A R.D.SAXENA

v.

BALRAM PRASAD SHARMA

AUGUST 22, 2000

B [K.T. THOMAS AND R.P. SETHI, JJ.]

Advocates Act, 1961-Section 35-Professional misconduct-Case file

of client withheld by Advocate for non-payment of fees-Bar Council debarred

him from practice for 18 months and imposed fine

of Rs.

1000-Considering

C it to be a professional misconduct-On appeal-Held, case.files cannot be

equated with "goods" or "goods bailed" as they have no marketability­

Cause of litigant far more important than right of an Advocate for his

remuneration-Such a practice can never

be permitted-However, an Advo­

cate may adopt alternate legal remedies

to recover his fees-It is not only a

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legal duty but it is also morally imperative to return the case file as a litigant

is free to engage any Advocate-Punishment reduced to a reprimand, not to

be counted as precedent, as law on this question was unsettled-Indian

Contract Act, 1872-Sections 148 and

171.

Constitution of India-Article 22( 1 )-The right of an accused to consult

and be defended by counsel

of his choice-Given status of a fundamental

right-Code

of Civil

Procedure-Order 3, Rule 4( I).

Bar Council

of

India Rules-Rules 24, 28 and 29-Advocate specifically

prohibited from adjusting his fees against his own personal liability

to the

client-No lien provided on the litigation files kept with the advocate-Any

such

lien, if permitted, would be susceptible to great abuses and exploitation.

Words and

Phrases-" Misconduct, professional or otherwise"-Mean­

ing

of in the context of the Advocates Act, 196I-Section 35.

Appellant was Legal Advisor of a Bank, which requested him to

return all the case files after termination of his retainership.

He informed

G the Bank that Rs.

91,700 was due towards his fees and that the files would

be returned only after it was settled. The dispute remained unresolved. So

a complaint was filed before the State Bar Council. Appellant submitted

that he had a right to retain the files by exercising his right of lien and

offered to return the files as soon as payment

was made. The proceedings

H were transferred to Bar Council of India whose Disciplinary Committee

598

R.D. SAXENA v. B.P. SHARMA 599

held the appellant guilty of professional misconduct and debarred him A

from practice for a period of 18 months and imposed a fine of Rs. 1000.

Hence this appeal.

Appellant contended

that the Bar Council of India did not

appreci­

ate that he had a lien over his client's file in lieu of his unpaid fees, and

that the files could be equated with the "goods" referred to in Section 171 B

of the Indian Contract Act.

Respondent contended

that there was no amount payable and an

inflated

amounlhad be shown as fees; that an Advocate cannot retain the

files after the client terminated his engagement and

that there is no lien on

such

files.

Disposing of the appeal, the Court

HELD :

Per Thomas, J. :

1. Files containing copies of the records cannot be equated with

"goods" referred to in section 171 of the Indian Contract Act The advo­

cate keeping the files cannot amount to "goods bailed". In the case of

litigation papers in the hands of an Advocate there is neither delivery of

goods nor any contract

that they shall be returned or otherwise disposed

of. 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. "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. There is no scope for converting

the case files into money, nor can they be sold to any third

party.[606-E-H]

2. Before 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. After independence, 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 and

contain provisions specifically prohibiting an Advocate from adjusting the

fees payable to him by a client against his own personal liability to the

client. These rules, 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,

pro­

vides no lien on the litigation files kept with him. In the conditions prevail-

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600 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.

A ing 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.

[607-E; 608-A-B; F]

P. Krishnamachariar v. The Official Assignee of Madras, A.I.R. (1932)

B Madras 256; Tyabji Dayabhai & Co. v. Jetha Devji & Co., A.I.R. (1927)

Bombay 542;

In re B.N. Advocate

Jn the Matter of Misc. Judi. Case No. J 8133

A.I.R. (1933) Pat. 571, referred to.

Halsbury's Laws of England, Volume 44, para 226, referred to.

C 3. The cause in a court/tribunal is far more important for all con-

cerned 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.

D Retention of records for the unpaid remuneration of the Advocate would

impede such course and the cause pending judicial disposal would be badly

impaired.

No professional can be given the 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

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professional concerned can resort to other legal remedies for such unpaid

remuneration.

