Saxena Vs. Balram Prasad Sharma  INSC 440 (22 August 2000)
main issue posed in this appeal has sequential importance for members of the
legal profession. The issue is this: Has the advocate a lien for his fees on
the litigation papers entrusted to him by his client? In this case the Bar
Council of India, without deciding the above crucial issue, has chosen to
impose punishment on a delinquent advocate debarring him from practicing for a
period of 18 months and a fine of Rs.1000/-. The advocate concerned was further
directed to return all the case bundles which he got from his client respondent
without any delay. This appeal is filed by the said advocate under Section 38
of the Advocates Act, 1961.
question involved in this appeal has topical importance for the legal
profession we heard learned counsel at length. To appreciate the contentions we
would present the factual backdrop as under:
now a septuagenarian, has been practicing as an advocate mostly in the courts
at Bhopal, after enrolling himself as a legal
practitioner with the State Bar Council of Madha Pradesh. According to him, he
was appointed as legal advisor to the Madhya Pradesh State Co- operative Bank
Ltd. (Bank, for short) in 1990 and the Bank continued to retain him in that
capacity during the succeeding years. He was also engaged by the said Bank to
conduct cases in which the Bank was a party. However, the said retainership did
not last long. On 17.7.1993 the Bank terminated the retainership of the
appellant and requested him to return all the case files relating to the Bank.
of returning the files the appellant forwarded a consolidated bill to the Bank
showing an amount of Rs.97,100/- as the balance payable by the Bank towards the
legal remuneration to which he is entitled. He informed the Bank that the files
would be returned only after setting his dues.
went on between the appellant and the Bank regarding the amount, if any,
payable to the appellant as the balance due to him. Respondent Bank disclaimed
any liability outstanding from them to the appellant. The dispute remained
unresolved and the case bundles never passed from appellants hands. As the
cases were pending the Bank was anxious to have the files for continuing the
proceedings before the courts/tribunals concerned. At the same time the Bank
was not disposed to capitulate to the terms dictated by the appellant which
they regarded as grossly unreasonable. A complaint was hence filed by the
Managing Director of the Bank, before the State Bar Council (Madhya Pradesh) on
3.2.1994. It was alleged in the complaint that appellant is guilty of
professional misconduct by not returning the files to his client.
reply which the appellant submitted before the Bar Council he admitted that the
files were not returned but claimed that he has a right to retain such files by
exercising his right of lien and offered to return the files as soon as payment
is made to him.
complaint was then forwarded to the Disciplinary Committee of the District Bar
Council. The State Bar Council failed to dispose of the complaint even after
the expiry of one year. So under Section 36-B of the Advocates Act the
proceedings stood transferred to the Bar Council of India. After holding inquiry
the Disciplinary Committee of the Bar Council of India reached the conclusion
that appellant is guilty of professional misconduct. The Disciplinary Committee
has stated the following in the impugned order:
basis of the complaint as well as the documents available on record we are of
the opinion that the Respondent is guilty of professional misconduct and
thereby he is liable for punishment. The complainant is a public institution.
It was the duty of the Respondent to return the briefs to the Bank and also to
appear before the committee to revert his allegations made in application dated
8.11.95. No such attempt was made by him.
this appeal learned counsel for the appellant contended that the failure of the
Bar Council of India to consider the singular defence set up by the appellant
a lien over the files for his unpaid fees due to him, has resulted in
miscarriage of justice. The Bank contended that there was no fee payable to the
appellant and the amount shown by him was on account of inflating the fees.
the respondent contended that an advocate cannot retain the files after the
client terminated his engagement and that there is no lien on such files.
would first examine whether an advocate has lien on the files entrusted to him
by the client. Learned counsel for the appellant endeavoured to base his
contention on Section 171 of the Indian Contract Act which reads thus:
factors, wharfingers, attorneys of a High Court and policy- brokers may, in the
absence of a contract to the contrary, retain, as a security for a general
balance of account, any goods bailed to them; but no other persons have a right
to retain, as a security for such balance, goods bailed to them, unless there
is an express contract to that effect.
containing copies of the records (perhaps some original documents also) cannot
be equated with the goods referred to in the section. The advocate keeping the
files cannot amount to goods bailed. The word bailment is defined in Section
148 of the Contract Act as the delivery of goods by one person to another for
some purpose, upon a contract that they shall be returned or otherwise disposed
of according to the directions of the person delivering them, when the purpose
is accomplished. In the case of litigation papers in the hands of the advocate
there is neither delivery of goods nor any contract that they shall be returned
or otherwise disposed of. That apart, the word goods mentioned in Section 171
is to be understood in the sense in which that word is defined in the Sale of
Goods Act. It must be remembered that Chapter-VII of the Contract Act,
comprising sections 76 to 123, had been wholly replaced by the Sales of Goods
Act, 1930. The word goods is defined in Section 2(7) of the Sales of Goods Act
as every kind of movable property other than actionable claims and money; and
includes stock and shares, growing crops, grass, and things attached, to or
forming part of the land which are agreed to be severed before sale or under
the contract of sale.
