MAHESH CHANDRA SHARMA Vs. STATE

JUDGEMENT

(1.) The petitioner was a panel lawyer with the respondent State of Rajasthan for conducting cases on its behalf as per express terms and conditions of agreement between him and the State which envisaged that 50% of the fee would be payable by the respondent after reply is filed in the case and the balance 50% would be paid after conclusion of the proceeding.

(2.) Learned counsel for the petitioner Mr. R.D. Rastogi, has submitted that a lawyer, who is engaged by the State or any other litigant, is entitled to the full fee for the entire case and not merely the amount which is due on the date when he is removed by the litigant as his advocate. In support of his submission he has relied upon a decision reported in 1979 Raj LW 73 : (AIR 1979 Raj 137) delivered in the matter of Union of India v. Radhey Shyam in order to emphasis that in the said case also even though as per the terms of agreement, only half of the total fee was payable soon after the written statement was filed and the remaining half was to be paid at the time of conclusion of the suit after judgment was pronounced, yet a learned single Judge in the said case took the view that an advocate removed from the case would be entitled to the full fee if his engagement is cancelled before the case is concluded. It was further contended that the advocate removed from the case without any fault on his part would be precluded from accepting briefs from the other party in those cases even after his removal.

(3.) However, the petitioner and his counsel have missed that in the case referred to hereinbefore relied upon by them, the entire fee was held to be payable with the leave of the Court as per the provisions of the Civil Procedure Code, since said case related to a particular suit pending in the trial Court wherein the payment was made with the leave of the Court, where as in the instant case, the terms and conditions were expressly laid down in the agreement between the parties and the occasion for seeking leave of the Court for payment of full fee never cropped up at all as the petitioner has merely sought a general direction in all cases pending for payment of full fee in view of his removal from the panel of such lawyers which had been constituted for prosecuting the cases in the High Court on behalf of the State. The provisions of the C.P.C. thus cannot be relied upon contrary to the agreement in absence of the leave of the Court.