THE HIGH COURT OF SIKKIM: GANGTOK
(Civil Appellate Jurisdiction)
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SINGLE BENCH: HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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R. F. A. No. 01 of 2021
Ms. Dinku Khati,
D/o Late Tek Bahadur Khati,
R/o Utpal Nagar, Road No.4,
Siliguri - 734003, P.O: Anchal,
P. S: Pradhan Nagar, West Bengal
at present C/o. Ms. Shanti Ramudamu,
Near Tathangchen School,
Upper Tathangchen, Gangtok,
East Sikkim.
..... Appellant
Versus
1. Smt. Kamal Kumari Subba,
W/o Ashok Kumar Subba,
R/o 31 A National Highway,
Sisa Golai, Gangtok - 737101,
P.O. Gangtok & P.S. Sadar,
East Sikkim.
2. Shri Ashok Kumar Subba (Tsong),
S/o Late Budh Bir Subba,
R/o 31 A National Highway,
Sisa Golai, Gangtok - 737101,
P.O. Gangtok & P.S. Sadar,
East Sikkim.
..... Respondents
An appeal under Order XLI, Rules 1 and 2 of the Code of Civil
Procedure, 1908.
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Appearance:
Mr. B. K. Gupta, Legal Aid Counsel for the Appellant.
Mr. Vivek Anand Basnett, Advocate for Respondent No.1
Ms. Sashi Rai, Advocate for Respondent No. 2.
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Date of hearing : 16.11.2021
Date of judgment : 20.12.2021
2
R. F. A. No. 01 of 2021
Dinku Khati vs. Kamal Kumari Subba & Anr.
JUDGMENT
Bhaskar Raj Pradhan, J.
1. The present appeal has been filed by the appellant
(plaintiff) assailing the impugned judgment dated 23.10.2020
passed in Money Suit No. 09/2016 and the decree thereon
thereby awarding her Rs.4,30,000/- only to the plaintiff although
she had claimed a sum of Rs.10,75,000/- towards the plaintiff's
professional fees.
2. The plaint was filed in the year 2016 by the plaintiff against
the two respondents who were defendant nos.1 and 2
respectively. The defendants were husband and wife. The plaintiff
was hired by them as their lawyer.
3. According to the plaintiff the defendant no.1 had hired her
services by signing the vakalatnama in her favour to conduct
cases before the Debts Recovery Tribunal, Guwahati (for short
DRT), the Gauhati High Court at Guwahati and the Debts
Appellate Recovery Tribunal, Kolkata (for short DRAT). The
defendant no.2 had been given the power of attorney by
defendant no.1 to engage counsel to conduct the cases before the
forums. The plaintiff asserted that, pursuant thereto, she
appeared and conducted cases before the forums. However,
despite conducting those cases on behalf of the defendants, no
fees were paid to the plaintiff by the defendant no.1. The plaintiff
made several requests but to no avail in spite of assurances. The 3 R. F. A. No. 01 of 2021 Dinku Khati vs. Kamal Kumari Subba & Anr.
plaintiff continued appearing before the DRAT and even settled
the matter out of Court with the bank on their request. When the
plaintiff learnt that the defendant no.1 had instructed another
counsel, she issued a legal notice dated 02.06.2014 demanding a
sum of Rs.7,60,000/- upon the defendant no.1. In paragraph 20
of the plaint, the plaintiff asserted about the various dates she
appeared before the forums, the professional services she
rendered and the fees raised by her totalling to Rs.7,60,000/-.
4. In paragraph 21 the plaintiff asserted that besides the
aforesaid amount she had also rendered other professional
services which were not included in the legal notice totalling to
Rs.3,15,000/-. It was thus her case that the plaintiff was entitled
to a total of Rs.10,75,000/- as her professional fees and
accordingly prayed for the relief.
