'490 [1955} IN THE MATTER OF Mr. 'G' v. Chundet· Canto Mookerjee (1876) LR. 4 I.A. 23; Bhagwat Dayal Singh & Ors.

"Provided that the Court shall in the first instance direct a summons to issue returnable before the Court or before a Special Bench to be constituted by the Chief Justice, requiring the Advo cate to show cause against the matter alleged in the summons, and the summons shall, if possible, be served personally upon him with copies of any affidavit or statement before the Court at the of the issue of the summons." 1954 In the matter of Mr. 'G' a Senior Advocate of the Supr1me Court. , G in person : - - and Advocates Amarnath was the client. He had admittedly a just cause and the High. Court has held that the terms came from him and were accepted out of compassion. I submit that in such circums agreement was neither professionally nor morally tances improper. English law of Champerty and Maintenance does not apply to India; Please see Ram Coomar Coondoo v. Chundet· Canto Mookerjee (1876) LR. 4 I.A. 23; Bhagwat Dayal Singh v. Debi Dayal Sahu ( 1907) LR. 35 I.A. 48. Prior to 1926 there was a distinction between Pleaders, Advocates and Barristers. Barristers ~ could not enter into contractual relationship. They could not sue or be sued: Deo Kisen v. Budh Prakash (1833) I.LR. 25 All. 509 F.B. This was in accordance with the English rules of professional etiquette among Barristers, but Pleaders enter into contractual relations. Contingent fees have been known and recognised in India at any rate since 1814. Please see sec. 25, Bengal Regulation XXVII of 1814, and sec. 52, Bombay Regulation II of 1827. Contractual rights were extended in 1846. Please see Pleaders Act I of 1846 ; Please fees. But agreements had to be registered with the Court to be enforceable. Wide changes in all these matters came about by legislation 1926 (Legal Practitioners' Fees Act, 1926). Barristers, Attorneys, Advocates, Pleaders all came within the definition of Legal Practi tioners, who may now sue and be sued and may enter into and may settle with their clients the terms of their engagement and the fees to be paid. Section 3 of the Act is sufficiently wide to include the impugned agreement with Amarnath. Contingent fees In Madras have been known in India for more in the case of Achamparambath Cheria Kunhammu v. William Sydenham Gantz (1881) I.LR. 3 Mad. 138 F.B. a contrary view • , was expressed but Madras had framed a special rule by Circular Order of the Sudder Adulet dated 18-8-53. In Bombay a contrary view was also taken: In re Bhandara (1901) 3 Born. LR. 102 F .B. But the contract of the Advocate there was clearly improper and facts of that case were totally different from the facts of present case. The observations of the Learned Chief Justice were obiter. In Bombay, Inampatra, which was in substance a fee pay able and contingent on success has, however, been held enforceable : Shivram Hari v. Arjun I.LR. 5 Born. 258 · Pa,.sh1·am Vaman v. Hiraman Fatu (1884) I.L.R. 8 Born. 413. than a century. sec. 7 as (1881) ' ..> .• GHULAM HASAN J.: In U.P. they were referred Shukritana. G : In the Punjab they were known as "back to as fees" 13-87 S. C. India/59 In th~ mallerfof Mr. 'G' a Senfor Advocatt of the Supreme Court. i92 SUPREME COURT REPORTS [1955] and wore held valid an<l enforceable : 5 P.R. 1878 F.B. Beechy v. Paiz fo..fahomed until the Full Court's decision by majority disap proved of the practice : 61 P.R. ] 907 Ganga v. Devi Das. But strong reasons in support of the practice \vill he found in the judg ments of Lalchand & Chatterjee JI. in 61 P.R. 1907. Contingent fees in a just cause have found approbation in England. Please see Wiggi1ls v. Lavy (1928) 44 T.L.R. 721 ; Rich v. Cook. (1900) I lO L.T.J.O. 94 C.A. per Lord Russell L.J. are expressly in the In America, contingent fees the American Bar Association canons of professional ethics of (Canon 12) ; See "Legal Ethics" by Henry S. Drinker (Columbia University Press page 99) and Hoffman's Resolutions (Ibid at page 343). The Supreme Court of the U.S.A. in several cases has held such agreements as enforceable. recognised I.. Wylie v. Coxe 14 L. Ed. 753. 2. Barnes v. Alexander 58 L. Ed. 53(}c 3. McGowan v. Parish 59 L. Ed. 955. 4. Morris v. Giddi1Jgs 29 L. Ed. 403. 5. Ball v. Halsell 40 L. Ed. 622. 