Beaumont, C.J.
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.
4. Now dealing with the case on the merits the rule in England is clear that a solicitor purporting to act for a non-existent party is personally liable for coats : see Hoskins v. Phillips (1847) 16 L.J.Q.B. 339 Yonge v. Toynbee [1910] 1 K.B. 215 and Simmons v. Liberal Opinion Limited. Dunn, In re [1911] 1 K.B. 966 The rule is founded on the principle that a solicitor purporting to act as such for a party represents that he has authority to act and warrants to the other parties in the suit that he possesses that authority. The reasons which led to the adoption of the rule in England are very clearly expressed in Yonge v. Toynbee by Mr. Justice Swinfen Eady, as he then was, who was sitting temporarily in the Court of Appeal. The views of that learned Judge on such a question are, I think, entitled to peculiar weight because not only had he been a solicitor himself but his knowledge of all matters of practice and procedure was profound. What he says at page 238 is this:-
I wish to add that in the conduct of litigation the Court places much reliance upon solicitors, who are its officers ; it issues writs at their instance, and accepts appearances for defendants which they enter, as a matter of course, and without questioning their authority ; the other parties to the litigation also act upon the same footing, without questioning or investigating the authority of the solicitor on the opposite side ; and much confusion and uncertainty would be introduced if a solicitor ware not to be under any liability to the opposite party for continuing to act without authority in oases where he originally possessed one.
The particular case with which the Court was there dealing was of that nature. Later on the learned Judge says (p. 234):-
The manner in which business is ordinarily conducted requires that each party should be able to rely upon the solicitor of the other party having obtained a propor authority before assuming to act. It is always open to a solicitor to communicate as beat ho can with his own client, and obtain from time to time such authority and instructions as may bo necessary. But the solicitor on the other side does not communicate with his opponent's client, and, speaking generally, it is not proper for him to do so, as was pointed out by Kekewich J. in Margetson and Jones, In re [1897] 2 Ch. 318 It is in my opinion essential to the proper conduct of legal business that a solicitor should be held to warrant the authority which he claims of reprasenting the client; if it were not so, no one would be safe in assuming that his opponent's solicitor was duly authorized in what ho said or did, and it would bo impossible to conduct legal business upon the footing now existing ; and, whatever the legal liability may be, the Court, in exercising the authority which it possesses over its own officers, ought to proceed upon the footing that a solicitor assuming to act, in an action, for one of the parties to the action warrants his authority.
5. In my opinion every word of that passage is as applicable to solicitors in Bombay as to solicitors in England. As was pointed out by Sir Amberson Marten in Tyabji Dayabhai & Co. v. Jetha Devji & Co. : (1927)29BOMLR1196 :-.the rights and duties of attorneys are in no way part of the indigenous law or practice in India. Their profession originates from England ; it grew up under the English common law ; and it is clear that it was the common law which governed their rights and duties in the King's Courts established by the Supreme Court Charter of 1823, to which Courts our present High Court is the successor.
Solicitors in India have many important privileges which they have inherited from their brothers in England and I think they must also assume similar liabilities. It is contended by Mr. Daphtary on behalf of the respondents that having regard to the different practice which prevails in India in the institution of suits to that which prevails in England the English rule imposing this liability upon solicitors ought not to apply in India. The only substantial difference between the practice in this country and the practice in England in relation to the commencing of the suit is that in England the suit is commenced by the issue of the writ of summons on which the solicitor has to endorse his name and address, whereas in this country the suit is instituted by the presentation of a plaint which has to be signed by the party and the pleader, if any, or if the party is not available then by his duly constituted agent under Order VI, Rule 14. But, in my opinion, that variation in the practice does not affect the question under consideration. Even where an agent signs the plaint I can see no reason for suggesting that he represents the party except for the purpose of such signature. The next step in the suit in India is for the appearance of the plaintiff to be entered, and that is done under Rule 93 of the High Court Rules in Form No. 2 by a letter addressed by the solicitors to the Prothonotary requesting him to file an appearance on behalf of the plaintiff. That form was duly followed in this case, and the solicitors signed that request, and, in my opinion, the moment they did that they warranted that they had authority to act on behalf of their client. For these reasons I think that the appellants were entitled to the order for which they asked on the motion, and the appeal must, therefore, be allowed with costs.