5. The defendant no.1 filed her written statement. She stated
that she had authorized and empowered the defendant no.2 to
engage counsel to conduct the cases before the forums. As per
her knowledge the case was being conducted by a learned senior
counsel and the plaintiff was working as his junior and assisting
him. The defendant no.1 also stated that the plaintiff was
accompanying the defendant no. 2 wherever and whenever he
used to move around and as such she was misled by the
defendant no.2 regarding the matter before the Gauhati High
Court. With regard to the specific averment about the plaintiff's
appearances before the forums and the professional services 4 R. F. A. No. 01 of 2021 Dinku Khati vs. Kamal Kumari Subba & Anr.
rendered as detailed in paragraph 20 and 21 of the plaint, the
defendant no.1 made a vague denial putting the plaintiff to strict
proof thereof. The defendant no.1 also alleged that the plaintiff
was in collusion with defendant no.2 to extract money from the
defendant no.1.
6. The defendant no.2 while objecting to the suit,
substantially admitted the relevant assertions made by the
plaintiff with regard to her engagement as a lawyer and the
professional services rendered. He admitted that it was after the
assurance of the defendants that the plaintiff started conducting
cases before the forums. While replying to paragraph 20 of the
plaint the defendant no.2 stated that Rs. 5000/- per day as legal
fees besides accommodation had been agreed with the plaintiff.
However, due to financial problems the defendant no.2 could not
pay the travel charges, as well as make payment for her
accommodation and legal fees. The defendant no.2 categorically
admitted that he had carefully gone through the table at
paragraph 20 of the plaint and confirmed that the plaintiff had in
fact appeared and rendered her legal services as mentioned
therein. With reference to the contents of paragraph 21 of the
plaint, the defendant no.2 reiterated the same statement as he
did in reply to paragraph 20 and admitted the claim.
7. The learned Trial Court framed three issues i.e., whether
the defendant no. 1 is liable to pay a sum of Rs.10,75,000/- to 5 R. F. A. No. 01 of 2021 Dinku Khati vs. Kamal Kumari Subba & Anr.
the plaintiff as a legal fees?; whether the suit was barred by
limitation and what was the relief the plaintiff was entitled to.
8. The parties examined only themselves. The evidence on
affidavits of the parties substantially reiterated the averments in
their respective pleadings. During cross-examination the plaintiff
clarified that although the power of attorney did not authorise
the defendant no.2 to appoint her to represent defendant no.1
before the Gauhati High Court, she was subsequently appointed
and also filed a vakalatnama. During cross-examination by the
defendant no.2, the plaintiff admitted that she updated the
defendant no.1 directly about the development of the case and
further both the defendants used to accompany her on the dates
of the case.
9. The defendant no.1 asserted that she had instituted the
suit against the United Bank of India. She asserted that she had
liquidated the loan amount to the bank by the sale of her
property at Sisa Golai to one Bharat Basnett and the defendant
no.2 is a witness to the transaction. She stated that she had not
appointed the plaintiff to represent her but the defendant no.2
had by deceptively obtaining the power of attorney acted on her
behalf.
10. During the cross-examination by the plaintiff, the
defendant no.1 admitted that she was a party before the forums;
that she was introduced to the plaintiff by the defendant no.2 in
the year 2009 as an advocate; that she had not paid any legal 6 R. F. A. No. 01 of 2021 Dinku Khati vs. Kamal Kumari Subba & Anr.
fees to the plaintiff; that she had filed a case in the DRT in the
year 2012 and she had accompanied the defendant no.2 and the
plaintiff to file the case; that the power of attorney was a
registered power of attorney and that she used to accompany the
senior counsel and Mr. B. C. Sharma to Guwahati for hearings;
that she had signed vakalatnama (Exhibit-3); that defendant no.2
had not signed any vakalatnama for conducting the cases before
the forums; that she had not filed any objection against the
plaintiff for appearance before the DRT; that she had no idea that
the plaintiff was appearing before the DRT for her case; and that
she had received the legal notice from the plaintiff but she had
not replied to the same nor paid the plaintiff for her professional
charges.
