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Narayandas Sundarlal Rathi Vs. Narayandas Harbhagat - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberO.C.J. Suit No. 1174 of 1930
Judge
Reported inAIR1932Bom363; (1932)34BOMLR703
AppellantNarayandas Sundarlal Rathi
RespondentNarayandas Harbhagat
Excerpt:
.....in the recovery of the funds, money or property. he has, however, a general lien upon all his client's papers and documents for payment of all taxable costs, charges and expenses incurred by him on behalf of his client, and the lien entitles him to refuse production of the papers and documents to his client except on certain conditions.;there is a difference between a solicitor discharging himself and the client discharging the solicitor. in the former case, the client or his new solicitor is entitled to an order not merely for inspection or production of the papers and documents in the former solicitor's possession, but also for delivery thereof on an undertaking to hold them without prejudice to the former solicitor's lien, and subject to the re-delivery thereof after the bearing..........therein. the suit was filed on a commission agency account as a short cause on june 17, 1930. messrs. tyabji, dayabhai & co. are the attorneys on the record for the plaintiff who is the karta or manager of a joint hindu family firm and resides at amraoti in the central provinces and carries on business in bombay through his munim and constituted attorney. it appears from the affidavit of mr. chhaganlal dayabhai, a partner in the firm of messrs. tyabji, dayabhai & co., that his firm have acted as attorneys for the plaintiff in various suits and proceedings in this court, one of the suits being a suit which was filed as far back as 1919. according to the affidavit a large sum of money is due to the firm in respect of the several suits and proceedings even for their out-of-pocket costs.....
Judgment:

Wadia, J.

1. This suit has been mentioned to me in chambers for obtaining directions regarding the handing over of the papers and proceedings in the suit by one attorney to another, as the question of solicitor's lien for costs is involved therein. The suit was filed on a commission agency account as a short cause on June 17, 1930. Messrs. Tyabji, Dayabhai & Co. are the attorneys on the record for the plaintiff who is the Karta or manager of a joint Hindu family firm and resides at Amraoti in the Central Provinces and carries on business in Bombay through his munim and constituted attorney. It appears from the affidavit of Mr. Chhaganlal Dayabhai, a partner in the firm of Messrs. Tyabji, Dayabhai & Co., that his firm have acted as attorneys for the plaintiff in various suits and proceedings in this Court, one of the suits being a suit which was filed as far back as 1919. According to the affidavit a large sum of money is due to the firm in respect of the several suits and proceedings even for their out-of-pocket costs and expenses. On May 18, 1931, Messrs. Tyabji, Dayabhai & Co. wrote a latter to the plaintiff in connection with a suit pending in this Court between the plaintiff and Sukhdev Nandram and another, and also several other suits filed by the plaintiff that their out-of-pocket costs had exceeded the advances they had received from the plaintiff, and that unless they received a further sum of Rs. 5,000 in the least by the end of the week and a further assurance from the plaintiff that further moneys would be paid to them from time to time every month against their several outstanding bills, they would have no alternative but to obtain an order for discharge in the plaintiff's several pending suits. Presumably the attorneys also referred to this suit, viz., Suit No. 1174 of 1930, which was also pending. No reply was sent by the plaintiff to that letter, nor were any moneys paid to the attorneys. In the meantime the suit appeared on the board of Tyabji J. on June 22, 1931, and Messrs. Tyabji, Dayabhai & Co. instructed counsel to apply for anadjournment, and the suit was accordingly adjourned to August 22, 1931. On June 26, 1931, Messrs. Tyabji, Dayabhai & Co. received a letter from Messrs. Lala & Co. attorneys that they were now concerned for the plaintiff in this suit, that they intended to take an order for change of attorneys from the Prothonotary and Senior Master of this Court on June 29, 1931, and they asked Messrs. Tyabji, Dayabhai & Co. to be present on that day in the Prothonotary's office. A member of Messrs. Tyabji, Dayabhai & Co., accordingly, attended the Prothonotary's office on June 29, 1931, and an order for change of attorneys was presented to the Prothonotary for signature by Messrs. Lala & Co. The said order contained the following clause:-

And it is farther ordered that Messrs. Tyabji, Dayabhai & Co. do hand over to Messrs Lala & Co. all the papers and proceedings in the above suit on payment of their taxed costs.

