The facts leading to this order are that CIT Group/ Capital Equipment Finances Inc. of New York USA filed Admiralty Suit No.123 of 1996 in rem against MT. Eastern Navigator and its owner United Marine Services, SA. It was based on mortgage of vessel Eastern Navigator. Following were the prayers in the suit:--
(i) a declaration that the Mortgage is valid, binding and subsisting;
(ii) judgment and decree in favour of plaintiffs in the sum of US $ 17,971,691.99 as due and payable by the defendants jointly and severally to the plaintiff under the Mortgage as at 18 October, 1995 alternatively damages;
(iii) such further sums as may have become due and in the future become due and payable as of or said Agreement in respect of continuing interest in accordance with paragraphs noted above and other costs and charges between 18 October, 1995 and the date of the judgment and actual payment (whichever shall be the later);
(iv) interest;
(v) cost of the suit;
(vi) grant any other relief(s) as the Court may deem fit and proper;
(vii) Order auction.
Later on prayer for arrest and sale of the ship was added with permission of the Court.
2. The claim of the plaintiff was not disputed by the defendants. It was rather admitted by them.
However, a company namely, Yukong Ltd. Korea which had filed Admn. Suit No.686 of 1995 against the same vessel Eastern Navigator for claim in the sum of US $ 1,269,622.25 intervened and filed written objections including that of the maintainability of the suit without seeking any order from the Court for joining them as party. The objections raised by the said iptervener company were repelled up to the level of the Honourable Supreme Court. However, the learned Advocate representing Yukong remained stuck with the matter till their client Yukong new name S.K.
Corporation revoked the authority in their favour and wrote a letter dated 19-5-2003 to the Registrar of this Court expressing therein that they had no interest in the suit.
3. On 29-5-2003 Mr. Muhammad Naim, Advocate of Surridge and Becheeno filed present application in the suit pending under admiralty jurisdiction, with following prayer:-- "That this Honourable Court may be pleased to direct that the applicants fees in the sum of US $ 328,689.80 be paid from out of the sale proceeds lying in the hands of the Official Assignee, held as security for satisfaction of the judgment and decree passed in Admiralty Suit No.686 of 1995 in favour of the intervenor's."
4. Plaintiffs learned counsel raised objection about the maintainability of the application in a suit under admiralty jurisdiction. After hearing the arguments this Court (Mr. Justice Atta-ur-Rehman) passed order dated 4-6-2004 holding therein that the application was maintainable. By the same order the Honourable Bench directed the parties to lead the evidence on the following points:--
(i) Right and title of Yukong to the amount lying with the Official Assignee?
(ii) Services rendered by the applicants for Yukong up to 19-5-2003 when the corporation/Yukong terminate the power of the applicants?
(iii) The amount of fees the applicants are entitled for?
5. The plaintiff challenged that order through Admiralty Appeal No.3 of 2004 which was dismissed by DB of this Court on 2-11-2004 observing as under:-- "Be that as it may, the fact is that the learned Single Judge has not given a final decision with regard to the application, of respondent No.3 by which they had sought their professional fee. The matter was left open and a full-fledged enquiry was ordered for which recording of evidence was to take place It has been brought to our notice that evidence. as envisaged by the learned Single Judge has been completed and the matter is now fixed for arguments. In the circumstances, it will be appropriate that the matter be argued before the learned Single Judge for a final decision on the issue whereafter the aggrieved party would be at liberty to assail the same by way of an appeal." At present, the appeal is found to be superfluous and it accordingly stands dismissed with no order as to costs."
6. The plaintiffs learned counsel first argued the question of maintainability saying that the same is still open and final decision in that regard is yet to be recorded by this Bench. He further contended that although the Single Bench (Mr. Justice Atta-ur-Rehman) had recorded the findings that the application is maintainable but the learned Appellate Bench treated it as tentative and not final. He referred to the parts of the application order reproduced above.