6. lnga.wll v. Coram 53 L. Ed. 208. The substance of the American law v.rill be found 1n the foot note to McMicken v. Perin, 15 L. Ed. 504. ) -(' - The High Court based its decision in the present case (1954,1 56 Bombay L.R. 838 in re K.L. G on a question of Public Policy as void under sec. 23 of the Contract Act, but Public Policy has been held to be a treacherous ground for legal decision [Lord Davey in Janson v. Driefontein Consolidated Mines fl9011 A.C. 484 at page 500.] GHULA?.t: HASAN J. : Public Policy is an "unruly horse." MuKHERJEA J.: You need not press this point. M. C. Setalvad, Attorney-General for India ( G. N. /oshi and P. G. Gokhale with him) Conditions of the Bar in America and in India arc very different. American authorities have therefore no relevance (Please sec observations of Rattigan J. in 61 P.R. 1907 Ganga l?.arn v. Devi Das). An agreement though not void in laVv·~ 01!r Courts may nevertheless amount to professional 1nisconduct. have held see (1874) 21 W.R. 297: In the matter of unprofessional. Please Moung 1-ltaon Oung, an Advocate at Rangoon; (1900) 4 C.L.J. 259 -In the matter of an Advocate; (1901) 3 Bom. L.R. 102-/n re N. F. Bh(Jndara and the majority judgments of the Full Court in 61 P. R. of 1907. The facts in the case in 3 Born. Law Reporter 102 may be different but the rules of professional conduct were clearly laid doy.>n in the observations of Sir Lawrence Jenkins. Rigid notions of Champecty and Maintenance are not applicable to India but such contracts are prohibited by professional rules of conduct. that agreeing to a share fruits of litigation G. in reply : The law cannot approbate and reprobate in the the Legal Practitioners same breath. The Rulings earlier than - "' . • S.C.R. SUPREME COURT REPORTS 493 Fees Act of 1926 and expressing a contrary view are now obsolete. A contract which is not vitiated by fraud, misrepresentation or 5mne illegality or is not void under any recognised head of public policy, cannot amount to professional misconduct. The misconduct must fall within the definitions and limitations of misconduct laid down cJy the Bombay High Court in (1934) 36 Bom. L.R. 1136 F.B. Sir famshed Byramji Kanga v. Kaikhushru Bomanji Bharucha; and Ana11t Tlislznu Chitre v. Pitambrrdas Goculdas "Afehta. In the matter of Afr. 'G', a Senior Advocate if /,e Supreme Court )- 'G' in person. Jf. C. Setaivad, Attorney-General for India ( G. N. foshi and P. G. Gokhale, with him) the Hon'ble Chief Justice and other Hon'ble Judges of the Bombay High Court.

#1954. May 27. The Judgment of the Co11rt was delivered by BosE J.-This matter arises out of a summons issued to Mr. G, a Senior Advocate of this Court under Order IV, rnle 30, of the Supreme Court Rules, to show cause why disciplinary action should not be taken against him. the client undertook Mr. G was called to the Bar in England and was later enrolled as an Advocate of the Bombay High Court, He is also an Advocate of this Court. On 20th Decem ber, 1952, he entered into an agreeme~t with a client to pay him 50 per cent. whereby in the_ legal proceed of any recoveries he might make ings in respect of which he was engaged. On this being reported to the High Court the matter was referred to the Bombay Bar Council and was investigated by three of its members under section 11 ( 1) of the Bar Councils Act. They recorded their opinion that this amounted to professional misconduct. The High Court agreed dnd suspended Mr. G from practice as an Advocate of learned the Bombay High Court for six months. The Judges considered they had no power to affect his position as an Ad\'Ocate of this Court, so directed that a copy of their judgment be submitted to this Court to enable this Court to take such action on it as it thought fit. Acting on this report this Court issued notice the petitioner under Order IV, rule 30, to show cause w11y disciplinary action should not be taken against him. About the same time Mr. G filed a petition for a writ - - .. 1954 In the matter of Mr. 'G', a Senior Advocate of th1 Supreme Court. Bose ]. 494 SUPREME COURT REPORTS [1957} under article 32 of the Constitution. We are confining ourselves summons. the matter raised this order 111 111 to produce. The On the 23rd of July, 1951, Mr. G's client There 1s no dispute about the facts. They are set out in Mr. G's petition under article 32 and are as follows : is said to have entered the Baroda into an agreement with Theatres Ltd., for work on a picture which they intend remuneration agreed on was Rs. 15,000. Of this Rs. 3,000 was paid at once and to be paid on the com the balance, Rs. 12,000, was pletion of the picture. It 1s said that at the date of that Rs. the dispute the Baroda Theatres admitted the client 9,400 was due, but as they did not pay up, to recover his consulted Mr. G about to know what the expenses and fees money and wanted would be. After examining the matter in detail and talking it over with his client, Mr. G advised him that two courses were open to him. the best way First, there was a civil suit. He said the cost of this for Court fees and expenses would be about Rs. 800 and about Rs. 1,250 for fees. The other alternative was winding up proceedings. The client was told that the Court fees would be lower but Mr. G's fees in these would. have to be higher as winding up proceeding are usually protracted. The client preferred the latter course but said that regards the fees he said he was too reduced It is embodied in the following letter dated he could not pay more expenses and as to writing. 