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2019 DIGILAW 332 (CAL)

Oriental Insurance Co. Ltd. v. Diana George

2019-03-08

HARISH TANDON, HIRANMAY BHATTACHARYYA

body2019
JUDGMENT : Re: CAN 2456 of 2019 1. It is a brazen attempt on the part of the applicant to intervene in the midst of the judicial proceeding having no nexus to the cause of action or the points involved therein. 2. If our memory goes down the lane, the day, when this matter was taken up first for hearing, Mr. Kalyan Kumar Chakraborty, learned Advocate, appeared and submits that he is appearing for an intervenor. On being asked for whom he is appearing, he submitted that he is appearing for an Advocate, who has been victimized by the act of the learned Advocate for the claimants/respondents before this Court. This Court did not allow him to waste the Court's time without any application having been taken out in this regard. 3. The matter did not end there. The applicant before us took out an application seeking addition as a party in the proceeding with further prayer that the appeal should be adjourned sine die pending the investigation. 4. We reminded ourselves to the proposition of law concerning the addition of party in a judicial proceeding. Order I Rule 10(2) of the Code of Civil Procedure empowers the court to add a party to the proceeding provided he is necessary or proper party. The necessary party is one without whose presence the lis cannot be continued and/or the issues therein cannot be decided. On the other hand, the proper party is one whose presence is necessary for complete and effective adjudication of the dispute. The learned Advocate, who was engaged by the claimants/respondents at an earlier point of time, can never be treated as a necessary and/or proper party. 5. It is informed to this Court that when the earlier Division Bench was in seisin of the instant appeal, the applicant intervened therein as well and it was his stand that the claimants/respondents never executed Vakalatnama in favour of the Advocate-on-Record of the claimants/respondents, who is now appearing for them. The Division Bench called the claimant No. 1 to appear before the Court. This Court is further informed, which is not disputed by either of the parties, that the said claimant, in fact, appeared in person before the Division Bench and categorically asserted that she engaged the present Advocate-on-Record to conduct the case for her and on behalf of other claimants. 6. This Court is further informed, which is not disputed by either of the parties, that the said claimant, in fact, appeared in person before the Division Bench and categorically asserted that she engaged the present Advocate-on-Record to conduct the case for her and on behalf of other claimants. 6. The whole episode is founded on the share in the claim amount awarded or to be awarded by this Court. An Advocate is an honourable person and is a part of a noble profession. Even though he represents the litigant before the court and takes care of his interest or defends his interest yet his primary duty is to assist and help the court to arrive at the correct decision. Precisely for such reason he is considered to be an officer of the court and remained a part of the noble profession. 7. If a person like the applicant, who claims himself to be an Advocate, intervenes in the judicial proceeding on the basis of frivolous and unsubstantiated allegations simply because he at one point of time aspire to get a chunk of the claim amount, which appears to be rampant in such category of cases, the posterity would curse the judiciary, if the Judges remain the mute spectators. 8. The entire statements made in the application are pointer to one issue that the present Advocate-on-Record of the claimants/respondents could not and cannot act for such claimants, when such claimants had no grievance against him, as he sufficiently took care of their interest and, in fact, the orders were passed in their favour. 9. The litigant is neither a commodity nor chattel. It is improbable and beyond perceivable concept that he would remain with the Advocate and cannot take "No Objection" by engaging another Advocate nor the law requires that a litigant has to assign the reason to the Advocate-on-Record as to why he or she wanted a change from him with an intent to engage another Advocate. If it is a matter of non-payment of fees, the same should have been taken up in another forum but certainly does not make the erstwhile Advocate to be a necessary and proper party in the perspective of the litigation. 10. If it is a matter of non-payment of fees, the same should have been taken up in another forum but certainly does not make the erstwhile Advocate to be a necessary and proper party in the perspective of the litigation. 10. The Apex Court in case of Central Bank of India v. SC/ST Employees Welfare Association, reported in (2015)12 Supreme Court Cases 308 also held that the role of Advocate in the judicial system of this country is not only to protect the interest of the client but equally responsible to the court by assisting to assess correct law in these words: "As an advocate he is a minister of justice equally with the Judge. (...) I say 'all he honourably can' because his duty is not only to his client. He has a duty to the court which is paramount. It is a mistake to suppose that he is the mouthpiece of his client to say what he wants: or his stool to do what he directs, He is none of these things. He owes allegiance to a higher cause. It is the cause of truth and justice. He must not consciously misstate the facts. He must not knowingly conceal the truth. He must not unjustly make a charge of fraud, that is, without evidence to support it. The code which requires a barrister to do all this is not a code of law. It is the code of honour." 