7. Mr. Muhammad Ali Sayeed, Advocate representing the applicant argued that the question of maintainability had been decided finally and is no more open for decision by this Bench. According to him the decision taken by the Single Bench on the question of maintainability was maintained by the learned DB of this Court by dismissing the appeal. He disagreed with the contention of the plaintiffs learned counsel that the Appellate Bench had declared the order of the Single Bench as tentative and not final one with further observation that the decision on the issues was yet to be recorded.
8. Mr. Muhammad Ali Sayeed, the learned counsel, however, argued on the question of maintainability of the application under Admiralty Jurisdiction Ordinance, 1980. He referred to section 3(2) of the Ordinance, 1980 stating that it protects the traditional jurisdiction of Admiralty Court for granting relief under the Merchant Shipping Act, 1923 or any other jurisdiction vested in High Court as Court of Admiralty under any other law applicable immediately before the announcement of the Ordinance, 1980. He, however, did not point out any provision of the Merchant Shipping Act, 1923 or any other law applicable immediately before the announcement of the Ordinance, 1980. In continuity he referred the English Administration of Justice Act, 1956 (now repealed) and the English Supreme Court Act, 1981, which are as under, contending that the Admiralty Court has always inherent powers to order the payment of solicitors fee and cost fr, in out of the funds secured and preserved by his efforts, under common law as well as equity jurisdiction. He referred to the following:-- "Principles of Maritime Law by Christopl e Hill, page 521.
Solicitors claim for fees and cost: The Solicitor, who had successfully recovered or preserved property for the benefit of his client has, by virtue of both common law and statute, a lien or charge upon such property against which he could pursue for the payment of his fees. Thus a claim brought by solicitors against the proceeds of a vessel for fees and costs due will have priority over the claim of their client, even when the clients claim may give rise to a maritime lien. Further, the solicitors claim will rank before all statutory actions in rem instituted after the commencement of the suit in connection with which the solicitors fees were earned.
Dirigo 1920 Probate 42 at page 428:-- That where a solicitor has been instrumental in bringing a fund into existence, or in preserving a fund for a very long period of time it has been the practice of our Courts and not only the practice in equity but I think it would be found in some decisions in some old common law Courts that the Court protect the interest of its officers who has been so instrumental. What Mr. Dunlop said to him was that although it might be true as was urged against him that there could be no lien here by reason that the fund was not in the possession of the solicitor, nevertheless there was a equitable claim upon the fund created or preserved by the exertions of the solicitors. The right being in the nature of a salvage right the solicitor may recover against the fund beyond the interest of his own client.
It was further observed at page 429 of judgment that:-- The solicitor is treated as a salvor who has recovered and preserved in a time of danger by his work and labour that brings the case to this position that if I am satisfied on the facts that this fund is brought into being or is preserved by the activity of the solicitor he is entitled to have a charge upon it although there is a claim of his client opponent which would have absolved it.
Maritime Liens by Thomas Vol. 14 of British Shipping Laws Vol. 14 paragraph 458 at page 260:--- At both common law and statute a solicitor who recovers or preserves a property for a client may possess a charge on the property. In circumstances where property is recovered the solicitors charge is in equity a first claim upon the property and the client is thereby precluded from carrying away the spoils of victory without first applying them to the remuneration and cost of the solicitor.
To this extent the solicitor's charge rank immediately prior to the claim it has facilitated and this priority survives even when the claim is in the nature of a maritime lien.
The Paris (1896) Probate 77-80:-- Primarily the client of the solicitors is the person to pay his own solicitor's costs. It is only collaterally that a charging order is made, and the Court will not, in its discretion, make such an order unless a prima facie case is made out that the solicitors cannot get payment in any other way; but here the underwriters on the plaintiffs ship are the real clients of the solicitors, and they are the persons entitled to the fund and liable to their solicitors for these costs. As it is admitted that there was no collusion the case falls within the scope. At page D-144.