understood goods to fall within the purview of Section 171 of the Contract Act
should have marketability and the person to whom it is bailed should be in a
position to dispose it of in consideration of money. In other words the goods
referred to in Section 171 of the Contract Act are saleable goods. There is no
scope for converting the case files into money, nor can they be sold to any
the reliance placed on Section 171 of the Contract Act has no merit.
In England the solicitor had a right to retain
any deed, paper or chattel which has come into his possession during the course
of his employment. It was the position in common law and it later recognized as
the solicitors right under Solicitors Act, 1860. In Halsburys Laws of England, it
is stated thus (vide paragraph 226 in volume 44): 226.
rights. At common law a solicitor has two rights which are termed liens. The
first is a right to retain property already in his possession until he is paid
costs due to him in his professional capacity, and the second is a right to ask
the court to direct that personal property recovered under a judgment obtained
by his exertions stand as security for his costs of such recovery.
addition, a solicitor has by statute a right to apply to the court for a
charging order on property recovered or preserved through his instrumentality
in respect of his taxed costs of the suit, matter or proceeding prosecuted or
defended by him.
India attained independence different
High Courts in India had adopted different views
regarding the question whether an advocate has a lien over the litigation files
kept with him. In P. Krishnamachariar vs. The Official Assignee of Madras, (AIR
1932 Madras 256) a Division Bench held that an advocate could not have such a
lien unless there was an express agreement to the contrary.
Division Bench has distinguished an earlier decision of the Bombay High Court
in Tyabji Dayabhai & Co. vs. Jetha Devji & Co. (AIR 1927 Bombay 542)
wherein the English law relating to the solicitors lien was followed.
Subsequently, a Full Bench of the Madras High Court in 1943 followed the
decision of the Division Bench. A Full Bench of the Patna High Court in In re
B.N. Advocate in the matter of Misc.
Case No.18/33 (AIR 1933 Pat 571) held the view that an advocate could not claim
a right to retain the certified copy of the judgment obtained by him on the
premise that an appeal was to be filed against it. Of course the Bench said
that if the client had specifically instructed him to do so it is open to him
to keep it.
independence the position would have continued until the enactment of the
Advocates Act 1961 which has repealed a host of enactments including Indian Bar
Council Act. When the new Bar Council of India came into existence it framed
Rules called the Bar Council of India Rules as empowered by the Advocates Act.
Such Rules contain provision specifically prohibiting an advocate from
adjusting the fees payable to him by a client against his own personal
liability to the client. As a rule an Advocate shall not do anything whereby he
abuses or takes advantage of the confidence reposed in him by his client,(vide
Rule 24). In this context a reference can be made to Rules 28 and 29 which are
After the termination of the proceeding, the Advocate shall be at liberty to
appropriate towards the settled fee due to him, any sum remaining unexpended
out of the amount paid or sent to him for expenses, or any amount that has come
into his hands in that proceeding.
Where the fee has been left unsettled, the Advocate shall be entitled to
deduct, out of any moneys of the client remaining in his hands, at the
termination of the proceeding for which he had been engaged, the fee payable
under the rules of the Court, in force for the time being, or by then settled
and the balance, if any, shall be refunded to the client.
even after providing a right for an advocate to deduct the fees out of any
money of the client remaining in his hand at the termination of the proceeding
for which the advocate was engaged, it is important to notice that no lien is
provided on the litigation files kept with him. In the conditions prevailing in
India with lots of illiterate people
among the litigant public it may not be advisable also to permit the counsel to
retain the case bundle for the fees claimed by him. Any such lien if permitted
would become susceptible to great abuses and exploitation.
is yet another reason which dissuades us from giving approval to any such lien.
