Thursday, 21 July 2016

Whether Advocate can refuse to give "No objection" to his client if client wished to engage other Advocate?


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The normal conduct of a client is that if he wishes to change
his counsel for some reason or the other, he should approach him for
return of the brief and to obtain “No Objection” from him. In case his
counsel returns the brief, it is well and good and if he refuses to return
the brief or refuses to give “No Objection”, the client may invoke the
provisions of Order 3 Rule 4 of the CPC to redress his grievances.
However, in the present case, the applicants have failed to that and
without determining the appointment of their earlier counsel, Shri Ng.
Kumar, Advocate, they had moved an application for deleting their
names from the array of parties in the writ petition through another
Advocate which is unfair and unreasonable on the part of the applicants.
The moment an Advocate is engaged, a client is expected to be fair and
reasonable to him and ought to give proper instructions accordingly. But
in any case and for whatever reasons, the applicants have expressed
their view that they don’t want Shri Ng. Kumar, Advocate to continue as
their counsel and that a new Advocate be engaged in his place and 
since the Hon’ble Supreme Court in the said R.D. Saxena’s Case
(supra) has categorically observed that 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 would return the brief to the client and it is time to
hold that such obligation is not only a legal duty but a moral imperative,
this court is of the view that this application is liable to be allowed. In
view of the above observations of the Hon’ble Supreme Court, it is the
duty of Shri Ng. Kumar, Advocate to give “No Objection” so that the
applicants could engage a new Advocate of their choice. If Shri Ng.
Kumar, Advocate is of the view that the action of the applicants being
unfair and unreasonable, has caused prejudice to his professional right
and privilege as a counsel, it is open to him to seek appropriate relief
and redress his grievance from an appropriate forum.

IN THE HIGH COURT OF MANIPUR
AT IMPHAL
M.C. (W.P. (C)) No. 147 of 2016
(Ref:- W.P. (C) No. 202 of 2015)
 Shri Ashem Shyamkesho Singh, 
- Versus -
 Thokchom Ranjan Meetei, 

