1. These are two applications (1) by the next friend of the minor plaintiff in the first suit and (2) by the same person as guardian ad litem of the same minor as defendant No. 2 in the second suit, for a change of attorney order. The application was first made before me on January 12, 1933, when an order drawn up in the usual form followed in the Prothonotary's office was presented before me for approval and fiat. On that occasion the former attorneys Messrs. Damania & Co. appeared by counsel and objected to the order being made. Thereupon the matter was transferred to counsel's list for today and has again come up before me. The order which was sought on January 12, 1933, in each case included this provision : 'that the said Messrs. Damania & Co. do deliver over to the said Messrs. Kharas & Co. all documents, vouchers and proceedings whatsoever relating to the said suit as are in their possession or power on payment of their taxed costs.' It is conceded on behalf of the applicants that they would not be entitled to obtain an order in this form as the attorney can claim to have a lien on the papers and documents in his possession not only for the costs of the particular suit or suits to which they relate but also for the costs of all other matters in which the attorney has been employed.
2. On January 13, 1933, the new attorneys Messrs. Kharas & Co. wrote to the former attorneys Messrs. Damania & Co. inter alia as follows :-
We cannot understand what possible objection you can have to our obtaining the said orders without making any reference in them for delivery of papers to us. We, therefore, propose that at this stage we should only obtain orders merely for substituting ourselves in your place. As for the delivery of papers in the various matters you can urge whatever objection you have at the time when we ask for such delivery. In our submission you are not entitled to object to an order merely for change of attorneys. We have drawn up the proposed orders deleting all reference to delivery of papers and hare to ask you to consent to the same being signed by the Prothonotary. We send yon herewith copies of the proposed orders engrossed by us. We have to give you notice that if you decline to give such consent and we are compelled to appear before the Court on Monday next we shall hold you responsible for all the costs and consequences.'
3. It is urged on behalf of the former attorneys that the applicants are not entitled to a change of attorney order until they have paid all the costs due by them to the former attorneys. For this contention reliance is placed upon an observation of Mr. Justice Wadia in Narandas Sundarlal v. Narandas Harbhat (1931) 34 Bom. L.R. 703 where the learned Judge has said (p. 708):.it is a rule of the Court not to sanction a change of solicitors when the former solicitor has not discharged himself, so long as his costs remain unpaid.
With great respect to the learned Judge no such rule, so far as 1 am aware, has existed in this Court. I am informed by my Registrar that the practice in the Prothonotary's Office is to allow change of attorney orders without insisting on costs due to the former attorneys being paid as a condition precedent. The learned Judge probably relied upon an observation of Mr. Justice Sale in Basanta Kumar Mitter v. Kusum Kumar Mitter (1900) 4 C.W.N. 767 which is as follows (p. 769):-
Moreover, it is the rule of this Court to decline to sanction a change of attorney where the former attorney has not discharged himself so long us his costs remain unpaid.
4. This observation has reference possibly to the then practice in the Calcutta High Court and cannot apply to our High Court. In my opinion it is the primary right of every litigant to employ any attorney he likes and to change him for another attorney in the course of the same proceeding if he so wishes, provided that he does not thereby cause delay or injustice to any other party or inconvenience to the Court. If he has not paid costs to the attorney whom he wishes to discharge that would affect his right to obtain papers and documents on which the attorney might claim a lien for his unpaid costs. In my judgment it is not open to an attorney to say that his client shall continue to employ him in the suit or proceeding until all the costs due to him are paid. The object of the rule requiring a change of attorney order, so far as I can apprehend, is to enable the Prothonotary's office conveniently to know when the liability of the discharged attorney on behalf of his client to pay Court fees and other accruing charges to that office ceases and that of the newly appointed attorney in that behalf begins. The converse case of the attorney being required to conduct the suit or proceeding on behalf of his client has no application as the attorney cannot be allowed to prejudice his client's case or proceeding by refusing to act for him for want of sufficient advances unless he discharges himself on his own application by an order of the Court from acting as attorney for the client, for in the latter case the attorney would disentitle himself from withholding from his client for the purposes of the suit or proceeding then pending, the papers and documents on which the attorney has a right of lien for his unpaid costs.
5. The observation of Mr. Justice Wadia is in the nature of obiter as would appear from the judgment. I am unable, with great respect, to accept the same as correct. The application will be allowed with costs. Counsel certified.
6. As for the previous appearance before me on January 12, 1933, the former attorney will have his costs of that day but counsel will not be certified.