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2019 DIGILAW 253 (MAD)

N. Ramamurthy v. N. Ethiraj

2019-01-24

R.SURESH KUMAR

body2019
JUDGMENT : R. SURESH KUMAR, J. 1. In this matter, the Fifth Defendant one Mrs. V. Shantha died, therefore the Legal Representatives of the Fifth Defendant had been brought on record as Defendant Nos. 29, 30 & 31 by Order of this Court in A. No. 7829 of 2018 dated 29.11.2018. 2. Among the three newly impleaded Defendants, i.e. D29 to D31, the D29 is the husband of the deceased and D30 & D31 are the son and daughter of the deceased D5. 3. In that circumstances, the 29th Defendant namely, K. Vinayagamurthy, who is the Lawyer by profession, appeared party-in-person for himself. At the same time, he claimed that, he wanted to file Vakalat for D30 & D31 who are the son and daughter of the deceased Fifth Defendant as well as the 29th Defendant himself. 4. In this regard, an objection was raised by the learned Counsel appearing for the Plaintiff that, the 29th Defendant can appear party-in-person for himself as 29th Defendant in the Suit, however, he cannot file Vakalat and represent the case of D30 & D31, for the reason that, since the Suit is for Partition and the Fifth Defendant died, had interest over the property to be partitioned and on whose behalf only, after her demise, these Defendants 29 to 31, since had been brought on record as LRs, certainly the 29th Defendant also would have a pecuniary interest over the property in question. 5. In this regard, at the request of this Court, Dr. A. Thiyagarajan, learned Senior Counsel, Mr. V. Kuberan and Mr. P.B. Balaji, learned Counsel, appearing as Amicus Curiae have brought to the notice of this Court, the relevant Rule in this regard, framed by the Bar Council of India, pursuant to the power vested with them under the Advocates Act. 6. The relevant Rule is called "Bar Council of India Rules, 1975" where the learned Senior Counsel and the learned Counsel appearing as Amicus Curie invited the attention of this Court to Rules 9 & 13, under Part VI (Rules Governing Advocates) which reads thus: "P. An Advocate should not act or plead in any matter in which he is himself pecuniarily interested. Illustration (I) : He should not act in a Bankruptcy Petition, when he himself is also a creditor of the bankrupt. Illustration (I) : He should not act in a Bankruptcy Petition, when he himself is also a creditor of the bankrupt. Illustration (II) : He should not accept a brief from a Company of which he is a director. 13. An Advocate should not accept a brief or appear in a case, in which he has reason to believe that he will be a Witness and if being engaged in a case, it becomes apparent that he is a Witness on a material question of fact, he should not continue to appear as an Advocate, if he can retire without jeopardising his client's interests." 7. By relying upon these two Rules, the learned Amicus Curie would submit that, an Advocate should not act or plead in any case, in which he himself is pecuniarily interested. 8. If the said Rule is applied to the present case, since the 29th Defendant is pecuniarily interested in the property in question, which is the subject matter of the Suit, he can plead himself as party-in-person, but he cannot take Vakalat and represent the case of any Defendant including the Defendant Nos. 30 & 31. 9. Like that, Rule 13 says, an Advocate should not accept a brief or appear in case, in which he has reason to believe that he will be a Witness. 10. Here in the case in hand, since the 29th Defendant himself is a party to the Suit and ultimately during the trial, there is a likelihood of, he may be called as Witness or he himself be appear and depose before this Court as a Witness and therefore, his appearance as a Counsel representing any party to the Suit is prohibited under the said Rule 13 referred to above. 11. In view of the said rule position, which have been clearly brought to the notice of this Court by the learned Senior Counsel and other Counsel, who appeared as Amicus Curiae, as per the request of this Court, the 29th Defendant can appear party-in-person for himself, however he cannot file Vakalat for Defendant Nos. 30 & 31 or any other Defendant or party in the Suit. 12. In view of the above, the 30th & 31st Defendants shall engage a Counsel of their choice and for the said purpose, two weeks time is granted. 30 & 31 or any other Defendant or party in the Suit. 12. In view of the above, the 30th & 31st Defendants shall engage a Counsel of their choice and for the said purpose, two weeks time is granted. The 29th Defendant can appear before this Court as party-in-person for himself as 29th Defendant. 13. This Court record the appreciation on the learned Senior Counsel and other Counsels, who had appeared and assisted this Court. 14. Post the matter after two weeks. The amended Plaint copy filed is taken on record.