' After hearing the arguments of the learned counsel, I had, by a short order, dated the 22nd May, 1991, decreed the suit of the Plaintiff against the defendant No,4 as prayed. The following are the reasons for the short order.
2. The Plaintiff has filed this suit for recovery of Rs,2,47,500 on the allegations that in the month of May, 1985, the defendants Nos.2 and 3 as Directors of defendant No,1 and in their personal capacity engaged the Plaintiff to defend the defendant No,4, as a shareholder of defendant No, I, in Suit No,694 of 1985, filed against her by one Mst. Zainab B.Ii for recovery of Rs,37 lacs and also to file a suit in the name of the defendant No,4, against Mst. Zainab Bai for recovery of Rs,15 lacs. The case of the Plaintiff in the plaint is that the fee of the Plaintiff in two cases was mutually agreed at 5% of the respective amounts of the claims, i,e. Rs,37 lacs and Rs,15 lacs, and worked out to Rs,1,85,000 and Rs,75,000 respectively. It is further alleged that in addition to the personal engagement of the plaintiff it was further agreed that a junior counsel would also be engaged in both the suits and a sum of Rs,5,000 was fixed as his professional charges in each suit. According to the plaintiff, the defendants failed/refused to pay agreed fees and charges except a sum of Rs,25,000 which was subsequently paid, in spite of several demands and reminders in that behalf by the Plaintiff. The defendants, in their written statement, have admitted that the Plaintiff was engaged for the purposes of defending the defendant No,4 herein in Suit No,694 of 1985 and for filing a suit on her behalf against Mst. Zainab Bai. The allegation that the defendants Nos.2 and 3, as Directors of Defendant No,1, and in their personal capacity enagaged the plaintiff, has been denied but it has been admitted by the defendant No,4, that the plaintiff was engaged by her in her personal capacity. The allegation regarding the quantum of fees was denied and it was alleged that the plaintiff's fee was agreed to be Rs,50,000 for both the suits and that that amount has since been paid to the Plaintiff. The allegation that there was an agreement to engage a junior counselor to pay him any fees has been denied.
3. Upon the pleadings of the parties, following issues were settled:- "(1) Whether the Plaintiff was engaged by the defendants in their capacity as Directors of Adam Limited or he was engaged by defendant No,4 alone in her private capacity?
(2) Whether the fees were agreed at Rs,1,85,000 and Rs,75,000 or at a fixed amount of Rs,50,000 and already paid to the Plaintiff?"
4. The Plaintiff examined himself in support of his case and the defendant No,2 appeared on his own behalf. The remaining defendants did not produce any evidence. As far as the defendant No,3 is concerned, the several adjournments were granted to him for the purpose of recording his evidence but he did not appear and consequently the side of the defendant was closed. On the 7th December, 1989, the learned counsel for the defendants had stated that they did not wish to examine Kassim Dawood, the Secretary of the defendant No,1, or any other witness in the case.
Having perused the pleadings and the evidence on record and having heard the arguments of the learned counsel for the parties, my findings on the issues are as follows:-
5. ISSUE NO.1.--The Plaintiff filed affidavit-in-evidence in lieu of examination-in-chief. In the affidavit, he has reitetated the allegations in the plaint except that the claim to the extent of Rs,2,500 on account of miscellaneous expenses has been dropped. In cross-examination, he has stated that the defendant No,4 engaged him through her son, Abdul Kadir, who is the defendant No,3 in the suit; that Suit No,694 of 1985 was filed against the defendant No,4, as a shareholder of the defendant No,1 and that Suit No,368 of 1985 was filed by the defendant No,4 in her capacity as a shareholder of the defendant No,1 and that the defendant No,4 contacted him through her son Abdul Kadir. Ghulam Ahmed, the defendant No,2, in his affidavit-in-evidence, has deposed that the plaintiff was engaged by the defendant No,4. In his cross-examination, he has stated that he and his brother went to the Plaintiff to engage him on behalf of defendant No,4 and he has deposed that the defendant No,4 is not even a shareholder of the defendant No,l. It appears that none of the present defendants, except the defendant No,4, was a party to Suit No,694 of 1985, filed by Mst.
Zainab Bai against defendant No,4 or to Suit No,368 of 1985, which was filed by defendant No,4 against Mst. Zainab Bai. The plaintiff has alleged that the defendant No,4 is a shareholder in the defendant No,1 but the assertion has been denied by Ghulam Ahmed. Be that as it may, it is quite clear that the defendant No,4 was involved in the two suits in question in her personal capacity and that the defendant No,2 or 3 or both of them were merely acting as her agents in engaging the Plaintiff as a counsel. Mr. Afzal Nabi, the learned counsel for the Plaintiff, in the course of arguments, contended that the defendants Nos.2 and 3 acted for defendant No,4, whereas Mr. A. Razzak Puri, the learned counsel for the defendants, submitted that the defendant No,3 was the agent of the defendant No,4. I, therefore, hold that the plaintiff was engaged by the defendant No,4 alone in her private and personal capacity.