2. Messrs. Tyabji, Dayabhai & Co. objected to this clause and applied for its deletion. They pointed out that large sums of money were due to them in respect of the plaintiff's several suits and proceedings, even for their out-of-pocket costs, and that they claimed a general lien for their costs on all the papers and proceedings and books of account in this as well as in other suits in their possession. The Prothonotary thereupon asked Messrs. Tyabji, Dayabhai & Co. to obtain the directions of the Chamber Judge, intimating that in the absence of any such directions he would have to sign the order for change of attorneys.

3. Both the attorneys were represented before me by counsel, and the question was argued in chambers on August 14 last. Some decided cases were cited on either side by counsel, though their authority was not disputed by the one side or the other. The law on the subject of a solicitor's lien has been well settled by now in numerous decisions. A solicitor has a lien upon the funds, money or property recovered for his client, but this lien is, unlike a lien on documents and papers, not a general lien, but restricted to costs incurred in the recovery of the funds, money or property. He has, however, a general lien upon all his client's papers and documents for payment of all taxable costs, charges and expenses incurred by him on behalf of his client, and the lien entitles him to refuse production of the papers and documents to his client except on certain conditions. There is, however, a distinction according to English law, and the same law also applies in India, according to which the rule is quite different when the solicitor discharges himself from what it is when the solicitor is discharged by his client. If a solicitor discharges himself, the client or his new solicitor is entitled to an order not merely for inspection or production of the papers and documents in the former solicitor's possession, but also for delivery thereof on an undertaking to hold them without prejudice to the former solicitor's lien, and subject to the re-delivery thereof after the hearing of the suit, and, if necessary, subject also to an undertaking to prosecute the suit in an active manner. If, on the other hand, the client discharges the solicitor, the solicitor is under no obligation to deliver, nor even to produce or allow inspection of the documents and papers in his possession for the client's benefit, until all his taxed costs are paid. The discharged solicitor is, according to the impression of Lord Eldon in Lord v. Wormleighton (1822) Jac Rep. 580 in which the representatives of a deceased executor declined to continue to employ the solicitor, entitled to make use of the non-production of the papers to get at what is due to him, and is entitled to hold over even if the client is embarrassed by the non-production of the papers. See In re Faithfull: In re London, Brighton, and South Coast Railway Co. (1868) L.R. 6 Eq. 325

4. In the case of Robins v. Goldingham (1872) 41 L.J. Ch. 813 a solicitor applied to his client for funds to carry on a suit and declined to continue the litigation unless his costs were secured. No moneys were given to him, nor was any security furnished, and the client obtained an order appointing fresh solicitors. It was held that the solicitor had discharged himself and was bound to hand over papers in his possession to the new solicitor on the latter undertaking to hold the same without prejudice to the former solicitor's lien. The result would be the same even if there was a special stipulation for the supply of funds to the solicitor in the retainer. See Bluck v. Lovering & Co. (1887) 35 W.R. 232. The case of Robins v. Goldingham, to which I have referred above, follows the decision in Heslop v. Metcalfe (1837) 8 My. & Cr. 183 in which the Lord Chancellor stated that the solicitor (p. 190) 'should have every security not inconsistent with the progress of the cause,' and (p. 188) ' the rule of Court must be adapted to every case that may occur.' On the other hand, it was held in Griffiths v. Griffiths (1843) 2 Hare 687 and Bozon v. Bolland (1839) 4 My. & Cr. 354 which are followed in the decision in In re Faithfull to which I have referred above, that the solicitor who is discharged by his client cannot be compelled to afford his client any facilities, and that his right of lien extends to all that is due to him, and not only to the amount due in respect of the particular matter or suit to which the papers sought to be produced related. As a rule the Court does not interfere with that lien by ordering the solicitor to deliver up the papers on payment of his bill of costs in that particular suit, even if the possession of the papers is necessary for the client to carry on the proceedings and he is damnified by the delay. See In re Broomhead (1847) 5 Dow. & Low. 52 See also Halsbury, Vol. XXVI, first part of para. 1340, at p. 818, where the law on the subject of solicitor's lien has been set out in short as settled by the leading cases on the subject. It is, however, clear that when a solicitor takes up a case and undertakes to conduct it, he is bound, whether his client is rich or poor, to proceed with due diligence and honesty to prosecute or to defend the claim, even if he is not put in funds, for it is open to him when be takes up the case to assure himself whether his client is a person of substance. It may be said that this rule will operate harshly on a solicitor because a dishonest client can turn round and not pay his solicitor's dues. To that the answer is that the solicitor can protect himself if he doubts the credit and honesty of his client by insisting on a sufficient advance at the outset to cover all probable costs. It will be really dangerous if a solicitor can be heard to say in the middle of a case that he refuses to act any further for his client unless he is paid all the costs incurred by him, and at the same time object to give the papers over to another solicitor.

