' GULZAR AHMED, J.---This is an application under Order III rule 4 read with section 151 C.P.C. (C.M.A.
No, 1186 of 2003) filed by applicant Messrs Surridge and Beecheno with the following prayer:- "It is therefore respectfully prayed that this Hon'ble Court maybe pleased to direct that the applicant's fees in the sum of US $ 328,689,80 be paid from out of the sale proceeds lying in the hands of Official Assignee, held as security for satisfaction of the judgment and decree passed in Adm. Suit No,686 of 1995 in favor of the intervenors."
2. The plaintiff has filed counter affidavit in which it has denied the claim of applicant. The applicant has filed rejoinder affidavit. It appears that this application was heard and order, dated 4-6-2004 was passed wherein the Court found the application to be maintainable but held that it requires holding a full-fledged enquiry that of recording of evidence and framed following points for the enquiry:--
(i) Right and title of Yukong to the amount lying with the Official Assignee.
(ii) Services rendered by the applicant for Yukong up to 19-5-2003 when the Corporation/Yukong terminated the power of the applicants.
(iii) The amount of fees the applicant are entitled for.
3 . This order was challenged by way of Admiralty Appeal No,3 of2004 by the plaintiffs which came to be dismissed vide order, dated 2-11-2004 with observation that the appeal is superfluous for that the application was not decided by the impugned order. The evidence was recorded and thereafter the application came up for hearing. At the hearing, the question of maintainability of the application was againraised. The Court vide order, dated 17-3-2005 found the application to be not maintainable and dismissed the same. Against this order, Admiralty Appeal No,1 of 2005 was preferred by the applicant which was allowed vide order, dated 4-4-2006 and the order, dated 17- 3-2005 was set aside and it was observed that the application be disposed of on merits more particularly by determining the points framed in the order, dated 4-6-2004.
4. Learned counsel for the parties have made extensive submissions and have also filed written note of arguments.
5. I have considered the submissions and gone through the record and the law on the subject. The applicant claims its fee for the professional services rendered by it on behalf of its clients namely Yukong Ltd., a company based in Seoul, South Korea. Yukong Ltd. Name was subsequently changed to SK Corporation. The applicant was appointed attorney by a general power of attorney given by Yukong. The applicant filed for Yukong, Admiralty Suit No,686 of 1995 claiming US$ 1,269,686.52 against vessel M.T. Eastern Navigator and got it arrested. This claim was for supply of bunker.
Plaintiff had also filed this admiralty suit claiming US$ 17,971,691.99 on mortgage against the same vessel and got it arrested. This vessel ultimately came to be sold by the Official Assignee and its proceeds were deposited in the sum of US$2.5 million. The suit filed by Yukong Ltd. Was decreed on 27-11-2002 for the sum claimed, while this suit was decreed on 17-3-2005 in the sum of Rs.US$ 6,186,691. Against the, decree in favor of Yukong, the plaintiff has filed an appeal, which is said to be pending. Before this suit was decreed, it appears that Yukong had challenged the maintainability of this suit and the matter went up to the Hon'ble Supreme Court where the suit was found to be maintainable and the petition was dismissed. The judgment of the Hon'ble Supreme Court is reported in PLD 2000 SC 57. The applicants have initiated several other proceedings on behalf of Yukong which are mentioned in the applicant's evidence and are not in dispute. The appellate Court has remanded this matter for determining the points, which are already mentioned above, and as it appears that they can be dealt with together.
6. So far the question of right and title Yukong to the amount lying with the Official Assignee, Yukong has obtained a decree which is sub judice in appeal. Subject to the decision in the appeal, Yukong will have right and title in the amount lying with the Official Assignee to the extent of decree.
However, in the face of the decree of the plaintiff against which there is no appeal and having been granted priority over Yukong by the Hon'ble Supreme Court in its already mentioned judgment, whole amount lying with Official Assignee will be paid to the plaintiff and in fact. US$ 2,395,000 is already paid to the plaintiff leaving a smallbalance with official Assignee for meeting claim of applicant, if it succeed otherwise this will also be paid to the plaintiff. Thus there is no money for payment to Yukong. The question of services rendered by the applicant and the amount of fees claimed by it has not been challenged either by Yukong or by the plaintiff.
7. The question that was agitated before me by the learned counsel for the applicant was that the applicant being a counsel has lien over the res and its claim has to be considered independently from the status of its client and in this respect he has relied upon the Principles of Maritime Law by Susan Hodges and Crristopher Hill page 521. The Dirigo (1920) P 425, British Shipping Laws Volume 14,Maritime Liens by D.R. Thomas page 260. The Paris (1896) P.77, Union of India v. Radhey Shyam (AIR 1979 Rajasthan 137) and Kuttikrishna Menon v. Cochin Mercantile Ltd. (1962) 32 Company Cases 378.
