IN THE GOOODS OF NANIBALA DEBI DECEASED ORDHENDRA COMMAR GANGOLY Vs. HARISHIKESH CHATTERJEE

JUDGEMENT

(1.) This appeal has occupied a great deal of time and we are indebted to learned counsel for the appellant, Mr. Chatterjee and also to learned counsel for the respondent, Mr. Meyer who has appeared and represented the interests of the respondent as amicus curiae.

(2.) After considering the matter very carefully, we are of the opinion that subject to one addition the Order of the learned Judge must be upheld. That addition arises out of the decision of the learned Judge that there was an agreement between the client and the at torney that the attorney should not charge the client for in-pocket costs. The matter was dealt with summarily by the learned Judge and except as regards the determination of the right to in-pocket costs the procedure was the proper one. As regards in-pocket costs the client alleged that there was an agreement between himself and the attorney that the attorney should not charge the in-pocket costs and the learned Judge has accepted that allegation as being correct. Normally the attorney would be entitled to charge his in pocket costs and he would be entitled to sue for them on the basis of remuneration for the work he had done for the client.

(3.) It seems to me that the question of whether there was a contract of the nature the client alleges and the attorney denies was not a suitable subject-matter for determination in a summary proceeding of this kind. The proceeding began on 13 July as the result of an informal petition laid before the Judge which the attorney did not see and the matter was finally determined a month later on 14 August. It has therefore been determined without the attorney having the benefit of the usual incidents of a trial according to the ordinary procedure of this Court. The summary procedure in my view was not intended to apply to a matter of this latter kind and I am of the opinion that the question whether there was an agreement between the attorney and the client to charge in-pocket costs must be determined, if the attorney so desires it, by a suit brought by him.