Whether court should accept vakalatnama filed by new advocate without no objection of previous advocate?

 Whether vakalatnama filed by a new advocate is to be accepted in the absence of 'no objection' of the advocate already on record, is the short question for consideration in this case.

As could be seen from the observations made in the two decisions extracted above, a party to a litigation has an absolute right to appoint an advocate of his choice, to terminate his services, and to appoint a new advocate. A party has the freedom to change his advocate any time and for whatever reason. However, fairness demands that the party should inform his advocate already on record, though this is not a condition precedent to appoint a new advocate.

7. There is nothing known as irrevocable vakalatnama. The right of a party to withdraw vakalatnama or authorization given to an advocate is absolute. Hence, a party may discharge his advocate any time, with or without cause by withdrawing his vakalatnama or authorization. On discharging the advocate, the party has the right to have the case file returned to him from the advocate, and any refusal by the advocate to return the file amounts to misconduct under Section 35 of the Advocates Act, 1961. In any proceeding, including civil and criminal, a party has an absolute right to appoint a new Advocate. Under no circumstance, a party can be denied of his right to appoint a new advocate of his choice. Therefore, it follows that any rule or law imposing restriction on the said right can't be construed as mandatory. Accordingly, Courts, Tribunals or other authorities shall not ask for 'no objection' of the advocate already on record, to accept the vakalatnama filed by a new advocate.

8. As observed in the decisions referred to above, if an Advocate is discharged by his client and if he has any genuine claim against his client relating to the fee payable to him, the appropriate course for him is to return the brief and to agitate his claim in an appropriate forum, in accordance with law.

9. As stated above, under no circumstance, a party can be denied of his right to appoint a new advocate of his choice. The right is absolute and not conditional. Hence, the objection raised by the Registry on the vakalatnama is overruled. Hereafter, the Registry shall not ask for 'no objection' of the advocate already on record, to accept the vakalatnama filed by a new Advocate.

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

Miscellaneous First Appeal No. 6526/2013 (LAC)

Decided On: 02.12.2016

Karnataka Power Transmission Corporation Ltd. Vs.

M. Rajashekar and Ors.

Hon'ble Judges/Coram:

H.G. Ramesh and John Michael Cunha, JJ.

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Whether borrowers proposed to be classified as wilful defaulters have right to be represented by an Advocate before GRC?

We are therefore of the opinion that the GRC satisfies the tests prescribed to qualify as a Tribunal.

(MM) Once the GRC is held to be a Tribunal within the meaning of Section 30 of the Advocates Act, the advocates would have a right to practice before it and axiomatically the borrower before such GRC will have a right to engage and avail the services of an advocate.

(NN) A Division Bench of the High Court of Punjab and Haryana in Paramjit Kumar Saroya Vs. Union of India MNU/PH/0765/2014, in the context of the provision in the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 debarring representation through an advocate before the Tribunals constituted under the said Act, held that after the coming in to force ofSection 30 of the Advocates Act, there cannot be an absolute bar to the assistance by legal practitioner to before a Tribunal.

(OO) A Full Bench of the High Court of Punjab and Haryana in Smt. Jaswant Kaur Vs. The State of Haryana AIR 1977 P&H 221 held Section 20A of the Haryana Ceiling of Land Holdings Act, 1972 prohibiting advocates from appearing before the authorities constituted under the said Act to be bad in the light of Section 30 of the Advocates Act, without of course noticing Section 30 of the Act to be not in force.

(PP) In Lingappa Pochanna Appelwar Vs. State of Maharashtra (1985) 1 SCC 479 the challenge to the vires of Section 9A of the Maharashtra Restoration of Lands to Schedule Tribes Act, 1974 prohibiting advocates from appearing in proceedings under the Act on the ground of restricting the right to practice the provision was negatived only on the ground of Section 30 of the Advocates Act having not been brought into force and though it was observed such a right is no doubt conferred thereby.It thus follows that the restriction placed by the GRC of the appellant banks to appearance on behalf of borrowers of advocates before it, not by any law but otherwise, cannot be sustained and has to be held to be bad.

 We are also of the view that the entire opposition of the GRC of the appellant banks to appearance of is based on an illogical presumption of the same delaying the proceedings before it. We do not find any basis for such apprehension. There is no basis for the Bank / FIs to form an opinion that while the defaulting borrower and / or his representatives would not delay the proceedings, an advocate appearing for them would. Moreover the members of GRC can always control and guide the proceedings before it and as per the exigencies limit the time of hearing.

 We therefore conclude that the GRC of the appellant banks erred in denying representation through the advocates to the respondent. We further hold that the borrowers or the Banks/FIs who are proposed to be classified/ declared as wilful defaulters and are given an opportunity of hearing before the GRC are entitled to be represented therein through advocates. We however hasten to clarify that the GRC would be fully empowered to control including as to the duration and guide the hearing and if finds dilatory and vexatious tactics being adopted, to take suitable consequential actions.

Delhi High Court

Punjab National Bank & Ors vs Kingfisher Airlines Limited & Ors on 17 December, 2015

Author: Rajiv Sahai Endlaw

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