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2006 DIGILAW 118 (HP)

ORIENTAL INSURANCE COMPANY v. SHEELA DEVI

2006-05-01

DEEPAK GUPTA

body2006
JUDGEMENT Deepak Gupta: The main point raised in these cases is whether a fresh counsel can appear in a matter without obtaining consent from the counsel previously engaged and appearing in the matter and without determining the Vakalatnama of the previous counsel? An ancillary question, which has arisen, is whether the decision of the main appeal determines the Vakalatnama and thereafter a fresh counsel can appear without obtaining such consent? 2. I have heard Sh. Ajay Sharma who was previously engaged as a counsel in the matter and Ms. Salochna Kaundal, who has filed these applications for release in a decided matter. Since the matter involved an important question I had requested the Chairman of the Bar Counsel and the President of the HP. High Court Bar Association to assist me in the matter. Consequently, I have also heard Sh. Ramakant Sharma, Advocate Chairman Bar Council of Himachal Pradesh and Mr. R.K. Gautam, Senior Advocate who is also a member of the Bat Council, on this issue. 3. The Bar Council of India Rules, 1975 have been framed by the Bar Council of India under the provisions of Advocates Act, 1965. Section 49 (c) of the said Act provides that the Bar Council of India may frame rules relating to the standards of professionals conduct and etiquette to be observed by Advocates. The Bar Council of India Rules have been framed by the Bar Council in India in exercise of the powers given to it. Rule 39 of Chapter-II of part-VI reads as follows:- "39. An Advocate shall not enter appearance in any case in which there is already a vakalat or memo or appearance filed by an Advocate engaged for a party except with his consent; in case such consent is not produced he shall apply to the Court stating reasons why the said consent could not be produced and he shall appear only after obtaining the permission of the Court." 4. A bare perusal of this Rule clearly indicates that no Advocate should file his Vakalatnama or put in appearance in any case in which the party is already represented by an Advocate without obtaining the consent of such Advocate. In case such consent is not forthcoming and cannot be produced the party/counsel should apply to the Court giving reasons thereof and shall only appear after the permission of the Court. 5. In case such consent is not forthcoming and cannot be produced the party/counsel should apply to the Court giving reasons thereof and shall only appear after the permission of the Court. 5. Order 3 of the Code of Civil Procedure relates to recognized Agents and Pleaders. Rule 4 of Order 3 reads as follows:- "4. Appointment of pleader- (1) No pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognized agency or by some other person duly authorized by or under a power-of-attorney to make such appointment. (2) Every such appointment shall be filed in court and shall, for the purposes of sub-Rule (1) be deemed to be in force until determined with the leave of the Court by a writing signed by the client or the pleader, as the case may be, and filed in Court, or until the client or the pleader dies, or until all proceedings in the suit are ended so far as regards the client. Explanation: - For the purposes of this sub-rule, the following shall be deemed to be proceedings in the suit;- (a) an application for the review of decree or order in the suit. (b) an application under Section 144 or under Section 152 of this Code, in relation to any decree or order made in the suit, (c) An appeal from any decree or order in the suit, (d) Any application or act for the purpose of obtaining copies of documents or return of documents produced or filed in the suit or of obtaining refund of moneys paid into the court in connection with the suit. (3) Nothing in sub-rule (2) shall be construed- (a) as extending, as between the pleader and his client, the duration for which the pleader is engaged, or (b) as authorizing service on the pleader of any notice or document issued by any Court other than the Court for which the pleader was engaged, except where such service was expressly agreed to by the client in the document referred to in sub-rule (1). (4) The High Court may, by general order, direct that, where the person by whom a pleader is appointed is unable to write his name, his mark upon the document appointing the pleader shall be attested by such person and in such manner as may be specified by the order. (5) No pleader who has been engaged for the purpose of pleading only shall plead on behalf of any party, unless he has filed in Court a memorandum of appearance signed by himself and stating;- (a) the names of the parties to the suit, (b) the name of the party for whom he appears, and (c) the name of the person by whom he is authorized to appear. Provided that nothing in this sub-rule shall apply to any pleader engaged to plead on behalf of any party by any other pleader who has been duly appointed to act in Court on behalf of such party." 6. A reading of Sub Rule (2) of the aforesaid Rules clearly shows that the Vakalatnama filed in the Court continues to remain in force unless determined by the leave provides that an application for review of decree or order, an application under Section 144 or under Section 152 or an appeal or any application for obtaining copies of documents or for refund of moneys paid into the Court shall be deemed to be a proceedings in the suit. 7. Chapter-V of the High Court of Himachal Pradesh (Original Side) Rules, 1997 also deals with the filing of Vakalatnama. Rules 1 to 4 of the said Chapter read as follows:- "1.Execution and filing of Vakalatnama:- An Advocate on his filing a Vakalatnama duly executed by a party shall be entitled to act as well as to plead for the party in the matter and to conduct and prosecute all proceedings that may be taken in respect of such matter or any application connected with the same or any decree or order passed therein including proceedings in taxation and applications for review, execution and appeal in the High Court and to take all such other steps as he may be specifically authorized by the power of attorney. 2. 2. Endorsement of Vakalatnama:- No Vakalatnama shall be accepted unless it contains the following under the signature of the Advocate:- (i) an endorsement in token of its acceptance with the date of acceptance; and (ii) the address for service of the Advocate. 3. Notice to determination of authority of Advocate. A party desiring to obtain an order for determination of the authority of his Advocate who has filed a Vakalatnama on his behalf in a suit or matter shall do so by application after the first giving notice thereto that Advocate, and the fact of such notice having been served shall be stated in the affidavit in support of such application. 