[608-G-H; 609-A-B]

4. A 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 tis,

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. Such an obligation is not only a

legal duty but a moral imperative.

[609-C·D]

State of Madhya Pradesh v. Shobharam and Ors., A.I.R. (1966) SC

1910, relied on.

5. If a 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 Advocate. But

if the Advocate who is changed

midway adopts the stand

that he would not return the

file until the fees

R.D. SAXENA v. B.P. SHARMA 601

claimed by him are paid, the situation may turn to dangerous proportions.

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 for the legitimate fee to the

Advocate. At any 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.

[609-G-H; 610-A-B]

6. Even 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. [610-C]

7. Misconduct envisaged in Section 35 of the Advocates Act is not

defined. The section uses the expression "misconduct, professional or oth­

erwise". The word "misconduct" is a relative term. It has to be considered

with reference

to the subject matter and the context wherein such term

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occurs. It literally means wrong conduct or improper conduct. [610-D] E

Corpus Juris Secundum, Volume 7, page 740, referred to.

In

re A Solicitor ex parte the Law

Society [1912] 1 KB 302 and George

Frier Grahame

v. Attorney-General, Fiji, [1936]

PC 224, referred to.

8. The refusal to return the files to the client when he demanded the

same amounts to misconduct under Section 35

of the Act and the appellant

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is liable to punishment. Two broad aspects have to be considered regarding

quantum of punishment

(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. In such circumstances, it is not

necessary

to inflict a harsh punishment and a reprimand would be

suffi­

cient in the interest of justice on the special facts of this case. It is made

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 H

602 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.

A Council would determine and the lesser punishment imposed now need not

be counted as a precedent. (611-B-D]

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9. In Civil cases under

Order 3, Rule 4 (1) CPC 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. 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. 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.

(609-E-F]

State of Madhya Pradesh v. Shobharam and Ors., AIR (1966) SC 1910,

relied on.

Per Sethi, J. (Supplementing) :

1. While dealing with the moneys or any other article or document

entrusted,

an Advocate is expected to always keep in mind the high standards

of profession and its values adopted and practiced for centuries. 'Professional

obligations' of a lawyer

are distinguished from the 'business commitments'

followed

by trading community. The legal profession owes social obligations

to the society in discharge of the professional service to the litigants. (611-G]

2. Even under the common law uo lien can be claimed with respect to

the case file and such documents which are necessary for the further progress

of the tis filed in the Court. Even in England the right of retention has been

much diluted by various exceptions created by decisions, chiefly by the courts

of equity on the basis of what may be just and equitable as between the

parties with conflicting interests. [ 614-G-H]

Cordery

"OnSocilitors" 7th Edition; Halsbury's Laws of England. Volume

44( J), 1995 Edition Law (If lien by A(fred H. Silver town; Professional Practice

Handbook, Young Lawyers Section, law Institute of Victoria 1982, referred

to.

H Barratt v. Gough-Thomas,

[1950] 2 All. ER 1048, referred to.

..

R.D. SAXENA v. B.P. SHARMA 603

3. In modern India, the rights of an Advocate to appear in conrt are

referable to his enrolment as such

under the Statute governing the

enrol­

ment. The lawyer's rights, obligations and disabilities are governed either

by the contract

or by the Statute. He has the right to sue his

client for his

fees, if not paid, like any other professional. The rights

and obligations of

an Advocate ought to be regulated by keeping the high standards and

exalted position of the profession by not treating the lawyers as ordinary

merchants. Reference to

"goods" in Section 171 of the Contract Act can­

not, by any imagination, be stretched to mean the case papers, entitling

their retention by the lawyer as his lien for the purposes of releasing his

fee.

It cannot be said that the case papers entrusted by the client to his

counsel

are goods in his hand upon which he can claim a retaining lien till

his fee

or other charges incurred are not paid. [615-E-F]

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Union of India & Anr. v. Delhi Cloth and General Mills Co. Ltd., A.I.R.

(1963) SC 791; Collector of Central Excise, Calcutta-Iv. Mis EllSlend Paper

Industries Ltd., [1989] 4 SCC 244; 'G' a Senior Advocate of the Supreme D

Court A.I.R. (1954) SC 557; In re M. an advocate A.I.R. (1957) SC 149,

relied on.

