Rajah Muthu Krishna Yachendra Bahadur v. W.H. Nurse

Sir John Wallis, Kt., C.J:— This is an Appeal from an order of Phillips, 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”(1) with reference to an Indian Appeal:

“It is the duty,” said Lord Westbory, “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.”

This was the old common law rule, as stated in Tidd's Practice, 9th edition, page 86, but it had also been held by Lord Tenterden, in Rowson v. Earle(2) and by Tindal, C.J, in Lawrence v. Potts(3) and in Vansardan v. Browne(4) that an attorney was entitled to refuse to go on unless lie 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. Lewis 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 8 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.:— 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.

The circumstances that led to the application for extension are as follows: The last day under the rules for filing the written statement in the case was the 1st of November. It would appear from the defendant's vakil's affidavit that the defendant had agreed to pay a vakil's fee of Rs. 1,000 for the suit before the filing of the written statement. By the 1st of November only a portion of the money had been paid and though the vakils had prepared a written statement they refused to file it without their balance fee being paid. The appellant had same difficulty in finding the money at such a short notice, and he therefore went and engaged another vakil and got him to file a written statement in time, hoping thereby to save his defence.

Unfortunately for him under the Rules of Practice on the Original Side that written statement could not be accepted as properly filed without an order of Court for a change of vakils, and the written statement was therefore returned and the case placed on the undefended board. His vakils on record refused to give their consent to any addition or change of vakils without their fee being paid in full, and by their conduct they effectively prevented defendant from prosecuting his defence. An application was thereupon made for a change of vakils and the learned trial Judge allowed it on condition that the appellant should pay Rs. 500 to his former vakils and the money was paid. This was on the 22nd of November. The case came on for hearing on the 23rd, and though the defendant's written statement had been actually filed on the 1st of November it could not be treated under the rules as properly filed till the order for change of vakils was obtained, and was thus out of time. The defendant therefore applied for extension of time to cure the defect under rule 48 of the Rules of Practice. It was that application that was refused by the learned Judge with the result that the order for change of vakils granted by him the previous day was rendered altogether useless.

Now, it seems to me that the delay in filing the written statement was due more to the mistaken action of the defendant's vakils in refusing to file it without being paid their fee in full than to any wilful default on the defendant's part. I agree with the learned Chief Justice that the action of the vakils was not justifiable and that the rules were not intended for the purpose of enabling the vakils to force their clients to pay their fees at the risk of having their cases dismissed by the Court. The learned Chief Justice has dealt with this point fully and referred to all the authorities on it, and as I agree with him I do not propose to dilate on it. When therefore the vakils refused to file the written statement on the last date for it, I think the defendant was justified in seeking the help of another vakil to file it and the subsequent delay, which was solely due to his having to obtain the order of Court for a change of vakils to enable his new vakil to act for him should not be used to his prejudice. The Court having subsequently actually ordered the change, it seems to me that the delay should not be pressed against him, at any rate, so stringently as to lead to his defence not being heard.

Furthermore, there is the fact that this is a testamentary suit, the judgment in which will be binding not only on the parties but on all the world as a judgment in rem, under section 41 of the Evidence Act. In such a case it seems to me the Court ought to be slow in refusing to hear the defence as it might prejudice not merely the defaulting defendant but others as well.

These important considerations were not brought to the notice of the trial Judge when he refused the extension applied for. Though in matters of discretion we should be slow to interfere with the order of the trial Judge, it seems to me that this is a case where we are justified in interfering.

I therefore agree to the order proposed by the learned Chief Justice.

Solicitors for respondent: King and Partridge.

K.R