Full Judgment
(1) This revision petition is directed against the order of the Chief Judge, Small Cause Court, Hyderabad, dated 12-8-1963 in SC No. 597 of 1959. It was a suit instituted by the petitioner herein for the recovery of a sum of Rs. 906-12 nP. (I. G.) as being his fees for the cases in which he appeared on behalf of the respondent as a pleader . The petitioner's claim was that the respondent was a co-brother and was in strained circumstances. He had to institute suits against the Government and others for recovery of certain amounts. He volunteered to appear on his behalf in the said suits on the condition that his legal remuneration would be paid to him after the respondent succeeds in the said suits. Plaintiff has stated that both the suits were decreed as a result of his appearing on behalf of the respondent and, therefore, he was entitled to the remuneration.
The defendant-respondent , on the other hand, while admitting the relationship stated that in view of the close relationship that existed between the parties, the plaintiff-petitioner had agreed to work without charging any fees in both the suits and thus there was a special contract between the parties that the plaintiff would not be entitled to any legal remuneration. It was also stated that, at one stage, another advocate has to be engaged by the respondent to conduct his case and many important documents had not been marked due to the inexperience and inefficiency of the plaintiff-petitioner .
(2) The point for determination before the lower court was whether the plaintiff was entitled to the fees. Evidence was adduced by the respondent to substantiate the contention that there was a specific agreement in regard to the non-payment of the remuneration. The lower court relying on the testimony of the evidence adduced by the defendant held that the plaintiff petitioner had agreed to work gratuitously for the defendant out of natural love and affection and thus there was no question of payment of legal remuneration. He further held that so far as O. S. No. 95/ 1954-55 was concerned the claim was time-barred as the fees has been claimed after lapse of nearly four years and in that view, he dismissed the suit with costs. The revision petition is directed against this order .
(3) The learned counsel for the petitioner with reference to the provisions of section 25 of the Contract Act has urged that the contract pleaded by the respondent was void as being without consideration. Section 25 of the Contract Act reads as under :
'An agreement made without consideration is void, unless
(i) it is expressed in writing and registered under the law for the time being in force for the registration of documents and is made on account of natural love and affection between parties ........................
(4) The contention is that unless there was an express agreement in writing and registered under law, the plea set up by the defendant that the plaintiff had agreed to work without receiving any consideration would not be sustained. The lower court dealing with this aspect has held that it was open to the defendant to take up the above plea in defence as he was not basing his claim on the said agreement. It is to be noted, however, that in the instance case, the plea set up by the defendant was that there was a specific contract between the parties by which the plaintiff had agreed to work without consideration . In fact a contract falling within the purview of section 25 of the Contract Act was pleaded. Normally the plaintiff in his capacity as a pleader would be entitled to his legal fees under the Legal Practitioners Act but for this specific contract. Therefore, to make the contract binding on the plaintiff it was necessary to prove that there was under Section 25 of the Act. In that view I think, the lower court was not justified in overlooking the lacuna in the defence by holding that it was open to the defendant to take up the plea by way of defence.
(5) The learned counsel for the respondent has relied on section 185 of the Contract Act, wherein no consideration is necessary for the creation of an agency. Section 185 reads as under :
'No consideration is necessary to create an agency.'
It is urged therefore that the plaintiff-petitioner had agreed to be agent of the respondent and no consideration was necessary to create the said agency. I do not think, the provisions of section 185 of the Contract Act are attracted in this case. There cannot be any consideration necessary for the creation of the agency but the agent is not precluded on that account from suing the principal if any amount is found due to him towards the agency.
(6) I think, having regard to the circumstances of the case that there was an express plea that the plaintiff- petitioner had agreed to work without accepting the remuneration, the plaintiff could not be deprived of his legal fees once it has been established that he had actually worked and appeared for the respondent in more than one case. I therefore, allow the C. R. P. and decree the claim of the plaintiff to the extent of Rs. 855/- (Rupees eight hundred and fiftyfive only) against the respondent . Having regard to the relationship of the parties, there will be no order as to costs in this court.
(7) Petition allowed.