Bailey's

Large Dictionary of 1732, referred to.

4.

In our country, it is a social duty cast upon the legal profession to E

show the people

beckon light by their conduct and actions. The poor, un­

educated and exploited mass of the people need a helping hand from the

legal profession, admittedly, acknowledged as a most respectable profes-

sion.

No effort should be made or allowed to be made by which a litigant

could be deprived of his rights, statutory as well as constitutional, by

an F

Advocate only on account of the exalted position conferred upon him under

the judicial system prevalent in the country. It is true that an Advocate is

competent to settle the terms of his engagement and his fee by private

agree­

ment with his client but it is equally true that if such fee is not paid he has no

right to retain the case papers

and other documents belonging to his client.

Like any other citizen,

an Advocate has a right to recover the fee or other G

amounts payable to him by the litigant by way of legal proceedings but

subject to such restrictions as may be imposed by law or the rules made in

that behalf. It is high time for the legal profession to join hands and evolve

a Code for themselves in addition to the mandate

of the Advocates Act,

Rules made thereunder

and the Rules made by various High Courts and H

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604 SUPREME COURT REPORTS [2000) SUPP. 2 S.C.R.

this Court, for strengthening the belief of the common man in the institu­

tion of judiciary in general and in their profession in particular. Creation of

such a faith and confidence would not only strengthen the rule of Jaw but

also result in reaching excellence in the profession. [617-D-G]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1938 of 2000.

From the Judgment and Order dated 24. 7 .99 of the Disciplinary Com­

mittee of the Bar Council of India, New Delhi in BCI.T.RC. No. 21 of 1996.

WITH

C Contempt

Petition (C) No. 147 of 2000.

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R.K. Virmani for the Appellant.

R.K. Munjral, Sushil

Kr. Jain and Ms.

Pratibha Jain for the Respondent.

Th<: Judgments of the Court were delivered by

THOMAS, J. The main issue posed in this appeal has sequential impor­

tance 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.

As the question involved in this appeal has topical importance for the

legal profession we heard learned counsel at length.

To appreciate the

conten­

tions we would present the factual backdrop as under:

Appellant, 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 Madhya

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

R.D. SAXENA v. B.P. SHARMA [THOMAS, J.] 605

and requested him to return all the case files relating to the Bank. Instead 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 settling his dues.

Correspondence went on between the appellant and the Bank regarding

the amount,

if any, payable to the appellant as the balance due to him. Respond­

ent Bank disclaimed any liability outstanding from them

to the appellant.

The dispute remained unresolved and the case bundles never passed

from appellant's 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 com­

plaint that appellant is guilty

of professional misconduct by not returning the

files to

his client.

In the 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

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as payment is made to him. E

The 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 F

conclusion that appellant

is guilty of professional misconduct. The Disciplinary Committee has stated the following in the impugned order:

"On the basis of the complaint as well as the documents available on

record

we are of the opinion that the Respondent is guilty of profes­

sional misconduct and thereby he

is liable for punishment. The com­

plainant 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."

In this appeal learned counsel for the appellant contended that the failure

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606 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.

A of the Bar Council of India to consider the singular defence set up by the

appellant i.e.

he has a lien over the files for his unpaid fees due to him, has

resulted

in miscarriage of justice. The Bank contended

tha< there was no fee

payable to the appellant and the amount shown

by him was on account of

inflating the fees. Alternatively, tlie respondent contended that an advocate

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cannot retain the files after the client terminated his engagement and that there

is no lien on such files.

We would first examine whether an advocate has lien on the files en­

trusted

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:

"Bankers, factors, wharfingers, attorneys of a High Court and policy­

brokers ma)', 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."

Files 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 "bail­

ment" is defined in Section 148 of the Contract Act as the delivery of goods

by one person to another for some purpose, npon a contract that they shall be

returned or otherwise disposed

of according to the directions of the person

delivering them, when the puipose is accomplished.

In the case of litigation

p:tpers 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

who

Uy replaced by the Sale of Goods Act, 1930. The word "goods" is defined

in Section 2(7) of the Sale of Goods Act as "every kind of movable property

other than actionable claims and money; and includes stock and shares, grow­

ing 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."