Rangnekar, J.
6. This appeal raises an important question as to the personal liability of a solicitor for costs of a suit started in the name of a non-existing plaintiff. The suit which gives rise to this appeal was brought in the name, as the title shows, of Pietro Guerrieri & Co,, Ltd., a private joint stock company incorporated in Italy and having its registered office at Florence in Italy. The plaint was declared on November 24, 1931, signed by Pietro Guerrieri as director and also by Messrs. Payne & Go. who filed their appearance and took out a summons for directions on December 12, 1931. On January 28, 1932, the defendant filed his written statement and in paragraph 3 thereof he denied that the plaintiffs were a private joint stock company incorporated in Italy or in any other place or that they had their registered office at Florenee in Italy. He further stated that at all times material to the suit there was no joint stock company bearing the name of Pietro Guerrieri & Co., Limited, incorporated or registered either in Italy or in any other place. Thereafter the defendant's solicitors took search of the papers in the office of the Registrar of Companies and found no document of the incorporation of the alleged plaintiff company. They also discovered that it was a private partnership firm. Correspondence ensued between the respective solicitors and it was contended by the defendant's solicitors that there was no such company in the name of Pietro Guerrieri & Co. incorporated anywhere. In March 1932 they addressed a notice to Messrs. Payne & Co. personally, stating that they had purported to act and were persisting in acting on behalf of a non-existing plaintiff. They further stated that their client would ask for an order against Messrs. Payne & Co. personally for costs of the suit. Messrs. Payne & Co. sent a reply in which they stated inter alia that they were advised that Messrs. Dastur and Co.'s contention that they were acting on behalf of a non-existing plaintiff was without foundation. On March 22, 1932, Messrs. Dastur & Co. applied for the trial of certain preliminary issues which raised this question as to the existence or nonexistence of this alleged plaintiff company. It is unnecessary to refer to the further correspondence which took place between the parties. It appears that the attitude taken up by Messrs Payne & Co. was that the contention raised by Messrs, Dastur & Co. was unfounded and was wrong. On July 15, 1932, Messrs. Payne & Co. applied for amendment of the plaint on the footing that the description of the plaintiff as a registered joint stock company and having an office was a misdescription. That amendment was disallowed and the summons dismissed with costs. The matter came on for trial of the preliminary issues and they were found in favour of the defendant. The result was that the suit became a suit instituted by a non-existent person from the commencement. On the same day Messrs. Dastur & Co. served a notice on the respondents that they would ask for an order for costs personally against them, and it is that notice which has given rise to the present appeal. The actual order made by the learned Judge on the notice is as follows:-
The notice is discharged. If the defendant files a suit against Messrs. Payne & Co. within four weeks from this day, costs of the notice of motion will be dealt with by the Judge hearing that suit. If no such suit is filed within the aforesaid time, the notice will be discharged with costs. If an appeal is preferred from this judgment the time for filing the suit will be extended to four weeks from the date of the disposal of such appeal.
7. In the course of his judgment, although the learned Judge in one place stated that he expressed no opinion on the claim advanced on behalf of Messrs. Dastur & Co., in another part of his judgment he held that the application was incompetent as the law in practice in India was materially different from that in England. The observations of Sir Amberson Marten C.J. in Tyabji Dayabhai & Co. v. Jetha Devji & Co. : (1927)29BOMLR1196 were referred to on the question of the position of solicitors in this country, but the learned Judge thought that they were obiter dicta. In that case Marten C.J. held that the law applicable to the solicitors in Bombay on the Original Side of the High Court was the common law prevailing in England as applicable to the solicitors there. The learned Judge further considered the question of costs or compensation to the defendant and expressed an opinion that the sum which the plaintiff had been ordered to deposit was a sufficient security to the defendant even if he succeeded on his claim on the notice.
