N VAIDIANATHA SASTRIAR Vs. KASIVASI SOMASUNDARA THAMBIRAN

JUDGEMENT

(1.) The Plaintiff a First Grade Pleader was retained by defendant to defend him in a prosecution instituted against him by the Taluq Board of Kumbakonam in December 1900. After a trial which lasted till April 1901 the defendant was acquitted, and some months later on the 8th November 1901 gave a notice to the President of the Taluq Board, threatening a suit for damages for malicious prosecution. The suit was instituted and the present plaintiff conducted it for the defendant who was then plaintiff. An account which accompanied notice of suit shewed that among the expenses of the Criminal Proceedings for which it was sought to recover compensation from the Taluq Board, was a sum of Rs. 850 paid as fees to the present plaintiff for conducting the case on 16 days on which the trial proceeded, and 7 days on which the case was set down for trial but was not actually taken up. For the 16 days the fees were entered at Rs. 40 per day and for the 7 days at Rs. 30 par day. At the trial of suit a similar but more detailed account (Exhibit C in the present suit) was supported by a "receipt of 29th November 1901 given by the pleader to the present defendant acknowledging payment of Rs. 850 in three instalments toward fees for the criminal case and by the evidence of one Subramanya Mudaliar an agent of the present defendant. The suit was dismissed.

(2.) The plaintiff continued for some years to work for the defendant and from time to time forwarded him accounts of the fees due to him with...requests for payment. No rate of fees had been arranged bat in one of his accounts the plaintiff suggested that he should get Rs. 40 per day for work done in Courts outside Kumbakonam and Rs. 30 for work done in Kumbakonam. The defendant did not, so far as the evidence shows, accept this suggestion but did not fix any rates of his own, or take any objection to the plaintiff s proposal, but made some lump payments now and then to the plaintiff on account of his fees generally; and after some correspondence forwarded to the plaintiff in July 1907 an account showing a balance due from him (plaintiff) to the defendant. In this account (Exhibit N) a sum of Rs. 270 was set down as the amount of fees payable on account of the Criminal Case in 1900-and fees in all cases were entered at lower rates than those which had been suggested by the plaintiff. The plaintiff replied by a registered letter Exhibit J. 15, and in reference to the allegation regarding rate of fees, containing the following passage. "The truth is that since you began conducting the case for our Adinam up to this day no rate has been fixed regarding your fees. But at the time of filing the suit for damages, for the purpose of showing the expenses of the proceedings in the criminal case you yourself fixed a rate, wrote a receipt and filed it. How are you thereby justified in sending me an account claiming fees at the same rate for all cases. The aforesaid receipt was not taken by me for money paid in that manner and at that time." The plaintiff replied complaining that this letter was defamatory and again demanding his fees, and the defendant rejoined that it was not defamatory but that all that was said was true (Exhibit M 2). The plaintiff then instituted this suit for damages for Rs. 6000, and basing the claim on the passage in the letter (Exhibit A) which I have extracted above.

(3.) The Subordinate Judge has dismissed the suit in a judgment which unfortunately loses much of its value from the fact that a very large part of it dealt with matters entirely irrelevant to the questions in suit, and from the fact that tfhe Subordinate Judge has drawn in some cases inferences against the plaintiff from a number of entries in his accounts and diaries, which he was given no opportunity to explain while in the witness box.