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1985 DIGILAW 354 (KER)

STATE BANK OF TRAVANCORE v. SREEPATHY BHAT

1985-11-08

THOMAS

body1985
Judgment :- 1. Whether an advocate is entitled to the full fees prescribed in a case where the suit is decreed pursuant to the withdrawal of the contentions of the defendants, after the settlement of issues in that suit? This is the question raised in this revision. 2. The facts:-In a suit filed by the State Bank of Travancore for a sum of more than a lakh of rupees, the defendants had filed written statements raising different contentions. Issues were settled in the suit and the case was posted for trial. Since the defendants had withdrawn their contentions, the suit was decreed on 1-8-1977 "as prayed for with costs". When the decree was prepared, the full fees payable to the plaintiff's advocate (including the fees for the junior advocate) has been included in the costs portion. The defendants thereupon filed a petition for amendment of the decree as per S.151 & 152 of the Civil Procedure Code. The court allowed that petition with a one word order which was set aside by this court and directed the trial court to pass a speaking order. After the remand, the trial court has passed a considered order allowing the application for amendment of the decree, holding that the advocate is entitled only to one half of the fees prescribed by the Rules. 3. The High Court of Kerala has framed the Rules in 1969 regarding the fees allowable to legal practitioners (hereinafter referred to as the Advocate's Fees Rules). R.6 deals with certain categories of suits which include suits for money and a scale is prescribed regarding the fees payable to the advocate. Sub-Rule (2) therein lays down different slabs for calculating the fees. A proviso to the said sub-rule is the relevant part which requires interpretation now. It reads as follows: 'Provided that when a suit is compromised, settled or withdrawn, or is decided solely on the admission of the parties without any investigation, or is decided ex-parte or dismissed for default before any evidence is recorded, the fee payable shall be one half of the scheduled rate or Rs.25/- in the case of Small Cause Suits and Rs.50/- in the case of Original Suits, whichever is higher". 4. 4. The learned counsel for the plaintiff contends that the reduction of the fees to one half is permissible only in a case where the decision is made on admission of the parties without any investigation, and that in the settlement of issues, the process of investigation is also involved. He drew my attention to the analogous provision in the Rules framed under the Travancore-Cochin Bar Council Act relating to the fees payable to the advocates in the erstwhile Travancore-Cochin area. Under the said Rules, the advocate was entitled to his full prescribed fees when the suit is decided on merit after contest "or is compromised subsequent to the framing of issues". On the strength of that, it is contended that the process of framing of issues was taken as an act involving some enquiries or investigation towards the adjudication of the disputes. If so, why the framers of the present Rules have not incorporated the same wordings in the Advocate's Fees Rules? These rules have been framed "in supersession of all existing rules in the matter". Thus the Travancore-Cochin Rules have also been superseded providing different criteria and dimensions. 5. The learned counsel has contended that the framers of the rules had taken into account the fact that the advocate concerned will have to do some work at the time of settlement of issues and therefore the passing through of any stage in the suit subsequent to the pleadings would entitle the advocate to the full fees prescribed. But a reading of the above proviso would clearly show that the framers of the rules did not propose to go to that extent, e.g., when a suit is compromised, whether the compromise is after the settlement of issues or even after the taking of full evidence in the case or in an extreme case, even after the hearing of the arguments, then the advocate is entitled only to one half of the full fees prescribed. Similarly if a case is decided ex-parte, which can happen even after the stage of settlement of issues, then also the advocate is entitled only to one half of the full fees prescribed. But an advocate is, however, entitled to get his full fees, even if the defendants admit the plaint claim, provided of course there takes place some investigation in the suit. 6. But an advocate is, however, entitled to get his full fees, even if the defendants admit the plaint claim, provided of course there takes place some investigation in the suit. 6. What is meant by "without any investigation" as worded in the proviso to R.6(2)? According to Chambers' "20th Century Dictionary of the English Language", investigation means to search into, to enquire into with care and accuracy, to research, to study. That word according to Concise Oxford Dictionary, means to examine or to enquire into. From the above dictionary meanings for the word investigation, it is to be understood that what is intended by the framers of the Rules is that an enquiry, or atleast some portion of an enquiry should have been made into some questions. Order XIV of the Code of Civil Procedure provides for the settlement of issues. R.1 thereof says that "issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other". At the first hearing of the suit, the court shall, after reading the pleadings, frame the issues on which the right decision of the case appears to depend. In the process of framing the issues, the role of the advocates comes in when the court ascertains from them as to what material proposition of fact or law, the parties are at variance. Order XV R.1 says that "where at the hearing of a suit it appears that the parties are not at issue, the Court may at once pronounce judgment". The said Rule indicates that even at the first hearing of the suit itself, the court can pronounce a judgment, if it appears from the pleadings that the parties are not at issue. In other words, it means that there is admission of the material averments of the plaint. If on a perusal of the written statement it is found that the defendants have admitted the plaint claim, it follows that the parties are not at issue and then the court is entitled to pronounce judgment. Investigation, therefore, actually commences after the issues are settled, because investigation need be directed only for the determination of those issues. The framing of the issues is intended to aid the court to decide as to which are the points that require investigation. Investigation, therefore, actually commences after the issues are settled, because investigation need be directed only for the determination of those issues. The framing of the issues is intended to aid the court to decide as to which are the points that require investigation. Looking at from this angle, I am of the view that the stage for the investigation contemplated in the said proviso to R.6 (2) does commence only after the framing of the issues. Therefore, when the suit has been decided on admission of the defendant after the settlement of issues and before any other enquiry is made, the advocate concerned is entitled only to one half of the full fees prescribed in the Rules. In view of the above conclusion, there is no need to interfere with the impugned order. Accordingly this revision is dismissed. No costs. Dismissed.