8. Mr. Daphtary on behalf of the respondents raised a preliminary objection which we disposed of yesterday. It is not necessary to consider whether the proper procedure for recovering costs from a solicitor who purports to act on behalf of a non-existent plaintiff or who defends a suit on behalf of a non-existent defendant would be by way of a suit or by a motion. All the authorities that we have been referred to show that the proper procedure should be by an application in the suit itself, though, as at present advised, I am not prepared to say that a suit to recover such costs under such circumstances is not competent. But I have no doubt in my mind that, having regard to the views expressed by the learned Judge in his judgment in this case and the form of the order which he made whereby he put the defendant on terms as to the bringing of the suit, this particular order is an appealable order within the meaning of the Letters Patent,
9. Till Mr. Daphtary came to the end of his argument I was under the impression that there was no dispute that in this suit Messrs. Payne & Co. did act as solicitors on behalf of the non-existing person; but at the end of the argument Mr. Daphtary put forward a contention that the plaintiff was not a non-existent person in fact; and he referred us to the affidavit of Mr. Payne, paragraph 6. That no doubt shows that in that particular paragraph Mr. Payne did state that his firm did not act on behalf of a non-existent person. But the paragraph in question must be construed with reference to the whole of the affidavit and with reference to what took place before the learned Judge on the notice. In my opinion the affidavit read as a whole clearly shows that it was never seriously contended that Messrs. Payne & Co. did not appear for a non-existent person, and as far as I can see, there is no trace of any such contention having been raised at the hearing of this notice before Mr. Justice Mirza. Apart from that, the finding on the issues clearly show that the so-called plaintiff never existed; there never was a private joint stock company incorporated in Italy and having its registered office at Florence in Italy and it is difficult for me to accept Mr. Daphtary's contention.
10. In England there is ample authority that if an action is brought in the name of a non-existent person or a defence put in on behalf of a nonexistent defendant the solicitor who is responsible for the conduct of the suit or for the defence is personally liable to pay costs to the opposite party. The question then is whether the position in Bombay is the same so far as the Original Side of the High Court is concerned. The position of the solicitors, their rights and their liabilities came up for consideration as far as I know for the first time in In re Tyabji. & Co. (1905) 7 Bom. L.R. 547 before Mr. Justice Tyabji, and in that case the observations of the learned Judge which seem to me pertinent are as follows (p. 550):-
As there appears to bo some doubt as to the exact nature of the jurisdiction exercised by this Court in matters of Solicitor's lion for costs, and, as to the occasion on which such jurisdiction (if any) should be exercised, I thought it desirable to take time to consider my judgment, and I have carefully looked into the authorities, and am now prepared to give my decision.
As to the general jurisdiction of the Court, it does not seem to me that there can really be any doubt that the High Court now possess the summary jurisdiction which is sought to be invoked. The Solicitors and Attorneys of this Court have always been regarded by the High Court as...officers of the Court, and, therefore, entitled to special protection for the payment of their costs. And it has been hardly disputed before me that the Courts in England, prior to the establishment of the High Courts in India, exercised such summary jurisdiction and gave to the Solicitors a lien, upon the fruits of their exertions, for the due payment of their costs. The present jurisdiction of the High Court has boon inherited from the Supreme Court, and the jurisdiction of the Supreme Court was admittedly of the same character and nature as the jurisdiction exercised by the Courts in England, both on the Common Law Side, and on the Chancery Side, Whatever was the summary jurisdiction of the Supreme Court on this point is now vested in the High Court, and it has not been in any way affected or interfered with by any enactments, either of the Imperial legislature of England, or of the legislature in India. The Solicitor's Act, 23 & 24 Vic. 127, passed in England, has not in any way been extended here, and, therefore, the jurisdiction which I can exercise here, is the jurisdiction which was vested in the Supreme Court-that is to say, in the Courts of England, before the Act in question was passed.
These observations show that the High Court has the same jurisdiction as the Courts in England as to the question of costs of solicitors. This case was followed in A. Haji Ismail & Co. v. Rabiabai (1909) 11 Bom. L.R. 1062 where Mr. Justice Macleod held that the rule of common law that a solicitor is entitled to a lien for his costs on property recovered or preserved by his exertions has always been followed by this Court. Both these cases in turn were approved and followed in Tyabji Dayabhai & Go. v. Jetha Devji & Co. : (1927)29BOMLR1196 to which I have referred. Marten C.J. in that case observed as follows (p. 1405):-
In the first place it must be clearly understood that the rights and duties of attorneys are in no way part of the indigenous law or practice in India. Their profession originates from England ; it grew up under the English common law ; and it is clear that it was the common law which governed their rights and duties in the King's Courts established by the Supreme Court Charter of 1823, to which Courts our present High Court is the successor.
