JUDGMENT 1. THIS Rule was issued at the instance of the plaintiff in a suit for recovery of a sum of Rs. 618/- instituted in the Court of Small Causes of Calcutta. The trial court dismissed the suit and an application under section 38 of the presidency Small Cause Courts Act preferred against the decision by the plaintiff was also dismissed by a Full bench of that Court. The petitioner in this Rule questions the correctness of the decision of the Full Bench affirming the judgment of the trial court. The dispute is not over a large sum of money but it involves a question which is of some importance. 2. THE plaintiff is an Advocate usually practising on the Original Side of the High Court at Calcutta. The first defendant is a firm of solicitors. Plaintiff's case is that acting as solicitors for their clients, Metropolitan Bank Limited, the first defendant had briefed him "in several matters on the Original Side of the High Court at settled fees". Between march and June, 1963 he submitted bills to the first defendant for the work done by him amounting to Rs. 2,618/ -. On or about October 4, 1963 the first defendant paid Rs. 2,000/- against these bills and, according to the plaintiff, refused to pay the balance amount of rs. 618/ -. The plaintiff instituted the suit out of which this Rule arises for recovery of this amount. In view of the subsequent amalgamation of the metropolitan Bank Limited with the united Industrial Bank Limited, the latter who became the successor in interest of the former was impleaded as the second defendant. The first defendant in their written statement denied the allegation that any fees were "settled" and also claimed that the plaintiff was not entitled to charge fees at the rate mentioned in his bills. It was stated that this defendant paid to the plaintiff Rs. 2,000/-under instructions from the second defendant and that this sum was "far in excess" of all the fees that he could justly claim. It was added that "whatever moneys were received by this defendant from the Bank for payment of fees to the plaintiff was made over by this defendant to the plaintiff". 3. THE second defendant in its written statement denied that Metropolitan Bank Limited had any liability and maintained that as such no liability had been transferred to the second defendant. It was added that "whatever moneys were received by this defendant from the Bank for payment of fees to the plaintiff was made over by this defendant to the plaintiff". 3. THE second defendant in its written statement denied that Metropolitan Bank Limited had any liability and maintained that as such no liability had been transferred to the second defendant. It was contended that the suit was not maintainable against the bank. 4. THE trial court found that the rate of fees claimed by the plaintiff was not unreasonable and further that the second defendant was liable for the plaintiff's dues. The learned Judge however dismissed the suit on the following view: "in the Original Side of the Calcutta high Court there is a dual system prevalent. A barrister cannot appear in any matter in the Original Side without being instructed i. e. briefed by a solicitor. If an advocate is briefed by a solicitor to appear in any matter in the original Side, he is in the same position as a barrister and has the same right and is subject to the same obligation as that of a barrister. A barrister or an advocate practising in the Original Side who accepts a brief from a solicitor on behalf of his client cannot enter into any contract either with the solicitor or with the client. According to the practice prevalent with the barristers it goes to show that the fee is a matter of honour and not of right". The learned Judge of the trial court therefore held that the plaintiff was not "entitled to get any fees". The plaintiff applied for a new trial under section 38 of the Presidency small Cause Courts Act. The Full Bench agreed with the trial court that the plaintiff had "no locus standi to sue for fees" and that the plaintiff had failed to prove that the rate of fees claimed by him had been settled as alleged. On these findings the learned Judge of to full Bench dismissed the application under section 38 with costs. The Full bench does not however appear to have reversed the finding of the trial court that the rate of fees claimed was not unreasonable. 5. On these findings the learned Judge of to full Bench dismissed the application under section 38 with costs. The Full bench does not however appear to have reversed the finding of the trial court that the rate of fees claimed was not unreasonable. 5. BOTH the trial court and the Full bench thus held that an advocate appealing in any matter on the Original Side of the High Court stands in the same position as a barrister and the tee being a matter of honour and not of right with the barristers, the plaintiff also was not entitled to sue for fees. The reasons why the courts below thought that an advocate occupies the same position as a barrister so far as work on the Original side of the High Court is concerned is not clear from their judgments. It is of course stated that an advocate like a barrister is not entitled to appear on the Original Side unless briefed by a solicitor but that does not explain why an advocate should share the barrister's incapacity to contract for fees or to recover the dues by action. The disability of a barrister in this regard arises from the general practice and tradition of the Bar in England. In (1) Veitch v. Russel (1843) 12 L. J. Q. B., 13 (New series) Lord Denman C. J, stated: "it seems clearly understood generally speaking, that a physician and a counselor performing any service, respectively, do so without being legally entitled to remuneration. That is the general understanding This mere understanding between parties constitutes no legal contract. " In the same case Coleridge J. added: "a physician or barrister is entitled to expect remuneration for his services but prima facie he has no legal title whereby to enforce it". The view that a "mere understanding between the parties constitutes no legal contract" also seems to be the basis of the observation of Lopes L. J. (2) In re Le Brasseur and Oakley (1896) 2 Ch. Div. 487, that "the relation of counsel