Ameer Ali, J.
1. With a considerable part of the application I do not deal being, I consider a matter for the taxing authorities and then the taxing officer. I propose to deal only with three questions : (1) the matter relating to the preliminary enquiry; (2) the matters relating to the application for the confirmation of report on the preliminary enquiry; (3) the matter of counsel's fees in the principal enquiry.
2. The matter 1 involves counsel's fees. The matter 2 involves the fees of seoond counsel and second day's fees; not very important in amount, but the main question of principle on this application. Matter 3 involves Mr. P.N. Sen's fees, 315 gold mohurs.
3. The three matters, to my mind, should be dealt with on different principles.
(i) As regards matter 1, I am not called upon to consider the question of written consent of client or overriding discretion of the Court. The fees to counsel in this case would be covered by a certificate under Chap. 36, Rule 56, The question is whether such a certificate exists, and this depends upon the construction of the order passed by me on the confirmation of the report.
4. The Commissioner or Referee granted a certificate. I varied the report before confirming it, and the question is, did I or did I not allow the certificate to stand? I admit having been extremely alarmed at the proportions which this preliminary enquiry attained (I forget the number of sittings). The fault was mine in not making it clear that this preliminary enquiry should be summary, and should not attract the services of expensive or, indeed, any counsel. But as a matter of construction, although the matter is not entirely clear, I do not think that I meant at the time to cancel the certificate of the Referee. This matter is, therefore, covered by a certificate, or may be deemed to be so covered.
(iii) I will take next the third matter. Note that these fees to counsel of attending the main partition enquiry would, in the normal course, have become part of the party and party costs in the partition, and normally there would have been a certificate under Chap. 36, Rule 56 by the Referee and, normally, such certificate would have been confirmed with the final return. Normally, no question would have arisen in the taxation because this being a 'net' partition, the Commissioner would have paid the various attorneys their costs, before distributing the balance, if any, to the parties.
5. In this case the solicitor has been discharged. He is what we may call a half-time solicitor, and the question is whether he should drop out entirely, proceed against the client and let the client do what he can to protect himself in the partition. The attorney wants an order that as between attorney and client he can charge the client and recover, even if a certificate is not allowed, and irrespective of what may be done in the partition. In my view, this is not the correct course. I do not think it would be right to tax now as between attorney and client and leave the matter there. In other words, I do not think that the Court should be called upon to exercise its discretion, assuming it to have a discretion, and to allow 'unusual' charges and expenses until it is known that they are 'unusual'. They are not apparently 'unusual', and very probably, if not certainly, they will in the partition be allowed as ordinary party and party costs.
6. I think Mr. S.N. Banerjee, who appeared for the attorney, appreciated this point, but he was anxious to have the matter finally disposed of owing to the age of the attorney. Having regard to the fact that this is a partition suit, I can fully appreciate his anxiety, but, remember, that if this attorney had not been discharged, he or his heirs would have waited until the end of the partition in order to get their costs.
7. In my view, therefore, with regard to the third matter the following course should be adopted. Let the attorney tax his bills, proceeding, upon the basis that the certificate of fitness for counsel has been granted. Let the client apply in the partition for a direction that taxed costs of his half-time attorney be paid out by the Commissioner or, alternatively, paid by the client and credited in the proper way in the partition accounts, and also that a certificate under Chap. 36, Rule 56 be granted in respect of the main inquiry. Had I to decide the question of consent or no consent with regard to this matter, I should find on the statement of counsel that the client was aware of the employment of Mr. Sen, but that there had been no warning to the effect that fees might be disallowed.
(ii) The second matter does not depend on the question of certificate for counsel, but upon the question of 'written consent' under Rule 32(iv) of Chap. 36, or on the overriding discretion which I am asked to exercise. On the facts I find that there was knowledge in the sense that the client knew that second counsel was being engaged and a second fee was being paid. I am not prepared to find 'warning', i.e., that the client was warned that these fees would not be allowed on party and party taxation. I am asked to apply the decision in Ramjash Agarvalla v. Orr, Dignam and Co. : AIR1932Cal233 . In that case the Advocate General's fees were involved. I find no reference to the matter of 'warning' which indeed is the very gist and substance of the rule. I think no inference is to be drawn from the difference in language between Rule 6 and Rule 32(iv). The rule means consent of the client, and consent to the payment of 'unusual' expenses is no consent unless the client is aware that they are 'unusual'. It may be however that the Court in that case in finding consent (though not written) assumed the fact of warning. I do not again see that this overriding discretion is provided by Rule 9, Chap. 36. That such a discretion exists in England appears to be the case. See the authorities referred to in the notes on Order 65, Rule 27 of the English Rules of Court. On the other hand, our rules in Chap. 36, Rule 32(iv), and Rule 6 though based on the English principle are specific and would seem to allow no room for discretion. In future, therefore, speaking for myself, I shall only exercise that discretion in the rarest cases.