We have recently in two important cases had to consider in this Court the jurisdiction which we inherit from the Supreme Court. It is clear, as has already been pointed out in Hirabai v. Dinshaw : (1926)28BOMLR1334 and in the recent Special Bench case of Hatimbhai v. Framroz Dinshaw : AIR1927Bom278 that the jurisdiction of the Court of King's Bench in England and that of the Courts of Equity in England were conferred upon the Supreme Court by, inter alia, Clauses 5 and 36 of the Supremo Court Charter of 1823, counting those clauses from the operative part and neglecting the recitals.
Then later on, the learned Chief Justice referred to the two cases which I have mentioned, with approval, and he next turned to the Calcutta authorities which, as he points out, lay down the same principle. With great respect to Mr. Justice Mirza I am clearly of opinion that these observations are not obiter dicta. The question as to the position of solicitors practising on the Original Side was one of the questions which directly arose in that case.
11. That being so, the next question is as to what is the common law liability of solicitors in a case like this, and on that point there can be no doubt that in England the rule is well established that a solicitor is personally liable to pay the costs to the opposite party. I only propose to refer to two of the later decisions. In Yonge v. Toynbee [1910] 1 K.B. 215 the solicitors were instructed by a client to conduct his defence to an action which was then threatened and was afterwards commenced against him, Before the commencement of the action the client became and was certified as being of unsound mind. In ignorance of his unsoundness of mind and of his having been so certified the solicitors entered an appearance for him in the action and delivered the defence to which the plaintiff' replied and other interlocutory proceedings took place in the action. Subsequently, the action not then having come to trial, the plaintiff's solicitor was informed that the defendant had been certified as being of unsound mind and an application was made on behalf of the plaintiff at chambers for an order that the appearance and all subsequent proceedings in the action should be struck out and that the solicitors who had assumed to act for the defendant should be ordered personally to pay the plaintiff's costs of the action up to date on the ground that they had so acted without authority, and it was held that the solicitors who had taken on themselves to act for the defendant in the action had thereby impliedly warranted that they had authority to do so, and therefore were liable personally to pay the plaintiff's costs of the action. Lord Justice Buckley puts the principle in this way. He says (p. 226):-
His liability arises from an implied undertaking or promise made by him that the authority which ha professes to have does in point of fact exist.
12. Then Mr. Justice Swinfen Eady, as he then was, made certain observations which seem to me very important. He says (p. 233):-
I wish to add that in the conduct of litigation the Court places much reliance upon solicitors, who are its officers ; it issues writs at their instance, and accepts appearances for defendants which they enter, as a matter of course, and without questioning their authority ; the other parties to the litigation also act upon the same footing, without questioning or investigating the authority of the solicitor on the opposite side ; and much confusion and uncertainty would be introduced if a solicitor wore not to be under any liability to the opposite party for continuing to act without authority in cases where he originally possessed one. At one time the Common Law Courts acted very firmly upon the view that, if an attorney took upon himself to sue or defend, the Courts would presume his authority and not inquire into it; so much so that, if an attorney (being a solvent person) without authority instituted or defended proceedings, the Court would not interfere, but left the party injured to his remedy in damages against the attorney.
13. Later on he says (p. 234) :-
It is in my opinion essential to the proper conduct of legal business that a solicitor should be held to warrant the authority which he claims of representing the client; if it were not so, no one would be safe in assuming that his opponent's solicitor was duly authorised in what he said or did, and it would be impossible to conduct legal business upon footing now existing ; and, whatever the legal liability may be, the Court, in exercising the authority which it possesses over its own officers, ought to proceed upon the footing that a solicitor assuming to act, in an action, for one of the parties to the action warrants his authority.
