Cassim Mamoojee vs Gopal Lall Seal

Sale, J.—In this matter a rule was obtained by the Plaintiff, Cassim Mamoojee, calling on the Defendant, Gopal Lal Seal, to shew cause why sanction should not be given under sec. 195 of the Criminal Procedure Code to prosecute him criminally on charges framed in respect of certain proceedings had at the trial of this suit. Messrs. Pugh and Co. were instructed by the Defendant to appear for him in answer to the Rule and applied in the usual course to file their retainer. Objection to this retainer being received and filed was taken by Messrs. Orr, Robertson and Burton who claim to be the Defendant''s attorneys on the record, and the question is whether this objection is sustainable.

It appears that Messrs. Orr, Robertson and Burton acted for the Defendant throughout the original hearing of the suit. Their warrant to defend which was filed on the 16th September 1895, empowered them to defend the suit for the Defendant and for such purpose to appear and represent the Defendant before the Judges of the Court and to file all such applications and documents as may be necessary and to do all such acts whether in the warrant specified or not as shall be required to be done in connection with the suit. The suit was decreed in favour of the Plaintiff, and the Defendant being desirous of filing an appeal and of evading at the same time payment of certain costs due to his then solicitors, obtained certain papers from them by a trick and without notice to them or taking any steps to discharge their retainer proceeded to instruct Messrs. Pugh and Co. to file and prosecute his appeal.

Messrs. Orr, Robertson and Burton were desirous of objecting to Messrs. Pugh and Co., appearing for the Defendant in the appeal, but being advised that their warrant to defend did not extend to the proceedings in the Appeal Court abstained from further action in the matter.

Messrs. Pugh and Co. accordingly appeared and acted for the Defendant in the Appeal Court, though I feel bound to say that I doubt whether they could have done so, so long as Messrs. Orr, Robertson and Burton''s warrant remained undischarged if the latter firm had seen fit to press their objection. A warrant to defend, it seems to me, unless specially restricted in form empowers an attorney to act for the Defendant and to establish his grounds of defence in this Court whether in its original or appellate jurisdiction. This view is, I believe, in accordance with the general practice in this Court, for a Defendant''s attorney in filing an appeal is not required to file a fresh warrant, and does not do so as a general rule.

But the question here is different. Is an application for sanction to prosecute under sec. 195 of the Criminal Procedure Code, a proceeding in connection with the suit within the words of the original warrant to defend ?

Unless the application can be said to be a proceeding in the cause or suit then neither Rule 93 (Belchambers'' Rules and Orders, p. 97) nor sec. 39 of the CPC require the Defendant to obtain the leave of the Court to discharge the original warrant in order to enable him to appear in the matter through a new attorney. Now on consideration it appears to me that the application for sanction to prosecute, though headed and made in this suit, is not a proceeding'' connected with the ordinary purpose and object of the suit and docs not fall within its scope and cannot therefore be regarded as a proceeding in the suit such as is contemplated either by the warrant or the terms of the Rule and section to which I have referred. That being so, I must hold that the Defendant is entitled to appear on the application through Messrs. Pugh and Co. without obtaining a discharge of his original warrant or retainer in favour of Messrs. Orr, Robertson and Burton, and that the warrant tendered by Messrs. Pugh and Co. may be received and filed. I make no order as to costs.