THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL REVISION PETITION No. 720 OF 2011 ORDER : 1. The Civil Revision Petition is directed against the order dated 06.08.2010 in I.A.No.630 of 2010 in O.S. No.8 of 2006 on the file of the III Additional District Judge, Kurnool at Nandyal. 2. The first respondent herein is the plaintiff, and the respondents 2 to 4 herein are defendants, in the suit. The petitioner herein is the advocate, who filed the suit on behalf of the first respondent/plaintiff. For better appreciation of facts, the parties are herein referred to, as they are arrayed in the suit. 3. The petition was filed by plaintiff under Order III Rule 4 read with Section 151 of the Code of Civil Procedure, 1908 (for short, ‘CPC’) praying leave of the court to terminate appointment of the petitioner herein and one Sri K.N.B. Narasinga Rao, as advocates for the plaintiff and permit it to be represented by other advocates. 4. The averments, in brief, of the affidavit filed in support of the petition before the trial court may be stated as follows. The suit is filed for recovery of money against the defendants. Plaintiff authorized one R.V.V.Sudhakar Kumar, the then Project Manager to sign plaint after verification, and the petitioner, who is in-house advocate, filed vakalatnama singed by the said Project Manager on 6.9.2009. The petitioner also obtained signature of one Sri K.N.B. Narasinga Rao, Advocate on the vakalatnama. The said fact came to the notice of the plaintiff after it obtained certified copy of vakalatnama. Another in-house advocate of plaintiff Sri A.Sriranga Reddy also signed in the vakalatnama, and till filing of the petition, they were on record. The petitioner was paid remuneration of Rs.80,000/- and he agreed not to claim separate fee in the suits filed by the company. As the plaintiff was not satisfied with the performance of the petitioner, he was dispensed with from 14.12.2009, and to defend its case in all suits, it, in turn, appointed another advocate, who signed vakalatnama on 6.3.2010, and gave a letter to file before the court through a memo dated 12.3.2010. Hence, the petitioner and another advocate Sri K.N.B. Narasinga Rao are no more advocates of plaintiff and they are not entitled to continue as advocates on behalf of it. 5. The Court below issued notice to the petitioner, who filed his objections stating as follows: Since 18.10.2005, the petitioner was in-house advocate of plaintiff to conduct all proceedings. He bestowed his best attention and also attended the suit proceedings. Initially, the plaintiff agreed to pay Rs.35,000/- every month towards his professional fee and Rs.5,000/- towards conveyance. On 18.1.2007, the plaintiff, in writing, agreed to enhance his remuneration to Rs.80,000/-. Inspite of the same, the plaintiff has not increased his remuneration and continued to pay him Rs.35,000/- only till 14.12.2009. Form 16A for the years 2006 to 2010 relating to Income Tax shows the same. Therefore, the plaintiff is liable to pay Rs.45,000/- every month from 1.1.2007 till terminating his vakalat. After his engagement on 18.10.2005, he issued Section 80 CPC notice, prepared plaints and filed suits viz. Original Suit Nos. 52/2006, 55/2006, 58/2006 and 2/2007 before the Karimnagar District Courts and the present suit. He also prepared chief-affidavits and filed in respective courts. At this juncture, the plaintiff wanted to get rid of his services without paying the professional fee by making false allegations against him. The plaintiff is liable to pay his professional fee as contended by him. Hence, he prayed not to grant leave to the plaintiff for filing such vakalat. 6. The plaintiff filed additional affidavit stating, inter alia, as follows: A copy of the petition was served on the petitioner and Sri K.N.B. Narasinga Rao, advocate, and they are creating hurdles in progress of suit by raising false claims. The petitioner is its in-house advocate working from 3.11.2008 and received monthly salary. The plaintiff reserves its right to submit complaint under Section 35 of the Advocates Act, 1961. As the services of the petitioner were terminated with effect from 14.12.2009, he submitted a representation dated 8.2.2010 to the Chairman of the plaintiff company for revival of his services and also offered to work by receiving Rs.50,000/- in each case in six package works, but, the plaintiff felt that the petitioner is not capable of working efficiently and hence, his request was not considered. The petitioner received his remuneration partly through bank and partly through receipts and hence he is misrepresenting before the court and his objections are not tenable. 7. The trial Court observed that the petitioner cannot object the plaintiff’s case in this forum even if he was not paid his professional fees and that the said court is not the appropriate forum for him to claim his dues and accordingly allowed the petition vide the impugned order. Challenging the same, the present revision petition is filed. 