NIHAL CHAND SHASTRI Vs. DILAWAR KHAN

JUDGEMENT

(1.) These two revisions have arisen out of a Small Cause Court Suit No. 5247 of 1930 instituted by Mr. Nihal Chand Shastri against two defendants, Masood Ahmad Khan and Dilawar Khan alias Dilawar for recovery of Rs. 340. The plaintiff's case was_ that defendant 2, Dilawar had a criminal case against him in a Magistrate's Court at Muzaffarnagar, where the plaintiff was then practising as an advocate of the High Court. Masood Ahmad Khan was the plaintiff's clerk. Dilawar Khan wanted the plaintiff to go to Allahabad and to file an application for transfer of the criminal case from Muzaffarnagar and agreed to pay Rs. 50 a day for the period during which the plaintiff would be away from Muzaffarnagar. As Dilawar Khan had no money to pay down, Masood Ahmad Khan, the plaintiff's clerk stood surety for him. The plaintiff carried out his part of the contract, but was not paid. The plaintiff accordingly brought the suit. The learned Judge of the Small Cause Court decreed the suit for Rs. 250 only, being the principal amount claimed, but dismissed the suit with respect to interest. The claim for interest was disallowed, because there was no stipulation to pay any.

(2.) Civil Revision No. 1 of 1932, has been filed by Masood Ahmad Khan and Mr. Nihal Chand has filed Civil Revision No. 173 of 1932. Dilawar Khan has evidently submitted to the decree. In his petition of revision, Masood Ahmad Khan contended that a certain letter of 30 November 1930, written by the plaintiff to him should have been admitted into evidence, and that in view of that letter the plaintiff's claims as against the applicant should have been dismissed. In his petition of revision the plaintiff contended that he was entitled to interest under Section 73, Contract Act. The two petitions came up before the Hon ble the Chief Justice, and apparently before him the point was taken orally that the plaintiff being a Barrister enrolled in England was not entitled to maintain a suit for his fees. The learned Chief Justice accordingly referred the case to two Judges. This matter came before the learned Chief Justice and one of us, and they thought that the matter should go before a Full Bench. The three Judges before whom the Full Bench case came thought it desirable that the case should go before five Judges, as some doubt was entertained about the correctness of a previous Full Bench decision, viz., C. Ross Alston V/s. Pitamber Das (1908) 25 All 509.

(3.) The case has now been argued fully before the Full Bench, and the Full Bench had had the advantage of hearing Mr. Khwaja and Mr. Malik as representing the Bar Library and Dr. Katju as representing the Advocates Association. Before we proceed to decide the most important question as to whether an advocate who is a Barrister of England can maintain his suit for his fees, I think the other questions involved in the two revisions should be decided. On the question of the compromise, it appears that although Mr. Nihal Chand gave a note to Masood Ahmad Khan that he would not be liable in the case, but the note was given subject to certain conditions which have not been fulfilled. Masood Ahmad Khan did not file the letter before the Court till the last moment when he found that the case was being decided against him. I am therefore of opinion that the decree against Masood Ahmad Khan was a right one on the merits. As regards the right of the plaintiff to recover interest, I do not think that we should allow any interest in this case, because although the suit is based on a contract, there is no evidence that on account of non-payment of the plaintiff's fees, he actually suffered a loss. I would therefore dismiss the plaintiff's petition in revision.