Balakrishnan v. Hareendran — 1992 DIGILAW 184 (MAD)

Judgment :- 1. This diary number stemmed out of the endorsement made by the learned counsel Mrs. Chitra Sampath in filing a vakalat in the execution petition filed before the learned Master on behalf of the decree-holder by Mr. V. Subramaniam, the previous counsel on record expressing his written consent in the vakalat itself, and consequently she has filed the execution petition and the vakalat and the office is not inclined to recognise the same for want of acceptance of the said revocation and change of vakalat by duly filing an application and get it disposed of as laid down by O. 29 R. 2 Original Side Rules, on the ground that in view of the Bench decision of this Court rendered in Tamil Nadu Electricity Board, Madras v. R. Srinivasan1991 2 L.W. 565, the written consent expressed and given by the previous counsel on record in the vakalat filed by her is readily available in itself and amounts to determination of vakalat of previous counsel, and as the same was duly signed and authorised by her counsel, viz., the decree-holder, she is deemed to be a counsel appointed as defined under the Code of Civil Procedure. Therefore, the formal approval of the revocation and change of vakalat is unnecessary. 2. Since the matter of this type assumes significance for a very long time by the office insisting the filing of the petition or application before the learned Master under O. 29 of the Original Side Rules which governs the procedure to be followed in this Court is concerned where the matters involved revocation of the previous vakalat and the change of his counsel by filing a new vakalat is necessary in the context of the legal ratio held by my learned brother, Srinivasan, J. in P.S. Sathappan v. Andhra Bank Ltd., Coimbatore1991 II M.L.J. 9??? lot of difficulties and inconvenience not only to the litigant public but also to the learned members of the Bar in rendering legal assistance to the common masses consuming huge time and energy in entertaining the application and disposal of the same becomes the order of every day in and day out necessitating the matter to be considered for the purpose of expedient and speedy disposal of the cases. Accordingly, the diary note provides the opportunity to consider each and every aspect of the legal impediment involved therein for the purpose of rectification and set at naught. 3. For the purpose of elucidation and the best assistance sought for from the Bar, I deem it necessary to seek the assistance of the learned counsel of the Bar, Thiru K.T. Palpandian, Thiru S. Sampathkumar, Thiru V.S. Subramaniam and Thiru R. Krishnaswamy, who helped me in probing this matter in its full depth and safe proposition hereafter to be followed. In this regard, Thiru R. Gandhi, learned senior counsel also participated along with the counsel, who stood cause for this diary not of Mrs. Chitra Sampath. 4. It was the consensus among the Bar that in a case where the question of revocation of the vakalat filed by the previous counsel on record in a case and effecting a change of new counsel by filing fresh vakalat by getting the written consent of the previous counsel or not in the matters to be proceeded with, the procedure on the Original Side is governed by the Original Side Rules on par with O. 3, R. 4(2) of the Civil Procedure Code as well as R. 20(a) of the Code of Civil Procedure. In so far as the procedure provided for to be followed in Appellate Side as well as in exercise of Writ Jurisdiction is concerned the matter came up for full consideration and discussion in the latest case law made available in the above referred citation viz., 1991 II L.W. 565. The Bench of this Court in the a bove case law by My Lord, the Acting Chief Justice as he then was, with my learned brother, Thanikkachalam, J. after having discussed elaborately the subject involved in paragraph 12 of the judgment has settled the following proposition to be followed on the basis of the formulated rules which are extracted herein:— (1) On the appellate jurisdiction of this Court, the determination of the appointment of a counsel save in the case of his demise or of his termination of a proceeding that should be in writing. The leave of the Court therefor need not assume any formality of any particular character and could also be implied. The leave of the Court therefor need not assume any formality of any particular character and could also be implied. (2) On the appellate jurisdiction of this Court when there is a filing of appeal by a new counsel, with the written consent of the earlier counsel in change of appearance, there is no need to obtain a formal order of this court by change of appearance by a formal application taken out in this behalf. (3) If, on the other hand the counsel already on record, withholds the consent for change of appearance, permission of this Court has got to be obtained on an application taken out in this behalf. (4) The aforesaid propositions will govern the position before the Courts subordinate to this Court both on their Original Side and Appellate Side. (5) The aforesaid propositions will hold good and could be worked out even in the case of appearance by another counsel along with the advocate already on record and not in substitution thereof according to exigencies. 