20th December, 1952, addressed to Mr. G : to pay and so made a proposal which he than Rs. 200 towards "I hereby engage you with to my claim against the Baroda Theatres Ltd., for a sum of Rs. 9,400 (balance due to me). regard ' - .I • ' Out of the recoveries you may take 50% of I will by Wednesday deposit recovered. 111 your account or give personally towards amount Rs. 200 expenses." Mr. G said that he was unwilling to work on terms but when he was pressed to do so :md when he - 0 - S.C.R. SUPREME COURT REPORTS 495 realised that unless he agreed lose a just claim he reluctantly agreed. the client would probably Rs. 200 was thereupon paid towards expenses and into correspondence with Mr. G. at once entered solicitors of the Baroda Theatres Ltd. A winding up petitiol'1 was drawn up and declared but was not filed because the matter was compromised at stage. to pay Mr. G's client The Baroda TheaHes undertook Rs. 6,400 in full satisfaction of his claim. In the matter of Mr. 'G', a Stnior Advocate of th1 Suprem1 Court. The client then paid Mr. G a further Rs. 800. (He had the balance which was already paid Rs. 200, part of which was expenses). Mr. G claimed roughly Rs. 2,200. We are not concerned with the proceedings in the Bombay High Court and before the Tribunal of the Bar Council in the summons matter with which we are dealing at the moment, as we are acting here under Order IV, rule 30, of the Rules of this Court. The only question is whether, on the facts and circumstances set out above (all of which are admitted by Mr. G), his engagement of 20th December, 1952, amounts to prn fessional misconduct. status, are Mr. G argued rights, but with conduct expected the matter at length, and to his credit be it said, objectively and with restraint, but it is not necessary to cover the wide field he did because we are not concerned with ordinary rights of contract, nor the special and with ordinary legal of and rigid rules of professional to a specially privileged class of persons who, applied because of their privileged subject to cer tain disabilities which do not attach to other men and to them in a non-professional which do not attach even character. To use the language of the Army, an Advo cate of this Court to comport in a manner befitting his status as an "officer himself In the Army it is a military offence and a gentleman." to do otherwise (see section 45 of the Army Act, 1950) though no notice would be taken of ungentlemanly conduct under the ordinary law of the land, and none the case of a civilian. So here, he is bound to con m the high and duct himself m a manner befitting is expected at all times 1954 In t.11e matter of .Afr. 'G', a St11i~r Advocate of the SujJreme Court. Bose J. 496 SUPREME COURT REPORTS [1955] honourable profession to whose privileges he h;is 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 stands that can he conceded. Now it can be accepted at once that a contract of this kind would be legally unobjectionable if no lawyer was involved. The rigid English Pules of champerty and maintenance do not apply in India, so if this agree ment had been between what we might it would have been legally enforceable and good. parties, in law and enforceable It may even be that it is good though we do not so decide because the question does not arise ; but that was argued and for the sake of argument even It that there is nothing morally wrong, nothing follows to shock the conscience, nothing against public policy and pnblic morals in such a transaction per se, that Is not concerned. But to say, when a legal practitiorH" that is not the question we have to consi<ler. How these agreements may be open to other ever much men what we have they are permissible under rules of conduct enjoyed the members of a very close professional preserve integrity, dignity and honour may be is part of placed above the breath of scandal. That for the privilege of belonging to a the price one pays in it kind of close and exclusive "dub" and enjoying fortunate privileges persons