8. The learned counsel for the petitioner Sri V.L.N.G.K. Murthy, contended that the court has to give a direction to pay the agreed fee to defend the case in terms of the agreement entered into between the parties; that the plaintiff admitted that it was paying Rs.80,000/- towards fee to the petitioner, but, for the sake of defence, it simply stated that a cheque for a sum of Rs.35,000/- was being given and the remaining amount is by way of cash by obtaining receipts; that the certificates issued for Tax Deducted at Source would clearly go to show that the petitioner was being paid only Rs.35,000/- per month, and so the remaining amount has to be paid by the plaintiff. In support of his contention, he relied on several decisions, which will be referred to at appropriate time. 9. On the other hand, the learned senior counsel Sri E.Manohar appearing for the first respondent/plaintiff contended that an amount of Rs.35,000/- is being paid to the petitioner by way of cheque and the remaining amount is being paid by way of cash by obtaining receipts and that there is no agreed fee to be payable to the Advocate and so the question of direction being given by the Court below to pay the agreed fee does not arise, and hence, he prays to dismiss the revision petition. He also relied on several decisions, which will be referred to, at appropriate time. 10. It is not in dispute before this Court that the petitioner herein was appointed as in-house advocate of the plaintiff in pursuance of agreement dated 18.10.2005 whereunder he was appointed as a Law Consultant for attending the works relating to the claims of 13 works in Major Projects of Sriramsagar Project and K.C. Canal Works, and his consolidated salary was fixed at Rs.35,000/- besides conveyance and other charges. Thereafter, on 18.01.2007, the fee has been enhanced, in response to his representation, and the fee details read thus: Towards fee for Reading, Preparation of Notices, Plaints, Applications, Chief Affidavits, Written Arguments, etc. complete in respect of money Suits to be filed … Rs. 30,000/- Advocate fee towards conducting trials, cross Examination, oral arguments, appearing in Relevant courts including vakalats, etc. … Rs. 40,000/- Towards Conveyance from Residence to Office and back including local trips … Rs. 10,000/- Total : Rs 80,000/- Therefore, the above remuneration of Rs.80,000/- is inclusive of allowances payable to the petitioner subject to the tax deducted at source and he shall not claim any other fee for the next two years and till all the cases filed by him are cleared. The plea of the plaintiff is that it had paid entire amount of Rs.80,000/-, as agreed, to the petitioner, from the beginning, and no amount is due, whereas it is the contention of the petitioner that the plaintiff has to pay @ Rs.45,000/- per month from 1.1.2007. 11. Both the counsel relied on the following decisions. a) In A.V.Sundaramurthy Chettiar v. S.Muthiah Mudaliar & another[1], wherein it is held thus: “In these circumstances, it seems to us proper that the advocates on record should be paid their full fee before the change of vakalat is sanctioned and we decline to sanction the change until satisfactory arrangements have been made to that end.” b) In City Improvement Trust Board, Mysore v. M.P.Ramana[2], wherein it is held thus: “From the above discussion, it is clear that a client has the opportunity to change his counsel during the pendency of a case and is entitled to leave of the Court to do so. But, that leave will be subject to the condition that he pays the fee determined by the Court granting the leave. In case there is an agreement between the client and his Advocate with regard to the fee payable for the entire case and there is no proof of misconduct on the part of the Advocate or where the Advocate himself has not discharged the client, leave will be granted subject to the condition that the client pays the full fee agreed upon for the entire case. If there is no agreement between the client and the Advocate with regard to the fee payable to the Advocate, then leave will be sanctioned where the Advocate himself has not discharged the client, on payment by the client of such fee which is found reasonable by the Court on the basis of quantum meruit taking into consideration all the circumstances of the case.” c) In Union of India v. Radhey Shyam & others[3], wherein it is held thus: “It is, therefore, clear that while granting leave, the Court can impose the condition of the payment of fee to the counsel whose appointment, the party wants to terminate. The reason is that it is not open to a client to engage another lawyer without paying the fee to the outgoing lawyer.” d) In Alaukik Trading & Investment