A. Krishna Rao Vs. State of Orissa - Court Judgment

Mohapatra, J.

1. This petition has been filed by Sri A. Krishna Rao, a pleader practising in the Court of the District Judge of Cuttack, who was the opposite party in -- 'State of Orissa v. A. Krishna Rao', AIR 1955 Ori 46 (A) which was disposed of bya Special Beach of this Court the Judgment being dated 29-4-1954. That was a reference made by the District Judge of Cuttack under 3. 14, Legal Practitioners Act, in a proceeding against the, pleader, Sri A. Krishna Rao, for having committed an act which was grossly improper in the discharge of his professional duty,

In the judgment D/- 29-4-1954, the Special Bench found the pleader clearly guilty of gross misconduct in the discharge of his professional duty and, as such, he is liable to disciplinary action under the Legal Practitioners Act. But on account of the reason that the pleader is an inexperienced junior lawyer an order of reprimand was thought adequate to meet the ends of justice. The Special Bench, however, ordered the pleader to pay the costs of the reference and assessed the hearing fee at Rs. 100/-. It is against this order for payment of cost the present petition has been filed by Mr. Mohanty on behalf of the pleader.

2. Mr. Mohanty strenuously contends that the order for costs is without jurisdiction as there is no such power given to the Court under the provisions of the Legal Practitioners Act. The proceeding was started under Section 13 of the Act for professional misconduct of pleader and order was passed under Section 14 of the Act. According to Mr. Mohanty, the powers of the Court are confined, to pass an order 'to acquit, suspend or dismiss' the pleader or muktear as contained in Section 14 of the Act. He further argues that the statutory provisions conferring powers to award costs are contained in Section 35, Civil P. C.; but the proceedings under the Legal Practitioners Act being quasi criminal, the Civil Procedure Code has no application and the Court could not pass an order for costs in exercise of its powers under Section 35, Civil P. C.

3. Apart from the provisions of Section 35 of the Code the High Court has wide discretion in exercise of its inherent powers to award costs in suitable cases, if it finds it necessary in the interest of Justice to do so. Without discussing the matter any further, we may observe the matter is covered by the best authority on the point that is, a decision of their Lordships of the Privy Council in the case of -- 'A pleader of Agra v. Judges of the Allahabad High Court', AIR 1930 PC 60 (B).

In that case the pleader who was the Standing Counsel for the Agra United Mills Limited, for 6 years, was guilty of gross misconduct in having accepted a brief for the plaintiffs debenture-holders and filed the suit on 14-5-27 against the aforesaid company. The High Court of Allahabad suspended him from practising for 4 years and further passed an order that the legal practitioner must pay costs of Rs. 1100/-. Their Lordships of the Privy Council modified the order' of suspension passed by the Allahabad High Court for 4 years to the effect that the order of suspension which was to commence from 23-1-1928 is to cease on 22-11-1929. But their Lordships of the Privy Council' made it clear 'but without any variation in that order so far as it relates to costs'.

It appears manifest that the order for costs passed by the Allahabad High Court was confirmed by their Lordships of the Privy Council as being within their jurisdiction and a contrary contention was never taken before their Lordships even though a very eminent counsel like A.M. Dunne was appearing on behalf of the appellant legal practitioner in the case. This decision was cited before a Special Bench of the Madras High Court consisting of Leach C. J., Lakshmana Rao and Krishnaswami Ayyangar JJ. In the case reported in 'A Pleader, in the matter of', AIR 1943 Mad 250 (SB) (C) in support of the contention that the High Court has power to award costs in a proceeding under the Legal Practitioners Act. This very point arose for determination in the case, as it appears from the very first sentence of the judgment of Leach C. J. :

'This question raises the question whether the Court has power to award costs against a pleader charging him with professional misconduct'.

The judgment of the Allahabad High Court does not appear in the report published in 'AIR 1930 PC 60 (B)'. But a copy of the judgment of the Allahabad High Court was obtained and placed before their Lordships of the Madras High Court. Their Lordships, respectfully following the decision of the Privy Council laid down the proposition in unambiguous terms that in a proceeding under Sections 14 and 15 of the Legal Practitioners Act, a subordinate Court has no power to award costs, but the High Court can, if it deems it just, itself pass an order for the payment of costs. The case before the Madras High Court was one under Section 15 of the Act and their Lordships observed that when the High Court has power to award costs under Section 14 of the Act as is transparent from the judgment of their Lordships of the Privy Council, it must also have power to make an order lor costs in a case under Section 15 of the Act. There is also another decision of the Madras High Court reported in -- 'Venkata Rao v. Motiram', AIR 1815 Mad 400 (1) (D) where Kumaraswamy Bastri J. observed:

'A District Judge has no power to award costs in a matter referred by him to the High Court under the Legal Practitioners Act. The High Court alone in disposing of the reference has power to award costs Incurred even in the proceedings before the District Judge.'

