Whether party can seek review of order on ground of change of Advocate?

In the case of M/s. Usha International Ltd. (supra) while relying upon the earlier Division Bench of this Court in the case of Rotary Club, Begusarai etc. (supra) the Hon'ble Division Bench of this Court had occasion to consider the review application which was filed by a change of lawyer. The Hon'ble Division Bench reiterated its views expressed in Rotary Club, Begusarai etc. (supra) as under:

".........Recourse to review by change of lawyers is normally deprecated by Courts. The practice becomes all the more reprehensible when review is sought on grounds pertaining to the previous conduct of the case or other grounds of fact normally within the knowledge of the previous lawyer(s). To my mind a lawyer must be very reluctant to take up a brief of review unless he had appeared in the case, the order passed in which is the subject of review. In case for some reasons a change of lawyer is unavoidable, the newly engaged lawyer would owe it to himself and to the profession to have the statement of facts duly verified by the lawyer earlier conducting the case. In case a review is filed by a new lawyer a certificate ought to be appended to the review petition, preferably by the previous counsel, stating that the facts stated in the petition were correct or alternatively by the newly engaged lawyer testifying that he had got the facts stated in the review petition verified by the previous lawyer........"

12. In the review application what is important to be seen is that if an error has occurred because of mistake of the Court or for any other reason which is likely to cause injustice to a party, the same is required to be corrected.

13. This Court is of the considered opinion that this review application by a change of lawyer is liable to be rejected in view of the Division Bench judgment of this Court in the case of Usha International (Supra). 

IN THE HIGH COURT OF PATNA

Civil Review No. 456 of 2018 in Miscellaneous Jurisdiction Case No. 1762 of 2017

Decided On: 30.04.2019

 Rishi Kesh Kumar  Vs.  Minakshi Kumari and Ors.

Hon'ble Judges/Coram:

Rajeev Ranjan Prasad, J.

Print Page

Whether litigant can condemn his Advocate behind his back for seeking condonation of delay?

However, after hearing the learned counsel for the applicant,
especially when a query was put to the learned counsel in
respect of the conduct on the part of the applicant as to
whether at any point of time, she on her own, contacted her
advocate, the reply was in negative. A litigant who
approaches to the Court must be diligent. He or she must
take all steps to pursue his or her litigation. It is expected
from the litigant that he or she is in contact with the lawyer
who is representing his or her cause in the Court of law. A
litigant cannot take a spacious plea that once the case is
entrusted with an the advocate his or her work is over and
the advocate will take care of the matter. An Advocate
always discharges his duties on the instructions given to him
by his client.

It is very easy for a litigant to make allegations
against an advocate behind his back. If the applicant wishes
to make allegations against the advocate, the applicant
should have a courage to join the advocate as a party and in
his presence should make allegation against him. Here, the
applicant wants to condemn the advocate behind his back.
In my view, it is impermissible and unacceptable. Further,
no steps are also being taken by the applicant against any
advocate under the provision of the Advocates Act.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CIVIL APPLICATION NO.19/2018 IN
SECOND APPEAL ST. NO.22803/2017

Kanta alias Shanti Subhash Karkale .vs. Manjulabai alias Kholki 
Haribhau Tarare and anr.

CORAM : V. M. DESHPANDE, J.
DATED : JUNE 18, 2019

Print Page

Whether Advocate can claim fees on Percentage On Permanent Alimony Given To His Client?

It prima facie appears that the petitioner has

completely betrayed the trust reposed in him by the victim. He

has even gone to the extent of claiming percentage on the

permanent alimony given to the victim which is illegal. The

Bombay High Court in Re: K.L. Gauba reported in A.I.R. 1954

Bombay 478 held that fees conditional on the success of a case

and which gives the lawyer an interest in the subject matter 

tends to undermine the status of the profession. The same has

always been condemned as unworthy of the legal profession. If

an advocate has interest in success of litigation, he may tend to

depart from ethics. In the case of Mr. ‘G’., A Senior Advocate

of the Supreme Court reported in (1955) 1 Supreme Court

Reporter 490, the Hon’ble Supreme Court held that the claim of

an advocate based on a share in the subject matter is a

professional misconduct. In case of B. Sunitha -Vrs.- The

State of Telengana and Ors. reported in (2018) 69 Orissa

Criminal Reports (SC) 400, it is held that claim based on

percentage of subject matter in litigation cannot be the basis of a

complaint under section 138 of the N.I. Act.

 IN THE HIGH COURT OF ORISSA: CUTTACK

ABLAPL No. 5399 of 2017

An application under section 438 of the Code of Criminal

Procedure in connection with C.T. case No. 2702 of 2016 pending

in the Court of S.D.J.M., Bhubaneswar.

