KANTILAL AMARCHAND SHAH Vs. ITMADI HASSANALI JEEWABHOY

JUDGEMENT

(1.) ALTHOUGH this appeal raises a very short' question of construction as to the authority to be obtained by an attorney under Rule 568, it also raises a very important question with regard to the duties and responsibilities of attorneys and also the duties and responsibilities of counsel.

(2.) A suit was filed, being suit No. 1925 of 1948, by two members of Shia Ismaili community against 14 trustees appointed for the management of His Highness the Aga Khan Diamond Jubilee Trust. The suit was for the removal of the trustees on the ground that they had mismanaged the trust fund which amounted to Rs. 24,00,000, and the main charge against the trustees was that they had allowed this amount to remain deposited in a bank called the Associated Banking Corporation Limited, which was ultimately wound up. Defendant No. 14, the respondent, was one of the trustees and the appellant, Mr. Kantilal, acted as his attorney. The defences of all the trustees were common and the brunt of the defence was borne by defendants Nos. 1 to 11 who were the leading trustees and leading members of the community. The only defence which defendant No. 14 took up, which was not common to the other defendants, was that he wrote to the trustees at a particular point of time and told them not to keep the moneys in the Associated Banking Corporation but to remove the moneys and keep them in different banks. On January 17, 1952, Mr. Kantilal delivered the briefs to Mr. H.H. Dalai and his junior Mr. S.A. Desai. Both were blank briefs and Mr. Kantilal's case is that in December 1951 he and his client had agreed that he would brief these two counsel, that they would charge 60 G. Ms. and 58 G.Ms. respectively and that his client agreed to his briefing these two counsel.

(3.) IT is with some difficulty that we have been able to retain the system in this High Court where two counsel are allowed on taxation, and the reason for allowing two counsel is that it helps the administration of justice and Courts are not held up because one counsel is absent. But the very reason for briefing two counsel is that one or the other must be available to the client. If neither can attend, then the junior must return the brief in good time so that somebody else should be briefed in his place. We are surprised and even shocked to learn, so Mr. Kantilal tells us, that the practice has been growing at the Bar or amongst solicitors even in heavy matters where handsome fees are marked that two counsel are not considered enough but third counsel is briefed so that if both are absent the third would be available. We can understand a case where a third counsel is necessary to take notes or to find out authorities, or again when the stake is very large and the matter is of the utmost importance or complication or complexity that a third counsel may be briefed. We can also understand a case where a retainer has been given and the solicitor briefs a third counsel. None of these factors are present in this case, and we are not at all satisfied with Mr. Kantilal's explanation for his briefing the third counsel, a very junior at the Bar, who had just stepped into the profession. Mr. Kantilal's client had a more interesting explanation to give as to why a third counsel was briefed, but we discard the explanation. Even accepting Mr. Kantilal's testimony to be correct, we do not for a moment accept his excuse that this was such a difficult case that a third counsel was necessary to be briefed.