1. This is an application made by Pallonji for restraining Mr. Kallabhai Lallubhai, a pleader engaged by him and his co-defendant Nassarvanji in a certain suit brought against them both by one Jamsedji in the Court of the First Class Subordinate Judge of Surat, from appearing and acting for Nassarvanji alone, since he, Mr. Kallabhai, had with the permission of the Court withdrawn from the conduct of that case for them both. The applicant also prayed that this Court should take such further notice of the conduct of Mr. Kallabhai as a pleader as to it might seem proper.
2. A rule nisi was granted by us on the 9th December last, calling upon both the opponents to show cause why Mr. Kallabhai should not be prohibited from further acting on behalf of Nassarvanji.
3. We have heard Messrs. Shantaram Narayan and Shivram v. Bhandarkar, who appear to show cause, and Mr. Manekshah Jehangirshah in support of the rule, and we do not think there is good ground shown for making the rule absolute.
4. In disposing of this case we have to act very much on principles or in accordance with the rules prevailing in England with regard to solicitors.
5. The principles that can be gathered from cases decided in England are chiefly these:
1. Any person who needs professional assistance has a right to get the services of any one who is qualified for the purpose, and whom that man chooses.
2. Those persons who have satisfied the requisite conditions and passed the necessary tests and who render professional advice have a right to earn due emoluments for their services in such ways as are consistent with the honour of their profession and the due administration of justice.
3. Those persons who have been given information in their service as professional advisers, and who act for him who has engaged them, are not at liberty to carry that information into the service of his antagonist or any one who in that very litigation or in any subsequent litigation may be opposed to the client furnishing the information.
4. In India, these rules though apply with some slight difference, the pleaders under Regulation II of 1827 receive Certain fees, in return for which they are not at liberty to act against those retaining them, whether they are retained by one client singly or by two or more persons jointly.
6. The difficulty in such cases as the one now before us arises when clients jointly engage the services of a pleader, and when the latter happens subsequently to be engaged by some one or other of them, but not all, but in reference to the same subject matter.
7. When a pleader who was once engaged by a number of persons jointly and as a composite body is subsequently engaged by one of them separately, the English cases lead to the conclusion that such a succession of services can under particular circumstances occur without any breach of honour and professional etiquette. If there is any unfair communication or use of information, that must be checked as improper.
8. Mr. Shantaram in the course or his argument stated that his client, Mr. Kallabhai, had already pressed Mr. Nassarvanji to engage another pleader to conduct the case, for him, and that the latter had done so. But that does not affect the merits of the questions raised by the applicant, Pallonji; because mere outward withdrawal from a case would not prevent a pleader from advising the client as regards the conduct of the case, or from giving him any information that might have been derived from his former clients during his employment. Such a course, instead of being of any substantial advantage to the applicant would but tax his antagonist with an additional fee.
9. The case of Robinson v. Mullett 4 Price’s Rep., p. 353 establishes that a solicitor who has acted for several persons will not be restrained from afterwards acting for some of them only, as against the others, unless it be shown that he is possessed of knowledge arising from his previous employment which might be prejudicial to his other clients.
10. The case of Grissell v. Peto 9 Bing., 1 and others also refer to similar questions arising between solicitors and their clients, and the general result of the examination of all these cases is that the Court will require some very strong case to be made out before it will interfere by way of injunction, and there must be clear affidavits made to show that special knowledge was acquired by the pleader during his employment by the former client. In case of his possessing such knowledge he will not be allowed to throw up the conduct of the case and transfer his services. He will never be allowed to discharge himself from the conduct of the case even if the case raises a probability of prejudice to his former employer or one of his clients–at any rate he must not change sides.
11. In the present case down to a late stage as between the plaintiff and defendants Mr. Kallabhai was engaged, and he acted for both the defendants. In the evidence of Nassarvanji some facts were revealed, which showed that Pallonji might have claims against Nassarvanji in respect of certain collections made by the latter out of properties under his management.
12. When matters reached that stage, Mr. Kallabhai stated that he could not conduct the case for both the defendants, and on applying to the Court, got his discharge.
13. The case as between the plaintiff and the defendants would, in his opinion, necessitate the adjudication of some rights as between Pallonji and Nassarvanji inter se, and he properly thought himself justified in a claim to be discharged from his liability to serve them both.
14. The question is, what should he have done under the circumstances? As a pleader of the High Court he must or he ought to have known that though the interests of both of his clients appeared to clash, it was still possible or rather desirable for him to serve one or other of the two, and the more so since he himself admitted that he was not in possession of any confidential information from either of them.
15. The proper course was for him to go to the Judge and ask his direction as to how he should act,–that is, for one or the other of the two clients, and to conduct the case according to the advice thus given him up to the end. The Judge, after hearing the clients if necessary, would have said, “you, Mr. Kallabhai, take up the case of Nassarvanji or Pallonji” (as to him might have seemed proper) “and as the other client will be forced to engage another pleader, I will make an order regarding the return, of part of the fee paid by both together, in order that he may with that engage another pleader to conduct the remainder of the case for him.”
16. It was not the right course for him to get a discharge wholly from the conduct of the case and then get himself engaged without any refund by whoever paid him the higher additional fee. A pleader might thus be tempted to go to his clients and say, “I shall serve him who pays me the higher fee, and thereby secure an unfair advantage to him.” The intervention of the Judge after notice to the parties would prevent temptation and avert suspicion.
17. It is not made out in this case that Mr. Kallabhai got from Pallonji or from Pallonji and Nassarvanji together such definite instructions as would give him an unfair advantage when acting in favour of Nassarvanji alone. We decline, therefore, to say that Mr. Kallahhai should be restrained from serving Nassarvanji in the case, or that he is not to use this or that information; but we direct that the matter should go to the First Class Subordinate Judge of Surat, who should make such orders as to him appear just and proper as regards fees paid first by Pallonji and Nassarvanji both and also by Nassarvanji alone.
18. In future it should be the rule that a pleader in such circumstances should take the Court’s advice as to which of two or more clients he is to serve and as to the disposal of the fee he has received from them jointly, and it will deal with the question on the principles laid down in this order and in the cases herein referred to.
19. We discharge the rule. Each party to bear his own costs.