11. The Supreme Court in another judgment reported in State of Rajasthan v. Surendra Mohnot, reported in (2014)14 Supreme Court Cases 77 held: "A lawyer is a responsible officer of the court. It is his duty as the officer of the court to assist the court in a properly prepared manner. That is the sacrosanct role assigned to an Advocate. As far as the counsel for the State is concerned, it can be decidedly stated that he has a higher responsibility. A counsel who represents the State is required to state the facts in a correct and honest manner. He has to discharge his duty with immense responsibility and each of his action has to be sensible. He is expected to have higher standard of conduct. He has a special duty towards the court in rendering assistance. It is because he has access to the public records and is also obliged to protect the public interest. He has to discharge his duty with immense responsibility and each of his action has to be sensible. He is expected to have higher standard of conduct. He has a special duty towards the court in rendering assistance. It is because he has access to the public records and is also obliged to protect the public interest. That apart, he has a moral responsibility to the court. When these values corrode, one can say 'things fall apart'. He should always remind himself that an advocate, while not being insensible to ambition and achievement, should feel the sense of ethicality and nobility of the legal profession in his bones." 12. In case of O.P. Sharma v. High Court of Punjab & Haryana, reported in (2011)6 Supreme Court Cases 86 it is held: "An advocate should be dignified in his dealings to the court, to his fellow lawyers and to the litigants. He should have integrity in abundance and should never do anything that erodes his credibility. An advocate has a duty to enlighten and encourage the juniors in the profession. An ideal advocate should believe that the legal profession has an element of service also and associates with legal service activities. Most importantly, he should faithfully abide by the standards of professional conduct and etiquette prescribed by the Bar Council of India in Chapter II, Part VI of the Bar Council of India Rules." 13. The behaviour of the applicant, who claimed himself to be the Advocate, has taken a further ugly turn when the complaints are lodged with the police and even the criminal law was set in motion against his own brothers in legal fraternity. Such erratic attempt of the Advocate should not be permitted to be a part of such noble profession. The court must wake up and take a strong decision if such obnoxious facts and frivolous allegations are made to tarnish the image of the judiciary. We are informed that the matter is pending before the Bar Council of West Bengal when complaints have already been lodged against the applicant but no action appears to have been taken as yet. 14. The applicant though personally present in the open Court but did not make any submission and Mr. We are informed that the matter is pending before the Bar Council of West Bengal when complaints have already been lodged against the applicant but no action appears to have been taken as yet. 14. The applicant though personally present in the open Court but did not make any submission and Mr. Kalyan Kumar Chakraborty, learned Advocate, who appeared for him, submits on instruction, that the applicant does not intend to proceed with the instant application and prays for withdrawal of the same. 15. Our attention is drawn to the order dated 3rd December 2018, when another application for the selfsame order was taken out by the present applicant and thereafter was permitted to be withdrawn by this court. The litigant, who perpetually files an application with an intent to drag the proceeding unnecessarily, he should not be allowed to get away merrily as he subsequently changed his view and intend to withdraw the said application. Equally, we cannot overlook the fact that the applicant is a dominus litis and carriage of proceeding lies with him if he intends to abandon and/or withdraw his claim, the court may permit him to do so by imposing certain conditions. 16. In view of the findings recorded herein above, we allow the applicant to withdraw the instant application with costs assessed at Rs. 2,00,000/- to be deposited in the Advocates' Benevolent Fund within a month from date. 17. In default of payment of cost, the Registrar General of this Court is directed to communicate this order to the competent officer under the Public Demands Recovery Act, who shall proceed to recover the said amount as arrears of land revenue and the competent authority under the said Act is directed to see that the said proceeding is completed within two months from the date of communication of this order by the Registrar General of this Court. 18. Apart from the same, the Bar Council of West Bengal is directed to bring the proceeding initiated before it to its logical end within two months from the date of communication of this order. 19. All the parties are permitted to communicate this order to the Registrar General of this Court as well as the Bar Council of West Bengal to act thereupon. 20. 19. All the parties are permitted to communicate this order to the Registrar General of this Court as well as the Bar Council of West Bengal to act thereupon. 20. Both the authorities shall act on the basis of the communication, which would contain the downloaded copy of this order from the official website of this Court without insisting for the certified copy thereof. Re: FMA 467 of 2018 with FMAT 726 of 2017 Hearing concluded and made CAV.