Mushtaq Ahmad, J. - (1.) This is a plaintiff's application against a decree of a Small Gauss Court Judge in a suit for recovery of counsel's fee. The amount claimed was about Rs. 108/-, a part of which was decreed and a part dismissed. 2. The plaintiff's case was that a particular fee had been settled between the parties in connection with an ejectment suit which the defendant had filed against one Gyanchand through the plaintiff who was then practising at Dehra Dun and that the said fee was Rs. 165/- for the whole case in addition to something for the clerk. The defence was that no fee had been settled but that the plaintiff had agreed to accept anything that was offered by the defendant. The learned Small Cause Court Judge found that the plaintiff's case was not proved and that it was established that he had agreed to accept anything as his fee that was offered by the defendant.
(2.) The plaintiff has appeared in person before us to support his application in revision. He has argued that, assuming the finding of the Court below to be correct, it does not amount to a finding of a legal contract relating to the matter of his fee. He has referred to Sections 3 and ft, Legal-Practitioner's Pees Act XXI [21] of 1926. The former provides that fee can be claimed by a counsel according to the agreement between him and his client, and the latter that, in the absence of any such agreement, the same would be payable at the legal scale. He then contends that, even if his case about the basis on which the fee was to be paid, was not accepted, the defendant's case not being legally entertainable, the Court below should have decreed the claim Under Section 4 of the said Act, according to the legal scale.
(3.) We think there is force in this contention. In the first place, even if the plaintiff had agreed to accept anything that was offered by the defendant, there is nothing to show that the defendant had signified his assent to that offer. In the second place, even if there was an offer followed by an acceptance, and thus there was an agreement made, it would not carry the force of a legally enforcible contract in the absence of any settlement of the amount which was, in fact, to be paid. Surely, it cannot be the intention of the law to accept a mere negotiation between two individuals as regards the wages payable by the one to the other as settling a contract, even though the amount be not fixed at the time and be left over to a future contingency, namely, that of one of the parties giving out what he was willing to pay. This being the position, that is to say, there being no agreement having the force of a contract within the meaning of the law if the defendant's case was to be accepted, and there being a finding by the Court below that the plaintiff's case with regard to the basis on which he had to be paid a fee not having been found as a fact, there is no alternative for us but to hold that he was entitled to a decree on the basis of the legal fee.;