and solicitor renders the parties mutually incapable of making any legal contract of hiring and service in regard to litigation". It is also because of this age-old tradition and not due to any rule of law that in england a barrister cannot accept a brief in a civil litigation except from an attorney. Div. 487, that "the relation of counsel and solicitor renders the parties mutually incapable of making any legal contract of hiring and service in regard to litigation". It is also because of this age-old tradition and not due to any rule of law that in england a barrister cannot accept a brief in a civil litigation except from an attorney. As Lord Campbell C. J. pointed out in (3) Doe d. Bennett v. Hale (1850) 19 L. J. Q. B. 353. "there certainly has been an understanding in the profession that a barrister ought not to accept a brief in a civil suit except from an attorney but we are of opinion that there is no rule of law by which it can be enforced". It is because of his incapacity to contract that in England a barrister cannot recover his fees by action, and his remuneration is called honorarium as opposed to mercers as he cannot insist on payment for his services. But the right of a barrister to appear in Courts in India arises only on his enrolment as an advocate and a barrister practising in India is governed not by the English practice as such but by the rules in force in this country governing the rights and obligations of advocates. It is not necessary however for the purpose of this case to investigate the position with regard to barristers practising as advocates in this country. We are concerned here with the case of an advocate who is not a barrister practising on the Original side of this Court. It is no reason to was that such an advocate would incur all the disabilities of a barrister in England just because he cannot appear on the Original Side of the High Court without being instructed by an attorney. Mr. Chatterjee appearing for the first defendant, who is opposite Party No. 1 in this Rule, did not however rely on the English convention as such but referred to Rule 22 of Charter 1 of the Rules of the Calcutta high Court on the Original Side which according to him constitute a bar to this action. Apart from this Rule no other objection to the maintainability of the suit was raised. Apart from this Rule no other objection to the maintainability of the suit was raised. Chapter 1 bears the heading "persons entitled to appear and plead on the Original Side" and rule 22 which was last amended in May 1941 is in these terms: "persons entitled to appear and plead in the Court in the exercise of its original jurisdiction shall, in all respects conform to the practice of, and shall be subject to, the same obligations and Rules of Professional Etiquette whereby Advocates practising on the original Side of the Court prior to the 1st day of July 1928, were governed, so that no such person shall be entitled to act on the Original Side of the High court. Provided that nothing in this chapter shall preclude an Advocate who prior to the 15th day of November, 1940, has been admitted to appear and plead on the Original Side under the provisions of Rules 2 (iii), (iv), (v) or (vi), nor any Advocate who may be admitted after the 15th day of November, 1940, under the provisions of the same Rules as amended, from acting in any jurisdiction other than the Original Jurisdiction of the High Court and on appeal there from". It was contended that this Rule attracted the English rules of professional etiquette disentitling the plaintiff from entering into a contract with either of the two defendants regarding his fees and also from instituting a suit to recover his dues. It was argued that prior to July 1, 1928 persons entitled to appear and plead on the Original Side of this Court were subject to the same rules of professional etiquette as barristers in England. The substance of the argument is that the practice and convention by which barristers in England are governed were made applicable to advocates practising on the Original side of this Court by Rule 22. 6. I am unable to accept this contention. The express purpose of Rule 22 is to debar advocates from acting on the Original Side, Mr. Ranjit Kumar banerjee, learned Advocate for the petitioner submitted that what Rule 22 prescribed was only this that acting on the Original Side was to be the exclusive preserve of attorneys. 6. I am unable to accept this contention. The express purpose of Rule 22 is to debar advocates from acting on the Original Side, Mr. Ranjit Kumar banerjee, learned Advocate for the petitioner submitted that what Rule 22 prescribed was only this that acting on the Original Side was to be the exclusive preserve of attorneys. English Rules of professional etiquette which were supposed to govern the advocates practising on the Original Side prior to July 1, 1928, on which date the provisions of the Indian Bar Councils Act, 1926 relating to admission and enrolment of Advocates came into force so far as the calcutta High Court was concerned, were not set out in any of the editions of the Rules of the High Court at calcutta. The Rules and Order of the high Court of Judicature at Fort william in Bengal, Original Side, edited by J. H. Hechle, Registrar, Original side, published in 1914, provided in rule I of Chapter 2 without any reference to the English rules that "advocates of this Court may appear and plead for parties on either side of the Court, but on the Original Side or in appeals from the Original Side, not unless instructed by an Attorney". Also in the subsequent editions of these Rules, by Maurice Remfry in 1930, and E. C. Ormond in 1940, no attempt was made to enumerate the rules of etiquette. It was argued that prior to July 1, 1928 only the barristers, were entitled to appear and plead as of right on the Original side, that these members of the English bar who were bound by the English rules of professional etiquette were precluded from bringing any action for their fees, and that rule 22 imported this restriction by implication. The general law of this country however permits en advocate to enter into a valid contract with the solicitor or the client concerning appearance in litigation and to recover the fees