5. In so far as the procedure in this context before this Court on the Original Side is concerned, in view of the specific Rules provided under O. 29 of the Original Side Rules in paragraph 15 of the judgment rendered by the Bench in the abovesaid citation are as follows:— “We have refrained from expressing any view with reference to the position on the Original Side of this Court. There are Rules governing the Original Side of this Court similar to the Appellate Side Rules. It is for the learned Judge or Judges exercising the powers on the Original Side of this Court to take guidance from what we have expressed on the questions, if that could be relevantly taken note of in the discretion and view of the learned Judge or Judges.” 6. With regard to Order 3 Rule 5 of the Appellate Side Rules are concerned, the Bench in the above cited reference has observed as follows:— “This Rule is specific and it says that when the written consent of the practitioner on record is there, there can be an entry of a new counsel. If on the other hand, there is a withholding of written consent of the earlier counsel, need to obtain the permission of the Court will arise. If on the other hand, there is a withholding of written consent of the earlier counsel, need to obtain the permission of the Court will arise. We cannot envisage a need to obtain such a permission where there is a written consent of the counsel already on record for change of appearance. The filing of the appearance by the new counsel with the written consent o f the earlier counsel, in that context, may take in two aspects namely, the determination of the applicant of the earlier counsel and the appearance of the new counsel. To effectuate the cause and to safeguard the interests of the client, leave of court must be deemed to have been granted for the determination of the appointment of the earlier counsel, without the formality of filing an application and obtaining orders thereon when the appearance of the new counsel with the written consent of the earlier counsel is entertained. It has already been noted that as per the ratio of the Full Bench in Manickam Pillai v. Bathummal ILR 47 Madras 819 = 20 L.W. 829 no formality is required for leave of court for determination of the appointment of a counsel. Hence, we are obliged to hold that we do hold that on Appellate Side of this Court, when there is a filing of appearance, by a new counsel with the written consent of the earlier counsel for change of appearance, there could not be any insistence for obtaining of a formal order of court therefor on a formal application taken out in this behalf.” 7. The relevant Rules which are governing the procedure to be followed in the Original Side of this Court is concerned, it has become necessary to advert to Order 29, Rule 2 of Original Side Rules which will be more useful at this juncture, which are extracted as herein:— “The appointment of an advocate shall, unless otherwise provided therein, or unless the appointment ceases by reason of the death of the client, or the advocate, or is revoked under Rule 3 of this order, continue in force in the suit or matter in all proceedings in the High Court, whether in execution of, or on appeal from, or otherwise in connection with, any decree or order which may be passed in the said Suit or matter, or in any appeal or other proceedings in connection therewith. An advocate appointed under the provisions of Order III, Rule 4(2) of the Code, proposing to file an appointment in a suit or proceeding in which there is already as advocate on record, may not do so, unless he produces the written consent of the advocate on record, or unless, where the consent of such advocate is refused, he obtains the special permission of the court and on such terms as the court deems fit to impose.” 8. Then Rule 3 of Order XXIV of the Original Side Rules reads as follows:— “The appointment of an advocate may be revoked by an order to be obtained on an application to the Master. Unless the consent of the client or the advocate (as the case may be) is endorsed thereon, notice of the application shall be given to him.” 9. Thus a mere reading, and cursory perusal of Rule 2 of Order XXIX of the Original Side Rules presupposes the following aspects viz., the appointment of an advocate under the Code of Civil Procedure ceases (1) by reason of death of the client; (2) or the advocate; (3) or is revoked as provided in the manner under Rule 3 of this order and that barring these, it is expressed in this Rule that unless the cases arising in the above aspects, the appointment of an advocate recognised already under the Code of Civil Procedure is deemed to continue in force in the suit or matter or in all proceedings in the High Court in all the execution, appeal or otherwise in connection with any decree or order in any suit, appeal or proceedings. A change of vakalat and the entry of a new counsel is to be recognised in the proceedings and adopted as stated in the second part of Order 3 Rule 4(2) of the Code of Civil Procedure and continues in the suit or proceeding and does not become automatically determined and ceases unless he produces his written consent, then only the entry of the new counsel who intend to enter to plead the cause of that client may not be recognized and that in case if the previous counsel on record refused to give his consent, then the new counsel, who wants to effect the change must obtain the special permission of the court and on such terms as the court deems fit for the said purpose. 10. 