JUDGMENT Desai, J.
1. In a suit Instituted by the appellant for recovery of a certain sum of money, the arguments on his behalf were heard on 28-8-1947. He had engaged three counsel, Sri Murli Manohar, Sri Gur Charan Das and Sri Rajeshwari Dayal and before the commencement of the arguments they filed certificates in respect of fees alleged to have been received by them from him. The fee was paid in each case through a cheque dated 28-3-1947, and the total amount of the three cheques was Rs. 700/-.
The certificate of each counsel mentioned the fact that the payment was made through cheque, and also contained the prescribed recitals that the fee was actually paid before the commencement of the arguments and that no portion of it has been remitted or appropriated to the use by any other person. The cheques were cashed by Sri Rajeshwari Dayal on 30-8-1947, Sri Gur Charan Das on 1-9-1947 and Sri Murli Manohar on 4-9-1947.
The suit was decreed with costs on 10-9-1947 and a decree was prepared. Originally the amount of Rs. 700/- on account of the fees paid by the appellant to his counsel was included in the memorandum of costs In the decree but on an objection by the respondent that no payment in cash was made before 28-8-1947, the trial Court amended the decree by deleting the item of Rs. 700/- from the memorandum.
This appeal has been filed by the appellant against the decree as it stands now and is confined to the question whether Rs. 700/- should be included in the memorandum of costs or not. The answer to the question depends upon the interpretation of Rule 1 of Chapter 21 of General Rules (Civil) which lays down that "In drawing up a decree or order no fee to any legal practitioner.....shall be allowed on taxation between party and party or shall be included in any decree.....unless the Munsarim or, on application to the Judge, the Judge is satisfied that the fee was paid to such legal practitioner before the commencement of the argument...... followed by the delivery of the judgment.....and unless on or before such time there shall have been delivered to the Munsarim a certificate signed by the legal practitioner certifying the amount of the fees actually paid to him for his own exclusive use and benefit....."
There is a proviso which permits the presiding officer, for special reasons to be recorded by him to accept a certificate for fee filed after the time mentioned above. The certificate has to be given in the form laid down in Rule 2; it must contain the recitals that the fee was paid to the legal practitioner on the date to be mentioned by him, that it was paid to him before the commencement of the argument, that the entire amount so paid was actually paid to him for his own exclusive use and benefit and that no portion had been agreed to be returned or remitted or appropriated to the use of any other person by him.
In order that a fee may be taxed in the decree two conditions are required to be fulfilled, (1) that it must have been paid actually before the commencement of the arguments and (2) that the legal practitioner should have before the commencement of the arguments filed a certificate. In certain circumstances the rule allows the latter condition to be fulfilled at a later time but not the former condition; the fee must in every case have been paid before the commencement of the arguments though the certificate may be allowed to be filed at a later stage.
What it expressly requires is actual payment and not a promise to pay or an order to a third person to pay. Payment by cheque is not actual payment it is nothing more than an order to a debtor of the litigant to pay a certain sum of money to the legal practitioner and debit the amount to his account. By mere delivery of a cheque neither does the legal practitioner receive any money nor does the litigant lose any money; it is only when the cheque is honoured by the bank that one receives the money and the other loses it. Therefore, it is only when the cheque is honoured that the money can be said to have been actually paid.
Admittedly the three legal practitioners did not receive the fees actually on or before 23-8-1947 on which date they filed the certificates nor even on or before 28-8-1947 on which date the arguments commenced. The fees, therefore, could not be charged in the decree at all. It is immaterial that the cheques were subsequently honoured; on the date on which the certificates were given there was no legal certainty that they would be honoured because it was possible for the cheques being dishonoured if there was no sufficient balance to the credit of the appellant in the bank or if he had issued instructions to the bank not to honour them.
In spite of delivering the cheques it was open to him to contrive that no payment was made by the bank to the legal practitioners. The rules do not provide for a Court's receiving information of a cheque being honoured or being dishonoured; if it were to treat payment by cheque as actual payment and to enter the amount in the decree there would be no opportunity for its amending the decree if ultimately the cheque was dishonoured.
The rules certainly would not have contemplated that an amount though not paid might be taxed as costs. It may be that when a cheque is delivered on one date and is cashed on another date, the payment relates back to the date on which it was delivered but that is only the result of a legal fiction; what Rule 1 contemplates is not payment by legal fiction but actual payment. It does not take into account at all what happens to the cheque subsequently; it does not proceed on the presumption that it will be honoured.
I have, therefore, no doubt that in this case the fee was not actually paid to the three counsel. The language of the prescribed certificate also shows that the payment must be actual and not throngh cheque. The legal practitioner has to certify that no portion has been returned or remitted or appropriated to the use of any other person; so long as there is a possibility of the cheque being dishonoured it is impossible for him to certify that no amount of the fee has been returned or remitted or appropriated to the use of any other person.
If the cheque is dishonoured it means that the legal practitioner will not receive the money and that it will be retained by the litigant, and may be appropriated by him. In case of payment by cheque no certificate can be filed before the cheque is cashed.
2. For purposes of Rule 1 there is no distinction between a cheque and a promissory note; in one case there is an order to a third person to make payment and in the other case there is a promise by the drawer himself to make payment. If payment through a promissory note is not actual payment within the meaning of the Rule so also payment through cheque is not and in Bhagwant Singh v. Bhao Singh, 1932 All LJ 272: (AIR 1932 All 337) (A), payment through a promissory note was held not to be an actual payment. On analogy payment by cheque also must be held not to be an actual payment.