11. The defendant no.2 asserted that although the 5½ storied
building situated at Sisa Golai is in the name of defendant no.1,
however, the same was purchased by him. He stated that the
plaintiff had been introduced to his family in the year 2009 after
which she had continuously helped him and his family including
defendant no.1 in providing legal assistance. He asserted that
although it was his decision to engage the plaintiff to conduct the
cases in connection with his RCC building before the forums, the
defendant no.1 had agreed and aware as well. He asserted that
the defendant no.1 had already received Rs.1,61,00,000/- from
the buyer for the sale of his property and as such it was the
defendant no.2 who was liable to pay the plaintiff. 7
R. F. A. No. 01 of 2021 Dinku Khati vs. Kamal Kumari Subba & Anr.
12. The defendant no.2 stated that the defendant no.1 had
executed the power of attorney on 28.05.2012 to act on her
behalf and accordingly he had engaged the plaintiff. Although he
had the power of attorney, the vakalatnama was not signed by
him as the defendant no.1 used to be present during the
proceedings. Although the plaintiff had conducted the case before
the forums but her legal fees could not be settled as the
defendant no.1 had taken the entire amount.
13. The defendant no.2, in cross-examination, admitted that
the plaintiff was present for every hearing before the forums.
However, in some of the order sheets her name as well as the
names of other counsel were not reflected; that the defendant
no.1 had signed the vakalatnama in his presence engaging the
plaintiff as counsel; that on 05.02.2013, 20.03.2013,
23.04.2013, 31.05.2013, 05.06.2013 and 30.07.2013 the
plaintiff had appeared before the DRT but her appearance is not
reflected in the order sheets; that the mentioning of the
appearance of a learned counsel in the order sheets is in fact
that of the plaintiff; that on 14.06.2013, 17.06.2013 and
21.06.2013 the plaintiff was present along with other counsel
before DRT; that on 15.07.2013 the defendant no.1 along with
learned senior counsel had boarded a flight to Guwahati and that
the final argument before the DRT was conducted by the learned
senior counsel along with the plaintiff; that the entire chamber
work like drafting and research work used to be done by the 8 R. F. A. No. 01 of 2021 Dinku Khati vs. Kamal Kumari Subba & Anr.
plaintiff; that the plaintiff had helped in arriving at the final
settlement with the bank. He stated that since the entire amount
from sale transaction pertaining to his house situated as Sisa
Golai had been taken by defendant no.1 she is, as such liable to
pay the fees of the plaintiff.
14. The judgment and decree passed by the learned Trial Court
dated 29.10.2018 was set aside by this Court on 30.11.2019 and
the matter remitted for disposal by pronouncing opinion on all
issue according to law since it had non-suited the plaintiff solely
on the ground of limitation. Thereafter, the learned Trial Court
had passed the impugned judgment and decree by which out of
the total amount claimed, an amount of Rs.4,30,000/- was
decreed in favour of the plaintiff with a direction that defendant
no.1 and 2 shall make the payments jointly and equally. The
plaintiff is aggrieved by the non-grant of the remaining legal fees.
15. The learned Trial Court noted that the defendants had
admitted that the plaintiff was engaged by them for rendering
legal assistance and appearing before the forums. The learned
Trial Court examined the claim of the plaintiff for her
appearances as well as other professional services rendered as
detailed in paragraph 20 and 21 of the plaint. The learned Trial
Court disallowed various claims as there was no order
sheets/documentary proof to evidence the plaintiff's appearance
on 08.05.2012, 15.05.2012, 20.03.2013, 31.05.2013,
05.06.2013, 17.06.2013 and 30.07.2013. Further, the learned 9 R. F. A. No. 01 of 2021 Dinku Khati vs. Kamal Kumari Subba & Anr.
Trial Court also disallowed various claims of the plaintiff for her
other professional charges on various other grounds.
Consequently, the plaintiff was granted an amount of
Rs.4,30,000/- as her legal fees and her travel allowance.
16. It is fundamental that an allegation of collusion must be
specifically averred with details and proved. Although it is
apparent that the defendant no.2 admitted to the claim made by
the plaintiff, the evidence led by the defendant no.1 does not
clearly establish the collusion.
