R.D. Saxena v.

Balram Prasad Sharma

(2000) 7 SCC 264

K.T. THOMAS, J. (for himself and Sethi, J.) The main issue posed in this appeal has sequential
importance for members of the legal profession. The issue is this: has the advocate a lien for his
fees on the litigation papers entrusted to him by his client? In this case the Bar Council of India,
without deciding the above crucial issue, has chosen to impose punishment on a delinquent
advocate debarring him from practising for a period of 18 months and a fine of Rs 1000. The
advocate concerned was further directed to return all the case bundles which he got from his
respondent client without any delay. This appeal is filed by the said advocate under Section 38 of
the Advocates Act, 1961.

The appellant, now a septuagenarian, has been practising as an advocate mostly in the courts at
Bhopal, after enrolling himself as a legal practitioner with the State Bar Council of Madhya
Pradesh. According to him, he was appointed as legal advisor to Madhya Pradesh State Cooperative
Bank Ltd. (“the Bank” for short) in 1990 and the Bank continued to retain him in that capacity
during the succeeding years. He was also engaged by the said Bank to conduct cases in which the
Bank was a party. However, the said retainership did not last long. On 17-7-1993 the Bank
terminated the retainership of the appellant and requested him to return all the case files relating to
the Bank. Instead of returning the files the appellant forwarded a consolidated bill to the Bank
showing an amount of Rs 97,100 as the balance payable by the Bank towards the legal
remuneration to which he is entitled. He informed the Bank that the files would be returned only
after settling his dues.
3. Correspondence went on between the appellant and the Bank regarding the amount, if any,
payable to the appellant as the balance due to him. The respondent Bank disclaimed any liability
outstanding from them to the appellant. The dispute remained unresolved and the case bundles
never passed from the appellant’s hands. As the cases were pending the Bank was anxious to have
the files for continuing the proceedings before the courts/tribunals concerned. At the same time the
Bank was not disposed to capitulate to the terms dictated by the appellant which they regarded as
grossly unreasonable. A complaint was hence filed by the Managing Director of the Bank, before
the State Bar Council (Madhya Pradesh) on 3-2-1994. It was alleged in the complaint that the
appellant is guilty of professional misconduct by not returning the files to his client.
4. In the reply which the appellant submitted before the Bar Council he admitted that the files
were not returned but claimed that he has a right to retain such files by exercising his right of lien
and offered to return the files as soon as payment is made to him.
5. The complaint was then forwarded to the Disciplinary Committee of the District Bar Council.
The State Bar Council failed to dispose of the complaint even after the expiry of one year. So under
Section 36-B of the Advocates Act the proceedings stood transferred to the Bar Council of India.
After holding inquiry the Disciplinary Committee of the Bar Council of India reached the
conclusion that the appellant is guilty of professional misconduct. The Disciplinary Committee has
stated the following in the impugned order:
“On the basis of the complaint as well as the documents available on record we are of
the opinion that the respondent is guilty of professional misconduct and thereby he is liable
for punishment. The complainant is a public institution. It was the duty of the respondent to
return the briefs to the Bank and also to appear before the Committee to revert his
allegations made in application dated 8-11-1995. No such attempt was made by him.”

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 6. In this appeal learned counsel for the appellant contended that the failure of the Bar Council
of India to consider the singular defence set up by the appellant i.e. he has a lien over the files for
his unpaid fees due to him, has resulted in miscarriage of justice. The Bank contended that there
was no fee payable to the appellant and the amount shown by him was on account of inflating the
fees. Alternatively, the respondent contended that an advocate cannot retain the files after the client
terminated his engagement and that there is no lien on such files.
7. We would first examine whether an advocate has lien on the files entrusted to him by the
client. Learned counsel for the appellant endeavoured to base his contention on Section 171 of the
Indian Contract Act which reads thus:
“171. Bankers, factors, wharfingers, attorneys of a High Court and policy-brokers may,
in the absence of a contract to the contrary, retain as a security for a general balance of
account, any goods bailed to them; but no other persons have a right to retain, as a security
for such balance, goods bailed to them, unless there is an express contract to that effect.”
8. Files containing copies of the records (perhaps some original documents also) cannot be
equated with the “goods” referred to in the section. The advocate keeping the files cannot amount to
“goods bailed”. The word “bailment” is defined in Section 148 of the Contract Act as the delivery
of goods by one person to another for some purpose, upon a contract that they shall be returned or
otherwise disposed of according to the directions of the person delivering them, when the purpose is
accomplished. In the case of litigation papers in the hands of the advocate there is neither delivery
of goods nor any contract that they shall be returned or otherwise disposed of. That apart, the word
“goods” mentioned in Section 171 is to be understood in the sense in which that word is defined in
the Sale of Goods Act.
9. Thus understood “goods” to fall within the purview of Section 171 of the Contract Act
should have marketability and the person to whom they are bailed should be in a position to dispose
of them in consideration of money. In other words the goods referred to in Section 171 of the
Contract Act are saleable goods. There is no scope for converting the case files into money, nor can
they be sold to any third party. Hence, the reliance placed on Section 171 of the Contract Act has no
merit.
10. In England the solicitor had a right to retain any deed, paper or chattel which had come into
his possession during the course of his employment. It was the position in common law and it was
later recognized as the solicitor’s right under the Solicitors Act, 1860.
12. After independence the position would have continued until the enactment of the Advocates
Act, 1961 which has repealed a host of enactments including the Indian Bar Council Act. When the
new Bar Council of India came into existence it framed rules called the Bar Council of India Rules
as empowered by the Advocates Act. Such Rules contain provisions specifically prohibiting an
advocate from adjusting the fees payable to him by a client against his own personal liability to the
client. As a rule an advocate shall not do anything whereby he abuses or takes advantage of the
confidence reposed in him by his client (vide Rule 24). In this context a reference can be made to
Rules 28 and 29.
13. Thus, even after providing a right for an advocate to deduct the fees out of any money of the
client remaining in his hand at the termination of the proceeding for which the advocate was
engaged, it is important to notice that no lien is provided on the litigation files kept with him. In the
conditions prevailing in India with lots of illiterate people among the litigant public it may not be
advisable also to permit the counsel to retain the case bundle for the fees claimed by him. Any such
lien if permitted would become susceptible to great abuses and exploitation.

