JUDGMENT
Yahya Ali, J.
1. This is an application to revise the order of the Subordinate Judge of Palghat granting permission to the respondent vakil who was appearing and acting for the 215th defendant in O.S. No. 114 of 1933, on his file to accept the vakalat and act for the plaintiffs in the said suit. The petitioner herein is the 51st defendant in the suit and he is the manager of one of three tavazhies,constituting the tarwad. The objection of the petitioner to the order under revision is that the learned Subordinate Judge exercised a jurisdiction vested in him with material irregularity. It is contended for the petitioner that there is a conflict between the case of the 215th defendant and his representatives in interest.
2. The general principle with regard to the appearance of counsel for two clients whose interests may conflict is set out in “Halsbury’s Laws of England” (Hailsham’s edition), Volume II, at page 532. It is stated there that where interests of two clients may conflict, counsel ought not to appear for both of them. Likewise, counsel ought not to accept a brief against a party even though the party refused to retain him in any case in which he would be embarrassed in the discharge of his duty by reason of confidence reposed in him by that party. At page 534 of the same volume occurs the following passage:
Counsel who has drawn pleadings or advised or accepted a brief during the progress of an action on behalf of any party ought not to accept a retainer or brief from any other party without giving the party for whom he has drawn pleadings, or whom he has advised, or on whose behalf he has accepted a brief, the opportunity of delivering a brief to him.
Although the general position is as stated above, it is principally a matter of professional ethics, and so far as this province is concerned, the matter is regulated by Rule 20 of the Civil Rules of Practice. That rule while prohibiting a pleader who has drawn pleadings in connection with a suit or who has acted for a party in any such suit from appearing therein for any person whose interest is opposed to that of his former client provides expressly that he may so appear ” when specially authorised by the Court, or by consent of the party.” The proviso to that rule says that the consent of the party shall be presumed if he engages another pleader to appear for him in such suit without offering an engagement to the pleader whose services he originally engaged. The scope and purpose of this exception has been set out by a Bench of this Court in Veerappa Chettiar v. Sundaresa Sastrigal (1935) 49 M.L.J. 366 : I.L.R. 48 Mad. 676 at 687 in these words:
…..in order to prevent an unscrupulous or cantankerous client from depriving his opponent of the services of pleaders, Rule 277 of the Civil Rules of Practice gives a discretion to the Court to specially authorise a pleader to appear and act for a party whose interests are opposed to those of the party for whom he at one time acted or appeared or gave advice.
It is manifest that the discretion to permit a pleader who has acted for one party to act for another in the same suit vests in the Court. The question therefore is whether that discretion was not properly exercised in this case. The facts are these. The 215th defendant was not a member of the tarwad. He was a creditor of the tavazhi of the 51st defendant and others. He obtained a money decree and in execution thereof he purchased in Court auction for a portion of the decree amount the properties in the possession of the tavazhi. He attached subsequently the further interests of the tavazhi in the tarwad. He was impleaded in O.S. No. 114 of 1933 as an alienee, and one of his main defences in the suit was that in any event he had effected substantial improvements at an expense of about Rs. 20,000, and that he was entitled to the value thereof. The preliminary decree was passed by the Sub-Court on 28th December, 1939, on the basis that the Razi decree passed in O.S. No. 37 of 1887, amounted to a partition between the three branches. There was an appeal to the High Court in which it was decided by a judgment dated 14th September, 1943, that the suit decree did not amount to partition but only to a maintenance arrangement and consequently the suit was remanded to the Sub-Court for proper disposal. Long prior to the passing of the preliminary decree, i.e., on 30th May, 1937, an arrangement had been entered into between the tavazhi represented by the petitioner and the 215th defendant whereby the latter had surrendered to the tavazhi the properties purchased by him in the Court sale and in consideration thereof, the entire interest of the tarwad properties was mortgaged to the 215th defendant for a sum of Rs. 8,250. This arrangement was reported to the Sub-Court through I.A. No. 1165 of 1939 and was recorded. Virtually therefore from May 1937 the 215th defendant ceased to have any interest in the suit except to watch his mortgage interest. Subsequent to the arrangement, the said 215th defendant assigned the mortgage to one K.S. Ramachandra Iyer in July, 1940, who in turn assigned it in 1941 to the sub-tavazhi of the 51st defendant. Thus it will appear that from 1937 onwards it was open to the petitioner and his tavazhi, if they wanted, to employ the services of the respondent vakil, but they did not choose to do so. They did not do so even after the case had been remanded by the High Court and was taken up for enquiry. The tavazhi represented by the 51st defendant had not in their pleadings set up any claim for improvements until the disputes between the tavazhi and the 215th defendant were settled. In this state of affairs, the plaintiffs approached the respondent vakil with a vakalat on 16th June, 1944. The 215th defendant was asked if he had any objection, and he gave a letter in writing permitting the vakil to appear for the plaintiffs. In these circumstances, the vakil was entitled to presume that the petitioner’s tavazhi did not require his services. He accepted the plaintiffs’ vakalat on 2nd July, 1944, subject to the sanction of the Court and promptly applied to the Court for permission on 5th July, 1944. The learned Subordinate Judge questioned the petitioner in Court whether the tavazhi was intending to utilise the services of the vakil, and he stated that he did not intend to appoint him as his vakil since he had already accepted the plaintiffs’ vakalat.
3. Upon the above mentioned facts, it is plain that the proviso to Rule 20 of the Civil Rules of Practice applies, and that the express consent of the 215th defendant and the implied consent of his representatives in interest was sufficient to enable the vakil to appear for the plaintiffs. But he took the precaution of applying to the Court and obtaining the Court’s permission also. The Court upon these facts was entitled to grant the permission and it was certainly not an improper exercise of the discretion.
4. The only other ground that is emphasised is that there is a conflict of interest between both parties particularly on the question of improvements. The vakil in his counter affidavit filed in the application for stay made in this Court says that he has seen no documents on the question of improvements and that there are no such documents in existence. He also states that he received no instructions from the 215th defendant after May 1937 except to get the arrangement recorded. In the reply affidavit filed there is no refutation of these statements.
5. In these circumstances I see no reason to interfere with the order passed by the Subordinate Judge. The revision petition is dismissed with costs.
