RAJAH MUTHU KRISHNA YACHENDRA BAHADUR Vs. WHNURSE

JUDGEMENT

(1.) This is an Appeal from an order of Phillips, Wallis, C.J.J., refusing leave to file a written statement which was out of time, and raises a question of considerable importance. The cause of the delay was that the defendant's vakils refused either to file the written statement themselves or to consent to another vakil being brought on the record unless they were paid Rs. 1,000 towards the costs of the suit which they alleged the defendant had agreed to pay at this stage of the case. In these circumstances, the defendant was precluded by the Original Side Rules from filing the written statement himself or getting another vakil to file it. I take the facts from the vakil's own counter-affidavit in answer to the application for a change of vakil. The change was eventually ordered by consent upon the defendant paying the vakils Rs. 500, but the written statement was then out of time, and, as I have already said, the learned Judge has refused to excuse the delay. Now I may say at once that I have come to the conclusion, upon a consideration of authorities which were not cited to the learned Judge, that the defendant's vakils were not justified in refusing themselves to file the written statement in time or to allow another vakil to do so and that the defendant ought not to be prejudiced by their conduct. In this Court, vakils are allowed to act as well as plead on the Original Side, and as regards acting are very much in the same position as solicitors in England. Now, it is I think well settled in England that attorneys or solicitors are not entitled to refuse to go on with an action for want of funds, unless they have given their clients sufficient notice of their intention to enable him to make other arrangements. The rule is laid down even without this limitation in "Observations addressed by Lord Westbury on behalf of the Lords of the Privy Council to a solicitor of the Court" (1869) 4 B.L.R., 29 (P.C.) with reference to an Indian Appeal: It is the duty," said Lord Westbury, "of a solicitor who has once undertaken to conduct a cause to carry it to a conclusion, and he cannot refuse to do that duty by reason of the client not having complied with any application that may have been made to him.

(2.) This was the old common law rule, as stated in Tidd's Practice, 9 edition, page 86, but it had also been held by Lord Tenterden, in Rowson V/s. Earle (1829) Mood. & M., 538 and by Tindal, C.J., in Lawrence V/s. Potts (1834) 6 C. & P., 428 and in Vansardan V/s. Browne (1832) 9 Bing., 402 that an attorney was entitled to refuse to go on unless he were put in funds provided that he gave his client sufficient notice of his intention not to go on The question was again considered in Underwood, Son & Piper V/s. Lewis [1894] 2 Q.B., 306 in which Lord Esher laid down that a solicitor accepting a retainer was bound to go on in the absence of good cause, such as a refusal by the client to find the money for necessary disbursements, which term did not include his own costs. These cases are entirely opposed to the view that a vakil is entitled to refuse to take a necessary step in the case, because his own fees have not been paid, and at the same time refuse his consent to the transfer of the case to another vakil. It is true that on the common law side an attorney could resist a change of attorneys unless his costs were paid, by which must be understood his costs for work already done in the action, not as in the present case an agreed payment towards the general costs of the action. On the equity side a change of solicitors was allowed without insisting on the payment of costs, and this equitable rule has been held to prevail by reason of the provisions of the Judicature Act and is now embodied in Order VII, Rule 3 of the Supreme Courts Rules; but even the common law rule must be read in the light of the other rule already mentioned, that it is the solicitor's duty to go on if put in funds to meet Out of pocket expenses. I may further observe that the rules requiring pleadings to be filed promptly were passed to avoid delays in the disposal of the business of the Court and not as a means of enabling practitioners to obtain prompt payment of their fees, and that no previous instance of their being used for this purpose appears to have come before the Courts either in England or in India. It is also unnecessary and undesirable that they should be used for such a purpose, as solicitors and vakils are otherwise sufficiently protected. They can insist on payment of their fees in advance, or rely on their lien on the client's papers and on the fruits of the litigation as well as on their right to sue for their fees. They are also in a better position than Barristers, who cannot sue at all, and than first and second grade pleaders who under the Legal Practitioners Act cannot recover on special agreements unless they are in writing and filed in Court and then only to the extent to which they are reasonable. It has also been argued before us that we should not interfere because the defence is a frivolous one. That however is a question to be decided at the trial. We must allow the appeal and give leave to file the written statement with costs of this appeal. Krishnan, J.

(3.) This Appeal arises from certain probate proceedings on the Original Side of this Court. The respondent applied for the probate of an alleged will of the late Raja Venugopal Bahadur. On citations being issued, the appellant, Raja's brother, filed a caveat and the matter was then ordered to be tried as a suit under Section 83 of the Probate and Administration Act, with the respondent as plaintiff and the appellant as defendant. The Appeal is against the order of the trial Judge refusing to grant extension of time to the defendant for filing his written statement in that suit.