RD Saxena Vs Balram Prasad Sharma (AIR 2000 SC 2912)

This is an appeal petition in supreme court against the order made by Bar Council Of India.
The appeal was heard and delivered by Hon K T Thomas bench

Facts:

• The appellant was practicing as an advocate in Bhopal . According to him he was appointed as the legal advisor of the Madhya Pradesh co-operative bank . He appeared for the bank for a few cases during this time . Later he was removed from the position for some reasons after three years of service.
   
• The bank asked back the case files which were with him for further proceedings , but the appellant returned a bill of rupees 97100 as his legal charges due and insisted to keep the case files till his payments are completed and contented that he have a lien over such documents.
   
• The dispute remained unresolved and the bank was reluctant to move forward.
   
• The bank manager filed a complaint in the Madhya Pradesh Bar council for professional misconduct. Even after one year there was no completion of the case and the case was transferred to the Bar Council Of India under section 36-B of Advocates Act.
   
• After holding inquiry, the Disciplinary committee of the Bar Council Of India reached to conclusion that appellant was guilty of professional misconduct and punished him for a fine of 1000 rupees and debarred him from appearing in court for 18 months.

Issues:

• Whether an advocate has a lien on good under The Indian Contract Act
• Whether this lien amounts in case of case files
• Does rule 28, 29 of The Advocates Act covers to amounts not in the hand of an Advocate

Contention of appellant
The bar council failed to consider the fact that he has a lien over the files for his unpaid fees and so here a miscarriage of justice took place.

Contentions of the respondent
The respondent was of the affirmation that there is no such lien available for advocates in case of case files and the amount asked by appellant was an inflated amount.

Findings of the court
The court first examined the right to lien for advocates under The Indian contract act section 171

Files containing copies cannot be equated with goods referred under this section . such goods must earn some monetary value when they are sold .Case files here cannot be used to earn such value. Also here there is no Bail of goods as there is neither delivery of goods or contract to return of such goods.

After Independence the enactment of the Advocates Act 1961 contain the rules as to contain provision specifically prohibiting an advocate from adjusting the fees payable to him by a client against his own personal liability to the client.

Rule 28. After the termination of the proceeding, the Advocate shall be at liberty to appropriate towards the settled fee due to him, any sum remaining not spend out of the amount paid or sent to him for expenses, or any amount that has come into his hands in that proceeding.

Rule 29. Where the fee has been left unsettled, the Advocate shall be entitled to deduct, out of any moneys of the client remaining in his hands, at the termination of the proceeding for which he had been engaged, the fee payable under the rules of the Court, in force for the time being, or by then settled and the balance,if any, shall be refunded to the client.

Thus by plain reading of these two sections it is clear that there is no lien available in case of case files kept with him. If such a lien is permitted it may amount to great abuse and exploitation.

Court was also of the view that a litigant must have the freedom to change an advocate of his choice and when he feels. Article 22(1) of the constitution even provides a fundamental right to an accused to be defended by an advocate of his choice.

Court also considered the meaning of the term misconduct as in section 35 of the Advocates Act and was of the view that misconduct is a relative term and has a wide canvass of expression.

Judgment
The supreme court was also of the view that the appellant was guilty of misconduct for not returning the case files back to the client.

At the same time regarding to extent of punishment court looked upon two aspects

There was no supreme court precedents on the same matter in issue

The appellant would have bona Fide believed , in respect of some high court decisions , that he did have a lien.

In such circumstances it is not necessary to inflict harsh punishments , a reprimand would be sufficient in respect of this case.

Critical Analysis
The Supreme court has taken a well envisaged decision taking into consideration all questions that arose before the court . The court also took into record that there were no similar decisions on the same facts and pronounced that the case itself must be a precedent for similar cases.