Pvt. Ltd. v. C.R. Iyer[4], wherein it is held thus: “On the basis of the proposition of law laid down by the different Courts as stated above, I am of the view that the Advocate is an officer of the Court. The Court gives various facilities to the Advocate including the facility of charging his remuneration from the client and the client shall not be permitted to leave his Advocate without giving his fees agreed upon and he is not left to be driven to file separate suit for recovery of his fee. He is entitled to recover his remuneration in the proceedings in which he was proposed to be engaged. Further, he is also entitled to tax his bills in the same proceedings for the professional work done outside the proceedings pending in the same Court and other Courts. He is not required to file a separate suit for recovery of his fee of the professional work done outside proceedings in the same Court or different Courts. Thus, the Court below has not committed any error or mistake in accepting the bills of the Advocate for his professional work done in the proceedings of the present case as well as of other suits.” e) In R.D. Saxena v. Balram Prasad Sharma,[5] wherein it is held thus: (para 18) “.. No professional can be given right to withhold the returnable records relating to the work done by him with his client’s matter on the strength of any claim for unpaid remuneration. The alternative is that the professional concerned can resort to other legal remedies for such unpaid remuneration.” 12. On the other hand, the learned counsel for the petitioner relied a decision in Mohanlal Sewlal, Firm v. Probodh Krishna Shome[6], wherein it is held thus: “.. It is true that before the Court grants the leave to discharge a lawyer under O.3 R.4, Civil P.C., the Court is entitled to make suitable provisions for the payment of the sums due to the outgoing pleader in respect of the service rendered by him and in respect of the costs incurred by him on behalf of his client. We also agree with Mr.Ghosh that as a subterfuge the petitioner cannot engage another lawyer without formally discharging the previous lawyer and without arranging for payment of the sums due to him.” 13. The learned counsel for the respondent no.1/plaintiff relied on a decision in New India Assurance Co. Ltd. v. A.K. Saxena[7], wherein it is held thus: (para 6) “This case is fully covered by a decision of this Court in R.D. Saxena v. Balram Prasad Sharma { (2000) 7 SCC 264 }, 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.” 14. No doubt, the decisions relied on by the learned counsel for the petitioner would clearly go to show that the Court has to direct to pay the agreed fee not only in that suit but also in other suits, when the plaintiff therein agreed engaged some other advocates terminating the earlier advocate. There is no dispute about the law laid down that unless entire claim for professional fee and expenses is paid, an advocate cannot be discharged from the suit. That question arises when there is an agreed fee payable to a counsel engaged by a party. If there is no dispute about the payment of the agreed fee for conducting a particular case, then certainly the court can direct the plaintiff to pay that amount when the plaintiff engages some other advocate in his place. That situation has not arisen in this case because the plaintiff has categorically stated in the affidavit that it has paid an amount of Rs.35,000/- by way of cheque and the remaining amount by way of cash after obtaining receipts. When there is a serious dispute as to what amount the counsel is entitled to, that question cannot be decided while exercising the powers under Order III Rule 4 CPC. Necessarily, the petitioner has to approach appropriate forum where he can plead and establish that he is entitled to a certain fee in pursuance of the agreement entered into with his client. Therefore, the court below rightly allowed the petition and not determined the fee payable to the petitioner for the reason that at that stage there is a serious dispute with regard to the payment of fee as the plaintiff contended that it has paid entire fee payable to the petitioner and the petitioner pleaded contra. In these circumstances, the court below rightly not determined the fee payable to the petitioner herein. The said order does not suffer from any infirmities to call for interference by this Court. 15. The Civil Revision Petition is dismissed, leaving open the remedies available to the petitioner under law. No costs. --------------------- (K.C.Bhanu, J.) 15.7.2011 DRK THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL REVISION PETITION No. 720 OF 2011 15.7.2011 [1] AIR (32) 1945 Madras 190 [2] AIR 1974 Karnataka 88 [3] AIR 1979 Rajasthan 137 [4] 2000 (4) Civil LJ 318 [5] (2000) 7 Supreme Court Cases 264 [6] AIR (37) 1950 Calcutta 576 [7] (2004) 1 Supreme Court Cases 117