K L GAUBA Vs. J VASICA

JUDGEMENT

(1.) THIS is a suit filed by a barrister-at-law for the recovery of his fees. The work in respect of which these fees became payable was done by him partly in the Chief Presidency Magistrate's Court at Bombay and partly in the Simla High Court, and he appeared, acted and pleaded for the defendant in all these matters.

(2.) A preliminary issue, being issue No. 2, has been raised as to whether the plaintiff being a barrister is entitled to maintain this suit. As this issue was of considerable importance to the Original Side Bar, I directed that a notice be given to the Advocate-General and the Bar Association, and in response to the notice the Advocate-General has appeared at the hearing of this issue. 2a. Now, it is common ground that the plaintiff who is a Barrister was enrolled as an advocate on the Original Side of this High Court in March 1948. Section 9, Bar Councils Act empowers the Bar Council, with the previous sanction of the High Court, to make rules to regulate the admission of persons to be advocates of the High Court; and Sub-clause (2) (a) in particular empowers the Bar Council to provide for the qualifications to be possessed by persons applying for admission as advocates. In exercise of the power conferred upon it, the Bar Council has framed rules which are published in the Bombay Government Gazette, Part I, dated 8-8-1940. Rule 1 (iii) provides inter alia that a barrister shall be qualified to present an application for being admitted as an advocate of the High Court of Bombay, and it is under this rule that the plaintiff has been enrolled as an advocate. It is further to be noticed that so far as the Original Side of the High Court is concerned, R. 40 of Part I of the High Court Rules provides that advocates shall not, except in certain matters which are specifically excepted, act for a party in any matter on the Original Side of this Court or in any appeal from such matter. It is also admitted that the plaintiff is a member of the Bombay Ear Association and the rules of that Association contain as R. 19 the following rule: "the rules of etiquette governing the English Bar printed in the Annual Practice 1930 pages 2400-2425 shall apply to members in so far as they are not inconsistent with the aforeaid rules or with established local practice. "

(3.) NOW, it is common ground that a barrister practising in England can generally speaking only plead and not act, he cannot sue for his fees nor can he be sued for negligence by his client; and the plea advanced on behalf of the defendant in the present case is that since the plaintiff is a barrister he is not entitled to sue for his fees.