8. Counsel for the plaintiff has vehemently opposed and submitted that the law relied upon by the applicant has no application in Pakistan and that in any case the applicant has no justifiable basis to claim independent entitlement to payment out of the sale. Proceeds of the vessel and that the applicant's remedy is by way of relief under section 4 of the Legal Practitioners (Fees) Act, 1926 against its own client. The plaintiff counsel has also relied upon the judgment of the Hon'ble Supreme Court as already mentioned above and on the case of Hitachi Limited v. Rupali Polyester (1998 SCM R 1618).
9. In the commentary of Principles of Maritime Law (supra) it is noted that:-- "A 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 cost due will have priority over the claim of their client, even when the client's 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. However, such solicitors claim is inferior to maritime lien of other claimants arising before and after the institution of the action in which the solicitor's fees were earned."
10. The case of The Dirigo was based upon the solicitor's claim under section 28 of the Solicitors Act, 1860 an English Law and a sum of 500 was paid into Court by claimants as security for the cost of their appeal to the Privy Council against a judgment of the Prize Courtcondemning their vessel for the carriage of contraband. The appeal was abandoned. Thereupon cross summonses were issued by claimant's solicitors for payment out of the sum in Court and by the Procurator-General for a charging order on the sum in Court on the ground that unsecured balance of taxed costs of the Crown in the proceedings in the Prize Court would absorb the whole sum remaining after taxation of the Crown's costs in the abandoned appeal. The claimant's solicitors contended that at any rate so far as their own costs were concerned they had a prior claim upon the fund in Court. It was held that, as the solicitors had neither recovered nor preserved the fund the equitable jurisdiction of the. Court did not apply in favor, and that the Procurator-General's application for charging order upon the whole fund must be allowed.
11. In the British Shipping Laws (supra) the commentator has said:-- "At both common law and statute a solicitor who recovers or preserves property for a client may possess a charge on the property. In circumstances where property is recovered the solicitor's 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 costs of his solicitor.
To this extent the solicitor's charge ranks immediately prior tO the claim it has facilitated, and this priority survives even when the claim is in the nature of maritime lien. A solicitor's charge also exists in relation to property preserved and it appears to be clearly established that a solicitor who successfully defends an action in-rem effectively preserves the res or any fund representing the res. The charge so created is however postponed to a pre-existing maritime lien and also to a claim in respect of necessaries supplied before the institution of the original suit. The charge is superior to a claim for necessaries supplied after the institution of the original suit, and, in relation to a salvage suit, to necessaries supplied after the. Salvage service. Moreover, a master who employees a solicitor to defend a claim against the ship cannot thereafter set up his lien for wages and disbursements in priority over the charge of the solicitor."
12. In the case of The Paris an action of damage by collision was compromised on the terms that the defendants, the owners of the steamship Paris, should pay to the plaintiff 50 per cent of the damages sustained by the Plaintiff's vessel, each party to bear their own cost of the action, and the amount of damages to be ascertained by an arbitrator. Prior to the commencement of the action the defendant's solicitors had been pressing the plaintiff for a settlement of claims of clients of theirsagainst him, and for their own costs when acting for him; and the plaintiff, after the compromise of the action but before the arbitrator made his award, wrote to the defendants' solicitors that he agreed to their settling the amount due to themselves and to certain named clients of theirs "out of the money coming in from Paris s.s."
13. By his award the arbitrator fixed the sum due from the defendants to the plaintiff, which, with the agreed costs of the reference made a total of 405. 1 ls.8d., and the defendants' solicitors forwarded to the plaintiff's solicitors a cheque for a small amount as being the balance out of the above total sum after paying the named clients and themselves. The plaintiff's solicitors took out a summons under section 28 of the Solicitors Act, 1860, for a charging order. It was admitted that there was no collusion and it was 'agreed that the award should be treated as a decree. It was held that the plaintiff's solicitors in the action were entitled to an order charging the sum recovered with the plaintiff's costs to be taxed as between solicitor and client, on the ground that the fund recovered by the exertions of the plaintiff's solicitors was fixed, through not worked out, at the date of the compromise, and that the subsequent assignment of the fund was void under the statute as being an act done operating to defeat the right of the solicitors to a lien for costs of which right, by reason of the fund being a sum recovered in the action, the defendants' solicitors, and their clients through them, were affected with notice.