Where the plaintiffs and the defendants compromised an admiralty action for wages, and the Court of appeal reversed the judgment in favour of the solicitor's lien, given in the Court below, on the ground that there was no evidence that the parties had made settlement of the action with the intention of depriving the plaintiffs solicitors of their lien for costs. Secondly no judgment is necessary on which to found the lien if the fund is the fruit of an action, though that action has been compromised."
9. In the last Mr. Muhammad Ali Sayeed, argued that Order III; rule 4, C.P.C. empowers the Court to permit the termination of the appointment of a counsel subject to a condition of payment of his professional fee. He referred to a case from Indian jurisdiction Union of India v. Radhesham AIR 1979 Rajhistan 137.
10. In rebuttal Mr. Qamar Abbas, the learned Advocate for plaintiff argued that present application does not and cannot fall within the scope of section 3(2) of Admiralty Jurisdiction of High Courts Ordinance, 1980 as no provision of the section provides in respect of Advocates/solicitors fee.
According to him the prayer made through present application is completely beyond the jurisdiction conferred upon High Court under the said Ordinance. He further contended that English Administration of Justice Act, 1956 and English Supreme Court Act, 1981 have no application to the present matter nor the principles of Common law or equity can be applied in absence of any jurisdiction conferred upon the Court by the law. He further contended that so far Suit No.123 of 1996 filed by CIT Group is concerned Yukong new name S.K. Corporation had no concern with it therefore, claim, if any, of their learned'Advocate cannot be tagged with the claim of plaintiffs. Mr. Qamar Abbas lastly contended that after revocation of power of attorney executed by the party in favour of Advocate the Court cannot thrust the Advocate upon the party. It has to permit the termination of the appointment of a counsel. Any denial of its part would amount violation of Constitutional right of a party to be represented by any of the Advocate of its choice.
11. First I shall deal with the question as to whether issue of maintainability is closed one or open for decision by me. No doubt the learned Single Judge (Mr. Justice Atta-ur-Rehman) had recorded finding that the application is maintainable but the observations recorded by the learned Appellate Bench, reproduced above clearly show that the question of maintainability has been left open treating the decision of learned Single Bench in that respect as tentative and not final one.
Learned Division Bench has not discussed the question of maintainability at all. It simply dismissed the appeal treating it as superfluous with observations that the matter be argued before the learned Single Judge for a final decision on the issue whereafter the aggrieved party would be at liberty to assail the same by way of an appeal. I therefore, accept the contention of Mr. Qamar Abbas that the question of maintainability is to be finally decided by me.
12. Turning to the maintainability of this application I must express at the very outset that clause (2) of Article 175 of the Constitution of Islamic Republic of Pakistan expressly provides that no Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law. In view of the clear embargo the principles of common law or equity and good conscience cannot confer jurisdiction on the Courts in Pakistan which has not been conferred upon them by the law of precedent is required on. the point a famous decision of the Honourable Supreme Court in case of Hitachi Ltd. and others reported in 1998 SCM R 1618 can be referred to. In view of the above legal position the principles based on common law or equity referred to by Mr. Muhammad Ali Sayeed cannot be accepted unless jurisdiction in the matter in issue has been conferred upon the Courts by the law.
13. For appreciation of the contention of Mr. Muhammad Ali Sayeed that jurisdiction to grant the relief sought through present application in exercise of admiralty jurisdiction has been conferred upon this Court under clause (r) of subsection (2) of section 3 of Admiralty Jurisdiction of High Courts Ordinance, 1980. The said provision is to be looked at. It is reproduced below:-- Section 3(2)(r)--"any claim for the forfeiture or condemnation of a ship or of goods which are being or have been carried, or have been attempted to be carried, in a ship as a Naval Prize or in violation of customary law of the sea or otherwise, or for the restoration of a ship or any such goods after seizure, or for droits of admiralty, together with any other jurisdiction for the grant of such reliefs as are provided under the Merchant Shipping Act, 1923 (XXI of 1923), any other jurisdiction which was vested in the High Court as a Court of Admiralty immediately before the commencement of this Ordinance or is conferred by or under any other law and any other jurisdiction connected with ships or aircraft in respect of things done at sea which has by tradition or custom of the sea been exercised by a Court of Admiralty apart from this section."