who ate outside its fold. There is no need to is no need to stay, but having entered and having elected to stay and enjoy its rules must be obeyed its amenities and privileges, or the disciplinary measures which take must be real question. therefore is whether elect or whether, if it was once forbidden, the ban has since been removed, either directly or by implication, be legislative action. this kind of conduct is forbidden its portals and there and immunities suffered. The is entitled is whether to decide the rigid denied Now Barristers are concerned, once taboo both it was not disputetl that, so far as English sort of agreement was in England and in India. Even when ·( -- - • • ...... 1 954 In the matter of Mr. 'G 1 , a Senior Advocatt of the· Supreme Court. Bose J. S.C.R. SUPREME COURT REPORTS 497 \ ' in the mofussil into an engagement of that would be done by solicitors in India and did the kind they worked in England of work they __ could not and in the Presidency Towns for even from making such solicitors to Solicitors, bargains (See C01 Jery's Law Relating fourth · edition, page 342). But, rule only applied to members of the English Bar, and in any event it was abrogated in India in 1926. in England are forbidden it was argued, this kind, in' India, raised in the Punjab in 1907 but was We will first examine whether there was a difference between Barristers and other classes of lawyers. This reject point was ed by a majority of seven- Judges to two in a Full in Ganga J1-am v. Devi Das(J). Bench of nine Judges two dissenting the present kind the Punjab Bar. Lal Judges agreed was not open Chand J. (who dissented) said at page 331 : that an engagement of to a member of -~ But it is to be observed that even "I am in. perfect accord with Judge that stipulation of the litigation is different receive a share the Hon'ble Chief in the 1·esult to be from a stipulation ~ paid a fee contingent on success." The other dissenting Judge, Chatterji with him but even as regards two learned Judges J. agreed the practice which these thought permissible at the date of - their decision, Chatterji J. said at page 299 : "It must not be supposed, however, that I am in the whole prefer I should on favour of the practice. its abolition ...... " ) We agree with Chitty J. at page 326 that there was RO justification even at that date for seeking to apply to one branch of the profession and one set of rules another to another. As he said- "What is right or wrong for the one must be right or wrong for the other," or, as Sir Lawrence Jenkins C. J. put it in In re. N. F. Bliandara( 2 ), "For common honesty there must be no sliding scale even in th,e mofussil. ............. " ti) 61 P.R. (of 1907), p. ~So. (2) 3 Dom. L. R. 102 at 111. 498 SUPREME COURT REPORTS (1955] ...... Jn the matter of Mr. 'G', a Senior Advocate of the Suprnnt Court. Bose]. the matter the quotation is apt here. the decisions to which we shall Reading "standards of professional conduct" for the In any word "honesty", case, refer deal with "Advocates" and even where these "Advocates" were "Advocates" Barristers touched Indian High Court and not because of of an special status as Barristers. It is true that at one that was not Advocates were mainly Barristers, but laid down in these deci always the case and the rules sions governed all "Advocates," whether Barristers or otherwise. them as learned Judges the available authorities up their decision and they show that in Calcutta in the Punjab Record case col The the year lected all this kind ni agreement was condemned in 1874 and 1900: In the matter of Mating H!oon 01111g(') and In tle matter of an Advocate of the Calcutta High Court(') ; In re. N. F. Bhandara(') ; and Bombay in 1901: in 1939 : Achamparambath Madras in 1881 and again Cheria Kunhammu v. William Sydenham Canty(•). and In re. an Advocate of the Madras High Court('). As is the one in which Mr. G the Bombay High Court the engagement was entered normally practices and as it proper to quote into in Bombay, we following passage at page 113 judgment 111 the Bombay case (In re. N. F. Bhandara) : , -< ,.,._ - .I' "I consider for, or receive, a that for an Advocate of this Court remuneration proportioned the subject-matter, a percentage, stipnlate to the results of litigation or a claim whether form of a share or otherwise, should be clearly understood be here or in the mofussil he will by so acting offend the rules of his profession and so render himself liable to the disciplinary jurisdiction of this Court." reprehensible, and I is highly that whether his practice ' Mr. G argued that even if this was once the