JUDGMENT Mushtaq Ahmad, J.
1. This is a plaintiff's application against a decree of a Small Gauss Court Judge in a suit for recovery of counsel's fee. The amount claimed was about Rs. 108/-, a part of which was decreed and a part dismissed. 2. The plaintiff's case was that a particular fee had been settled between the parties in connection with an ejectment suit which the defendant had filed against one Gyanchand through the plaintiff who was then practising at Dehra Dun and that the said fee was Rs. 165/- for the whole case in addition to something for the clerk. The defence was that no fee had been settled but that the plaintiff had agreed to accept anything that was offered by the defendant. The learned Small Cause Court Judge found that the plaintiff's case was not proved and that it was established that he had agreed to accept anything as his fee that was offered by the defendant.
2. The plaintiff has appeared in person before us to support his application in revision. He has argued that, assuming the finding of the Court below to be correct, it does not amount to a finding of a legal contract relating to the matter of his fee. He has referred to Sections 3 and ft, Legal-Practitioner's Pees Act XXI [21] of 1926. The former provides that fee can be claimed by a counsel according to the agreement between him and his client, and the latter that, in the absence of any such agreement, the same would be payable at the legal scale. He then contends that, even if his case about the basis on which the fee was to be paid, was not accepted, the defendant's case not being legally entertainable, the Court below should have decreed the claim Under Section 4 of the said Act, according to the legal scale.
3. We think there is force in this contention. In the first place, even if the plaintiff had agreed to accept anything that was offered by the defendant, there is nothing to show that the defendant had signified his assent to that offer. In the second place, even if there was an offer followed by an acceptance, and thus there was an agreement made, it would not carry the force of a legally enforcible contract in the absence of any settlement of the amount which was, in fact, to be paid. Surely, it cannot be the intention of the law to accept a mere negotiation between two individuals as regards the wages payable by the one to the other as settling a contract, even though the amount be not fixed at the time and be left over to a future contingency, namely, that of one of the parties giving out what he was willing to pay. This being the position, that is to say, there being no agreement having the force of a contract within the meaning of the law if the defendant's case was to be accepted, and there being a finding by the Court below that the plaintiff's case with regard to the basis on which he had to be paid a fee not having been found as a fact, there is no alternative for us but to hold that he was entitled to a decree on the basis of the legal fee.
4. We may incidentally mention that prior to the institution of the suit, out of which this application has arisen, the plaintiff had sent a notice to the defendant on 20th May 1946, asking for his fee. The defendant in that notice had been given five days time to pay the fee. On 28th May 1946, the defendant sent a reply to the plaintiff. Although the plaintiff had in his notice clearly declared that the amount of his fee had been settled by an agreement between the parties, that being the same as claimed in the suit, the defendant never pleaded in his reply to that notice that no fee had been settled between the parties, but that the plaintiff would only receive what the defendant himself offered. It is rather surprising that the learned Small Cause Court Judge should have taken no account of this notice and this reply, and based his finding on the question of the true nature of the contract between the parties merely on oral evidence offered by the defendant. We think that we should not affirm that finding which completely ignores a material circumstance in the case.
5. But while we hold that the plaintiff was entitled to a decree at the scale of legal fee, we are faced with the difficulty that there is no material on the record to show the precise valuation of the ejectment suit, on the basis of which that fee could be fixed. We have made efforts to find some such material but have not succeeded. There is undoubtedly a copy of the plaint of that suit on the record, but curiously the place of the relevant amount in the paragraph relating to valuation is blank. If there was some indication of that amount, we would have certainly asked the plaintiff to furnish the deficient court, fee, if any, and then passed a decree in his favour at the rate provided by the rules. There being no such material, we have no alternative but to pass a decree only for the amount actually claimed. We have been given to understand that the legal fee would have been more than this amount, so that there would be no objection to our passing such a decree.
6. We, therefore, allow this appeal and modify the decree of the Court below by decreeing the suit in full with costs in all the Courts.