17. Mr. B. K. Gupta, learned counsel for the plaintiff took this
Court through the pleadings as well as the evidence and
submitted that the learned Trial Court should have granted the
entire relief and not only a part of the claim. Mr. Vivek Anand
Basnett, learned counsel for the defendant no.1 submitted that
the plaintiff was not entitled to the reliefs prayed for. Ms. Sashi
Rai, learned counsel for the defendant no.2 submitted that the
direction of the learned Trial Court upon the defendant no.2 to
pay half the decretal amount was not correct.
18. Despite the admission by the defendant no.2 the learned
Trial Court, in its wisdom, chose to frame a specific issue as to
whether the defendant no.1 is liable to pay a sum of
Rs.10,75,000/- to the plaintiff as legal fees. Evidently the learned
Trial Court took into consideration the entirety of the pleadings
to frame the issue. Having done so, the learned Trial Court also
examined specifically each of the claim made in paragraph 20 10 R. F. A. No. 01 of 2021 Dinku Khati vs. Kamal Kumari Subba & Anr.
and 21 and chose to allow only those claims for which the
plaintiff had proof. Considering the nature of the pleadings and
the evidence this Court is of the firm opinion that the reasoning
for disallowing some of the claims cannot be faulted although the
defendant no.2 admitted it. When the plaintiff did not seek any
relief against the defendant no.2 in spite of the assertion that she
had been instructed to appear by both the defendants it was
quite convenient for the defendant no.2 to admit to the entire
claim of the plaintiff. The learned Trial Court correctly sought for
proof for each of the claim and having not found it, disallowed
part of it which according to her did not have proof.
19. It was the plaintiff's case that she had made several
requests for payment of her legal fees but the defendant no.1 in
spite of giving assurances did not pay her and assured that she
would pay within a short period with a request to the plaintiff to
continue representing her through defendant no.2. The
defendant no.1 did not deny it specifically but put the plaintiff to
strict proof. The defendant no.2 however, admitted the assertion
of the plaintiff. He further pleaded that the defendants had
decided that on settlement of the case, the legal fees would be
paid. However, during the pendency of the case, the defendant
no.1, without the consent of the defendant no.2, engaged another
counsel resulting in the differences between the plaintiff and the
defendant no.1. The learned Trial Court examined the issue of
limitation and held that the claim made by the plaintiff in 11 R. F. A. No. 01 of 2021 Dinku Khati vs. Kamal Kumari Subba & Anr.
paragraph 20 and 21 of the plaint is well within limitation. The
defendants have not assailed this part of the impugned
judgment.
20. The order sheets of the plaintiff's appearances before the
DRT, the Gauhati High Court, DRAT were exhibited as Exhibit-P-
1, P-2 and P-10 all collectively.
Debts Recovery Tribunal
21. Exhibit-3 is the vakalatnama filed by the plaintiff before the
DRT. It reflects the plaintiff's name as one of the advocates.
Order dated 05.06.2012 (Exhibit-P-1 collectively) of the DRT
reflects that the plaintiff had filed a vakalatnama dated
04.06.2012 along with the petition with a prayer for allowing the
new set of counsel to represent the applicant. The order records
that although the vakalatnama was taken on record the plaintiff
was asked to obtain a no objection certificate from the previous
counsel and submit it on the next date. The order dated
23.07.2012 records that the plaintiff had submitted the no
objection certificate in compliance to the order dated 05.06.2012.
