Lancelot Sanderson, C.J.
1. In this case the application was by one Nunnumull that his attorney should be discharged and that the attorney should be ordered to make over all the papers in a certain suit, No. 1171 of 1913, to another attorney: and the order which was made by the learned Judge--one of the defendants Nannumull appearing in person and the attorney consenting--was 'that the attorney be discharged from further acting as the attorney for both the defendants, Prabhu Lal and Nunnumull, in this suit and that the defendants be at liberty to appoint another attorney to act for them in the reference before the Official Referee of this Court,' and it was further ordered that the attorney Babu Kumar Krishna Dutt without prejudice to his lien for costs due to him in this suit do produce before the said Official Referee such papers and documents as may be in his possession when required by the said defendants upon their paying beforehand to the said Babu Kumar Krishna Dutt his costs of and charges for such attendance '
2. Now, just to dispose of one point at once: it was argued that inasmuch as the attorney had been acting on behalf of both the defendants, the application ought to have been made by both of them and that the attorney could not be discharged unless the application were made by both of them. As a matter of fact, the order is to the effect that the attorney shall be discharged from acting for both the defendants. Therefore, the learned Judge must have understood, when he made the order, that the application was made to thai effect. The defendants are father and son, and the son has sworn an affidavit that he has had control of the litigation not only on behalf of himself but also on behalf of his father, and this application was made on behalf of his father as well as for himself: and I do not think there is any substance in that objection. But the point of substance is whether under the circumstances of this case, the learned Judge has made a proper order when the effect of his order was that the papers should remain with the first attorney and that they should be produced for the purpose of being used in the suit by him and that the defendants should be called upon to pay his Costs of such production. In my opinion that is not a proper order. First of all, it appears that the attorney had been acting on behalf of the client in the ordinary way without any qualification at all. Then something happened, and there was a dispute between the parties, the defendant saying that the attorney had refused to go on acting for the client unless money was provided by the client. As against that the attorney has sworn that he never did anything of the kind, and I am not going to arrive at or trying to arrive at any decision as to which of those two gentlemen is correct in his account of the interview. But there is a letter of the 2nd of July 1915 which is referred to at page 21 of the paper-book, and that appears to me to be an admission by the attorney that he had refused to go on acting for the client unless his out-of-pocket expenses were paid. Now, if the relationship between the attorney and the client was the ordinary relationship between an attorney and his client, I do not think it would be disputed that that would amount to a discharge of the attorney by himself, and if it were a discharge of the attorney by himself then he could not claim to retain the papers when they were wanted by his former client for the purpose of continuing the litigation. The most he would be entitled to would be to have his lien protected by an undertaking given by the new attorney.
3. But it was said by the learned Counsel who appeared for the attorney that, as a matter of fact the client had himself discharged the attorney, and he pointed particularly to a letter written in November 1914 which appears at page 41 of the paper-book, the effect of which was--it was written by another firm of attorneys--:to give the first attorney notice that Messrs. Prabhu Lal and Nunnumull desired to change their attorney and asking for a bill of costs in order that it might be delivered to the taxing office and he might be paid and the change effected as soon as possible, and he argued that that amounted to a discharge by the client of his attorneys. I do not think that that can be so, having regard, at all events, to what happened afterwards. If we look at the document which is referred to at pages 26 and 40 of the paper-book, it is clear that the attorney did continue to act as attorney right way down to the 13th of July 1915, and in those circumstances, I do not think it is possible for him now to come forward and say that he was in fact discharged by the client.
4. But he made a further point, He said that up to a time it is quite true that the attorney was acting in the ordinary way for the client, but there came a time when the attorney would not act without payment to him of his out-of-pocket costs. Therefore a fresh arrangement was arrived at, that the attorney would only be called upon to act if and when the money were provided by the client and that money was not provided by the client and consequently he was discharged by the client.
5. Now, the case to which Mr. Jackson drew our attention this morning, namely Bluck v. Lovering & Co. (1886) 35 W.R. 232, seems to me to be exactly in point. If I put the present case as highly as it can be put in favour of the attorney, and assume in his favour, although 1 do not think it is proved, that after a certain time--probably in June 1915, but the date is not material--the attorney was only bound to act if and when the client provided him with money for his out-of-pocket expenses, even then the order which was made by the learned Judge was not a proper order for this reason. In the case of Bluck v. Hovering & Co. (1886) 35 W.R. 232 it was part of the original retainer of the solicitor that he should only be bound to act as long as the money should be supplied from time to time for the necessary outgoings. Then there came a time when the money for the necessary outgoings was not supplied by the client. Thereupon the solicitor said that he was not bound to act and that he was not bound to hand over the papers. But the learned Judges, Chief Justice Lord Coleridge and Mr. Justice Manisty, held that although that was a legitimate arrangement to make between the solicitor and the client, still the solicitor could not prevent or inconvenience the client in his prosecution of the litigation by refusing to hand over the papers, and the learned Chief Justice said this: 'The solicitor has a right to say that he will not go on with an action, and he has a lien; but he has no further right to embarrass a client in an action which he has himself refused to prosecute. Upon the authorities, and Mr. Lush-Wilson's admission, this would not be disputed in an ordinary case. But it is said that an express contract makes all the difference in the rights of the solicitor, I can see no principle of law upon which that can be founded. The contract, whether it is one by inference or express, is no more than a contract:. If a case could have been found in which, on grounds of expediency, the Court had held that express words made this difference, it would have been arguable. But no such case has been produced; and, on the contrary, in Glover v. Adams (1881) 6 Q.B.D. 622, where the solicitors refused to go on, the Court, consisting of Grove and Lindley, JJ., expressly held that the client was entitled to have his papers delivered to him. It seems to me that the cases cited are authorities proving that the papers cannot be retained pending the conclusion of a suit. The attorney ought to have protection, but not so as to embarrass the proceedings.' Then he goes on to say that the order of Pollock, B., was wrong. It seems to me, as I have said, that this case is directly in point. Putting the case as high as can be in favour of the attorney here, that he was not bound to act on behalf of his client unless the necessary sums were provided, he was not entitled to hold the papers, so as to embarrass the client: and both the learned Judges went on to say that in such a case as that which they were considering the proper order to make was that made in the case of Robins v. Goldingham (1872) 13 Eq. 440 : 20 W.R. 277 : 41 L.J. Ch. 813 : 23 L.T. 900. In that case, the headnote is this: ''Where a solicitor applied to his client for funds to carry on a suit, and, upon the client not furnishing any, declined to continue to conduct the litigation, and the client appointed fresh solicitors: Held, that this was a discharge by the solicitor, and that he might be called upon to deliver to the new solicitors the papers relating to the matters in question in the suit, on their undertaking to hold them without prejudice to his lien and to return them undefaced within twelve days after the conclusion of the suit, and to allow the former solicitor access to them for the purpose of carrying on an action for his costs.'
6. Therefore, when the learned Judge made an order, as he did in the present case, the attorney consenting, that the attorney should be entitled to retain the papers and that the client should only have a limited access and they should be produced upon paying to the attorney the costs of production, I think it was an order which ought not to have been made.
7. I quite appreciate the difficulty in which Mr. Justice Chandhuri was placed by the fact that the defendant appeared in person, and in all probability he had not the real position between the parties present to his mind when he made this order. We have not had any detailed judgment, and it may be that we are not in possession of what was passing in the learned Judge's mind. On the contrary, here we have had the advantage of hearing learned Counsel on both sides and had the matter fully argued and the material points prominently brought to our notice--an advantage which Mr. Justice Chaudhuri had not--in considering this point.
8. Therefore, I think this appeal must be allowed, and the proper order will be in accordance with the judgment in the case of Robins v. Goldingham (1872) 13 Eq. 440 : 20 W.R. 277 : 41 L.J. Ch. 813 : 23 L.T. 900 so far as it is material.
9. The respondent will pay the costs of this appeal. As the defendant in the Court below appeared in person, we make no order as to the costs in that Court.
John Woodroffe, J.
10. I agree.
Asutosh Mookerjee, J.
11. I agree that the order made by Mr. Justice Chaudhuri, which is of an exceptional character, cannot possibly be supported. It cannot be disputed that in the event of a change of solicitors in the course of an action the former solicitor's lien is not taken away, but his rights in respect of his lien are modified according as his discharge is by himself or by his client: In re Rapid Road Transit Co. (1909) 1 Ch. 96 : 78 L.J. Ch. 132 : 99 L.T. 774. If he is discharged by the client otherwise than for misconduct, he cannot, so long as his costs are unpaid, be compelled to produce or hand over the papers; if, on the other hand, he discharges himself, he may be ordered to hand over the papers to the new solicitor, on the latter undertaking to hold them without prejudice to his lien, to return them intact after the action is over and to allow the former solicitor access to them in the meantime: In re Faithful (1868) 6 Eq. 325 : 18 L.T. 502 and Robins v. Goldingham (1872) 13 Eq. 440 : 20 W.R. 277 : 41 L.J. Ch. 813 : 23 L.T. 900. Consequently two questions require consideration, namely, first, did the client in this case discharge the attorney, and, secondly, if he did not, and the attorney discharged himself, is the latter entitled to the order made in his favour
12. As regards the first question, reference has been made to the letter of the 19th November 1914 to support the view that the client had discharged the solicitor. There is plainly no force in this contention. The letter in effect did not discharge the solicitor; and the subsequent conduct of the attorney also shows that he did not treat himself as discharged. Besides, as was pointed out by Mr. Justice Harington in the case of Atul Chandra Ghose. v. Lakshman Chunder Sen 2 Ind. Cas. 830 : 36 C. 609 : 13 C.W.N. 1172, under the Indian Law [Order III, Rule 4, Civil Procedure Code, read with Section 2(15)] a solicitor could not be treated as finally discharged till the leave of the Court had been obtained.
13. As regards the second question, we have to consider the letter of the 2nd July 1915 which, I am inclined to hold, operated as a discharge of the attorney by himself. I need not consider what the true position might have been, if foundation had been laid in the course of the proceedings for a possible theory that there was a special agreement between the solicitor and the client as to the mode of payment of the fees or the conduct of the proceedings; it is in any event clear that, in the absence of proof of such agreement, the refusal of the attorney to carry on the proceedings till he was paid his expenses, operated as a discharge by himself: Robins v. Goldingham (1872) 13 Eq. 440 : 20 W.R. 277 : 41 L.J. Ch. 813 : 23 L.T. 900; Glover v. Adams (1881) 6 Q.B.D. 622; Wilson v. Emmett (1854) 19 Beav. 233 : 52 E.R. 338 : 105 R.R. 132; Heslop v. Metcalfe (1837) 3 Myl. & Cr. 183 : 7 L.J. Ch. 49 : 1 Jur. 816 : 40 E.R. 894 : 45 R.R. 248; In re a Solicitor 4 B.L.R. (P.C.) 29; Basanta Kumar Mitter v. Kusum Kumar Mitter 4 C.W.N. 767; Atul Chundar Mookerjee v. Soshi Bhushan Mullick 29 C. 63 : 6 C.W.N. 215 and Moheshpur Coal Co. Ltd. v. Jotindra Nath Gupta 18 Ind. Cas. 315 : 40 C. 386 : 17 C.W.N. 278. But even if the letter of the 2nd July 1915 be not treated as a discharge of the attorney by himself, I think the attorney could not justly obtain the order made in his favour, as is clear from the decision in Bluck v. Lovering & Co. (1886) 35 W.R. 232. He is entitled, at best, to his lien, and if this is secured to him, he cannot claim to embarrass the proceedings by retention of the papers see also Griffiths v. Griffiths (1843) 2 Hare 587 : 12 L.J. Ch. 387 : 7 Jur. 573 : 67 E.R. 242 : 62 R.R. 247 and Hutchinson; In re, Hutchinson v. Norwood 54 L.T. 842 : 34 W.R. 637. I consequently hold that the appeal must be allowed, the order of Mr. Justice Chaudhuri discharged, and an order made in the terms proposed by the learned Chief Justice.