law, (Fees)' Act, 1926, that now every the terms of section 3 of the Legal Practitioners (Act XXI of 1926) changed legal practitioner (rJ 21 W.R. 097. (•1 4 Cal. "·1· •59. (3) 3 Born. L. R. 10~ at 113. to settle {4J l.L.R. 3 Mad. 138. (si l.L.R. 1940 Mad. 17. is competent it and ·, > - - S.C.R. SUPREME COURT REPORTS 499 ' J law permits Legal practitioners, according his engagement and his fees by private agreement with his client. This, Mr. G said, entitles him to enter into in the case of any agreement which the ordinary persons. him, are now governed by the law of contract and not by rules imported from other countries with different ideas and different social customs and imposed on the Bar in India mainly by English Judges. We do not agree, because this Act is not concerned with profes sional misconduct. That the Bar Councils Act which was passed in the same year (1926). The Bar Councils Act makes no modification in the the High Court or of the disciplinary jurisdiction of in which professional misconduct had been understood throughout India up to that time. is dealt with by 1954 In :he matter of Mr. •G', a Senior A.avocate of tM Supreme Court. Bose]. The only Indian decision which Mr. G could quote in his favour was Muthoo Lall v. Budree Pershad (1 ). in which disciplinary action But that was not a case for pro was being taken against a legal practitioner there was whether fessional misconduct. The question an agreement which might be objectionable on ground of professional misconduct could be enforced bu suit. Two Bombay decisions on which Mr. G. relies are to be distinguish~d in same wav : Shivram Hari v. Arjun(•) and Parshram Vaman ~- Hiraman Fatu (1 rightly decided or ). Whether these cases were whether they would also be hit on the ground of public policy as Chitty is something which does not arise Punjab Record case, It for decision here. cases are distinguishable on Judges there were not considering a case of discipli nary action. J. thought of a similar matter in the ground is enough to say Mr. G. relied on the practice in some of the American States where an agreement by an attorney to purchase part of the subject-matter of the is upheld. The class of cases to which he refers are summarised in a footnote to McMicken v. Perin('). He relied on this to show that contracts of this kind cannot be dismissed as reprehensible or morally wrong. We do into this because what may be not propose to enter litigation (1) I N,W.P.H.C.R. l. (2) I.L.R . .'i Born. 258. (3) l.L.R. 8 Bom. 413. (4) 15 Law. fain. 504 & 505. 1 954 . n the maUer of .A1r.' G', a St11iuY Advocate of t,~t Supreme CfJurt. ]Jose J. • 500 SUPREME COURT REPORTS [1955J harmless We will however pause collected a pages 318-321 of his opinion Das( 1 ) to show permitted it historical reasons obtaining have come to stay however much it is 111 1937 following cancm of Professional Ethics : in one country may not be so m another. that Rattigan J . to observe large volume of American authority at in Ganga Ram v. Devi in those States where this is frowned upon. For the practice may regretted ; but the American Bar Association adopted that even regretted there, "The lawyer should not purchase any litigation which he is con interest the subject-matter of ducting.'' import what many feel In India history tells the converse tale. We see no reason why we should is a mistake, even in the country of its origin, from another their error here when to perpetuate country and seek a sound and 'healthy the contrary already tradition exists in our Bar. The reasons for exacting these high illite standards in this country, where ignorance and racy are the rule, are even more important the general levd of education is are in England where that the conduct of Mr. G so much higher. We hold it was amounts in the face of the Bombay view expressed committed hy Sir Lawrence · Jenkins in 1901 disciplinary action is called for. to professional misconduct and as Now had Mr. G been as restrained and objective in his petition under article 32 as he was while arguing the case before us, we might have considered a warn ing enough seeing question has been considered in this Court, but, view of his personal attacks on learned Cht:f in his petition where he has questioned his Justice to him, we arc not good faith and attributed malice therefore direct able to deal with him as lightly. We that he be in this Court for a period which will expire on the same date. as his period of suspension in the Bombay High Court. suspended from practising There will be no order about costs. Order accordingly-. (t) 61 P.R. (of 1go7), p. 28o i < - -