Thus understood "goods" Jo fall within the purview of Section 171 of

the Contract Act should have marketability and the person to whom iUs bailed

H should be in a position to dispose it of in consideration of money. In other

R.D. SAXENA v. B.P. SHARMA [THOMAS, J.] 607

words the goods referred to in Section 171 of the Contract Act are saleable A

goods. There is no scope for converting the case files into money, nor can they

be sold

to any third party. Hence, 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 solicitor's right

under Solicitors Act,

1860. In Halsbury's Laws of England, it is stated thus

(vi de paragraph 226 in volume 44

):

"226. Solicitor's 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. In 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."

Before 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 v. 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. The Division Bench has distinguished an earlier decision

of the

Bombay High Court in

Tyabji Dayabhai &

Co. v. 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. Judi.

Case No.18133 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.

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After independence the position would h~ve continued until the enact­

ment of the Advocates Act, 1961 which has repealed a host of enactments H

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608

SUPREME COURT REPORTS (2000) SUPP. 2 S.C.R.

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 empow­

ered by the Advocates Act.

Such Rules contain provision specifically prohib­

iting 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 extracted below:

"28. 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 proceed­

ing."

"29. 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."

Thus, 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.

There

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. Retention

of records for the unpaid remu­

neration

of the advocate would impede such course and the cause pending

judicial disposal would be badly impaired.

If a medical practitioner is allowed

R.D. SAXENA v. B.P. SHARMA [THOMAS, J.] 609

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. No professional can be given the 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.

A 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 effi­

ciently or that his conduct is prejudicial to the interest involved in the !is,

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

th~ :lient. It is time to hold that such obligation is not only a legal duty but

a moral imperative.

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In 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 E

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 o,f Madhya Pradesh v. 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.

F

If a party terminates the engagement of an advocate before the culmi- G

nation of the proceedings that party must have the entire file with him to engage

another advocate. But

if 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

H

610 SUPREME COURT REPORTS (2000] SUPP. 2 S.C.R.

A paid the legitimate fee to the advocate. At any 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.

B Even 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 !is has to be fought in the court. This right of the litigant

C is to be read as the corresponding counterpart of the professional duty of the

advocate.

Misconduct 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

D to the subject matter and the context wherein such term occurs. It literally

means wrong conduct

or improper conduct.

E

F

G

Corpus Juris Secundum, contains the following passage at page

740

(vol.7):

"Professional 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."

The expression "professional misconduct" was attempted to be defined

by Darling, J.,

in In re A Solicitor ex parte the Law

Society (1912] I KB 302

in the following terms:

"If it 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."

In this context it is to be mentioned that the aforesaid definition secured

H approval by the Privy Council in George Frier Grahame v. Attorney-General,

•

R.D. SAXENA v. B.P. SHARMA [SETHI, J.] . 611

Fiji, (1936) PC 224. We are also inclined to take that wide canvass for under- A

standing the import of the expression "misconduct" in the context in which it

is referred to in Section 35 of the Advocates Act. .

We, therefore, hold 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

B

misconduct.

However, regarding the quantum

of punishment we are disposed to take

into account two broad aspects: (

i) 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

h<;ve a lien. In 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.

We, therefore, alter the punishment to one of reprimanding the appellant.

How~ver, we make it clear that if any advocate commits this type of profes­

sional 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.

Appeal is disposed

of accordingly.

SETHI, J. I had the privilege of going through the lucid and informative

judgment prepared by my esteemed brother Thomas J. I agree both with the

reasoning and the conclusions. However, realising by the importance

of the

issue involved and its implication on the legal profession in relation with

litigant public, I wish to add a few words

by my own to this judgment.

c

D

E

F

While dealing with the moneys or any other article or document en­

trusted, an advocate is expected to always keep in mind the high standards

of

profession and its values adopted and practiced for centuries.

'Professional

obligations' of a lawyer are distinguished from the 'business commitments'

followed by trading community. The legal profession owes social obligations

G

to the society in discharge of the profession services to the litigants. The Bar

Council

of India Rules say that :

"An advocate shall, if at all times, compose himself in a manner

befitting his status as an officer

of the court, a privileged member of

the community and a gentleman, bearing in mind that what may be H

0

612 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.