The order dated 17.09.2012 and 18.03.2013 specifically records
the plaintiff's appearances. Thereafter, the subsequent orders
dated 05.02.2013, 20.03.2013 and 31.05.2013 passed by the
Registrar do not reflect the appearance of the plaintiff before the
Registrar but however reflects the appearance of a learned
counsel for the plaintiff. Unless the contrary is proved the 12 R. F. A. No. 01 of 2021 Dinku Khati vs. Kamal Kumari Subba & Anr.
marking of the presence of a learned counsel for the plaintiff
before the Registrar on those days all subsequent to the filing of
the vakalatnama dated 04.06.2012 would also reflect plaintiff's
presence. Although the plaintiff claimed that she had appeared
before the DRT on 14.05.2013 and accordingly, sought for her
professional fees for Rs.25,000/- for that date the records reveal
that she had appeared on 14.06.2013 for which she has not
charged. Consequently, the plaintiff is also entitled to her
professional fees over and above what has been granted by the
learned Trial Court for her appearances and professional services
on 20.03.2013, 23.04.2013, 31.05.2013, 14.06.2013, 30.07.2013
and 05.06.2013 which totals to Rs.1,50,000/-.
The Gauhati High Court
22. In Exhibit-P-2 collectively which are orders of the Gauhati
High Court in the writ petition filed by the defendant no.1, the
name of the plaintiff appears as Advocate on Record for the
petitioner/plaintiff. The claims made by the plaintiff for her
professional services dated 30.06.2014, 01.10.2013, 06.10.2013-
08.10.2013, 22.11.2013, 26.11.2013, 17.12.2013, 16.06.2014,
16.07.2014 and 18.07.2014 have been rightly rejected by the
learned Trial Court as there is no proof.
23. Although the plaintiff has claimed for appearance on
03.09.2012 the order of the Gauhati High Court reflects that she
had appeared on 03.09.2013 instead. As the plaintiff has not 13 R. F. A. No. 01 of 2021 Dinku Khati vs. Kamal Kumari Subba & Anr.
charged for her appearance on 03.09.2013, this Court is of the
opinion that her claim for Rs.25,000/- must be granted.
24. The plaintiff's claim for her appearances on 11.12.2013 and
12.12.2013 for Rs.20,000/- must be granted as the order dated
12.12.2013 passed by the Gauhati High Court does reflect her
appearance.
25. The learned Trial Court has disallowed the plaintiff's claim
for appearance before the Gauhati High Court on 26.11.2013.
However, the order dated 09.09.2013 records that the matter was
scheduled to be listed on 26.11.2013. Therefore, it may not be
correct to disallow the plaintiff's claim for an amount of
Rs.25,000/- for her appearance on 26.11.2013.
26. The learned Trial Court has disallowed the claim of the
plaintiff for preparation of contempt petition and filing it before
the Gauhati High Court on 17.12.2013 for an amount of
Rs.25,000/- on the ground that there is no documentary proof.
The learned Trial Court has also disallowed her further claim of
Rs.20,000/- dated 06.01.2014 for filing of the contempt petition
and FIR before the Gauhati High Court on the ground that it was
not correct as the order of the Gauhati High Court reflected that
it listed the contempt case along with the writ petition after the
Bihu vacation. The order dated 06.01.2014 however, reflects that
in fact a contempt case had been filed by the defendant no.1 and
it was directed to be listed along with the writ petition after the 14 R. F. A. No. 01 of 2021 Dinku Khati vs. Kamal Kumari Subba & Anr.
Bihu vacation. The plaintiff is thus entitled for her professional
fees for the above dates totalling to Rs.45,000/-.
27. Consequently, the plaintiff is further entitled to an
additional amount of Rs.1,15,000/- towards her professional
services rendered before the Gauhati High Court.
Debts Recovery Appellate Tribunal
28. Exhibit-4 is the vakalatnama filed before the DRAT which
also reflects the name of the plaintiff as one of the advocates. The
orders dated 30.06.2014, 16.07.2014 and 18.07.2014 of the
DRAT reflects the plaintiff's absence. The order dated 18.07.2014
also reflects that Mr. Vivek Anand Basnett, learned counsel for
the defendant no.1 had earlier filed an application for
cancellation of the appointment of the plaintiff as the advocate
for defendant no.1. It also reflects that the plaintiff who was then
the advocate for the defendant no.1 had filed an application for
rejection of Mr. Vivek Anand Basnett's application. The orders
dated 13.03.2014, 27.03.2014 and 09.06.2014 do not record the
appearance of the plaintiff. Exhibit-11, however, is a letter dated
04.03.2014 issued by the plaintiff to the United Bank of India
stating that she had filed an appeal on 04.03.2014 before the
DRAT and it would be mentioned on 05.03.2014 before the
Chairperson for fixing a date of hearing. Thus, the plaintiff has
been able to prove her appearance on 04.03.2014 and
05.03.2014 before the DRAT. The plaintiff is thus entitled to an 15 R. F. A. No. 01 of 2021 Dinku Khati vs. Kamal Kumari Subba & Anr.
