DHANRAJGIRJI NARSINGGIRJI Vs. PAYNE AND CO

JUDGEMENT

(1.) This is an appeal from an order made by Mr. Justice Mirza on a motion taken out by the attorneys for the defendant in a suit against Messrs. Payne & Co., who were solicitors for the alleged plaintiff in the suit, and the motion asks that Messrs. Payne & Co. be ordered to pay the defendant's costs of the suit less certain costs which the defendant had already been directed to bear. The ground on which the motion was based was that the plaintiff in the suit is a non-existent person, and the appellant contends that the English rule which in such a case imposes upon the solicitor purporting to act for a non-existent person liability to pay costs should be held to apply in India.

(2.) The suit was started by the presentation of a plaint on November 24, 1931, and on the previous day there was a request by Messrs. Payne & Co. to file an appearance, that request being in Form No. 2 of the Forms to the High Court Rules. In December there was a summons for directions, and on February 22, 1932, the solicitors for the defendant, Messrs. Dastur & Co., wrote to Messrs. Payne & Co. contending that there was in fact no such company as the alleged plaintiff. Notwithstanding that letter Messrs. Payne & Co. as late as March 29 wrote saying :- We are advised that your contention that we are acting on behalf of a nonexistent plaintiff is without substance. The suit then proceeded, and there were various interlocutory matters, and eventually Messrs. Payne & Co. came to the conclusion that at any rate their description of the plaintiff was wrong, and they took out a summons for leave to amend by altering the plaintiff's name. The learned Judge came to the conclusion that it was not a case of misdescription of an existing plaintiff, but was a case of a suit having been started in the name of a non-existent plaintiff, and on that view he naturally refused leave to amend. There was no appeal from that order. Subsequently a preliminary issue was raised in the suit as to whether or no the plaintiff existed, and on that issue it was decided that the plaintiff was non- existent.

(3.) This motion was then launched and was argued, as I gather, at considerable length before the learned Judge who reserved judgment. In the judgment which he ultimately delivered the learned Judge appears to express the view that in India a solicitor acting for a non-existent party cannot be made liable for costs. But then it seems to have occurred to him that it was undesirable to decide the matter on a motion in the suit, and so he gave leave to the parties to file a suit. The actual form of his order was that the application for an order directing the respondents to pay the defendant the costs of the suit be and is hereby refused, and he then gave liberty to the defendant to file a suit against the respondents within a limited period and made the costs of the motion depend upon whether the suit was filed or not. No objection had been taken by the parties to the jurisdiction of the Court to decide the matter on this motion, and I am clearly of opinion that the learned Judge ought to have disposed of the matter on the motion. I may observe that we have already held on a preliminary objection that an appeal lies against the learned Judge's order. I can see no advantage to be derived from referring the parties to a suit, because I am satisfied on Mr. Payne's own affidavit that there can be no question that the plaintiff in this suit is a non-existent person. The plaintiff is described as Pietro Guerrieri & Co., Ltd., a private joint stock company incorporated in Italy and having its registered office at Florence in Italy and its branch office at Beach House, Colaba, without the Fort of Bombay. It is not disputed that there is in fact no company of the name given ; it is not incorporated in Italy or anywhere else and it has not its registered office at Florence. Mr. Payne in his affidavit sets out the facts which induced him to start the suit in the name of this plaintiff, and no doubt he was acting entirely bona fide. The contracts in the suit show that a private individual or a firm was trading as Pietro Guerrieri & Co., Ltd. But it is quite clear that the description in this plaint is of a distinct limited joint stock company and cannot be taken to be a mere misdescription of some individual or firm. I am bound to say that I think the solicitors were guilty of a measure of negligence because they must have appreciated, if they had considered the matter for a moment, that the allegation that a company incorporated in Italy had as part of its name the English word limited was almost certainly wrong, and if they had inquired of the Registrar at Florence as to what the correct name of the company was they would then have ascertained that in fact there was no such company in existence. Mr. Daphtary for the respondents has admitted that he has found no case in which this point has ever been raised in England by an independent suit; it is always raised in the suit in which the solicitor has purported to act for a non-existent person.