HARJIT Vs. BACHRAJ
LAWS(RAJ)-1955-11-10
HIGH COURT OF RAJASTHAN
Decided on November 04,1955

HARJIT Appellant
VERSUS
BACHRAJ Respondents

JUDGEMENT

- (1.) THESE are fifteen revisions against the judgments and decree of the Munsiff Jeta-ran (exercising the powers of a Small Cause Judge) which raise an identical question and I propose to decide them by a single judgment.
(2.) THE opposite parties are legal practitioners and they were the plaintiffs in the Court below. THEir case was that they had been engaged by the petitioners in certain cases arising under sec. 7 of the Rajasthan Protection of Tenants Ordinance, and the petitioners had executed Vakalatnamas by which they had agreed to pay the plaintiffs a fee of Rs. 30/- in each case. This engagement took place on the 2nd August, 1949. THE stipulation made in the Vakalatnamas was that the petitioners would pay the remuneration settled within one month of the 2nd August, 1949. THE case of the plaintiffs was that this was never paid. THE applications under the Rajasthan Protection of Tenants Ordinance were decided on the 22nd July, 1950, and they were all dismissed. THE opposite parties having not been paid their remuneration settled by the petitioners, they brought fifteen separate suits out of which the present revisions arise. THE defence was that the petitioners had settled only a composite fee of Rs. 100/- with the opposite parties for the purposes of their applications under the Rajasthan Protection of Tenants Ordinance and that they had paid it, and the story put forward by the plaintiffs that a separate fee of Rs. 30/- in each case had been settled was not correct. THE defendants also pleaded that the suits were barred by limitation. THE trial court repelled both the pleas and decreed the plaintiffs' suit. This has led to the present revisions. I may state at the very outset that these revisions have been argued in this Court on the point of limitation only. It has been strenuously contended that the trial court was wrong in holding the suits to be within limitation and that that court had not even stated by which article of the Limitation Act the suits were governed, although, it came to the conclusion that the suits were within time by virtue of the provisions of sec. 23 of the Limitation Act. The only question for determination, therefore, is that by which article of Limitation Act the present suits fall to be governed and whether sec. 23 of the Limitation Act is applicable to them. It is common ground between the parties that Art. 84 of the Limitation Act, which might otherwise have been applicable, must be excluded for the purposes of the present cases inasmuch as that article deals with suits where there is no express agreement as to the time when payment is to be made. It is agreed before me that in these circumstances, the only article applicable to the present cases is Art. 115 of the Limitation Act. This article is in these terms : - Description of suit Period of limitation Time from which period begins to run. 115. For compensation for the breach of any contract, express or implied, not in writing registered and not herein specially provided for. Three years. When the contract is broken, or (where there are successive breaches) when the breach in respect of which the suit is instituted occurs, or where the breach is continuing, when it ceases. The contention on behalf of the petitioners is that all these suits were barred by time because they had been brought on the 12th May, 1953, after three years from the 2ndseptember, 1949, which was the date fixed for the payment of the remuneration settled between the parties. There is the further contention that in these cases as there was a time fixed for the payment of the remuneration, the contract was undoubtedly broken when payment had not been made on the date fixed. It is further contended in the same connection that it would be wrong to apply sec. 23 of the Limitation Act, as the failure to make the payment of the remuneration settled, having occurred on the 2nd September, 1949, there could be no further or continuing breach of the contract to pay. I have given by careful consideration to all these contentions and have come to the conclusion that they are without any substance. In coming to this conclusion I have been chiefly in fluenced by the relationship which exists between counsel and clients. I am entirely unable to accept that this relationship is analogous to that which exists between a creditor and a debtor. When a client engages a counsel for a suit or other proceedings in a particular court, what really happens is, counsel agrees to render professional services in connection with the suit or other proceeding for which he is engaged throughout the period it remains pending there, and the client agrees to pay him certain remuneration for the services to be so rendered. The entire fee to be paid and received is fixed at the time of the engagement and is also agreed to be paid immediately or at some fixed time soon after the engagement, but not unfrequently such fees are not paid on the date fixed, and counsel does not insist on such payment in the interest of the profession and it is certainly not in the interest of clients that insistence is made on payment being made at the time so fixed with the result that the counsel continues to render his services in the expectation that he will be duly paid for them before the termination of the suit. It is in this perspective that we should look to contracts of this type and construe the time fixed for payment if any. I have no doubt that any other way of looking at cases of this type would create startling conditions. If in cases where a clients fails to make the stipulated payment at the stipulated time, counsel should feel compelled to rush to court for payment of his remuneration in the event of its non-payment, I have no hesitation in saying that we would be cre?ting conditions which would be not only unpleasant but highly disconcerting. Let us take the instance of a case in which a client may have agreed to pay remuneration settled with counsel on a particular date and the case in which such an engagement had taken place happens to be decided more than three years after