Sadiq R.H. Vs Usman K.E.

SADIQ R.H. S/O R HAMEED, ADVOCATE, BAR ASSOCIATION, SHIVAMOGA, R/O MADANI CLINIC, SHIVAMOGGA HOSANAGARA MAIN ROAD, RIPPONPETE POST, HOSANAGARA TALUK, SHIVAMOGGA DISTRICT-577418.

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…APPELLANT

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(BY SRI. ABUBACKER SHAFI, ADVOCATE)

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Digitally signed by SHARADAVANI B Location: High Court of Karnataka

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AND:

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USMAN K.E. S/O EBRAHIM SAB, AGED ABOUT 52 YEARS,

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SMT RESHMA @ NASRIN BANU D/O USMAN K E, AGED ABOUT 28 YEARS, BOTH ARE R/O INDIRANAGAR, SHIRNAHALLI ROAD, MEGARAVALLI POST,

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NC: 2025:KHC:37034 RSA No. 1245 of 2020

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HC-KAR

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THIRTHAHALLI TALUK, SHIMOGA DISTRICT.

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…RESPONDENTS

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(BY SRI. PRADEEP H.S, ADVOCATE (ABSENT))

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THIS RSA IS FILED UNDER SEC.100 OF CPC., 1908 AGAINST THE JUDGMENT AND DECREE DATED 21.12.2019 PASSED IN RA NO.13/2018 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS AT THIRTHAHALLI DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 27.03.2018 PASSED IN OS NO.276/2014 ON THE FILE OF THE I ADDL.CIVIL JUDGE AND JMFC., THIRTHAHALLI TRIAL COURT DISMISSED THE SUIT. APPELLATE COURT DISMISSED THE APPEAL. SUIT FOR RECOVERY OF MONEY.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,

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JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE V SRISHANANDA

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ORAL JUDGMENT

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Heard Sri. Abubacker Shafi, learned counsel for the appellant.

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HC-KAR

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Present second appeal is by the plaintiff. Facts

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in the nutshell which are utmost necessary for disposal of the present appeal are as under:

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A suit for recovery of the money came to be filed by the plaintiff in O.S.No.276/2014 contending that plaintiff being the advocate, lent professional services to the defendants and he was due in a sum of Rs.40,000/- as professional fee from the defendants. When the same was demanded, the defendants failed to make the payment and therefore suit for recovery of the professional fee of Rs.40,000/- with interest at 18% and cost of legal notice charges Rs.1000/- was filed.

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Suit on contest came to be dismissed that the plaintiff failed to prove that the defendants have agreed to pay a sum of Rs.40,000/- as professional fee in respect of the cases filed against the defendants under Section 200 of the Code of Criminal Procedure under Sections 499-A, 420, 415, 504, 506, 120-B of the Indian Penal Code.

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HC-KAR

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Being aggrieved by the dismissal of the suit,

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plaintiff filed an appeal before the First Appellate Court in R.A.No.13/2018.

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Learned Judge in the First Appellate Court after securing the records, heard the arguments of the parties and by considered judgement dated 21.12.2019, dismissed the appeal.

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Being further aggrieved by same, plaintiff is before this Court in this second appeal on following grounds and substantial questions of law:

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GROUNDS

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Both the Courts below highly erred in dismissing the suit as well as the Regular Appeal.

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The Judgments and Decrees passed by both the courts below are against to the pleadings weight of evidence and probabilities of the case.

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The Hon'ble Courts below highly erred in appreciating the facts in its proper perspective, that the Appellant/ Plaintiff

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HC-KAR

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is a practicing advocate and filed the suit to recover his professional fees which both the parties agreed upon.

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The Trial Court came to the conclusion that, the Respondents / Defendants agreed to pay the professional fee of Rs.40,000/-, but utterly failed to decide the entitlement of the Appellant/ Plaintiff of his professional fees.

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Both the courts below utterly failed to appreciate the evidence adduced by PW-1, PW-2, DW-1 and also PW-3. The evidence of the parties to the lis clearly shows that, the Respondents/Defendants agreed to pay the professional fees of Rs.40,000/- and thus, the Appellant/ Plaintiff is entitled for the same.

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The evidence of the parties to the lis is sufficient to conclude that, the Appellant/ Plaintiff is entitled for his professional fee of Rs.40,000/-.

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The Trial Court also utterly failed in appreciating the evidence of PW-3 and concluded that PW-3 is a hearsay evidence and treated his evidence as irrelevant which is highly un-acceptable and wrong and also highly illegal and erroneous.

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The observation of the Trial Court, that the claim of the Appellant/ Plaintiff is against public policy such a claim cannot be entertained is highly un-acceptable and wrong.

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HC-KAR

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The appreciation of evidence by the courts below are perverse and capricious.

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The Judgements and decrees passed by the courts below are illegal, arbitrary and unjust.

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The Judgments and Decrees passed by the Courts below are improper, opposed to law and probabilities of the case.

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SUBSTANTIAL QUESTIONS OF LAW :

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i. Though the Trial Court held the Issue No.1 in the affirmative and concluded that the Defendants agreed to pay the professional fee of Rs.40,000/-but held the issue No.2 in the negative and concluded that the Appellant/ Plaintiff is not entitled for his professional fee of Rs.40,000/-, such an approach by the Trial Court, whether it is correct? And whether it is acceptable in the eye of law ?

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ii. Are the findings of both the courts below are in accordance with law? Whether such findings by both the Courts below are acceptable in the eye of law?

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Sri Abubacker Shafi, learned counsel for the

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appellant reiterating the grounds urged in the appeal memorandum vehemently contended that defendants

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having availed professional services of the plaintiff for

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HC-KAR

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effectively defending the criminal case as aforesaid didn't pay his professional fee.

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Therefore plaintiff had to issue issue notice and

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then there was no compliance, plaintiff was constrained to file the suit which has not been properly appreciated by

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both the Courts and wrongly dismissed the suit of the plaintiff of resulting in miscarriage of justice and sought for admitting the appeal for on the aforesaid grounds and substantial questions of law.

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Counsel for the respondents remains absent

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today.

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Having heard the learned counsel Sri.

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Abubacker Shafi, this Court perused the material on record meticulously.

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On such perusal of the material on record, it is crystal clear that there was no agreement between the

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HC-KAR

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plaintiff and defendants with regard to the professional fee.

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Except the self serving testimony and

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production of the certified copies of the proceedings, plaintiff is unable to establish that there was an agreement

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to pay sum of Rs.40,000/- as the professional fee for effectively defending the criminal case filed against the defendants.

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Under such circumstances, the learned Trial

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Judge and the learned judge in the First Appellate Court recording factual finding that plaintiff is unable to establish that there was an agreement to pay a sum of Rs.40,000/as professional fee is thus just in proper which requires no further consideration in the second appeal as there is no substantial questions of law is involved in the present appeal to be adjudicated.

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