14. The case of Union of India (supra) is based upon rule 4 of Order III. C.P.C. And turns upon fact of granting of leave for the termination of the appointment of the counsel being within the power of the Court, the Court may grant the leave subject to such conditions as it thinks fit. Therefore, while granting leave, the Court can impose the condition of the payment of fee to the counsel whose appointment, the party wants to terminate. The reason that it is not open to a client to engage another lawyer without paying the fee to the outgoing lawyer.
15. In the case of Kuttikrishna Menon (supra) the case was of winding up of a company and it was held that in the winding up of company, an advocate is entitled to preferential payment of his fees and expenses out of fruits of a litigation which he had successfully conducted for the company which are in the hands of the Official Liquidator.
16. So far the law relied upon by the learned counsel for the applicant from the English jurisdiction, it is all based upon common law and equity and also on English statute being the Solicitors Act, 1960.
With regard to these laws, the Hon'ble Supreme Court of Pakistan in the case of Hitachi Ltd. (supra) has made the following observation:- ' "The principles of common law or equity and good consciencecannot confer jurisdiction on the Courts in Pakistan which has not been vested in them by law. In this regard reference may be made to clause (2) of Article 175 of the Constitution of Pakistan, which 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. The High Courts derive their jurisdiction under the Constitution and the statutes. In view of the above constitutional provision and the case-law the principles of English common law or equity or good conscience cannot be pressed into service in Pakistan as having statutory force."
17. Therefore, I am afraid, for dealing with question as has been raised before me by the learned counsel for the applicant, in the face of the law laid down by the Supreme Court of Pakistan. I cannot rely upon the principles of common law and equity and English statute that of Solicitors Act, 1860. Learned counsel for applicant has argued that clause (r) of subsection (2) of section 3 of the Admiralty Jurisdiction of the High Courts Ordinance, 1980 (the Ordinance) confers 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 law and any other jurisdiction connecting with ships or aircrafts in respect of things done at sea which has by tradition or custom of the sea been exercised by a Court of admiralty jurisdiction and in this respect cited case of Azhar Ahmed Khan v. M.V. Ashar (PLD 1985 Quetta 278). In the cited case the point agitated before the Court was that since the Ordinance has repealed and replaced the admiralty law prior to enforcement of it resort can only be made to provision of Ordinance and it was urged that the Ordinance does not preserve the rights of maritime lien: The Court observed as follows:-- "(1.4)It cannot, be denied that the Admiralty Court (i,e, High Court of Sindh and Balouchistan) in Pakistan prior to the enforcement of Ordinance were exercising admiralty jurisdiction in order to enforce the maritime lien and, therefore by virtue of the above proviso, the above jurisdiction remained intact apart from the express jurisdiction conferred on the High Courts under the Ordinance by subsection (3) of section 4 of the Ordinance which provides that admiralty jurisdiction can be exercised, in any case, in which there is a maritime lien."
18. The case of the applicant is not that they have maritime lien nor such has been argued before me and indeed such may be true because maritime liens arise principally in cases of bottomry, damage done by a ship, salvage, seaman and master wages and masters disbursement which can be enforced on a res by legal process. Yet again reverting to provision of clause (r) of subsection (2) of section 3 of the Ordinance, itmay be noted that any other jurisdiction which was vested in the High Court as a Court of Admiralty immediately before commencement of this Ordinance or is conferred by or under any law any other jurisdiction connected with ships or aircrafts in respect of things done at sea which has by tradition or custom of the sea been exercised by Court of Admiralty itself distinctively shows that such jurisdiction is only confined to the things done at sea. What are those things to be construed B as things done at sea may in the context involve salvage operations and other activities and services which a vessel may require while at sea. This appears to be the only jurisdiction that seems to be saved by this provision of the Ordinance. Besides no law was cited from the side of applicant to show that services rendered by the applicant will amount to things done at sea. In any case the applicant has not rendered any service for the vessel.
19. Learned counsel for the applicant further argued that there is collusion between Yukong (SK Corporation) and the plaintiff in order to siphon away all the moneys lying with the Official Assignee and to deprive the applicant of its legitimate dues. In this respect the applicant has produced Exhibits, 22, 23, 24, 28, 29, 31, 32, 33, 37 and 42. On the other hand the plaintiff has produced Exhibit 9. Exhibit 42 and Exhibit 9 are two letters of SK Corporation both, dated 19-5-2003.
Exhibit 42 is addressed to the Registrar of this Court while Exhibit 9 is addressed to the applicant.
