums received from them as shown in the said annexure B to the plaintthere became due to this defendant a sum of Rs. 2,512-14-9 in respect of thebalance of account with the plaintiffs.

8. That the said appeal was dismissed with costs on the 17thof July 1918 and this defendant submits that thereupon the said fund of Rs.4,237-1-0 in his hands became subject to a lien in his favour in respect of thebalance of Rs. 2,512-14-9 then due to him by the plaintiffs.

9. That this defendant retained the said sum of Rs.2,512-14-9 so due to him as aforesaid out of the said fund of Rs. 4,237-1-0leaving a balance of Rs. 1,724-2-3 in his hands payable to the plaintiffs.

8. The question at the trial, however, was limited to a sumof Rs. 1,700 or 100 gold mohurs in respect of fees paid, by the defendant toCounsel, which were disallowed on taxation as between attorney and client. Thissum was made up of fees paid to Counsel in respect of the suit to the extent of72 gold mohurs or Rs. 1,224 and fees in respect of the appeal to the extent of28 gold mohurs or Rs. 476.

9. There is no doubt, in my opinion, that the special fees,which were paid to Counsel, were arranged by the defendant with the Counsel onthe express instructions of the plaintiffs; that the plaintiffs were informedby the defendant that they would not be allowed on taxation, that inspite ofsuch information the plaintiffs instructed the defendant to pay the fees toCounsel.

10. Further, I am satisfied that with the possible exceptionof a small sum of about Rs. 200 the fees were paid by the defendant out ofmoney provided by the plaintiffs for the express purpose of the payment of thefees to Counsel. On the evidence it is possible that the above mentioned sumabout Rs, 200 was paid out of moneys provided by the plaintiffs for thatpurpose and it is such a small sum that it may be taken for the purpose of thiscase that the whole of the Rs. 1,700 which is in dispute, was paid out ofmoneys provided by the plaintiffs for the purpose of paying the speciallyarranged Counsels fees.

11. There is no doubt that the defendant paid the speciallyarranged Counsels fees and in many instances from day to day as the feesbecame due.

12. Under these circumstances it is difficult to understandbow the plaintiffs can bring themselves to claim the sum of Rs. 1,700 from thedefendant, especially having regard to the fact that it is not disputed thedefendant served them well as their attorney and that they were successful inthe litigation in which they were involved.

13. The question, however, is whether the plaintiffs havingpaid the sum in question to the defendant for the express purpose of his payingthe specially arranged Counsels fees with full knowledge that they would notbe allowed on taxation, and the defendant having used the money for thatpurpose and having paid the Counsels fees, the plaintiffs are entitled torecover the balance of such fees, which was not allowed on taxation betweenattorney "and client. It was contended on behalf of the defendant thatunder the above mentioned circumstances the plaintiffs had no cause of actionin respect of the Rs. 1,700: on the other hand, it was contended that as thefees constituting the sum of Rs. 1,700 had been disallowed on taxation asbetween attorney and client, the defendant was liable to re-pay the sum to theplaintiffs.

14. I do not consider it necessary to refer to the rules inCh. XXXVI in detail.

15. I desire, however, to draw attention to Ch. XXXVI, Rule14 which provides that in all cases of taxation as between party and party, thebill shall be lodged for taxation as between party and party and also asbetween attorney and client.

16. The result is that whenever a bill is carried in for thepurpose of taxation as between party and party, there must be not only a taxationas between party and party but also a taxation as between attorney and client.

17. The scheme of the rules seems to be that the taxation,so provided for, should be final and conclusive, subject to an application orreference to the Court or a Judge, not only as between the parties to thelitigation but also as between the attorney and client.

18. If, therefore, the attorney or client is dissatisfiedwith the taxation, he should adopt the procedure which is laid down by therules and make an application to the Judge. This procedure would apply whetherthe, application is for a review of the taxation in respect of certain items,or for an order; under Rule 32 of Ch. XXXVI for an allowance" of fees toCounsel higher or other than the fees set out in the table embodied in thatrule.

19. That course was not adopted in this case, by theattorney.

20. It may be surmised not unreasonably that the defendantmay have considered that it would not be necessary for him to do so, in view ofthe fact that he had funds of the, plaintiffs in his hands, that he had paidthe specially arranged fees to Counsel on the express instructions of hisclients, who are relations of his, and who had full knowledge that the feeswould not be allowed on taxation, and he might not unreasonably anticipate thathis clients under such circumstances would not claim the money representingsuch fees from him.

21. It may, however, be that the attorney did not appreciatefully the effect of the rules relating to Counsel fees, and the result of theirbeing disallowed on taxation even though he had paid them on the expressinstructions of his clients.