10. Regarding second part of Rule 2 of Order XXIX it has been made very clear that if a new counsel wants to enter on behalf of a party in a pending case or proceedings when there was a previous counsel on record, he shall not be entitled to do so or recognized unless and until the written consent of the previous counsel on record is made available for the purpose of formal sanction or approval by the Court. So far as this proposition and ingredients inherent in this Rule 2 are concerned, there may not be absolutely any dissent or controversy either by the Bar or by the Bench but in such of the cases, where written consent of the previous counsel on record cannot be made available for a new counsel to enter, by means of filing of vakalat, in the context of the previous counsel continuing on record then for any reason the Courts permission has become necessary in the form of a formal approval on the basis of such of the conditions as are clearly provided under Rule 3 or Order XXIX of the Original Side Rules. It therefore follows very clearly this Rule 3 can be pressed into service only in such of the cases where the written consent of the previous counsel on record could not be obtained. Meanwhile for the purpose of determination of his vakalat and in as much as that aspect remains as it is then, with a view to safeguard the interest of the litigant public and justice, the entry of the new counsel for the same case cannot be recognized unless with special permission and sanction of the court and that was the one and the only purpose and with a view to obviate and meet such contingency Rule 3 of Order XXIX of the Original Side Rules has been envisaged. Therefore, there cannot be any two views that in such of the cases where the written consent of the previous counsel on record could not be obtained there may not be proper determination of the erstwhile counsel on record in so far as the client is concerned follows by the question of entering of a new counsel does not arise in the legal norms. Therefore, what was contemplated under Rule 3 in the dispute perpetrated between the client and his erstwhile counsel must be probed thoroughly by the Court either by itself or its delegated authority, viz., the Master in this case on filing of an application as provided under Rule 3 of Order XXIX of the Original Side Rules and the issue became very vital as is laid down by my learned brother, Srinivasan, J. in the abovesaid case law. 11. But regarding the position in the case of a written consent of the previous counsel for the purpose of revocation of his vakalat and effecting a change of a new counsel in his place, in my firm view, the Rules provided in parts I and II of Rule 2 of Order XXIX of the Original Side Rules are quite clear and that can very well be followed. 12. I have heard Mr. Sampathkumar, learned counsel appointed as Amicus Curiae. In rendering his assistance to the Court he submits placing reliance on S. 122 of Order 3 Rule 4(2) of the Code of Civil Procedure, in conjunction with Rule 20(a) of Civil Rules of Practice, that in so far as Order XXIX Rule 2 of the Original Side Rules is concerned, so long as the written consent of the erstwhile counsel on record is readily available on the basis of which the new counsel wants to make his entry on behalf of such client, that itself may be deemed to be a sufficient determination of the vakalat of the previous counsel on record and there exists no need for a formal sanction or approval and in the case of the nonavailability of written consent of the erstwhile counsel, the learned counsel submitted that the procedure laid down in Rule 3 of Order XXIX of the Original Side Rules can be adopted though it may amount to a stringent mode consuming much time and energy and delay. 13. 13. Then endorsing the said view, Thiru K.T. Palpandian, learned counsel added further that where in a question which involves determination of the appointment of a counsel as provided, under the Code of Civil Procedure is concerned unless and until that appointment has been duly determined as provided by law, any mode adopted by recognising of a new counsel in his place may become meaningless unless and until the appointment of the erstwhile counsel is duly and effectively determined once for all and that this contingency can be effectively obviated by getting a written consent from the erstwhile counsel accompanied by a sworn affidavit by the party, who intends to appoint a new counsel in the place of the erstwhile appointee for the purpose of revocation and changing of the vakalat of the respective counsel and that unless and until if is being done perfectly, there would be a good wrong to provide for miscarriage to the party as well as the Bar is concerned. 14. Thiru R. Krishnaswamy, learned counsel also endorsed the same view but went one step further in drawing the very purpose for which the determination of vakalat by means of filing an application though formal or informal, has been stipulated in Order 29, Rule 3 of the Original Side Rules as has been clearly guided by Order 14, Rule 10(2) of the Original Side Rules empowering the Master to adjudicate upon this contingency, is only for the purpose of effecting the determination of the erstwhile appointment, and the recognition of the new appointment of the counsel concerned by a party in the same case or proceeding. To substantiate this, the learned counsel was firm in subscribing his view that in continuing the procedure of Order XXIX Rule 2 of the Original Side Rules in both parts, there may not be any difficulty at all in laying down the proposition that in such of the cases where written consent of the erstwhile counsel is made available, the determination of the previous counsel can be deemed to be held properly and effectively and that only in cases where the said consent is not available, then the procedure expressed in Rule 3 can be made available and that for the reason, according to the learned counsel presumably why the registry or the office has been insisting filing of an application by revocation and change of vakalat for all these days is the combined effect of Rules 2 and 3 of Order XXIX read altogether and that was the only reason presumably being followed throughout. 15. I have heard Mr. V.S. Subramaniam, one of the learned counsel appointed as Amicus Curiae in endorsing the same view to be added that the Rules Committee since recommended for the introduction of two rules separatively, and in view of the procedure cited by the Supreme Court even cases peculiarly dealt with, since followed, the learned counsel urges that we have to follow the same proposition as laid down therein to obviate the difficulty of filing a formal application at least and get revocation and change of vakalat as provided by the Original Side Rules. After hearing Tmt. Chitra Sampath, learned counsel very much involved in the diary note, and the learned senior counsel, Mr. R. Gandhi, I am able to see the consensus among the view of the Bar as above referred in respect of the position that in a case where the written consent of the previous counsel is made readily available, there arises no need to follow the empty formality of filing a petition or application before the Master, who is the authority empowered under the Original Side Rules to deal with the matter in question and get the formal sanction and approval for the purpose of revocation and change of vakalat as clearly laid down under Order XXIX Rule 2 of both parts. Pertinent at this stage for me is to advert one of the suggestions made by Mr. Pertinent at this stage for me is to advert one of the suggestions made by Mr. K.T. Palpandian, the learned counsel that adequate provision should be made in settling the above proposition in according the formal approval and sanction of the change of vakalat in the case of written consent of the erstwhile counsel is available, proper care should be taken in making the availability of the full proof of the consent of the erstwhile counsel which could be possible only if the parties or clients who appoint a new counsel, shall come forward with the necessary affidavit to the effect that he has intended to change the previous counsel on record and for the purpose of appointing a new counsel, he has obtained the written consent of his erstwhile counsel and by means of the said sworn affidavit, it can be safeguarded. 16. Having heard the Bar on this aspect and considering very meticulously, I am totally in agreement with the stand taken by Mr. K.T. Palpandian, learned counsel, in propagating the said idea. But, providing an extra requirement of filing an affidavit by the party, in the context of the availability of written consent of the counsel on record, in my firm view, amounts superfluous and unnecessary. 17. By a mere reading of Rule 2 of Order XXIX with that of Order XXIX Rule 3 of Original Side Rules, I feel totally unable to see any ambiguity among the too. But even so, in the context of the procedure being followed for a very long time by the registry as well as the office by insisting for filing a formal application, I have been coming across every day in and day out, the difficulty and inconvenience being expressed by the Bar as well as the litigant public in open court in view of the procedure being followed in the name of according formal sanction at least by the learned Master on the aspect of revocation and effecting change of vakalat. 18. 18. Being satisfied with the concurrence and consensus effectively expressed by the learned counsel Thiruvalargal K.T. Palpandian, Sampathkumar, V.S. Subramaniam, R. Krishnaswamy and A. Shanmughavel and the Senior Counsel, Thiru R. Gandhi, with reference to the matteer involved in the context of the unambiguous and clear aspect of Rules 2 and 3 of Order XXIX of Original Side Rules, I am of the firm view in holding that in a case where a revocation of vakalat by the erstwhile counsel on record is concerned, if a written consent of the appointed counsel is made available, then arises the short need for the Master or registry in so far as the procedure to be followed in this Court on Original Side for any formal accord of sanction. I would make it clear that the learned Master of this Court or the registry on receipt of the written consent of the erstwhile counsel, on record, immediately shall accord sanction and approval for the revocation and change of vakalat and send it to the court to the case records on informing the concerned department without any delay and that no enquiry or formal adjudication as contemplated under Order XXIX of Original Side Rules has become necessary in such an event. 19. With regard to Rule 3 of Order XXIX is concerned, it can be seen provided and expressed in Rule 3 if it was clubbed together with Rule 2 of Order XXIX and if both Rules were read jointly then one can identify the superficial reclassification, viz., filing of the formal application before the Master or the Registrar and to accord sanction for revocation and change of vakalat, perhaps may be the registry and the office might have indulged in insisting an application to that effect all through. But on a cursory reading of these two Rules independently, it is quite clear that one is not inherent with the other and both are distinct for the simple reason the aspect of giving written express consent is totally different with that of withholding the consent and refusing to give his permission and both are disjunctive and separate. Therefore, it follows one cannot club the two Rules together and take it for different purposes under different circumstances. Therefore, it follows one cannot club the two Rules together and take it for different purposes under different circumstances. In the light of the view of the above matter in question, reading Rule 3 of Order XXIX as was justifiably pointed out by Thiru