4. Notice to discharge to a client:- An Advocate in a suit or matter desiring to obtain an order for his discharge, shall first give notice of his intended application for discharge to his client and the fact of such notice having been served shall be stated in the application: Provided that an Advocate may be discharged by consent of the Advocate and the party by letter addressed to the Registrar and signed by the advocate and the party." 8. Even these Rules framed by High Court clearly lay down that the Advocate who files he Vakalatnama shall be entitled to conduct and prosecute all proceedings that may be taken respect of the matter in which the Vakalatanana is filed or any application connected with the same. Rule 3 provides that a party who wants to determine the authority of its Advocate must first file an application giving notice thereof to the Advocate before such application is considered. Similarly, an Advocate before seeking to obtain his discharge should first give notice of his intention to the client and the move an application under Rule 4. 9.Mr. Ramakant Sharma, learned Chairman of the Bar Counsel, Mr. R.K. Gautam, learned Senior counsel and Mr. Ajay Sharma, learned counsel on the basis of the Bar Council of India Rules, Order 3 of the CPC and the H.P. High Court (Original Side) Rules contend that without determining the previous Vakalatanama a counsel cannot file an application for release of money on behalf of the client who was already represented by an Advocate without first obtaining the consent of the previous Advocate or determining his Vakalatnama. 10. 10. On the other hand Ms.Salochana Kaundal, who has filed an application for release of the money in the decided appeal contends that a client is free to choose his or her Advocate and cannot be forced to continue with the previous Advocate. She relies upon a judgment of the Apex court in R. D. Saxena Vs. Balram Prasad Sharma, (2000) 7 SCC 264. The Apex Court in this Case basically laid down that an Advocate had no lien on the papers of the client. It was held that the Advocate had no right to retain and withhold the files kept by the client with him. The Apex Court was of the view that incase any such lien is permitted it would become susceptible to great abuse and exploitation in the conditions prevailing in India where a large portion of the litigating public consists of illiterate persons. The Apex Court further went on to hold as follows: 15". A litigant must have the freedom to change his advocate when he feels that the advocate engaged by him is not capable of espousing his cause efficiently or that his conduct is prejudicial to the interest involved in the lis, or for any other reason. For whatever reason, if a client does not want to continue the engagement of a particular advocate it would be a professional requirement consistent with the dignity of the profession that he should return the brief to the client, is time to hold that such obligation is not only a legal duty but a moral imperative." 11 .In view of the law laid down by the Apex Court, any litigant has the right to choose the lawyer of his choice. He cannot be forced to continue with the lawyer whom he does not want to engage. Whoever, this right to have a lawyer of his own choice is circumscribed by the manner in which the services of the lawyer previously engaged are to be terminated. 12. A lawyer does not only represent his client. He is also an officer of the Court. Therefore, in any matter in which such lawyer is engaged he has to assist the Court till his vakalatnama is determined in accordance with law. 13. A client if he wants to change his counsel should ordinarily first approach his counsel for return of the brief and to obtain no objection form him. Therefore, in any matter in which such lawyer is engaged he has to assist the Court till his vakalatnama is determined in accordance with law. 13. A client if he wants to change his counsel should ordinarily first approach his counsel for return of the brief and to obtain no objection form him. Normally a lawyer is expected to grant his consent unless there are sufficient and cogent reasons for him to decline the same. If however the lawyer does not given his consent then there is nothing to prevent the client from approaching the court to determine the vakalat of the counsel previously representing him. Without determining the vakalat a fresh counsel cannot be engaged. 14. As per the Bar Council of India Rules quoted above every lawyer owes a duty to his colleague not to appear in any matter in which vakalat has already been tiled oy some other counsel. This is a salutary provision to maintain the dignity of the profession. This should not be by-passed. In any event the client has a remedy even if the counsel does not give his no objection. He can always apply to the Court giving his reasons why the consent could not be produced and why he has to engage a new counsel. The Bar Council of India Rules are in consonance with the Rules framed by this Court referred to above as well as the provisions of the Code of Civil Procedure. 15. The other point to be decided is whether an application for release of a money in a decided case can be said to be a fresh proceeding and as such a freshly appointed counsel can appear without following the aforesaid procedure. In my opinion, the applications in the present case cannot be said to be the fresh proceedings. Order 3 of the Code of Civil Procedure referred to above clearly indicates that the appointment of a counsel made by filling a vakalatanama shall continue till the same is terminated by the leave of the Court or until the proceedings end. From a perusal of the explanation appended to sub-rule(2) of Rule 4 Order 3 of the Code of Civil Procedure it is clear that applications for refund of moneys are deemed to be proceedings in the suit. From a perusal of the explanation appended to sub-rule(2) of Rule 4 Order 3 of the Code of Civil Procedure it is clear that applications for refund of moneys are deemed to be proceedings in the suit. An application for refund of money has to be equated with an application for release of the amount, as in the present case. Further as per the Rules framed by this Court especially Rule 1 quoted above the vakalat will continue to be in force even in respect of any application connected with the same or any decree or order passed therein including proceedings in taxation, review, execution and intra- court appeal in the High Court. An application for release of the amount is obviously an application connected with the main matter 17. In the present cases the second counsel Ms. Salochna Kaundal who has filed the applications for release has neither obtained the consent form Sh. Ajay Sharma who was the previously engaged counsel nor has filed any application or given reasons for determining the vakalatnama of Sh. Ajay Sharma. In view of the aforesaid discussion these applications could not have been entertained and fifed without obtaining the consent or without first determining the vakalatnama of Sh. Ajay Sharma. The applications are, therefore, rejected.