XAVIER Vs. STATE OF KERALA
LAWS(KER)-1974-2-6
HIGH COURT OF KERALA
Decided on February 12,1974

XAVIER Appellant
VERSUS
STATE OF KERALA Respondents

JUDGEMENT

- (1.) AN advocate practising in this Court is the petitioner before me. He moves for a certiorari to quash Ext. P1 order, an order passed by the Subordinate Judge, Parur (3rd respondent herein) in an interlocutory application in a land acquisition reference case, and Ext. P2 order passed by my learned brother Poti J in CRP. Nos. 555 and 556 of 1972. The petitioner has in the alternative asked for a writ of quo warranto or a writ of mandamus, and if found essential, all three writs. It is also prayed that the vakalath filed by the 4th respondent in L. A. R. No. 235 of 1969 be declared as invalid. There is also a prayer to issue a writ of prohibition prohibiting the 4th respondent from appearing as an Advocate on behalf of the 5th respondent. Further it is prayed that the petitioner's lien on the decree amount in L. A. R. No. 235 of 1969 'be kept alive'.
(2.) THE short facts on which the petitioner has approached this Court with the prayers aforementioned are: THE petitioner filed on behalf of the 5th respondent before me O. P. No. 918 of 1966 for compelling reference in certain land acquisition proceedings. He filed a similar original petition, o. P. No. 821 of 1966 on behalf of one Varghese also. THEse original petitions appear to have been allowed. In pursuance of the direction issued by this Court in the aforesaid writ petitions, the land acquisition officer referred the two cases to the Subordinate Judge's Court, Parur. That Court tried the same as L. A. R. Nos. 235 of 1969 and 21 of 1970. THE above said reference cases were decided in favour of the persons interested in the land whereby the compensation amounts were enhanced. In execution proceedings they engaged the 4th respondent before me as their lawyer. It is the case of the petitioner that these engagements are violative of his fundamental rights under Art. 14 and 19 (1) (g) of the Constitution, and also R. 15, 23, 25, 26, 28, 29, 32, 33, 38 and 39 of the Bar Council of India Rules framed under S. 49 (c) of the Advocates' act, 1961. It is also contended before me that the engagement of the 4th respondent by the 5th respondent is violative of R. 27 and 28 of the Kerala civil Rules of Practice 1971, R. 37 of the Advocates Fee Rules, 1963 and R. 7 (1)and 9 of the Rules framed by this Court under S. 34 (1) of the Advocates' Act, 1961. Presumably with these grounds in mind the petitioner filed applications for special leave to execute the two decrees. Ext. P1 is the order passed by the execution court on the application put in by the petitioner seeking leave for executing the decree in L. A. R. 235 of 1969. By that order the Subordinate judge held that the petition is not maintainable and in consequence rejected the petitioner's application. Similar petition filed in L. A. R. No. 21 of 1970 also met with the same result. THE two orders were taken up in revision to this court in CRP. No. 555 and 556 of 1972. Ext. P2 is the common order passed by my learned brother Poti J. in the aforesaid revision petitions. THE revision petitions were dismissed. Subsequent to the disposal of the civil revision petitions the petitioner filed two original petitions, O. P. No. 2343 of 1973 to redress his grievance in not being allowed to execute the decree in L. A. R. No. 21 of 1970 and this petition in respect of his grievance for not being allowed to execute the decree in the other L. A. R. case. O. P. No. 2343 of 1973 was dismissed by my learned brother Eradi J. by his judgment dated 23 71973. THE 5th respondent has produced a true copy of that judgment marked Ext. RI along with his counter affidavit. The main argument raised by the petitioner is that under Rules referred to earlier another counsel cannot enter appearance on behalf of a client without the consent and permission of the counsel already on record. In Para. 2 of the counter affidavit the 5th respondent has stated that the petitioner's engagement was terminated by her. In answer thereto in the reply affidavit it is stated that there was no notice terminating his service as averred in the counter affidavit. Another ground relied on by the petitioner is an alleged agreement between him and his client, viz. , the 5th respondent, whereby his remuneration for the conduct of the case was fixed at 50% of the amount that might ultimately be decreed in the reference case. The 5th respondent denies that there was any such agreement. No doubt in the reply affidavit the petitioner has averred that the denial of the agreement by the 5th respondent is "absolutely and transparently false. "
(3.) THE aforesaid two questions raised before me are pure questions of fact, each side asserting that the other is putting forward a false case. Such being the position the petitioner could not invoke the jurisdiction under Art. 226 of the Constitution for the resolution of the disputes between the petitioner and the 5th respondent. This is sufficient to dispose of this original petition. However in deference to the arguments advanced before me I will refer to the contention raised on the basis of the petitioner's fundamental rights to enter into an engagement to act as an advocate on behalf of 5th respondent, and the rights flowing from such engagement. On the question stated above there is the precedent of this Court in O. P. No. 2343 of 1973. My learned brother Eradi J. on an identical set of facts and on a similar question raised by the very same petitioner exhaustively considered the question as follows: "even apart from the above I do not find any merit in the contentions raised by the petitioner against Ext. P1. It is argued by the petitioner that he has a fundamental right to bargain with his client and stipulate any terms regarding the fee payable for his professional services, that the arrangement so arrived at confers on him a right to property and that no order should be passed by the court which infringes or affect that right. R. 20 and 21 of the Rules framed by the Bar Council of India under S. 49 (c) of the Advocate's Act, 1961 regulating professional conduct and etiquette specifically lay down that an Advocate shall not stipulate for a fee contingent on the results of a litigation or agree to share the proceeds thereof and that be shall not stipulate for or agree to receive any share or interest in any actionable claim. THE petitioner however, contends that the said Rules as well as the Advocate's Fee Rules framed by this court are ultra vires and unconstitutional since they impose arbitrary restrictions on his fundamental rights under Art. 19 (1) (g) of the Constitution. I have no hesitation to reject this contention as totally devoid of any merit. THE fundamental right guaranteed under Art. 19 (1) (g) is not absolute in character but is expressly made subject to the power conferred on the State by clause (6) of the article to make any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the said fundamental right. As pointed out by the Supreme Court In Re Sant Ram AIR. 1969 SC. 932, it is in the interests of the general public to insist upon proper standards of conduct being observed by the legal practitioners with a view to ensuring the purity and soundness of professional law. THEre are observations to the same effect in Sakhawant Ali v. State of Orissa AIR. 1955 S. C. 166. THEre can be little doubt that R. 20 and 21 of the Bar Council Rules are wholesome provisions imposing reasonable restrictions on the conduct of the members of the legal profession in the interests of the general public. This very case where an advocate claims that be should get one half of the decree amount (amounting even according to him to more than Rs. 55,009) as his fee for conducting the land acquisition reference case before the Sub Court and an earlier writ petition filed before this Court on behalf of an indigent client furnishes ample proof of the imperative necessity for the imposition of the restrictions laid down in R. 20 and 21 for safeguarding the interests of the litigant public and for ensuring the observance proper standards of purity and ethics in the legal profession. THE arguments based on Art. 14 and 19 of the Constitution are, therefore, devoid of any merit. " I am in respectful agreement with the same. The relief sought for by the petitioner so far as Ext. P2 order is concerned, is not amenable to my jurisdiction under Art. 226 of the constitution. It is an order passed by this Court, in exercise of the jurisdiction vested in it under S. 115 of the Code of Civil Procedure, 1908. This Court cannot and will not issue a writ against itself in respect of a judicial pronouncement made by this Court. The relief sought for is misconceived.;


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