K.T. Palpandian, there was no ambiguity inherent with this rule, because this rule can be pressed into service in such cases where an application has to be filed by a client on declining of the written consent or withholding the consent by the previous counsel on record. In such a contingency, one may not be able to guage or identify the complexity existing between the client and his counsel, but that is a matter to be set at rest by efficacious enquiry and that was the reason only on the basis of which Rule 3 has been provided for; and that Rule 3 is taken separately, then there exists no ambiguity or difficulty in the context of non-availability of express or written consent of revocation and change of vakalat and that in such a contingency the only effective remedy is by way of enquiry by filing an application by the party or otherwise. Therefore, the learned counsel who rendered their valuable assistance to me in considering the entire matter are all unanimous in their opinion that in a case where the written consent of the erstwhile counsel on record is not available and being withheld, there cannot be any remedy except to follow the mode provided under Order XXIX Rule 3 and that so far as the procedure in the Original Side is concerned, a proper remedy made available is only filing a petition under Order XXIX Rule 3 of Original Side Rules. 20. In other respects, the Bench of this Court in the abovesaid case law reported in 1991 II L.W. 565 has discussed every aspect of the case law very much connected with the point in question very elaborately and that therefore, no need arises for me to reiterate the same again word by word. 20. In other respects, the Bench of this Court in the abovesaid case law reported in 1991 II L.W. 565 has discussed every aspect of the case law very much connected with the point in question very elaborately and that therefore, no need arises for me to reiterate the same again word by word. Suffice it for me at this juncture to point out that I have followed the discussion and observation and the proposition held by the learned Judges of the Bench in the abovesaid case law to be made available to this case also and in fact, the learned counsels as Amicus curiae are also of the same view and have no dissenting view on the proposition held by the Bench of this Court and I have no hesitation to entertain their view in the said angle. 21. Thus having considered the entire gamut of the legal proposition, its consequences and the underlying meaning expressed in Order XXIX Rules 2 and 3 of Original Side Rules in the context of the valuable suggestion and assistance rendered by the learned counsels as Amicus Curiae, I am fully satisfied to settle the following proposition to be followed hereafter in so far as the Original Side Rules are concerned:— (i) In revoking the vakalat of the erstwhile counsel on record and effecting a change of vakalat for the new counsel, the Master of this Court or registry is hereby directed to accord the sanction immediately on receipt of the written consent of the erstwhile counsel on record; and the vakalat signed by the new counsel and immediately send it to the case records after information to the concerned departments; and that for which no formal enquiry is necessary; (ii) in such a case where the written consent of the erstwhile counsel on record could not be obtained or being withheld for any reason whatsoever then the mode and the procedure expressed clearly in Rule 3 of Order XXIX can be adopted by the Registrar as well as the Master of this Court in dealing with the matters like the matters involved in this case. The said proposition is to come into force immediately. 22. In the light of the above matter in hand, having obtained the written consent of the erstwhile counsel on record Mr. V. Subramaniam, Tmt. The said proposition is to come into force immediately. 22. In the light of the above matter in hand, having obtained the written consent of the erstwhile counsel on record Mr. V. Subramaniam, Tmt. Chitra Sampath has readily endorsed in the diary note that following the legal ratio laid down by the Bench of this Court in 1991 II L.W. 565, that the filing of a formal application for approval and sanction of revocation and change of vakalat is unnecessary. After due consideration, I am fully endorsing the view of the learned counsel, Tmt. Chitra Sampath, who filed the execution petition on behalf of the decree-holder. Accordingly, the office is hereby directed to accept her vakalat and construe the execution petition to file and proceed to dispose it in accordance with law immediately. 23. Before parting, I shall place my appreciation and regards to Thiruvalargal K.T. Palpandian, V.S. Subramamaniam, S. Sampathkumar, R. Krishnaswamy, A. Shanmughavel, Tmt. Chitra Sampath and Thiru R. Gandhi, learned counsels and Senior Counsel in rendering their useful and valuable assistance to this court in settling the above propositions to be followed hereafter, in the context of the interest of speedy justice and avoiding the consumption of longer time and the unnecessary procedure adopted in disposal of cases by the Court of the Master on the point of revocation and change of vakalat on behalf of the parties concerned. Placing their appreciable assistance on record, I am fully satisfied and have enquired the diary note and hold that the view endorsed by the learned counsel, Tmt. Chitra Sampath, is correct and to be accepted and accordingly the formal sanction and approval is to be accorded immediately without any delay in the execution petition filed by her is to be construed to file and disposed of in accordance with law. This diary note is ordered accordingly.