Skip to content


ibrahim F. Lalji Vs. Husseinbhoy A. Lalji - Court Judgment

LegalCrystal Citation
SubjectContract
CourtMumbai
Decided On
Case Number O.C.J. Appeal No. 4 of 1934 and Suit No. 2638 of 1921
Judge
Reported inAIR1935Bom119; (1935)37BOMLR49; 158Ind.Cas.579
Appellantibrahim F. Lalji
RespondentHusseinbhoy A. Lalji
DispositionAppeal dismissed
Excerpt:
.....the commissioner. defendant no. 9 filed objections to the accounts. at the hearing before the commissioner defendants nos. 2 and 10 as receivers instructed a firm of solicitors to appear for them, and the same firm appeared separately for defendant no. 10 in his individual capacity. on the question of costs :--;that the receivers were appearing to support their own accounts, and if defendant no. 10 wished to appear personally, he should have severed from his co-receiver, and that as he did not do so his appearance separately should be treated as a nullity, and the court should ignore any costs which he might have incurred in his personal capacity.;the same person is not entitled to appear by separate solicitors or separate counsel in different capacities. a solicitor or counsel..........as receiver, in which case he would not of course have been interested in any order made as to receivers' costs. when the matter came before the learned trial judge, mr. justice mirza, he should have refused definitely to allow defendant no. 10 to appear, as he desired to do, by a separate counsel in his capacity as a partner. but the learned judge does in effect hold that defendant no. 10's appearance is irregular. the learned judge made an order that defendant no. 9, who took exceptions to the commissioner's report, should pay the costs of the receivers. then he says with regard to defendant no. 10 :-defendant no. 10 as a party interested in the partnership assets in his personal capacity to the same extent as his brother the 9th defendant has in addition to appearing as receiver.....
Judgment:

John Beaumont, Kt., C.J.

1. This is an appeal from a decision of Mr. Justice B. J. Wadia, and it raises a question relating to taxation of costs.

2. There was a suit in this Court for dissolution of partnership, two of the partners being defendants Nos. 2 and 10. Some three years after the suit was filed, defendants Nos. 2 and 10 were appointed by the Court receivers in the partnership suit, and in due course they filed their accounts and carried them in before the Commissioner. Defendant No. 9, who is the present appellant, filed objections to the receivers' accounts before the Commissioner, and subsequently he filed exceptions to the Commissioner's report. On the objections being heard by the Commissioner, he made a note that defendant No. 10 had appeared separately. Defendants Nos. 2 and 10 had appointed a certain firm, Messrs. Edgelow, Gulabchand, Wadia & Co., as their solicitors originally in the suit to represent them in their capacity as partners, and after they were appointed receivers, they instructed the same solicitors to represent them as receivers, and when the matter was before the Commissioner, apparently the solicitors stated that they appeared separately for defendant No. 10. Now that was wrong. It has been laid down many times that the same person is not entitled to appear by separate solicitors or separate counsel in different capacities. Of course a solicitor or counsel appearing for a client who is interested in two different capacities can state the case of his client in respect of each capacity, but he cannot appear separately for the same person. If defendant No. 10 wanted to appear in his individual capacity, then he should have severed from his co-receiver and allowed his co-defendant No. 2 to appear as receiver, in which case he would not of course have been interested in any order made as to receivers' costs. When the matter came before the learned trial Judge, Mr. Justice Mirza, he should have refused definitely to allow defendant No. 10 to appear, as he desired to do, by a separate counsel in his capacity as a partner. But the learned Judge does in effect hold that defendant No. 10's appearance is irregular. The learned Judge made an order that defendant No. 9, who took exceptions to the Commissioner's report, should pay the costs of the receivers. Then he says with regard to defendant No. 10 :-

Defendant No. 10 as a party interested in the partnership assets in his personal capacity to the same extent as his brother the 9th defendant has in addition to appearing as receiver appeared in his personal capacity by Mr. Vachha. He was served with the summons not in his personal capacity, but as a joint receiver with defendant No. 2. In my opinion he was not entitled to appear in his personal capacity when the summons was not served on him in that capacity.

I would go rather further than that, and say that, whether served or not, he was not entitled to appear by two counsel, one representing him in his personal capacity as a partner, and the other as a receiver. However, the effect of the learned Judge's order is, not to direct defendant No. 10 to bear his own costs, but to hold that he had no right to be before the Court in his personal capacity, as he was already before the Court as receiver.

3. Now the point which arises on taxation is this, Defendant No. 9 was ordered to pay the costs of the receivers. His contention is that, inasmuch as the receivers and defendant No. 10 were acting by the same solicitors, and as he was not ordered to pay the costs of defendant No. 10, any costs representing items of work done jointly for the receivers and defendant No. 10 must be apportioned and defendant No. 9 is liable only for the proportion attributable to the receivers, and the rule of practice established in such cases is that costs are divided half and half. The learned Taxing Master accepted that view. He held that the practice established in England as laid down in Re Colquhoun (1854) 5 De G.M. & G. 35, which has been followed in many subsequent cases, is that where two defendants are appearing by the same solicitors and, the plaintiff is ordered to pay the costs of one defendant but not of the other, then the costs of the work done jointly for the two defendants must be divided half and half and the plaintiff is only liable to pay half the costs of such joint work, that is to say, the half attributable to the defendant whose costs the plaintiff has been ordered to pay; and the learned Taxing Master came to the conclusion that that principle applied here although the receivers are not parties to the suit. On review, Mr. Justice B. J. Wadia came to the conclusion that that principle did not apply in this case mainly because the receivers are not defendants, and the rule in question only applies as between co-defendants. His view was that this rule had been criticised in several cases and that it was not founded on any sound principle, and, therefore, could not be extended to cases not already covered. I would myself put the case on this ground that not merely are the receivers and defendant No. 10 not co-defendants, but, as I have stated, defendant No. 10, who was already appearing as a receiver, could not appear separately as a partner, and should not have been allowed, either before the Commissioner or before the learned Judge, to appear separately. The rule that a person cannot appear in two different capacities by separate solicitors or separate counsel has been laid down in this Court by Sir Amberson Marten, who was following certain observations of Sir Lawrence Jenkins, in the case of Jamshedji v. Sorabji (1920) 25 Bom. L.R. 1137, and I think that rule should be followed in this Court and parties should not be allowed to appear in different capacities by different solicitors or different counsel. If we were to allow the appeal in this case and hold that the rule in Re Colquhoun applies not only between co-defendants but in respect of one defendant appearing in two different capacities and succeeding in one and failing in another, we should be recognizing the right of a party to appear in different capacities, which right, I think, we ought not to recognise. In my opinion, the proper ground upon which to base this case is that no question of double costs arises. The receivers were appearing, both before the Commissioner and on the exceptions before the learned Judge, to support their own accounts and defendant No. 10, if he wished to appear personally, should have severed from his co-receiver ; and as he did not do so, his appearance separately must be treated as a nullity, and we must ignore any costs which he may have incurred in his personal capacity. On these grounds, I think the appeal fails and must be dismissed with costs.

Rangnekar, J.

4. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //