1. This is an application under Rule 66 of the 2nd Chapter of the Original Side Rules for sanction of a change of attorney. The petitioners are the defendants in an action which is due for hearing shortly. They ask that their original attorney shall be directed to hand over all the papers entrusted to him by them, whilst reserving through the second attorney, the lien on those documents for any outstanding costs, which have already been incurred in the first attorney's favour.
2. It is said in the notes to the Original Side Rules that the attitude of the Courts in India towards the protection of attorneys in circumstances such as these is more favour-able to them than the attitude adopted by Judges towards solicitors in England. I am unable to appreciate this contention. It seems to me that the Courts in both countries have acted and must act on exactly the same principles. I think the decisions show this.
3. As I understand it, the position is as follows, that when an attorney or solicitor is on contract for service to a litigant, the status of the attorney or solicitor with regard to his lien on documents, depends upon how the contract between him and his client is terminated. If it is terminated unjustifiably by the client, then the attorney has the absolute right to maintain his lien and say 'I stand by my rights in law; I will not give up your papers until my legitimate costs already incurred are paid.' If on the other hand, the attorney or solicitor puts an end to the contract himself, he is not so entitled. True, he retains his lien, but according to the decisions, the lien is postponed. It comes into effective operation only after the case is ended and after the other attorney has completed his work. There is, I apprehend, no lien in favour of an attorney who is discharged by his client for misconduct; but that is not the case here.
4. In this case the sole point seems to me to be what were the circumstances in which this contract of service came to an end Did the defendant petitioning company notify the attorney Mr. Bose that he was discharged from appearing on their behalf, or did Mr. Bose himself take the initiative and say that he was not going to proceed further unless his costs were paid 1 do not propose to enter into a minute examination of the facts here which are set out in the affidavits and correspondence. I have come to the definite conclusion that it was Mr. Bose who put an end to the contract because he was not placed in funds by his clients for the purpose of taking the necessary legal steps and making the necessary legal payments. Although I sympathise with the attorney he need never have allowed his services to be retained without obtaining a lump sum down or security for his costs. Bat he is not entitled to embarass and impede the litigants by retaining the papers entrusted to him when he himself has declined to act further.
5. The only decision to which I shall refer is the case of Pankaj Kumar Ghose v. Sudhir Kumar Sikdar 37 CWN 998 : 147 Ind. Cas. 1084 : AIR 1931 Cal. 58 : 60 C 1273 : 6 RC 324, on which Counsel for the respondent relied. That was a decision of an Appellate Court in which the judgment was delivered by the late Acting Chief Justice Sir Charu Chunder Ghose. This case so far being in the respondent's favour, is, in my opinion, against him. The learned Acting Chief Justice relying on the experience and views of another Judge of this Court, Mr. Justice Sale, summed up the governing principle in this regard as follows:
The practice has always been so far as I have understood it, that no order for change of attorney is made unless provision is made for the payment of the costs of the attorney, subject of course to this, that no such provision will be made, where the attorney has by his own conduct or misconduct, discharged himself.
6. Again, I say that here there is no question of misconduct on the part of the attorney; but I think by his conduct he put an end to the contract between himself and petitioning Company. He did so for a very good reason; but the repudiation came from him, and in these circumstances he only retains the modified lien, the position being that his priority of lien is sacrificed, and to that extent, impaired. I shall, therefore, allow this application in the terms put forward in the prayer.