A lawful and moral for a person who is not a member of the Bar or for

a member

of the Bar in his non-professional capacity may still be

improper for

an

advocate."

According to the ancient traditions, the professional services rendered

by the lawyers were honorary and the reward given

to him was not a compen-

B sation for discharge of his legal obligations or legal assistance but in the

nature

of gratitude in recognition of

th~ honorary services rendered by him.

Among the Romans,

it was one of the duties, which the patrician as patron

owed

to the plebeian to give protection to the latter in his law suits. For those

who rendered legal assistance, Gibbon says

in his book

"Decline and Fall of

C Roman Empire" :

"On the public days of market, or assembly, the masters of the art were

seen walking in the forum ready to impart the needful advice to the

meanest

of their citizens from whose votes on a future occasion they

might solicit a grateful return.

As their years and honors increased,

D they seated themselves at home, on a chair or throne, to expect with

patient gravity the visits

of their clients, who at the dawn of day, from

the town and country, began

to thunder at their

doors."

However, with the passage of time professional assistance ceased to be

gratuitous. With the multiplicity

of the proceedings, increase in litigation and

E complicacies of law, the legal assistance could not be in the nature of a mere

social obligation and the services rendered

as honorary, because a great

deal

of time was needed by a lawyer to equip himself with the laws, which

prevented him from earning his livelihood from other sources. The ancient

tradition having ceased

to exist, the profession of law could have flourished

F only if those who pursued it were allowed remuneration for the services

rendered.

In England also, a belief existed from the earliest time that the lawyer's

fees is not a compensation

to him for discharge of legal obligations but a

gratuity

or an honorarium which the client bestowed on him in token of his

G gratitude. The lawyers were considered as an officer of the

Court, the tradition

being that

the law was an honorary occupation and not a means of livelihood.

Early advocates were generally persons

in holy orders who rendered their

services

to the weak and afflicted without charge and as an act of pity.

Under common law, the rights of a solicitor are called as liens, which are

H of two types namely: (1) a 'retaining lien', i.e. a right to retain property already

, R.D. SAXENA v. B.P. SHARMA [SETHI, J.] 613

in his possession until he has beeli paid costs due to him in his professional A

character; and a 'lien on property recovered or preserved , i.e., 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.

According to Cordery "On Solicitors" -Seventh Edition, the retaining

lien is founded on the general law of lien which springs from possession and

is governed by the same rules as other cases of possessory lien. Per Evershed

MR in Barratt v. Gough-Thomas (1950) 2 All ER 1048 observed :

"It is a right at common law depending (it has been said) upon implied

agreement. It has not the character of an incumbrance or equitable

charge. It is merely passive and possessory - that is to say, the solicitor

has no right of actively enforcing his demand. It confers upon him

merely the right to withhold possession of the documents or other

personal property of

his client or former client.. .. It is wholly derived

from and therefore co-extensive with the rights of the client to the

documents or other

property."

According to Cordery the property upon which lien can be claimed is

in the form' of deeds, papers or other personal property which comes into

solicitor's

possession in the course of his professional employment with the

sanction of the client and/or client's property, such as bill of exchange, appli­

cation of

shares, share certificates, a debenture trust deed, a policy of assurance,

letters of administration or

money. After referring to various authorities of

English Courts, the law relating to lien and its retention has been summarised

in Halsbury's Laws of England, Vol.44(1), 1995 Edition, as under:

"Property affected by retaining lien - The general rule is that the

retaining lien extends to any deed, paper or personal chattel which has

come into the solicitor's possession in the course of his employment

and in his capacity as solicitor with the client's sanction and which is

the client's property. The following may thus be subject to a retaining

lien :

( l) a

bill of

exchav ge;

(2) a Cheque;

(3) a policy of assurance;

(4) a share certificate;

B

c

D

E

F

G

H

A

B

c

D

E

F

614

SUPREME COURT REPORTS

(5) an application for shares;

(6) a debenture trust deed;

(7) letters patent;

(8) letters

of administration;

[2000) SUPP. 2 S.C.R.

(9) money, including money in a client account, although only the

amount due to the solicitor, and maintenance received

by a solicitor if

not subject to an order as to its application or bound to be applied, in

effect, as trust money, or;

(10) documents in a drawer of which the solicitor is given the key.

