2004(5) ALL MR 18 (S.C.)
SUPREME COURT
S.N. VARIAVA AND A.R. LAKSHMANAN, JJ.
New India Assurance Co Ltd.Vs.A. K. Saxena
Civil Appeal No.8957 of 2003
7th November, 2003
Petitioner Counsel: Dr. A. M. SINGHVI,J. R. MEDHA,PRANAB KUMAR MULLICK
Respondent Counsel: PRAMOD SWARUP,Ms. PAREENA SWARUP,PRAVEEN SWARUP
(A) Advocates Act (1961), S.35 - Professional duty of Advocate - He has no lien over the papers of his clients - He cannot retain papers for non-payment of his fees. (2000)7 SCC 264 Rel.on. (Para 6)
(B) Advocates Act (1961), S.35 - Client instituting proceedings for return of his papers wrongfully withheld by Advocate for non-payment of his fees - Question whether fees were payable or not being disputed question of fact - Could not be adjudicated upon either by High Court or Supreme Court - It was open for Advocate to file appropriate proceedings for recovery of his fees. (Para 7)
Cases Cited:
R. D. Saxena Vs. Balram Prasad Sharma, 2001 ALL MR (Cri) 375 (S.C.)=(2000)7 SCC 264 [Para 6]
JUDGMENT
2. This appeal is against a judgment of the High Court dated 3rd April, 2002. Briefly, stated the facts are that the respondent was an advocate on panel of the appellants. As such a number of matters used to be assigned to him. It appears that some dispute arose between the appellants and the respondent as a result of which the respondent was asked to return all papers. The respondent was willing to return the papers provided that all his fees were paid.
3. It appears that when Appeal from Order No.24 of 1999 was on the Board of the High Court, the respondent moved an application before the High Court saying that he has been asked to return the files and, therefore, he may be discharged on payment of his full fees. On such application, the High Court relying on earlier judgments passed the following order :
"In view of the above decisions of this Court, the application of Sri A.K. Saxena is allowed and he is granted leave for being discharged as counsel for the appellant. However, the appellant New India Assurance Co. Ltd., shall pay his full fees. On payment of full fees, he will immediately return the files as required by the appellant-Company in letter, Annexure 2."
4. After this appeal was filed, by an order dated 9th Oct., 2003, this Court directed the respondent to return all the files. We are informed that all the files have been returned.
5. Learned counsel for the respondent insists that full fees for all the matters must be paid to him. Learned senior counsel for the appellants states that no fees is payable to the respondent. In our view, it is not for this Court, as it was not for the High Court, to adjudicate upon such a disputed question of fact. The High Court should not have given the directions it did also because at the time the High Court passed the impugned order a writ petition No.27380 of 2001 was pending. In this writ petition the respondent had claimed payment of his fees.
6. This case is fully covered by a decision of this Court in R. D. Saxena Vs. Balram Prasad Sharma reported in (2000)7 SCC 264 : [2001 ALL MR (Cri) 375 (S.C.)] wherein this Court has held that advocates have no lien over the papers of their clients. It is held that at the most the advocate may resort to legal remedies for unpaid remuneration. It has been held that the right of the litigant to have the files returned to him is a corresponding counterpart of the professional duty of the advocate and that dispute regarding fees would be a lis to be decided in an appropriate proceeding in Court.
7. We do not go into this question as to whether or not fees are payable to the respondent. It will be open for the respondent to file appropriate proceedings for recovery of his fees. The fact that, because of the impugned order, he has withdrawn his earlier writ petition would not preclude him from filing any other appropriate proceeding.
8. In view of the above, the impugned order is set aside. The appeal is allowed. There will be no order as to costs.