were so rare that agreement would not be improper, they were Courts should not allow such agreements. The gist of the ruling I take to be that such agreement, though not illegal perhaps, was yet improper and should be pro. hibited. was a an an In the matter of an advocate of the Calcutta High Court (1). This of the case Barrister-at-law making agreement to share in the result of litigation. at-law admitted that his conduct had been the only question was one of punishment. question of the legality of such an agreement. The barristerimproper and There was no The Judges held that it was improper for an advocate or pleader to stipulate with his client to share in the result of a litigation. on The Bombay decisions are Shivram Hari v. Arjan (2). This was a suit by a pleader an agreement contingent on success. The Judges directed the suit to be tried, remarking, apparently for the benefit of the Court that was to try the suit, that they considered the claim high and felt no disposition to encourage agreements which gave pleaders a personal interest in the litigation of their clients. Parshram Vaman v. Hiraman Fatu (3). The decision was similar to above, it was held that suits on such agreements lay, and that the suits should be decided according to their peculiar circumstances. In re Bhandara (4). The advocate in this case had misconducted himself in other matters, and in punishing him for those matters the learned Chief Justice recorded his opinion as follows: "I consider that for an advocate of this Court to "stipulate for or receive a remuneration proportioned to the "results of litigation, or a claim, or otherwise, is highly "reprehensible, and I think it should be clearly understood, "that whether his practice be here or in the mofussil, he "will by so acting offend the rules of his profession and "so render himself liable to the disciplinary jurisdiction of this "Court." (1) 4 Cal., W. N. Civ. (3) I. L. R., VIII Bom,, 413. The only Madras decision quoted is Acham Param Nath v. Ganty (1); this quotes a circular of the Sadar Adalat of 1853 prohibiting pleaders from making contracts for professional remuneration contingent on the success of the suit and held that a pleader could not enforce such contract. As regards the Allahabad High Court Sir M. Plowden on p. 51 of Beechey v. Faiz Muhamad (2), refers to two Allahabad authorities as showing that they did not hold that such agreements were illegal. Before us copies of certificates required to be filed by legal practitioners in that Court have been produced. These show that the legal practitioners must certify that they have not taken and will not take any fee contingent on the success of the case. There is therefore no authority that such agreements are illegal. The meaning of "opposed to public policy "in Section. 23 of the Contract Act is discussed at p. 110 of Pollock's "Indian Contract Act" and the authorities there quoted show that the tendency is against the extension of the doctrine of "against public policy." Though authority is wanting, I am disposed to think are opposed to that the agreements now under discussion public policy and therefore void, but it is not necessary to the subject with reference to my finding on finding on the second of my propositions stated above, namely: come to a Whether, though the agreement is not illegal, yet it "is so undesirable that it should be taken notice of and "treated as improper." We start with the fact that the Punjab is, probably, the only place in India where such agreements are declared by authority to be permissible and where the execution of such agreements is common. They are not permitted in England and we have seen that they are prohibited in disapproved of in Calcutta and Madras and Allahabad, and 2nd Jany 1907. and what is forbidden to they are forbidden to barristers Whether as a matter of fact such agreements have induced legal practitioners to misconduct themselves or not, it cannot be denied that their tendency is to induce them to resort to improper means in order to win their cases, and such influences are especially strong with the worst class of legal practitioners. It seems to me desirable to exalt the standard of the highly honourable body of legal practitioners, and place them above both suspicion and temptation. The Punjab is progressing rapidly, and the time when special laws and procedures were necessary owing to its backward state has or is departing, and it seems to me that in this matter the time has come when the same view of such agreements should be taken in the Punjab as is taken in other parts of the British dominion. I would, therefore, hold that agreements between legal practitioners and their clients, whereby the payment of the former is contingent on the success of the litigation, are improper, and that legal practitioners entering into such agreements should from henceforth be considered to be guilty of grossly improper conduct. in the discharge of their professional duty. REID, J.