The lien does not extend to (a) a client's original will; or (b) a deed

in favour

of the solicitor but reserving a life interest and power of

revocation to the client; or ( c) original court records; or ( d) documents

which did not come into the solicitor's hands in his capacity as solicitor

for

the. person against whom the lien is claimed or his successor, but

as mortgages, steward

of a manor or trustee. Moreover, where docu­

ments are delivered to a solicitor for a particular purpose under a

special agreement which does not make express provision for a lien in

favour

of the solicitor, as perhaps the raising of money, or money is

paid

to the solicitor for a particular purpose so that he becomes a

trustee

of the money, no lien arises over those documents or that money

unless subsequently left in the solicitor's possession for general pur­

poses. Otherwise the lien extends

to the property whatever the occa­

sion of delivery, except that where a solicitor acts for both mortgagor

and mortgagee and the mortgage is redeemed the solicitor cannot set

up a lien on the deeds against the

mortgagor."

It is further stated that such a lien extends only to the solicitor's taxable costs,

charges and expenses incurred on the instructions

of the client against whom

the lien

is claimed and for which the client is personally liable including the

costs

of recovering the remuneration by action or upon a taxation.

G It follows, therefore, that even under the common law no lien can be

claimed with respect to the case file and such documents which are necessary

for the further progress of the !is filed in the court. Even in England the right

of retention has been much diluted by various exceptions created by decisions,

chiefly

by the courts of equity on the basis of what fnay be just and equitable

H as between the parties with conflicting interests.

·~

R.D. SAXENA v. B.P. SHARMA [SETHI, J.] 615

Alfred

H. Silvertown in

"The Law of Lien" stated that where documents A

are delivered by a client to a solicitor for a specific purpose, then no lien is

created unless there is

an agreement to the contrary. The retaining lien extends

only

to the extent of solicitor's taxable costs and expenses arising from the

instructions

of the client, for which the client is personally liable. The lien does

not embrace fees and expenses which are due

to the solicitor in some other

capacity.

To attract the solicitor's lien on a document of his client, it has to be

specifically shown that the client had agreed with respect to the creation

of lien

upon the document in case

of his failure to pay the solicitor's fee.

The

"Professional Practice Handbook, Young Lawyers Section, Law

Institute

of Victoria

1982" prescribes that it is the duty of a solicitor, when

called upon by his client, to deliver him the documents in his charge. The

Solicitor

is subject to the ordinary law of bailee of client's papers in his

possession. The bailment is a bailment at will which, depending upon the

circumstances, may be gratituous

or for reward. In either case the bailee­

solicitor is under a duty to re-deliver, upon demand, the client's papers cer­

tainly within the period during which a solicitor may be regarded

as owing a

duty not

to destroy papers having regard to the limitations of Actions Act,

1958.

In modern India, the rights

of an advocate to appear in the Court are

referable to his enrolment

as such under the Statute governing the enrolment.

The lawyer's rights, obligations and disabilities are, therefore, governed either

by the contract

or by the Statute. He has the right to sue his client for his fees,

if not paid, like any other professional. The rights and obligations of an

ad·1ocate ought to be regulated keeping the high standards and exalted position

of the profession by not treating the lawyers as ordinary merchants. Thomas,

1. has very elaborately dealt with and concluded that the provisions of Section

171 of the Contract Act cannot be pressed into services by an advocate for

retention

of documents of his client purportedly in exercise of his lien over such

case-file papers.

Reference to

"goods" in Section 171 of the Contract Act cannot, by any

imagination, be stretched to mean the case papers, entitling their retention by

the lawyer

as his lien for the purposes of realising his fee. Besides the meaning

attached

to the

"goods" under Section 2(7) of the Sale of Goods Act, under the

General Law the "goods" have been defined in Bailey's Large Dictionary of

1732 as "merchandise" and by Johnson, who followed as the next lexicogra­

pher, it

is defined to be movables in a house; personal or immovable estates;

B

c

D

E

F

G

H

616 SUPREME COURT REPORTS [2000) SUPP. 2 S.C.R.

A wares, freight, merchandise. Webster defines the word "goods" thus :

B

c

D

E

F

G

H

"Goods, noun, plural; (1) movables; household furniture; (2) Personal

or movable estate, as horses, cattle, utensils, etc. (3) wares; merchan­

dise; commodities bought and sold by merchants and traders."