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 14. There is yet another reason which dissuades us from giving approval to any such lien. We
are sure that nobody would dispute the proposition that the cause in a court/tribunal is far more
important for all concerned than the right of the legal practitioner for his remuneration in respect of
the services rendered for espousing the cause on behalf of the litigant. If a need arises for the
litigant to change his counsel pendente lite, that which is more important should have its even
course flow unimpeded. Retention of records for the unpaid remuneration of the advocate would
impede such course and the cause pending judicial disposal would be badly impaired. If a medical
practitioner is allowed a legal right to withhold the papers relating to the treatment of his patient
which he thus far administered to him for securing the unpaid bill, that would lead to dangerous
consequences for the uncured patient who is wanting to change his doctor. Perhaps the said
illustration may be an overstatement as a necessary corollary for approving the lien claimed by the
legal practitioner. Yet the illustration is not too far-fetched. No professional can be given the right
to withhold the returnable records relating to the work done by him with his client’s matter on the
strength of any claim for unpaid remuneration. The alternative is that the professional concerned
can resort to other legal remedies for such unpaid remuneration.
15. A litigant must have the freedom to change his advocate when he feels that the advocate
engaged by him is not capable of espousing his cause efficiently or that his conduct is prejudicial to
the interest involved in the lis, or for any other reason. For whatever reason, if a client does not
want to continue the engagement of a particular advocate it would be a professional requirement
consistent with the dignity of the profession that he should return the brief to the client. It is time to
hold that such obligation is not only a legal duty but a moral imperative.
16. In civil cases, the appointment of an advocate by a party would be deemed to be in force
until it is determined with the leave of the court [vide Order 3 Rule 4(1) of the Code of Civil
Procedure]. In criminal cases, every person accused of an offence has the right to consult and be
defended by a legal practitioner of his choice which is now made a fundamental right under Article
22(1) of the Constitution. The said right is absolute in itself and it does not depend on other laws.
The words “of his choice” in Article 22(1) indicate that the right of the accused to change an
advocate whom he once engaged in the same case, cannot be whittled down by that advocate by
withholding the case bundle on the premise that he has to get the fees for the services already
rendered to the client.

17. If a party terminates the engagement of an advocate before the culmination of the
proceedings that party must have the entire file with him to engage another advocate. But if the
advocate who is changed midway adopts the stand that he would not return the file until the fees
claimed by him are paid, the situation perhaps may turn to dangerous proportions. There may be
cases when a party has no resources to pay the huge amount claimed by the advocate as his
remuneration. A party in a litigation may have a version that he has already paid the legitimate fee
to the advocate. At any rate if the litigation is pending the party has the right to get the papers from
the advocate whom he has changed so that the new counsel can be briefed by him effectively. In
either case it is impermissible for the erstwhile counsel to retain the case bundle on the premise that
fees were yet to be paid.

18. Even if there is no lien on the litigation papers of his client an advocate is not without
remedies to realise the fee which he is legitimately entitled to. But if he has a duty to return the files
to his client on being discharged the litigant too has a right to have the files returned to him, more
so when the remaining part of the lis has to be fought in the court. This right of the litigant is to be
read as the corresponding counterpart of the professional duty of the advocate.

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 19. Misconduct envisaged in Section 35 of the Advocates Act is not defined. The section uses
the expression “misconduct, professional or otherwise”. The word “misconduct” is a relative term.
It has to be considered with reference to the subject-matter and the context wherein such term
occurs. It literally means wrong conduct or improper conduct.
20.Corpus Juris Secundum contains the following passage at p.740 (Vol. 7):
“Professional misconduct may consist in betraying the confidence of a client, in
attempting by any means to practise a fraud or impose on or deceive the court or the
adverse party or his counsel, and in fact in any conduct which tends to bring reproach on
the legal profession or to alienate the favourable opinion which the public should entertain
concerning it.”
23. We, therefore, hold that the refusal to return the files to the client when he demanded
the same amounted to misconduct under Section 35 of the Act. Hence, the appellant in the
present case is liable to punishment for such misconduct.

24. However, regarding the quantum of punishment we are disposed to take into account
two broad aspects:
(1) This Court has not pronounced, so far, on the question whether the advocate has a
lien on the files for his fees.

(2) The appellant would have bona fide believed, in the light of decisions of certain
High Courts, that he did have a lien.
In such circumstances it is not necessary to inflict a harsh punishment on the appellant. A
reprimand would be sufficient in the interest of justice on the special facts of this case.

25. We, therefore, alter the punishment to one of reprimanding the appellant. However, we
make it clear that if any advocate commits this type of professional misconduct in future he would
be liable to such quantum of punishment as the Bar Council will determine and the lesser
punishment imposed now need not be counted as a precedent.

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