JHAVERCHAND DALICHAND Vs. ACHALDAS CHIMNAJI

JUDGEMENT

(1.) This is a summons taken out by the applicants who are a firm of attorneys for the purpose of enforcing the lien which they claim in respect of the costs, charges and expenses incurred by them on behalf of the plaintiff in this suit and/or another suit also filed by the plaintiff, being suit No. 1638 of 1928. The plaintiff is the paternal uncle's son of one Shivlal Motichand who died in 1924, and he filed suit No. 1638 of 1928 against the present defendants Nos. 1, 2 and 3 and against the mother of the deceased Shivlal, alleging that he was a coparcener with Shivlal and that the adoption of defendant No. 2 by the widow of Shivlal was invalid and inoperative. The plaintiff's former solicitors were Messrs. Khandwala and Chhotalal, but before the suit reached hearing he changed his attorneys and engaged the applicants who took over the conduct of the suit. The suit was heard before Rangnekar, J. on January 29, 1931, and it was dismissed with costs. The costs payable by the plaintiff in that case have been taxed at Rs. 7,729-7-4. Thereafter the plaintiff again approached the applicants, and engaged them to file the present suit against defendants Nos. 1, 2 and 3 and also defendants Nos. 4 and 5 who are the daughters of Shivlal, on the basis of his being a separated member of the family, and claiming as a present reversioner of Shivlal to the exclusion of his daughters according to a custom of the Jains of the Sirohi State. The plaintiff has alleged that the will of Shivlal is not genuine and that the testator's signature was forged, and he has also challenged the adoption of defendant No. 2. This suit was filed on March 11, 1931, and the defendants put in their respective written statements. The plaintiff's affidavit of documents was sent to him for being affirmed, but it was actually not affirmed.

(2.) On June 27, 1931, plaintiff wrote to his solicitors not to take any further proceedings in the suit, but the applicants still continued to correspond with their client, assuring him that they would do their best in the prosecution of the suit. It appears, however, that on July 9, 1931, the plaintiff arrived at a settlement of the suit direct with the defendants at Rohira in the Sirohi State, and the terms of settlement were written out on a stamp-paper. It was evidently because of this settlement that the plaintiff did not affirm his affidavit of documents. Under the settlement the plaintiff accepted the validity of the will of Shivlal and of the adoption of defendant No. 2. He abandoned all his claims against the estate of Shivlal, and undertook to withdraw this suit as well as another suit filed by him in the Chief Court of the Sirohi State. On July 17, 1931, the defendants attorneys informed the applicants that the plaintiff had agreed to withdraw this suit unconditionally. On the same day the applicants wrote back to the defendants attorneys that a large sum was payable to them for their costs, and any payment to the plaintiff in respect of his claim or in satisfaction thereof would deprive them of their lien. As the applicants wanted to go on with the suit, the plaintiff changed his attorneys and signed a warrant for change of attorneys in favour of Mr. Kantilal Thanawala, a solicitor of this Court, on July 21, 1931, appointing him as solicitor in place of the applicants. On July 22, 1931, the defendants attorneys sent a copy of the allocatur of the taxed bill of costs to the applicants and called upon their client, the plaintiff, to pay the same immediately. On July 24, 1931, the applicants asked for a copy of the consent terms of settlement arrived at between the parties, and it was sent by the defendants attorneys on the same day. The consent terms are Exhibit B to the affidavit in support of the summons, and under Clause 8 thereof defendants Nos. 1, 2 and 3 release the plaintiff from his liability to pay the costs of suit No. 1638 of 1928 which were ordered to be paid by the plaintiff and which, as I have said before, were taxed at Rs. 7,729-7-4.

(3.) The applicants contend that the compromise between the plaintiff and the defendants was arrived at behind their backs with the intention to defraud them of their costs, and they took out this chamber summons praying for an order that the costs. charges and expenses incurred by them for the plaintiff in this suit and/or suit No. 1638 of 1928 be ordered to be paid to them by the plaintiff and the defendants or such of them as to the Court may seem just and proper, or in the alternative for an order that plaintiff and defendants or such of them as to the Court may seem just and proper be ordered to pay to them their aforesaid costs charges and expenses but not exceeding the sum of Rs. 7,729-7-4, being the amount of the taxed costs payable by the plaintiff to the defendants in the first suit, which sum, the applicants allege, was intended to be set off against the plaintiff's claim in this suit by the proposed settlement. The summons also prays for an order allowing the applicants to continue and prosecute this suit for the recovery of their aforesaid costs, charges and expenses or any part thereof from the defendants and/or from the estate of Shivlal Motichand.