22. Whatever the reasons may be, it is clear that thedefendant did not adopt the pro per procedure and the question arises Whetherhe is entitled to any relief in respect of this matter.

23. The defendant alleged that in this case he was entitledto make the necessary application to the Court even after the suit had beenbrought. The circumstances of this case appear to be so special, and the claimof the plaintiffs is so entirely devoid of merits that, in my judgment, inorder that justice should be done between the parties and that the taxationrules should be complied with, the Court should exercise the jurisdictionvested in it by Ch. XXXVI, Rule 32, even though a considerable time has elapsedand the attorney did not follow the prescribed procedure.

24. In my judgment, therefore, the defendants bill shouldbe remitted to the Taxing Officer with a direction that the Taxing Officershall allow as between attorney and client the sum of Rs. 1,700 in respect ofthe fees paid by the defendant to Counsel, which are represented by that sum.

25. The defendant will then be entitled to debit theplaintiffs with that sum in his account with them.

26. The result of that will be that the plaintiffs will notbe entitled to recover in this suit any more than the defendant has pa-id intoCourt.

27. In my opinion the order and decree of the learned Judge,therefore, should be varied and an order drawn in accordance with the directionof this Court and a decree should be made in favour of the plaintiffs for Rs.1,724 instead of the sum of Rs. 3,424. The order for payment to the plaintiffsof the money in Court will stand.

28. On the one hand the plaintiffs have no merits; on theother hand the defendant, did not adopt the course which he should have doneand, in my judgment, each party must pay his or their own costs of the suit andthe appeal.

29. I desire to make it clear that what I am about to say isnot to be taken as infringing in any way upon the decision in Sailendra MohanDutt v. Dharani Mohan Roy 69 Ind. Cas. 823 [LQ/CalHC/1921/349] : 49 C. 618 : 26 C.W.N. 870 : A.I.R(1922) . (C.) 402 as to the jurisdiction and discretion of the Court or a Judgebeing unfettered.

30. I think, however, it is desirable to emphasise with aview to the future that when an attorney proposes or is asked by his client tomark on the brief or to pay fees to Counsel, which cannot be allowed ontaxation by the Taxing Officer, he should in every case before marking orpaying such fees make it clear to his client that such fees will not be allowedon taxation and he should obtain a letter signed by his client authorising orratifying the payment of such fees; and if and when such fees are disallowed ontaxation, the attorney must adopt the procedure laid down by the rules.Although the jurisdiction and discretion of the Court or a Judge may beunfettered, it would not be unreasonable for the Court or a Judge to requirethe production of a letter containing the consent in writing of the client tothe payment of such fees, and including an acknowledgment that he has beeninformed that the fees would not be allowed on taxation. Unless such a courseis followed in the future the attorney will run a grave risk of the paymentsmade by him in respect of such a special fee being disallowed and becomingirrecoverable by him against his client.

31. Before parting with this case it is necessary to referto a part of the evidence, to which our attention has been drawn: it has nobearing upon the decision of the appeal, but it raises a matter of importance.

32. It appears that the plaintiffs instructed the attorney,the defendant to retain two leading Counsel for the suit. One of the Counsel,wanted a fee of 30 gold mohurs per day and the other asked a fee of 15 goldmohurs per day.

33. It was eventually arranged that the first learnedCounsel should receive a fee of 20, gold mohurs per day and the second shouldreceive 12 gold mohurs per day for the trial of the suit. These fees, were paidby the attorney to the learned Counsel less a small deduction agreed to by thelearned. Counsel. When, however, the brief of the first learned Counsel wasproduced for taxation as between party and party, it was marked 30 gold mohurscons. 5 g. ms, and 17 g. ms. for the 2nd, 3rd, 4th, 5th, 6th and 7th days and16 g. ms. for the 8th day. The second learned Counsels brief was marked 20 g.ms, and 3 for consultation and 10 gold mohurs for each of the following; days,viz., the 2nd to the 8th.

34. The learned Counsel signed for their fees. It is to benoted that the fees appearing on, the briefs were not in accordance With thefees which had been arranged with the learned Counsel and which the Counselreceived.

35. The fees of 30 gold mohurs and 20 gold mohurs for thefirst day were not in accordance with the arrangement nor were the refreshers .

36. The evidence of the defendant in cross-examination andre-examination upon the matter is as follows:

Q. Sir B.C. Mitter demanded 30 g. ms.

A. Yes, in, the suit.

Q. Take the Original Side in the first instance

A. He demanded 30 g. ms.

Q. Mr. Sircar

A. 15 he demanded, and eventually it was settled for 20 and12.

Q. Look at these briefs you have put in. They do not show 20and 12

A. My cash book will show.

Q. You havent produced that

A. This is only for the purpose of taxation.

Q. Take Sir B.C. Mitters brief. What does that show

A. First day 30 g. ms.

Q. Where is the reduction from 30 to 20

A. This is for taxation. If I put 20 g.ms. the other feeswould be less than those marked for refreshers; therefore, for the protectionof clients and getting it out of the party and party costs I arranged itaccording to the table.