8. Certain further observations: First of all, this is a partition suit, and in such suits it is more necessary than ever that the rules should be complied with; because although as between party and party, each party ultimately bears something of the costs, nevertheless by reason of our system of partition parties are more reckless in the costs they incur than in any other kind of suit. They have been so in this case. As to compliance with the rule, I do not see why attorneys should not protect themselves by having signed by the client a form stating that the particular costs are liable to be disallowed on taxation as between party and party, and that the client is nevertheless ready to bear them. The form of warrant of attorney which used to be relied upon for this purpose is no longer sufficient. I refer to what used to be known as the 'Be-Jabadi' warrant, i.e., costs allowed are not allowed.
9. Lastly, it is desirable to see how these matters fit in with our classification of costs--(1) Party and party costs; (2) Attorney and client costs.
10. Here is a mystery which I have always hesitated to unravel. As I understand it, of attorney and client costs there are, at any rate the following varieties: (i) First, 'ordinary' attorney and client costs. Those are allowed on the taxation of any bill, i.e., without a special order and without written consent of client, (ii) 'Pure' attorney and client costs, signify, according to my understanding of this mysterious and perhaps not wholly appropriate word, (a) cost which are allowed only by reason of some special order or which are allowed by reason of the written consent of client; (b) costs which, in the case of a bill taxed wholly as between attorney and client, are nevertheless put upon the client, and not upon the party or fund who or which has been directed to bear them as between attorney and client. Such costs are taxed as 'attorney and client pure.' (iii) Still purer attorney and client costs. So pure as to be invisible to the taxing eye: (a) Costs outside suit, not taxable at all (b) Costs included in a bill which are taxed off because outside the rules, and not covered by special order or written consent of client. Such costs are irrecoverable by the attorney unless the client is pure.
11. The result is that as regards matter (1) this is covered by the certificate. Matter (3) I propose to grant the certificate, allow the bill of the attorney to be taxed and allow the Commissioner or the party to apply in the partition for payment of the bill when taxed. With regard to matter (2) I will in this case allow the fees. The remaining matters in the application will be dealt with by the Taxing Officer and are not matters for the Court in the first instance. There remain two questions, the first with regard to payment by the new attorney to the old attorney of Rs. 7000 odd deposited with the new attorney as a condition for the change. Mr. Das asks me to make an order for immediate payment on the ground that, as will appear from the figures, costs allowed in taxation will, apart from the disputed items, be as much as Rs. 17,000. As against this the attorney has received from client himself a sum of Rs. 7958. I see no ground for making a special order. The Rs. 7000 deposited with the new attorney was to be paid against finally ascertained costs. When ascertained that order will operate automatically. It is true that the attorney has to wait, but as I have pointed out in the body of this judgment had he continued to act he would have had to wait. As it is indeed the applicant's attorney has more on the credit side than might be expected. It is very rare in partition suits for clients to put their attorneys in funds. It must be remembered that party and party costs after preliminary decree in partition suits are a most peculiar affair. In net partitions such as this they are not payable or not regarded as payable by the client to their attorneys. They are paid in full to the attorneys out of the pool created by the Commissioner. Indeed that is his principal function.
12. With regard to the costs of this application the attorney has come here for special relief. As regards the first matter the minutes might have been spoken to. As regards the second matter the rule should have been followed. As regards the third matter I have expressed my opinion. On the whole the order which appeals to me is to give the attorney his out-of-pocket costs on the Chamber application. On both sides it will be certified for counsel against clients. The taxation should proceed forthwith. It will proceed on the basis that a certificate (under Ch. 36, Rule 56) has been granted in respect of the two enquiries. The applicant's attorney may pay the requisition fee mentioned in Clause (c) of the summons and include it in the bill of costs. The Taxing Officer may act on counsel's endorsement.
13. 4th August 1941.--There is apparently some dispute as to the amount mentioned by me on p. 11 of the judgment as having been advanced by the client to the attorney. I gather that in this case receipts were granted for the amounts paid by the client to the attorney, and the amount in dispute is that of a cheque received by the attorney from the parties having the management of the bazar. This, however, suggests another matter in respect of which attorneys should protect themselves against their clients. It is a matter to which I have referred before and which has given this Court a great deal of trouble. I refer to disputes between client and attorney with regard to the amount which has been paid to the attorney on account. I myself in three cases recently have had to direct an enquiry. I have already referred to the necessity of keeping books. I have also referred to the matter of receipts. I have previously suggested that the Incorporated Law Society should frame rules whereby it should be made compulsory on the clients to take receipts from the attorneys. I was told on those occasions that clients were in the habit of refusing to accept receipts. Now, I must protect the attorneys against such reprehensible conduct. I am unable to make the refusal to accept a receipt, a criminal offence, but I can suggest that where any attorney is so treated by the client he should bring it immediately to the notice of the Court and the Court can direct a change. The English case to which I referred in the course of my judgment is Osmond v. The Mutual Cycle & . (1899) 2 Q.B.D. 488, passage at p. 496, which appears to indicate that the rule in In re Blyth & Fanshawe (1883) 10 Q.B.D. 207 is subject to an overriding discretion by the Court. As to the position under our rules I have already expressed my opinion. With regard to the costs of this application, if I have not made it clear my intention is that the respondent to the application should pay nothing more than the ordinary out-of-pocket costs of a Chamber application certified for counsel under the rules.