14. In Simmons v. Liberal Opinion Limited. Dunn, In re [1911] 1 K.B. 966 it was held that a solicitor assuming to act for one of the parties to an action warrants his authority and is personally liable to the opposing party for costs, if it turns out that the client for whom he assumed to act is nonexisting, or has revoked his authority; and the ground of his liability is expressed in these terms by Lord Justice Fletcher Moulton (p. 972):-
It has always been hold that a solicitor who enters an appearance warrants that he has authority from the client to enter that appearance. This is a matter of importance to the plaintiff, because if that appearance is not entered no action can bo carried on, Judgment comes at once, and therefore where there is no existing defendant the plaintiff is not exposed to the costs of an abortive action.
This is a principle which has not long been recognised, but it is a principle which is almost a necessity to the procedure in our Courts.
15. It is argued by Mr. Daphtary that by reason of the procedure obtaining on the Original Side of the High Court under the Civil Procedure Code and the High Court Rules, the solicitors would not be liable as in fact there can never be any representation of their authority to act on behalf of a non-existent person and it cannot be said that they warranted their authority, and for this he has referred us to the various Orders and Rules in the Civil Procedure Code and also to some of the Rules on the Original Side in the High Court Rules. In my opinion there is no substantial difference between that procedure and the procedure prevailing in England except that in this country a suit is instituted by presenting a plaint which has to be signed by the party in person and, if he has a pleader, which would include an attorney, by the pleader, whereas in England a suit is instituted by a writ which it is not necessary for the party or any one else to sign. But I think this is really a matter of procedure and not a matter of substance, and for this reason, that the signing of the plaint by a party is not an essential condition for the institution of a suit as such, within the meaning of the Civil Procedure Code. The signing of plaints is merely a matter of procedure and the omission to sign or verily a plaint is not such a defect as could affect the merits of a case or the jurisdiction of the Court. The defect can be remedied even in appeal. But I think a short answer to Mr. Daphtary's argument is really this: according to the procedure prevailing in our Courts, a solicitor has to file an appearance along with the plaint, and an appearance so filed must mean that he is acting on behalf of his client in the conduct of that suit. This then, being one of the first documents which was put on record by Messrs. Payne & Co., I think, it must necessarily follow that they warranted their authority to institute and conduct the suit on behalf of the alleged plaintiff'. Now even suppossing that it cannot technically be said that the suit was brought by Messrs. Payne & Co., it is difficult to see what answer the respondents have to what took place after the institution of the suit. The events to which I have referred show clearly that shortly after the suit was brought it was pointed out to them that they were acting on behalf of a non-existent person and they were certainly put on inquiry. In spite of that they proceeded with the suit, took part in several interlocutory proceedings, and persisted in maintaining that the contention raised by the appellant was unsubstantial. It is unnecessary to discuss in detail the various points of procedure to which reference has been made on both, the sides. But it seems to me that once an attorney is on record the other party is entitled to assume that the suit is filed properly and thereafter he will have no right to correspond or communicate directly with the opposite party and must communicate with his solicitor. One of the grounds on which the liability of a solicitor for costs is put in the English cases is, that, once a solicitor is on record, the opposing party is entitled to look to him, if successful for his costs, if it turned out that the so-called plaintiff is a non-existent person. In my opinion, therefore, Messrs. Payne & Co. are liable for the costs of the appellants, inasmuch as they were acting in the suit on behalf of a non-existing person, and even though, their honesty and integrity is not in any way impugned. No doubt the position of solicitors is one of responsibility and at times one of great difficulty. But if there are disabilities which at first may appear to be unfair, there are corresponding privileges and powers enjoyed by them, which, apart from their position as officers of the Court they would not have been able to enjoy. One such important privilege which they have is the right to have access to the Court and recover their costs summarily by summons. If then they have the common law rights of lien and other rights, which they have inherited from their brothers in England, then I think they must be prepared to be put under certain disabilities also. For these reasons I agree that the appeal must be allowed with costs.
16. Appeal allowed with costs of the notice of motion and of this appeal. Notice of motion absolute. Costs to be taxed as if the plaintiff existed. Costs to be set off. Rs. 500 deposited in Court to be given credit.