amount of Rs.23,334/-. The plaintiff's claim for appearance on
29.04.2014 for an amount of Rs.20,000/- should also be granted
as the order records that both the parties were represented. The
plaintiff's claim for her professional fees on 07.03.2014,
13.03.2014, 14.03.2014, 15.03.2014, 18.03.2014 and
27.03.2014 were rightly rejected. Consequently, the plaintiff is
entitled to a further amount of Rs.43,334/- for her professional
services rendered before the DRAT.
29. The learned Trial Court also came to a finding that
although the plaintiff had claimed her legal fees only against the
defendant no.1 but the evidence on record show that defendant
no.2 was equally liable. Thus, the learned Trial Court directed
that the defendant no. 1 and 2 each to pay half the decretal
amount to the plaintiff within six months from the date of the
judgment. Although no appeal has been filed by the defendant
no.2 directing him to share the burden of the decree with the
defendant no.1, Ms. Sashi Rai, learned counsel for the defendant
no.2 submit that the defendant no.2 is aggrieved by the
judgment to that extent as the plaintiff had not even sought the
relief against the defendant no.2.
30. In Bachhaj Nahar vs. Nilima Mandal1 the Supreme Court
held as under:
"23. It is fundamental that in a civil suit, relief to be granted can be only with reference to the prayers made in the pleadings. That apart, in civil suits, grant of relief
1 (2008) 17 SCC 491 16 R. F. A. No. 01 of 2021 Dinku Khati vs. Kamal Kumari Subba & Anr.
is circumscribed by various factors like court fee, limitation, parties to the suits, as also grounds barring relief, like res judicata, estoppels, acquiescence, non- joinder of causes of action or parties, etc., which require pleading and proof. Therefore, it would be hazardous to hold that in a civil suit whatever be the relief that is prayed, the court can on examination of facts grant any relief as it thinks fit. In a suit recovery of rupees one lakh, the court cannot grant a decree for rupees ten lakhs. In a suit for recovery the possession of property „A‟, court cannot grant possession of property „B‟. In a suit praying for permanent injunction, court cannot grant a relief of declaration or possession. The jurisdiction to grant relief in a civil suit necessarily depends on the pleadings, prayer, court fee paid, evidence let in, etc."
31. Thus, it is clear that defendant no.2 could not have been
directed to pay half the decretal amount since neither the
plaintiff had prayed for the relief nor was there an issue framed
for the defendant no.2 to contest and defend. Accordingly, the
direction of the learned Trial Court to the defendant no.2 to pay
half the decretal amount is set aside.
32. The impugned judgment is liable to be modified to the
above extent and the plaintiff is entitled to be paid a further
amount of Rs.3,08,334/- for her professional services by the
defendant no.1 which had been rejected by the learned Trial
Court.
33. The appeal is partly allowed. The impugned judgment is
modified to the above extent. The impugned decree is also
modified and it is directed that the defendant no.1 shall pay an
amount of Rs.7,38,334/- only to the plaintiff as her professional
fees within a period of three months from the date of the
judgment. Decree to be drawn accordingly.
17
R. F. A. No. 01 of 2021 Dinku Khati vs. Kamal Kumari Subba & Anr.
34. The parties shall bear their respective costs.
35. A copy of this Judgment may be transmitted to the learned
Trial Court, for information, along with its records.
( Bhaskar Raj Pradhan )
Judge
Approved for reporting : Yes/No
Internet : Yes/No
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