5. The only question, therefore, for consideration before me is whether Messrs. Tyabji, Dayabhai & Co. have discharged themselves. Counsel for Messrs. Lala & Co. said that by reason of the letter dated May 18, 1931, Messrs. Tyabji, Dayabhai & Co. must in law be deemed to have discharged themselves, and that all consequences of such a discharge should, therefore, follow. If the matter had rested merely with the letter, I would have had no hesitation in holding that they had so discharged themselves. But after the date of the said letter the suit appeared on Mr. Justice Tyabji's board on June 22, 1931, and even before the letter of June 26, 1931, from Messrs. Lala & Co. intimating the change of attorneys, the former attorneys Messrs. Tyabji, Dayabhai & Co. appeared before Tyabji J. on June 22, 1931, and instructed counsel for the adjournment, and the suit was peremptorily adjourned to August 22. So that after the letter of May 18, they continued to act for the plaintiff, and although that letter contains a threat not to proceed with the hearing of the different suits of the plaintiff, they seem to have carried on his litigation, especially the present suit. At least there is nothing in the affidavit of Mr. Chhaganlal Dayabhai to show that after the letter they had expressed any unwillingness to carry on the litigation, and the statements therein remain uncontradicted. They have, therefore, not discharged themselves, at any rate not so far as this suit is concerned, and 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.

6. Under the circumstances I hold that Messrs. Tyabji, Dayabhai & Co. are entitled to retain the papers in this suit for their costs of this suit as well as of the other suits of the plaintiff. But as this would work hardship upon the plaintiff who is interested in getting the papers, I will not make the extreme order that Messrs. Tyabji, Dayabhai & Co. do not hand over the papers in the suit until all their costs of this and the other suits have been paid. I order that Messrs. Tyabji, Dayabhai & Co. do hand over the papers and proceedings in this suit either on payment of their taxed costs of this suit, or, if the costs have not been taxed, on a deposit being made by the plaintiff with them sufficient to cover what would be due to them under their bill of costs including the costs of taxation, on their undertaking to refund the balance, if any, over the taxed costs to the plaintiff. Counsel for Messrs. Tyabji, Dayabhai & Co. stated that they would also hand over the papers in this suit to Messrs. Lala & Co. on the latter giving their undertaking to pay the costs of this suit to Messrs. Tyabji, Dayabhai & Co. when taxed. I cannot impose any personal undertaking upon a solicitor, but if Messrs. Lala & Co. are willing to give their undertaking as suggested by counsel for the other side, Messrs. Tyabji, Dayabhai & Co. will hand over the papers in this suit to them. It is also open to Messrs. Tyabji, Dayabhai & Co. to transfer the papers in this suit to Messrs. Lala & Co. on the latter paying the bill of costs and taking the benefit of the lien.

7. As this matter has come up for directions from the Prothonotary's office, in which both the solicitors were equally interested, I make no order as to the costs of the application.


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