the date fixed for payment. If the view passed for the consideration of this Court on behalf of the petitioners were to prevail, then the inevitable conclusion must be that in the event of non-payment, counsel must file a suit against his client even before the termination of the suit in which he happens to have been engaged. I am entirely unable to accede to such a view. The correct view, therefore. appears to me to be this, that notwithstanding that fact that a date may have been fixed for payment of the remuneration settled between them, such a time limit is not the essence of the contract, and that so long as counsel continues to render his services to his client and the latter does not repudiate, or terminate such representation according to law it must be held that there is a continuing duty on the part of the client to pay the fee to his counsel, and his duty must naturally subsist till the termination of the suit and not earlier. Where, therefore, the client refuses or neglects to pay counsel the remuneration settled between them, I am disposed to take the view that he is guilty of a continuing breach of the contract. Learned counsel for the petitioners invited! my attention in this connection to Radhakrishna Das vs. Radha-ramana Swami (1) in support of his contention that there was no continuing wrong of breach of contract whatever, but the short answer to this must be that whether there is a continuing breach of contract in a particular case or not depends upon the surrounding circumstances of that case, and not upon what has been held in connection with another contract in a different case; and, secondly, I am of opinion that the decision at which I have arrived, in no way conflicts with the principal laid down in that case; for the principle which the learned Judges have laid down there is that - "where the wrong consists in the omission of legal duty, if the duty is to continue to do something, the omission constituted a continuing wrong during the time it lasts. " It was further laid down that - "the test in applying sec. 23 is not whether the right is a continuing right but where the wrong is a continuing wrong. Where the act or wrong is complete, sec. 23 does not apply. " I am of opinion that in a case of the type which we are called upon to consider here, it cannot be said that the breach of duty or wrong was complete on the 2nd September, 1949, but that the breach continued to exist so long as the case lasted and the petitioners were content with taking advantage of the services of the opposite parties, which had been rendered by them, and it is nobody's case that their services had been properly terminated at any time earlier than the 22nd July, 1950, when the cases came to be finally decided. I may in this connection refer to O. 3, r. 4 C. P. C. which lays down that every appointment of a pleader shall be deemed to be in force until determined with the leave of the court by a writing signed by the client or the pleader, as the case may be, and filed in court or until the client or the pleader dies, or until or proceedings in the suit are ended so far as regards the client, and the term "pleader", it is well established, signifies all persons who are entitled to appear and plead for another in court, and includes an advocate, or a vakil. My attention was also invited to Abdi Ali Khan vs. Secy. of State (2) on behalf of the petitioners. That was a case where the wrong alleged was the denial of a title, and it was held that no sooner was it done than the cause of action arose and having thus arisen time commenced to run forthwith. That is a very different kind of case from the one I have before me; and, therefore, has no application to the facts of the present case. 1 may also point out here that in the case of a contract between a creditor and a debtor,the duty to pay on the part of the debtor, is not to continue to pay where a time has been fixed for payment, and, therefore, as a rule, the cause of action in such a case arises once and for all on the non-payment of the money due on the date fixed. In the class of cases before me however, as I have already pointed out above, the relationship between a legal practi-tioner and his client is essentially of a very different character, and it is in view of that relationship that I have felt disposed to come to the conclusion that any failure on the part of a client to pay the remuneration fixed for counsel even though a time has fixed for such payment, must be held to be a continuing wrong till the termination of the suit or any other proceeding in which he has been engaged where the remuneration fixed has not been paid unless his services have been lawfully terminated earlier. In coming to this conclusion, I may also say that I have considered secs. 39, 51, 63 and 70 of the Contract Act, and a careful consideration of the principles underlying those sections fortifies me in coming to the conclusion at which I have arrived. The principle, to my mind, is well establish in the sphere of law of contracts that where a person lawfully does any thing for another person not intending to do so gratituosly and such other person enjoys the benefit thereof, the latter must pay compensation to the former in respect of the things so done. It is nobody's case here that the opposite parties had failed to render the services during the pendency of the proceedings in connection with which they had been engaged prior to their final decision on the 22nd July, 1950. In view of what I have stated above, I have come to the conclusion that the limitation in the present suits commenced to run with effect from the 22nd July, 1950, when the proceedings, in connection with which the opposite parties were engaged, were determined; and as these suits have been brought within three years of that date, the bar of limitation does not arise by virtue of Art. 115 read with sec. 23 of the Limitation Act. The result is that these revisions fail and are hereby dismissed. The opposite parties will be entitled to their costs in revisions Nos. 4 and 7 of 1954 only, in the circumstances of the case, and the parties will bear their own costs in the other cases. .;


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