We are sure that nobody would dispute the proposition that the cause in a
court/tribunal is far more important for all concerned than the right of the
legal practitioner for his remuneration in respect of the services rendered for
espousing the cause on behalf of the litigant. If a need arises for the
litigant to change his counsel pendente lite, that which is more important
should have its even course flowed unimpeded.
of records for the unpaid remuneration of the advocate would impede such course
and the cause pending judicial disposal would be badly impaired. If a medical
practitioner is allowed a legal right to withhold the papers relating to the
treatment of his patient which he thus far administered to him for securing the
unpaid bill, that would lead to dangerous consequences for the uncured patient
who is wanting to change his doctor. Perhaps the said illustration may be an
over-statement as a necessary corollary for approving the lien claimed by the
legal practitioner. Yet the illustration is not too far-fetched.
professional can be given the right to withhold the returnable records relating
to the work done by him with his clients 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.
litigant must have the freedom to change his advocate when he feels that the
advocate engaged by him is not capable of espousing his cause efficiently or
that his conduct is prejudicial to the interest involved in the lis, or for any
other reason. For whatever reason, if a client does not want to continue the
engagement of a particular advocate it would be a professional requirement
consistent with the dignity of the profession that he should return the brief
to the client. It is time to hold that such obligation is not only a legal duty
but a moral imperative.
civil cases, the appointment of an advocate by a party would be deemed to be in
force until it is determined with the leave of the court, (vide order 3, Rule
4(1) of the Code of Civil Procedure). In criminal cases, every person accused
of an offence has the right to consult and be defended by a legal practitioner
of his choice which is now made a fundamental right under Article 22(1) of the
Constitution. The said right is absolute in itself and it does not depend on
other laws. In this context reference can be made to the decision of this Court
in State of Madhya
Pradesh vs. Shobharam
and ors. (AIR 1966 SC 1910). The words of his choice in Article 22(1) indicate
that the right of the accused to change an advocate whom he once engaged in the
same case, cannot be whittled down by that advocate by withholding the case
bundle on the premise that he has to get the fees for the services already
rendered to the client.
party terminates the engagement of an advocate before the culmination of the
proceedings that party must have the entire file with him to engage another
the advocate who is changed midway adopts the stand that he would not return
the file until the fees claimed by him is paid, the situation perhaps may turn
to dangerous proportion. There may be cases when a party has no resource to pay
the huge amount claimed by the advocate as his remuneration. A party in a litigation
may have a version that he has already paid the legitimate fee to the advocate.
rate if the litigation is pending the party has the right to get the papers
from the advocate whom he has changed so that the new counsel can be briefed by
him effectively. In either case it is impermissible for the erstwhile counsel
to retain the case bundle on the premise that fees is yet to be paid.
if there is no lien on the litigation papers of his client an advocate is not
without remedies to realise the fee which he is legitimately entitled to. But
if he has a duty to return the files to his client on being discharged the
litigant too has a right to have the files returned to him, more so when the
remaining part of the lis has to be fought in the court. This right of the
litigant is to be read as the corresponding counterpart of the professional
duty of the advocate.
envisaged in Section 35 of the Advocates Act is not defined. The section uses
the expression misconduct, professional or otherwise. The word misconduct is a
relative term. It has to be considered with reference to the subject matter and
the context wherein such term occurs. It literally means wrong conduct or
Juris Secundum, contains the following passage at page 740 (vol.7):
misconduct may consist in betraying the confidence of a client, in attempting
by any means to practise a fraud or impose on or deceive the court or the
adverse party or his counsel, and in fact in any conduct which tends to bring
reproach on the legal profession or to alienate the favourable opinion which
the public should entertain concerning it.
expression professional misconduct was attempted to be defined by Darling, J.,
in In re A Solicitor ex parte the Law Society [(1912) 1 KB 302] in the
is shown that an Advocate in the pursuit of his profession has done something
with regard to it which would be reasonably regarded as disgraceful or
dishonourable by his professional brethren of good repute and competency, then
it is open to say that he is guilty of professional misconduct.
this context it is to be mentioned that the aforesaid definition secured
approval by the Privy Council in George Frier Grahame vs. Attorney-General,
Fiji,(1936 PC 224). We are also inclined to take that wide canvass for
understanding the import of the expression misconduct in the context in which
it is referred to in Section 35 of the Advocates Act.
therefore, that the refusal to return the files to the client when he demanded
the same amounted to misconduct under Section 35 of the Act. Hence, the
appellant in the present case is liable to punishment for such misconduct.
regarding the quantum of punishment we are disposed to take into account two
broad aspects: (1) this court has not pronounced, so far, on the question
whether advocate has a lien on the files for his fees. (2) the appellant would
have bona fide believed, in the light of decisions of certain High Courts, that
he did have a lien.
such circumstances it is not necessary to inflict a harsh punishment on the
appellant. A reprimand would be sufficient in the interest of justice on the
special facts of this case.
therefore, alter the punishment to one of reprimanding the appellant. However,
we make it clear that if any advocate commits this type of professional
misconduct in future he would be liable to such quantum of punishment as the
Bar Council will determine and the lesser punishment imposed now need not be
counted as a precedent.
is disposed of accordingly.