The Court in Union of India & Anr. v. Delhi Cloth and General Mills

Co. Ltd., AIR (1963) SC 791 held that to become "goods" an article must be

something which can ordinarily come to the markets to be bought and sold.

In

Collector of Central Excise, Calcutta-I v. Mis. Eastend

Paper Industries Ltd.,

[1989) 4 sec 244 it was stated that goods are understood to mean as identi­

fiable articles known in the markets as goods and marketed and marketable in

the market

as such. Where the Act does not define

"goods", the legislature

should be presumed to have used that word in its ordinary dictionary meaning

i.e. to become goods it must be something which can ordinarily come to the

market to

be bought and sold and is known to the market as such.

Thus, looking from any angle, it cannot be said that the case papers

entrusted by the client to his counsel are the goods in his hand upon which he

can claim a retaining lien till his fee or other charges incurred are not paid.

In

the matter of 'G' a Senior Advocate of the

Supreme Court, AIR (1954) SC 557

this Court observed that it was highly reprehensible for an advocate to stipulate

for

or receive a remuneration proportioned to the result of litigation or a claim

whether in the form

of a share in the subject matter, a percentage or otherwise.

An advocate is expected, at all times, to conduct himself in a manner befitting

his status as an officer and gentleman by upholding the high and honourable

profession to whose privilege he has been admitted after his enrolment.

If an

advocate departs from the high standards which the profession has set for itself

and conducts

in a manner which is not fair, reasonable and according to law,

he is liable to disciplinary action. In re

M.an advocate, AIR (1957)

SC 149 this

Court observed :

"As has been laid down by this Court in the matter of 'G' a Senior

Advocate of the Supreme Court (supra) the Court, in dealing with cases

of professional misconduct is "not concerned with ordinary legal

rights, but with the special and rigid rules

of professional conduct

expected

of and applied to a specially privileged class of persons who,

because

of their privileged status, are subject to certain disabilities

which do not attach to other men and which do not attach even to them

in a non-professional character .......... he (a legal practitioner) is bound

-

R.D. SAXENA v. B.P. SHARMA [SETHI, J.] 617

to conduct himself in a manner befitting the high and honourable

profession

to whose privileges he has so long been admitted; and if he

departs from the high standards which that profession has set for itself

and demands of him in professional matters, he is liable to disciplinary action". It appears to us that the fact of there being no specific rules

governing the particular situation, which we are dealing with, on the

facts found by us, is not any reason for accepting a less rigid standard.

If any, the absence of rules increases the responsibility of the members

of the profession attached to this Court as to how they should conduct

themselves

in such situations, having regard to the very high privilege

that an Advocate of this Court now enjoys as one entitled, under the

law, to practice in all the courts in

India."

In our country, admittedly, a social duty is cast upon the legal profession

to show the people beckon light by their conduct and actions. The poor,

uneducated and exploited mass of the people need a helping hand from the

legal profession, admittedly, acknowledge as a most respectable profession. No

effort should be made or allowed to be made by which a litigant could be

deprived of his rights, statutory as well as constitutional, by an advocate only

on account of the exalted position conferred upon him under the judicial system

prevalent

in the country. It is true that an advocate is competent to settle the

terms of his engagement and his fee by private agreement with his client but

it is equally true that if such fee is not paid he has no right to retain the case

papers and other documents belonging to his client. Like any other citizen, an

advocate has a right to recover the fee or other amounts payable to him by the

litigant by way of legal proceedings but subject to such restrictions as may be

imposed by law or the rules made in that behalf. It is high time for the legal

profession to join heads and evolve a Code for themselves in addition to the

mandate of the Advocates Act, Rules made thereunder and the

Rules made by

various High Courts and this Court, for strengthening the belief of the common

man in the institution of judiciary in general and in their profession in particu­

lar. Creation of such a faith and confidence would not only strengthen the rule

of law but also result in reaching the excellence in the profession.

A.Q. Appeal disposed of.

A

B

c

D

E

F

G