B E F O R E
HON’BLE MR. JUSTICE KH. NOBIN SINGH

Date of Judgment & Order :: 08-07-2016



[1] Heard Shri Ph. Sanajaoba, learned counsel appearing for
the applicants and Shri Ng. Kumar, learned counsel appearing for the
petitioners/ respondents.
[2] It is unfortunate that this court is called upon to decide an
issue which has arisen out of the relation between the applicants and
their counsel, Shri Ng. Kumar, Advocate and has nothing to do with the
merit of the case. Before bringing the issue to this court, the same could
have been resolved amicably by them outside the court.
[3] This is an application filed by the applicants who are the
petitioner Nos. 5, 6 and 7 in the writ petition being W.P. (C) No. 202 of
2015 praying for deleting the name of their counsel, Shri Ng. Kumar,
Advocate from their vakalatnama filed before this court in the said writ
petition on the ground that they have already disengaged him as their
conducting counsel and accordingly, they requested him to issue a “No
Objection” so that they could engage a new Advocate of their choice but
to no effect. In other words, the said application appears to have been
filed for determining the vakalatnama executed by them in favour of their
counsel. Denying the averments made therein, a reply affidavit on behalf 
of the respondent Nos. 1 to 11 has been filed wherein it is stated that
the applicants have not given any instruction to Shri Ng. Kumar,
Advocate for moving an application before this court for their withdrawal
from the case or for deletion of their names from the array of parties and
their request for giving “No Objection” was turned down by him on the
ground that the engagement of another Advocate for the purpose of
withdrawal from the writ petition would tantamount to making tacit
aspersions against him inasmuch as people are very likely to falsely
take that he has held up their instructions to withdraw from the case,
thereby causing serious prejudice to his conduct and integrity. It is
further stated therein that although it is the right or the discretion of the
applicants to withdraw from the case or engage any Advocate of their
choice but the same could not be allowed to be exercised whimsically
without any reasonable cause inasmuch as such irresponsible action of
unscrupulous litigants is likely to jeopardize the conduct and integrity of
sincere Advocates who are none other than officers of the court and
therefore, allowing the applicants to disengage him and appoint another
Advocate in his place for the purpose of withdrawal from the case or for
deletion of their names from the array of parties in the writ petition
would, by no stretch of imagination, be a reasonable cause or a good
ground. Accordingly, it has been prayed that the instant application be
rejected in the interest of justice.
[4] Although it is nowhere mentioned in the application that
the same has been filed under the provisions of CPC, it is the provisions
of Order 3 Rule 4(2) of CPC which provide that appointment of an
Advocate shall be filed in the court and shall be deemed to be in force
until determined with the leave of the court by a writing signed by the
client or the Advocate as the case may be. An Advocate does not only
represent his client but he is also an officer of the court. In any matter in
which he is engaged, he has to assist the court till his vakalatnama is
determined in accordance with law. Order 3 Rule 4(2) of CPC reads as
under:-
“(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, on until all proceedings in the suit
are ended so far as regards the client.”
[5] Relying upon the decision rendered by the Hon’ble
Supreme Court in the case of R.D. Saxena -Vs- Balram Prasad
Sharma, reported in (2000) 7 SCC 264, it has been submitted on behalf
of the applicants that they have the right to appoint any Advocate of their
choice and freedom to change their Advocate whenever they feel like. In
the said R.D. Saxena case (supra) wherein the appellant was engaged
by the Bank to conduct their cases in which the bank was a party and
when the bank terminated the retainership, the appellant refused to
return the files on the ground that he had a lien for his fees on the
litigation papers entrusted to him by the bank, the Hon’ble Supreme
Court held:
“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. It is time to hold that such obligation is not only
a legal duty but a moral imperative.”
“(28) While dealing with the moneys or any other article or
document entrusted, an advocate is expected to
always keep in mind the high standards of profession
and its values adopted and practiced for centuries. 
‘Professional obligations’ of a lawyer are distinguished
from the ‘business commitments’ followed by trading
community. The legal profession owes social
obligations to the society in discharge of the
profession services to the litigants. The Bar Council of
India Rules provides that:
“ An advocate shall, at all times, comport himself
in a manner befitting his status as an officer of
the Court, a privileged member of the community
and a gentleman, bearing in mind that what may
be lawful and moral for a person who is not a
member of the Bar or for a member of the Bar in
his non-professional capacity may still be
improper for an advocate.”
[6] In fact, the facts of the said R.D. Saxena’s Case are not
exactly the same as that of the present case because in the present
case, Shri Ng. Kumar, Advocate has not refused to give “No Objection”
on the ground that his fees have not been paid nor has he a lien for his
fees on the litigation papers. The only reason as to why he declined to
give “No Objection” is that the engagement of another lawyer for the
purpose of their withdrawal from being the petitioners would tantamount
to making tacit aspersions against him inasmuch as people are likely to
falsely take that he has held up their instructions thereby causing
prejudice to his integrity. In other words, all that he replied in his letter
dated 21-04-2016 is that if the applicants wished to withdraw from the
case and had instructed him for that purpose, he could have done that
happily. But without doing that, the applicants had already engaged
another Advocate before his appointment is determined in accordance
with law and therefore, their action is unfair and unreasonable. To that
extent, the stand of Shri Ng. Kumar, Advocate appears to be correct and
proper. There is no material on record to show that the applicants had
ever approached him with the instruction that they wished to withdraw
from the case and an appropriate action in respect thereof be taken by
him. On the contrary, the applicants had engaged another Advocate 
through whom they moved the application being M.C.(W.P.(C)) No. 50
of 2016 praying for deleting their names from the array of parties in the
writ petition. Even the new Advocate engaged by the applicants ought
not to have accepted the instructions of the applicants for moving the
said application in view of the provisions of the Bar Council of India
Rules and in particular, Rule 39 of Chapter-II of Part-VI which reads as
under:
“39. An Advocate shall not enter appearance in any case
in which there is already a vakalat or memo of
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.”
The normal conduct of a client is that if he wishes to change
his counsel for some reason or the other, he should approach him for
return of the brief and to obtain “No Objection” from him. In case his
counsel returns the brief, it is well and good and if he refuses to return
the brief or refuses to give “No Objection”, the client may invoke the
provisions of Order 3 Rule 4 of the CPC to redress his grievances.
However, in the present case, the applicants have failed to that and
without determining the appointment of their earlier counsel, Shri Ng.
Kumar, Advocate, they had moved an application for deleting their
names from the array of parties in the writ petition through another
Advocate which is unfair and unreasonable on the part of the applicants.
The moment an Advocate is engaged, a client is expected to be fair and
reasonable to him and ought to give proper instructions accordingly. But
in any case and for whatever reasons, the applicants have expressed
their view that they don’t want Shri Ng. Kumar, Advocate to continue as
their counsel and that a new Advocate be engaged in his place and 
since the Hon’ble Supreme Court in the said R.D. Saxena’s Case
(supra) has categorically observed that 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 would return the brief to the client and it is time to
hold that such obligation is not only a legal duty but a moral imperative,
this court is of the view that this application is liable to be allowed. In
view of the above observations of the Hon’ble Supreme Court, it is the
duty of Shri Ng. Kumar, Advocate to give “No Objection” so that the
applicants could engage a new Advocate of their choice. If Shri Ng.
Kumar, Advocate is of the view that the action of the applicants being
unfair and unreasonable, has caused prejudice to his professional right
and privilege as a counsel, it is open to him to seek appropriate relief
and redress his grievance from an appropriate forum.
[7] In view of the above and for the reasons stated herein
above, the instant application is allowed subject to payment of Rs.
1000/- (Rupees one thousand) only as costs which shall be paid to the
High Court Legal Services Committee, High Court of Manipur, Imphal
within a week from today.

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