due by legal action; construed in the manner suggested by mr. Chatterjee, Rule 22 would deprive him of this right. Mr. Banerji for the petitioner submitted that it would be not very reasonable to suppose that the learned Judges of this Court framing these Rules tried to import the rules of english professional etiquette wholesale in such casual manner to take away the legal lights of the advocates. Chatterjee, Rule 22 would deprive him of this right. Mr. Banerji for the petitioner submitted that it would be not very reasonable to suppose that the learned Judges of this Court framing these Rules tried to import the rules of english professional etiquette wholesale in such casual manner to take away the legal lights of the advocates. In this connection I may refer to the following observation of Byles J. in (4) Reg. v. Morris (1867) L. R. 1 C. C. R. 90 (95), quoted with approval by slesser L. J. in (5) Lord Elden v. Hedley Brothers, (1and35) 2 K. B. 1 (24) : "it must be remembered that it is a sound rule to construe a statute in conformity with the common law rather than against it, except where or in so far as the statute is plainly intended to alter the course of the common law". Apart from this principle of construction, if the general reference to the obligations and rules of professional etiquette in the first part of Rule 22 was aimed at importing all the obligations and rules governing the barristers in England, then it was not necessary at all to mention separately the prohibitation as to acting which also is a disability under the English rules if professional etiquette. Reading Rule 22 as a whole, keeping in mind the principle of construction stated above, Mr. Banerjee's contention that reference to the obligations and rules of professional etiquette in Rule 22 must he taken as limited to the rule as to acting which is specifically mentioned, does not seem to be without substance. " There is another and a more obvious reason why Rule 22 cannot be real as a bar to the present action. The rules of the Calcutta High Court in force on its Original Side were framed by the High Court mainly under powers derived from the Letters Patent of 1865 to regulate the procedure and practice of the Court on that side. It is not relevant in this connection to refer to the various other statutes authorizing the High Court to make Rules concerning specific subjects falling under the said Acts. Rule 22 occurs in chapter 1 of the Rules of the High Court at calcutta, Original Side which bears the title 'persons entitled to appear and plead on the Original Side'. It is not relevant in this connection to refer to the various other statutes authorizing the High Court to make Rules concerning specific subjects falling under the said Acts. Rule 22 occurs in chapter 1 of the Rules of the High Court at calcutta, Original Side which bears the title 'persons entitled to appear and plead on the Original Side'. Clauses 9 and 10 of the Letters Patent 1865 grouped together under the heading "admission of Advocates, Vakils and attornies" appear to be the source from which the Court derives its authority to make rules on the subject. Clause 9 empowers the High Court to frame Rules subject to which Advocates and Attornies may plead or act, or plead and act, for suitors on the Original Side of the court. Clause 10 authorises the High court to make rules inter alia for the qualification and admission of proper persons to be Advocates, Vakils and attornies. Clause 37 empowers, the high Court to make Rules and Orders from time to time for the purpose of regulating all proceedings in civil cases. Under section 129 of the Code of Civil procedure also any High Court may make rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its Original jurisdiction. It is clear that the authority of the High Court derived from the letters Patent extends only to making rules regulating its practice and procedure on the Original Side. Taking away the right of advocates to contract for fees or to institute a proceeding to recover the fees would be a measure outside the rule-making powers of the high Court Read in the way suggested by Mr. Chatterjee Rule 22 will thus be beyond the scope of authority delegated by clause 9 of the Letters Patent and as such ultra vires, there being no other law empowering the High Court to make rules taking away the rights of advocates under the general law. I, therefore, hold that the suit is maintainable. 7. THE next question is whether the rate of fees claimed by the plaintiff was settled between the parties. I, therefore, hold that the suit is maintainable. 7. THE next question is whether the rate of fees claimed by the plaintiff was settled between the parties. The trial court found that though neither defendant had agreed to pay at the rate claimed by the plaintiff, the claim was not an unreasonable one having regard to the fact appearing from the record that in the past the plaintiff had been paid at the said rate. It is clear that the plaintiff not having agreed to work gratuitously was entitled to reasonable remuneration and in view of the finding that his claim was not unreasonable, there is no reason why the claim should not be decreed. 8. THE only question that remains to be answered is which of the two defendants is liable to pay. In (6) Re wilton, (1843) 13 L. J. Q. B. 17 (21) it was held that it "follows from the interposition of the solicitor between counsel and client that counsel looks for his fees to the solicitor and not to the client". It is also apparent from the correspondence between the parties and the other evidence on record that the contract was with the first defendant. It does not appear from the written statement of the second defendant or from anything else on record that the second defendant objected to the engagement of the plaintiff as counsel on its behalf. The second defendant is, of course, a proper party but the suit must be decreed only against the first defendant. For the reasons stated above this Rule is made absolute and the impugned decisions are set aside. The case is remitted to the trial court with the direction to pass a decree against the first defendant only for Rs. 618/ -. In the circumstances of the case parties will bear their own costs throughout.