6. ISSUE NO.2.--The Plaintiff, in the plaint as well as in his affidavit-in- evidence, has asserted that if was mutually agreed that his fee for appearing as a counsel, on behalf of the defendant No,4, in the two suits would be equal to 5% of the amounts involved in the suits. The amount of his fees thus came to Rs,2,60,000 and, in addition to his fees, according to the Plaintiff, it was mutually agreed that a junior counsel would be paid a total of Rs,10,000 for the two cases. During his cross- examination, he repeated and reiterated his version and stated that the amount of his fees, as claimed by him, was agreed to by Abdul Kadir, the defendant No,3 and thereafter confirmed by Ghulam Ahmed, the defendant No,2. No suggestion was put to him during the cross-examination that his fees was agreed to be Rs,50,000. As against the assertion of the plaintiff, the defendants in their written statement have alleged that a fee of Rs,50,000 was agreed and had since been paid to the plaintiff. Ghulam Ahmad has stated in para. 4 of his affidavit-in-evidence that a sum of Rs,50,000 in all was agreed and was paid in cash to the Plaintiff by the defendant No,4. That, however, is the only categorical assertion made by him and his evidence on all other points relevant to the issue is entirely vague and unsatisfactory. He has asserted in his affidavit that the defendant No,3 had settled the Plaintiff's fee in his presence; but the defendant No,3, in spite of several opportunities did not appear to give elifdence. Again, in the affidavit, he has alleged that the defendant No,4 paid the agreed fees of Rs,50,000 to the Plaintiff; yet the defendant No,4, chose not to give evidence herself. Further, it has come in evidence that the defendant No,4, did not see the Plaintiff except for the purpose of signing the plaint and the written statement respectively in the two suits for which the Plaintiff was engaged and all instructions with regard to the two suits were given by defendants Nos.2 and 3 and all dealings with' the Plaintiff were, carried out by those defendants. It is, therefore, clear that defendant No,4 could not personally have made the payment; and it is not the case of the defendants that any other person made the payment as alleged. The evidence of Ghulam Ahmed, therefore, lacks credibility. On the other hand, the plaintiff has been clear, consistent and unwaivering in his evidence and has produced documentary evidence in the form of correspondence to support his version. He wrote several letters to the defendants claiming the amount of the fees as alleged by him and none of those letters were ever replied by the defendants except the Plaintiff's letter dated the 3rd November, 1985, a copy whereof has been annexed to the Plaint. In reply to that letter, Kassam Dawood Kudia, the Secretary of the defendant No,1, wrote to the plaintiff on the 5th November, 1985, stating that a sum of Rs,50,000 was settled for conducting the two suits and that as per the record of the company, the same was settled, finalized and had already been paid to the plaintiff. The letter is not purported to have been written under the instructions of any of the defendants. Further, the defendants chose deliberately not to produce the Secretary as a witness and the defendants Nos.3 and 4 have also not given any evidence to support the allegations in the letter, dated the 5th November, 1985. In any event, the allegation in the letter regarding payment to the Plaintiff is contradicted by the evidence of Ghulam Ahmed. Immediately upon receipt of the letter, dated the 5th November, 1985, from the Secretary of the letter dated the 5th November, 1985, from the Secretary of the defendant No,1, the Plaintiff sent a reply on the same date by registered post to the defendants Nos.2, and 4, a copy whereof is Exh.4/10. The original Exh.4/10 addressed to the defendant No,2 was returned undelivered with the remark. "refused". The envelope addressed to the defendant No,2 and A.D. Card attached thereto arc Exhs.4/11 and 4/12 respectively. The respondents have, in their written statement, admitted the receipt of the Plaintiffs' letter, dated the 3rd November, 1985 and the reply thereto, dated the 5th November, 1985, copies whereof have been annexed to the plaint. Subsequently, the Plaintiff sent a legal notice, dated the November 23, 1985, a copy whereof is annexed to the plaint.
Receipt of that notice has been admitted by the defendants in their written statement. In reply to that notice, the aforesaid Kassm Dawood Kudia sent a letter, dated the 5th December, 1985, stating that all adverse allegations were denied and that parawise detailed reply would follow soon.
However, such detailed reply was not sent until the 13th December, 1985. A copy of the reply is annexed to the plaint and has been admitted by the defendants. By that reply, it was reiterated that a fee of Rs,50,000 was settled and paid to the plaintiff and it was alleged for the first time that it had been settled between the plaintiff and the defendants that since the suits were being withdrawn and/or compromised, the plaintiff would refund Rs,25,000 to the defendants and the Plaintiff's counsel was requested to remind the Plaintiff about the settlement to refund Rs, 25,000.
Ghulam Ahmed has denied receiving the letters written by the Plaintiff to the defendants but the other defendants have not appeared in the witness-box to deny the receipt of those letters. There is, therefore, no reason to believe that the letters written by the Plaintiff to the defendants from July, 1985, onwards were not received by the defendants or at least the defendant No,4. Since those letters were received by the defendants and no reply was sent until' the 5th December, 1985, it is fair to infer that the allegations in the defendants' letter dated the 5th December, 1985, were fabricated for the purpose of avoiding their liabilities. The falsity of the defendants' stand is further evident from the fact that in the reply to the legal notice sent on the 13th December, 1985, it was for the first time alleged that the Plaintiff had agreed to refund Rs,25,000 out of Rs,50,000 alleged to have been agreed as his fee. The falsity of this stand is further evident from the fact that no such question was put to the plaintiff during his. Cross-examination; and the falsity and the utter frivolity and recklessness of the defendants' response to the legal notice cast, to say the least, grave doubts on the defendants' veracity. I, therefore, hold that the amount agreed to be paid to the Plaintiff on account of his fees and the fees of a junior counsel was as claimed by the Plaintiff.
5. Since the plaintiff has given up his claim for Rs,2,500 on account of miscellaneous expenses, the amount due to the Plaintiff is Rs,2,45,000 and, in view of my findings on Issue No,1, such amount is due to the Plaintiff by the defendant No,4 only. The suit of the Plaintiff was, for the aforesaid reasons, decreed against defendant No,4 only for Rs,2,45,000 with profit thereon as prayed and costs.