Exhibit 42 has been addressed with title of this suit in which SK Corporation has said that it has no continuing interest in the subject-matter of the suit and as of the date of this letter no law firm is retained or authorized to represent Yukong _(SK Corporation) in any proceedings in Pakistan in connection with said vessel and more particularly in the suit with specific mention that applicant has no consent or authority from it to act for SK Corporation. The letter goes on to say that SK Corporation has no objection to judgment in the suit being entered in favor of the plaintiff. By Exhibit 9 SK Corporation revoked power of attorney in favor of applicant. Learned counsel made specific reference to Exhibit 42 copy of which was marked to Qamer Abbas Law Officer, Attention: Arif Khan (Advocate) to emphasis that this exhibit has been written at he behest of plaintiff counsel which establishes collusion. Exhibit 22 is a letter, dated 3-1-2003 by the legal counsel of SK Corporation addressed to the applicant wherein SK Corporation informed that the matter regarding supplies of bunkers to the vessel managed by Adriatic Tankers Corporation arrested at Karachi for nonpayment has been settled through payment and 'SK Corporation has ceased to have any further pursuit of claim against Adriatic Tankers Corporation and that they first were made aware of applicant's past and current action through fax massage, dated 12-11-2002 from Watson, Farley and Williams, counsel for CIT Corporation the plaintiff. It furthersays that whatever proceedings applicant has been pursuing including obtaining of decree, dated 27-11-2002, SK Corporation was wholly unaware of and it was done withodt its instruction or knowledge and the applicant has made no contact or report in this regard to SK Corporation. The applicant was further asked to cease pursuit of any further legal actions regarding the matters against the vessel on behalf of SK Corporation.
20. The material that has been produced in evidence by the applicant tends to suggest that as between Yukong (SK Corporation) and the plaintiff some compromise has been arrived at. More particularly this view of mine is forfeited when the applicant witness in his cross-examination made specific allegation of collusion which did not come to be disputed by the plaintiff counsel who was cross-examining the applicant witness. The question that needs to be considered is whether the applicant. Could succeed on such plea of collusion against the money of the plaintiff. In my view such could not be done for the reasons that there is 'no privity between the applicant and the plaintiff and the applicant at best can claim recovery against its own client as by such collusion it is the applicant client itself who has wronged the applicant by depriving it of its right to payment of its remuneration and costs. In the Indian jurisdiction, the principle is that an advocate is entitled to preferential payment of his fees and costs out of fruits of a litigation which he had successfully conducted for the benefits of his client. I C believe this also applies to the jurisdiction in Pakistan.
Exhibit 22 in an unequivocal term suggests that matter has been settled through payment means that Yukong (SK Corporation) has received payment. What payment has been received has not come in evidence. This exhibit suggests that there was some dialogue between the plaintiff and Yukong (SK corporation) for obtaining judgment in favor of the plaintiff against the sale proceeds of the vessel. The only inference that can be drawn from this evidence is that plaintiff has made payment to Yukong (SK Corporation). Even if this be true, still it was not argued before me as to how the Court can make an order of payment to the applicant out of the funds which apparently are meant to be drawn by the plaintiff. Plaintiff itself has not done any wrong to the applicant nor any such has been suggested to me and I also do not find how the plaintiff could be deprived of its legal entitlement for the wrong done by the Yukong (SK Corporation) to the applicant. On the principle of preferential payment, the applicant would have been entitled to payment of its fees and costs from the payment received by Yukong (SK Corporation) but as such payment is received surreptitiously and without knowledge, to the applicant and apparently overseas, little can be done to address the claim of the applicant. Learned counsel has further contended that the crew of vessel have also filed claim for recovery of their wages and their claims have been satisfied by making payment from the sale proceeds of the vessel and not only that but their counsel has also been paid from the sale proceeds of the vessel and this has been done with the consent of plaintiff.
In my view, this argument does not help the case of applicant for the simple reason that wages of the crew is classified as a maritime lien and ranks in priority over mortgage and statutory liens.
Therefore the advocate representing a crew having secured and obtained payment of wages of the crew, also got his fees and cost on the principle that he was entitled to preferential payment out of fruits of litigation which he has made available for his client. In the present case though the applicant has obtained decree in favor of Yukong (SK Corporation) and the applicant has preferential right to payment of its fees and costs for the service it has rendered for Yukong (SK Corporation) but as there is no fund with Official Assignee for payment to Yukong (SK Corporation), as a necessary corollary no fund is available for payment to applicant by Official Assignee.
21. In view of the above discussion, I have no option left with me but to dismiss this application but will leave the applicant to pursue remedy against the Yukong (SK Corporation) for recovery of its fees and costs claimed in the application in an appropriate jurisdiction.