-The question referred to the Full Bench is whether an understanding or agreement between counsel and client that the "back fee was to be deposited with counsel before appearance in Court by him in support of an appeal is or is not opposed to public policy and to the traditions of the Bar to which counsel, who was enrolled as an advocate of this Court as a member of the English Bar, belongs. The "back fee" is a fee to be paid to counsel in the event of success, and usually deposited with him on condition that he shall return it to the client in the event of failure in the suit, appeal or proceeding. The "back fee" practice prevails in this Province, and a Full Bench of this Court held, in Beechey v. Faiz Muhammad (1), that an agreement between a pleader of the Court and his client, regarding the pleader's remuneration for professional services in conducting a legal proceeding for the client in Court, which stipulated for payment to the pleader, in addition to a (1) 5 P. R., 1878, F. B. sum to be paid in advance, of a further sum conditional upon success, was not void as being opposed to public policy merely by reason of containing such a stipulation. The legality and propriety of the practice was further recognised in Muhammad Bakhsh v. Morton und another (1), in which it was held that counsel, with whom a "back fee" had been deposited, could be sued as a stake-holder for return of the "back fee" on failure of the suit in which counsel had been retained. The reference to the Full Bench deals only with the case of counsel but at the hearing the legality and propriety of the "back fee" practice in the case of pleaders was argued with permission and an attempt was made to distinguish between the two cases. The practice prevails in contentions proceedings only, and it is unnecessary to consider cases in which an ad valorem fee is to be paid for professional services in non-contentious proceedings. The authorities cited at the Bar and in point are (1) Beechey v. Faiz Muhammad, cited above, in which the practice was supported as being in harmony with the ideas of suitors as a body as to what is the most suitable and advantageous kind of agreement to enter into with their pleaders. The following passage from the judgment of their Lordships of the Privy. Conncil in Ram Coomar Coondoo v. Chunder Canto Mookerjee (*), at page 257 of the report was cited :-" Their Lordships think. "it may properly be inferred from the decisions above referred "to, and especially those of this tribunal, that a fair agreement "to supply funds to carry on a suit in consideration of having a "share of the property, if recovered, ought not to be regarded as per se opposed to public policy." In the case before their Lordships one Mookerjee had been appointed attorney agent and mukhtar by certain McQueens to institute and prosecute the necessary proceedings for the recovery of their property, on condition of repaying himself all advances with interest out of the property recovered and retaining for himself, in consideration of his trouble and risk, one-third of the clear net profits of the litigation. The successful defendants sued Mookerji for costs incurred by them, and the decree dismissing their suit was maintained by their Lordships on the ground that, in the absence of circumstances to convert the prosecution of the McQueen's suit into a wrong, the suit again t Mookerji could not be maintained. The judgment did not deal with the question of Mookerjee being, and it does not appear from the report that he was, a legal practitioner. The authority is therefore not directly in point and was apparently cited as indicating the "cautious manner in which " questions of the validity or "invalidity of agreements connected with litigation in their "relation to the requirements of public policy" should be treated. There is obviously a very marked distinction between permitting maintenance by a layman and permitting maintenance by an advocate or pleader who appears in the proceeding. The only authority of a chartered High Court cited in the judgment which in any way supported the conclu sion arrived at is Ranee Usmat Koowar v. W. Tayler (1), which did not deal with the validity of the contract between pleader and client for conditional remuneration. (2). Muhamad Bakhsh v. Morton (2), above cited, in which it was held that a suit by an unsuccessful client to recover from his counsel a "back fee" deposited with the latter would lie, counsel being a stake-holder and no question of the privilege of counsel arising. (3). Grey v. Diwan Lachman Das (3), in which a majority of 3 to 2 Judges held that counsel, a member of the English Bar and an advocate of the Court, could not sue for fees. No question of "back fee" arose. (4). Shircore v. Queen-Empress (*), in which a majority held that there was no difference between an ordinary fee and a back fee in respect of immunity from stamping a receipt for fees, Muhammad Bakhsh v. Morton (2), was expressly dissented from by Frizelle, J., and myself. (5). Sobha Singh v. Lorinda Mal (5), and Jai Narain v. Sultan Muhammad Khan (6), which followed the rule that when parties competent to contract have entered into a contract, neither should be allowed to avoid it except on a clear finding that the terms thereof contravened a positive rule of law. (6). In the matter of a pleader of the Chief Caurt of the Punjab (), in which it was held that the conduct of a pleader of the Court who contracted to conduct certain cases for a client on the condition of receiving a share of the proceeds of the litigation, was grossly improper within the meaning of Section 13 of the Legal Practitioners Act. (1) 2 W. R., 307. (") 194 P. R., 1883. (*) 15 P. R., Cr., 1897, F. B. (5) 99 P. R., 1901. (") 96 P. R., 1902. (') 69 P. R., 1904. |