NARAYANDAS SUNDARLAL RATHI Vs. NARAYANDAS HARBHAGAT

JUDGEMENT

(1.) This suit has been mentioned to me in chambers for obtaining directions regarding the handing over of the papers and proceedings in the suit by one attorney to another, as the question of solicitor's lien for costs is involved therein. The suit was filed on a commission agency account as a short cause on June 17, 1930. Messrs. Tyabji, Dayabhai & Co. are the attorneys on the record for the plaintiff who is the Karta or manager of a joint Hindu family firm and resides at Amraoti in the Central Provinces and carries on business in Bombay through his munim and constituted attorney. It appears from the affidavit of Mr. Chhaganlal Dayabhai, a partner in the firm of Messrs. Tyabji, Dayabhai & Co., that his firm have acted as attorneys for the plaintiff in various suits and proceedings in this Court, one of the suits being a suit which was filed as far back as 1919. According to the affidavit a large sum of money is due to the firm in respect of the several suits and proceedings even for their out-of-pocket costs and expenses. On May 18, 1931, Messrs. Tyabji, Dayabhai & Co. wrote a latter to the plaintiff in connection with a suit pending in this Court between the plaintiff and Sukhdev Nandram and another, and also several other suits filed by the plaintiff that their out-of-pocket costs had exceeded the advances they had received from the plaintiff, and that unless they received a further sum of Rs. 5,000 in the least by the end of the week and a further assurance from the plaintiff that further moneys would be paid to them from time to time every month against their several outstanding bills, they would have no alternative but to obtain an order for discharge in the plaintiff's several pending suits. Presumably the attorneys also referred to this suit, viz., Suit No. 1174 of 1930, which was also pending. No reply was sent by the plaintiff to that letter, nor were any moneys paid to the attorneys. In the meantime the suit appeared on the board of Tyabji J. on June 22, 1931, and Messrs. Tyabji, Dayabhai & Co. instructed counsel to apply for an adjournment, and the suit was accordingly adjourned to August 22, 1931. On June 26, 1931, Messrs. Tyabji, Dayabhai & Co. received a letter from Messrs. Lala & Co. attorneys that they were now concerned for the plaintiff in this suit, that they intended to take an order for change of attorneys from the Prothonotary and Senior Master of this Court on June 29, 1931, and they asked Messrs. Tyabji, Dayabhai & Co. to be present on that day in the Prothonotary's office. A member of Messrs. Tyabji, Dayabhai & Co., accordingly, attended the Prothonotary's office on June 29, 1931, and an order for change of attorneys was presented to the Prothonotary for signature by Messrs. Lala & Co. The said order contained the following clause:- And it is farther ordered that Messrs. Tyabji, Dayabhai & Co. do hand over to Messrs Lala & Co. all the papers and proceedings in the above suit on payment of their taxed costs.

(2.) Messrs. Tyabji, Dayabhai & Co. objected to this clause and applied for its deletion. They pointed out that large sums of money were due to them in respect of the plaintiff's several suits and proceedings, even for their out-of-pocket costs, and that they claimed a general lien for their costs on all the papers and proceedings and books of account in this as well as in other suits in their possession. The Prothonotary thereupon asked Messrs. Tyabji, Dayabhai & Co. to obtain the directions of the Chamber Judge, intimating that in the absence of any such directions he would have to sign the order for change of attorneys.

(3.) Both the attorneys were represented before me by counsel, and the question was argued in chambers on August 14 last. Some decided cases were cited on either side by counsel, though their authority was not disputed by the one side or the other. The law on the subject of a solicitor's lien has been well settled by now in numerous decisions. A solicitor has a lien upon the funds, money or property recovered for his client, but this lien is, unlike a lien on documents and papers, not a general lien, but restricted to costs incurred in the recovery of the funds, money or property. He has, however, a general lien upon all his client's papers and documents for payment of all taxable costs, charges and expenses incurred by him on behalf of his client, and the lien entitles him to refuse production of the papers and documents to his client except on certain conditions. There is, however, a distinction according to English law, and the same law also applies in India, according to which the rule is quite different when the solicitor discharges himself from what it is when the solicitor is discharged by his client. If a solicitor discharges himself, the client or his new solicitor is entitled to an order not merely for inspection or production of the papers and documents in the former solicitor's possession, but also for delivery thereof on an undertaking to hold them without prejudice to the former solicitor's lien, and subject to the re-delivery thereof after the hearing of the suit, and, if necessary, subject also to an undertaking to prosecute the suit in an active manner. If, on the other hand, the client discharges the solicitor, the solicitor is under no obligation to deliver, nor even to produce or allow inspection of the documents and papers in his possession for the client's benefit, until all his taxed costs are paid. The discharged solicitor is, according to the impression of Lord Eldon in Lord V/s. Wormleighton (1822) Jacob's Rep. 580, in which the representatives of a deceased executor declined to continue to employ the solicitor, entitled to make use of the non-production of the papers to get at what is due to him, and is entitled to hold over even if the client is embarrassed by the non-production of the papers. See In re Faithfull: In re London, Brighton, and South Coast Railway Co. (1868) L.R. 6 Eq. 325.