4. Mr. Mohanty, however, relies upon a Full Bench decision of the Allahabad High Court reported in -- 'Shantha Nand v. Basudevanand', AIR 1930 All 225 (FB) (E) in support of his contention. To our mind, this decision has absolutely no application to the pertinent question before us. In the Allahabad High Court the question arose whether in a case heard by the Court, when the Court finds an application to be frivolous, whether it has power to award costs against the advocate personally. Their Lordships found that to award costs against the advocate personally would tantamount to inflicting a punishment on the advocate which can be done only in accordance with the provisions of the Legal Practitioners Act, or the Bar Councils Act. Without starting proceedings under the L.P. Act or the Bar Councils Act, this Court cannot exercise its inherent power to penalise a legal practitioner. This proposition has nothing to do with the questionbefore us that whether, on the termination of the proceedings under the L. P. Act, if the Court finds the legal practitioner guilty, it has power to award costs.

5. On a consideration of the above features, and particularly relying upon the decision of their Lordships of the Privy Council, we are definitely of the view that the order for costs was not without Jurisdiction. We may observe further that when the State of Orissa was a party to the reference and we had had the advantage of hearing the Advocate General in the reference, the order for costs cannot be taken to be improper as well.

6. in conclusion the petition fails and is dismissed with costs. Hearing fee of this petition is assessed at fifty rupees (Rs. 50/-).

Panigrahi, C.J.

7. I agree.

8. Mr. Mohanty contended that no costs should have been awarded to the Advocate-General who appeared lor the State in the proceedings. It was urged that the Crown in England neither pays, nor receives, costs from litigants, and that rule should be applied to cases where the State is made a party. It is true that the general rule is that the Crown neither receives nor pays costs except when that is provided for by some statute or under exceptional circumstances. In --, 'Johnson v. King', 1904 AC 817 (F) the headnote reads thus:

'In future the Board will adhere to the practice of the House of Lords and the rule as to costs in a case between the Crown and the subject will be that the Crown neither pays nor receives costs, unless the case is governed by some local statute or there are exceptional circumstances justifying a departure from the ordinary rule.'

See also -- 'Vaithinatha Pillai v. King Emperor', 18 Cal LJ 365 (PC) (G), where a claim for costs against the Crown in a criminal appeal was disallowed by the Judicial Committee. But in another case reported in -- 'Louis Edouard Lanier v. The King', 26 Mad LJ 1 (PC) (H) the Judicial Committee in a criminal appeal allowed costs against the Crown and observed thus:

'Looking to the exceptional nature of the case the Crown will pay to the appellant the costs of the appeal'.

Whatever may be the rule in regard to Criminal cases, the Civil Procedure Code makes provision for the execution of a decree by and against Government in Section 82. The English rule therefore can have no application to proceedings where the State is made party in India. But though the Sovereign by reason of his prerogative does not pay costs to a subject and does not receive them as it is beneath his dignity, there are Instances in the practice of English Courts, in which the Attorney-General generally receives costs such as in proceedings relating to charities. The Advocate-General similarly receives costs in cases relating to trusts and is entitled to be remunerated for representing the State in these proceedings.

This argument also cannot stand as it is a contract between him & the State and a third party cannot take advantage of the peculiar arrangement between Govt. & their employee-See -- 'Azimullah Saheb v. Secy. of State', 15 Mad 405 (I), decided by Wilkinson J. and the appellate judgment of a Division Bench reported in --'Mohd. Alim Oollah v. Secy, of State', 17 Mad 162 (J), where their Lordships observed as follows, following, 'Raymond v. Lakeman', (1865) 34 Beay 584 (K):

'Assuming, however, that the arrangement is that he should receive a salary and, in addition, the costs recoverable from third parties in these cases in which costs are awarded to Government, we are unable to see how that arrangement can affect a third party who is condemned in costs. The arrangement does not appear to be contrary to public policy and there is no Act under which it is made Illegal'.

There are rules framed by the Government regulating the relations between the Advocate-General and the State. The Advocate-General receives a certain fee for his attendance in Court besides the monthly retainer fixed by the State. There is nothing illegal or opposed to public policy in such an arrangement. But it is unnecessary to consider that question. The only question here is whether the Advocate General who appeared not only for the state but also as the representative of the legal profession, should be denied his fees and out-fees merely because he appeared for the State. I see no reason why such a course should be adopted.

P.V.B. Rao, J.

9. I agree.