Q. Do you mean it is a sort of jugglery for the TaxingOffice

A There was an agreement with Sir B. C. Mitter to pay him 20g. ms. per day.

Q. Can you show that from his brief

4. I can show the total sum.

Q. Can you show the figure "20"

A. No.

Q. Nor has he signed for 20

A. He signed for the total sum.

Q. For 30

A. The total sum. He did not sign for 30, but for the totalsum paid to him.

Q. Which includes a fee of 30.

A. Yes.

Q. And he signed for 30 and other fees

A. Yes.

Q. Similarly can you show that Mr. Sircars brief shows 12 g.ms.

A. No, he signed the total sum.

Q. Signed for 15 plus other figures

A. He signed, 20, 3, 10, 10, etc.

Q. Therefore, he signed for 20

A. He signed the total sum, not, one sum only of 20 g. ms.

Q. The figure "20" never was mentioned in the caseof Mr. Sircar He never originally demanded 20

A. He did.

Q. I thought you said 15

A. Yes 15, not 20.

Q. He originally demanded 15 and reduced to 12. 1

A. Yes.

Q. Neither 15 nor 12 appears in his brief

A. No.

Q. 20 appears

A. Yes.

Q. He signed for 20

A. For the total sum.

Q. The total sum means the sum of various figures of which20 is one, 15 is not to be found there, nor 12

A: That is right.

Q. You said you wanted to explain something

A. Yes There was agreement with, Counsel to pay him 20 g.ms. per day and that it was paid will be shown from my daybook and cash book. Ihave got the cash book and ledger, but as the Taxing Officer will allow alesser fee if 1 mark 20 g. ms, for the first day, the bill was preparedaccording to the table given. That is done in the attorneys office every dayand that is how there is a discrepancy by having been paid 30 g. ms. for thefirst day and next day 10.

Q. The total figures on the signed brief, does it work outas 20 g. ms. a day

A. Yes, they have given up some portion and it would beless.

37. It is evident, therefore, that-the fees appearing on thebriefs were not those arranged and actually paid to the learned Counsel, butthat the fees were marked in the manner appearing on the briefs for the purposeof taxation as between party and party and with the object for getting thosefees allowed in taxation and recovering them from the opposite party.

38. I do not mean to suggest that the learned Counsel signedfor any fees which they have not received; because they did receive the totalappearing on the briefs. The figures on the briefs work out at rather more than19 gold mohurs per day and 11 gold mohurs per day in the case of the twolearned Counsel respectively. The learned Counsel, however, did not receivethem in the form and manner appearing on the briefs. It was stated by learnedCounsel in Court that this was a common practice, adopted for the purpose ofgetting the fees allowed in a party and party taxation against the unsuccessfulparty.

39. I desire to make it clear that such a practice cannot berecognised by the Court for a moment.

40. In our judgment such a practice is reprehensible, andnot in accordance with the traditions of the profession and, we wish it to beclearly understood that it must not be repeated in the future. If it is, and ifit comes to the knowledge of the Court, it maybe that the Court will take aserious view of the matter.

41. I should have thought that what I am about to say was sowell-known in the profession that no necessity would arise for referring to it.

42. The actual fees, which it has been arranged to pay toCounsel, must be marked on the counsels brief, and no manipulation thereof canhe permitted for the purpose of taxation or otherwise.

43. Learned Counsel should sign for the fees which have beenarranged and paid, and in the actual form in which they were arranged and paid,and no departure there from can be entertained either for the purpose oftaxation or otherwise.

Thomas William Richardson, J.

44. I accept with considerable hesitation the order proposedby the learned Chief Justice. An attorney is an officer of the Court and I amdisposed to regard it as an improper proceeding on his part to contest in aCourt of law, whether as a plaintiff or as a defendant, the amount of a bill ofcosts which has been taxed by the Courts Deputy, the Taxing Officer, subjectto the supervision and the orders of the Court.

45. In the present case, however, the circumstances areexceptional and as to the merits of the dispute there can be no question. Thatbeing so, and as I understand that the case is not to be treated as aprecedent, I do not press my doubts to the, point of dissent.

46. I desire to say that I fully concur in the observationwhich have fallen from the learned Chief Justice as to the mode in whichCounsels fees should be marked on their briefs.

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Ramesh Chandra Basuvs. Jadab Chandra Mitra and Ors.(19.02.1924 - CALHC)