14. A bare look at the provision gives out that it being a residuary provision has specified the claims in respect whereof the jurisdiction under the Ordinance can be exercised. A claim of a legal firm or an Advocate for the services rendered by it/him in connection with admiralty suit/proceedings is not among the claims mentioned specifically in the provision. Bringing such a claim within the scope of the provision would amount stretching it far from its original scheme. No provisions of the Merchant Shipping Act (XXI of 1923) or any other law which conferred jurisdiction on the High Court as the Court of Admiralty jurisdiction immediately before the commencement of Ordinance conferred jurisdiction upon the Admiralty Court in respect of the claims relating to the service charges of the legal firm in the admiralty proceedings. Therefore, the dispute regarding charges of the services rendered by the legal firm or Advocates claimed through present application does not come within the scope of any of the provisions of section 3 of Admiralty Jurisdiction of High Courts Ordinance, 1980. No provision of the Ordinance recognizes the said charges as charges upon the ship/the subject-matter of the suit.
15. As regards the Order III, rule 4 of C.P.C. it is procedural provision relating to the continuity and termination of a written appointment of an Advocate signed by his client for representing him in a civil proceedings. There can be no doubt about the fact that relationship of client and counsel is perfectly at choice. No one can be compelled to appoint a particular Advocate for representing him in a particular suit nor any Advocate can be compelled to represent a particular person in a suit. Same way a party or its counsel have right to terminate the appointment. However, the appointment is deemed to be in force till the Court grants leave to the party or an Advocate for terminating the same. The object behind this condition is not to thrust an Advocate upon a party or a party upon an Advocate. The scheme of the rule seems to be only to check move of termination of the appointment with ulterior motives. There can be such a move for disrupting the regular and smooth progress in the proceedings under the colour of the written termination of appointment.
Sometimes for the purpose of delaying the proceedings and sometimes for averting an adverse order on account of failure to perform an act, the parties use the termination of appointment as a device. To check such an activity the law provides that the appointment will be deemed to be in force till the termination thereof is allowed by the Court. However, such a device or activity can, at the most be defused in respect of the proceedings of the first day when the termination of appointment is filed. It does not seem appropriate to withhold the leave thereafter as it may a mount interference with the right of a party to be represented oily by an Advocate whom he/it trusts and/or compelling an Advocate to represent a party whom he does not want to represent any more.
16. I doubt, if the object behind the condition of leave by the Court is to recover fee of an Advocate or get it refunded from him to a party. Such an exercise would be beyond the scope of the suit/proceedings. Sometimes it takes shape of another suit within a suit. For instance, if there is controversy about the quantum of fee agreed or about the amount actually paid to the Advocate then it cannot be decided without evidence. Even after determination of the entitlement and/or liability either way there will be a question of implementation of that order. Thus, to recover the fee of an Advocate representing a party in a suit or get it refunded to the client is not the scheme of Order III, rule 4, C.P.C. I respectfully do not agree with the decision from Indian jurisdiction referred to by Mr. Muhammad Ali Sayeed. Moreover, the claims advanced through present miscellaneous application are the charges for the services rendered in more than one cases. Such claims of fee are governed by Legal Practitioners Fee Act, 1926. Section 4 of the Act specifically provides for filing legal proceedings for the recovery of legal practitioners' fee.
17. The result of the above discussion is that present application is not maintainable before the Court of Admiralty exercising jurisdiction under Admiralty Jurisdiction of High Courts Ordinance, 1980. The same is dismissed without undertaking the exercise of discussion about the entitlement of the applicants.