Sanjaya Narayan Sahoo  Vs  State of Odisha 

P R E S E N T:

 MR. JUSTICE S.K. SAHOO

 Date of Order: 01.05.2018

Print Page

Whether Advocate can file complaint U/S 138 of NI Act for his fees based on percentage of decretal amount?

In the case on

hand, the complainant being a practising advocate,

has not proved the debt amount payable towards

him by the accused, who has engaged him as his

lawyer to conduct the case. The finding of the trial

Court that there is no debt or legally enforceable

liability' does not suffer from any infirmity

warranting interference.”

14. The Bombay High Court in Re: KL Gauba AIR 1954 Bom 4789 held that fees conditional on the success of a case and which gives the lawyer an interest in the subject matter tends to undermine the status of

the profession. The same has always been condemned as

unworthy of the legal profession. If an advocate has interest in

success of litigation, he may tend to depart from ethics.

15. In in the matter of Mr. G.: A Senior Advocate of the

Supreme Court  (1955) 1 SCR 490

, this Court held that the claim of an advocate

based on a share in the subject matter is a professional

misconduct.

16. In VC Rangadurai versus D. Gopalan  (1979) 1 SCC 308, para 3110

, it was observed that

relation between a lawyer and his client is highly fiduciary in

nature. The advocate is in the position of trust.

17. Rule 20 of Part VI, Chapter II, Section II of the Standard of

Professional Conduct and Etiquette reads as follows :

“An advocate shall not stipulate for a fee

contingent on the results of litigation or agree to

share the proceeds thereof.”

18. Thus, mere issuance of cheque by the client may not debar

him from contesting the liability. If liability is disputed, the

advocate has to independently prove the contract. Claim based on percentage of subject matter in litigation cannot be

 the basis of a complaint under Section 138 of the Act.

19. In view of the above, the claim of the respondent advocate

being against public policy and being an act of professional

misconduct, proceedings in the complaint filed by him have to be

held to be abuse of the process of law and have to be quashed.

20. We may note that after the hearing was concluded, learned

counsel for Respondent No.2 mentioned the matter to the effect

that Respondent No.2 wanted to withdraw the complaint. An

e-mail to this effect was also handed over to Court. The same has

been kept on the record. However, we did not permit this prayer.

Having committed a serious professional misconduct, the

respondent No.2 could not be allowed to avoid the adverse

consequences which he may suffer for his professional misconduct.

The issue of professional misconduct may be dealt with at

appropriate forum.

21. Thus, while proceedings against the appellant will stand

quashed, the issue of professional misconduct is left to be dealt

with at the appropriate forum. 

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2068 OF 2017

B. SUNITHA  Vs THE STATE OF TELENGANA & ANR. 

Dated:5TH DECEMBER, 2017.

ADARSH KUMAR GOEL, J.

Citation: 2018(4) MHLJ 27

Print Page

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.

Print Page

Whether Advocate swearing affidavit on behalf of client amounts to professional misconduct?

 The Supreme Court has referred to the provisions of Section 30 of the Advocates Act, 1961 and has held that the said section only entitles an advocate to practise the profession of law and not to substitute himself for his client. The filing of the writ petition in his own name was not a part of the professional obligation of the advocate and the High Court was, therefore, justified in dismissing the writ petition holding that the petitioner had no locus standi.

7. Section 30 of the Advocates Act, 1961 provides that every advocate whose name is entered in the State roll shall he entitled as of right to practise throughout the territory to which the Act apply. Thus, an advocate gets his right to practise in a Court only under Section 30 of the Act. 'Practise' in itself means to appear on behalf of his client before a Court or Tribunal in the best interest of his client. Practise, however, certainly does not give liberty to an advocate to identify himself with his client and step into the shoes of his client, so far as the rights of his client are concerned. Section 30 of the Act reads as under :

"30. Right of advocates to practise.-Subject to provisions of this Act, every advocate whose name is entered in the [State roll] shall be entitled as of right to practise throughout the territories to which this Act extends,-

(i) in all Courts including the Supreme Court;

(ii) before any Tribunal or person legally authorised to take evidence; and

(iii) before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practise."

8. I am, therefore, of the view that prima facie, the said Advocate, Sri Rohit Kumar Tyagi is guilty of professional misconduct in identifying himself with his client and filing an affidavit in support of the present second appeal, but considering that he himself expresses that he had acted under naivety and has submitted an unconditional apology, I do not propose to refer the matter to the Disciplinary Committee of the State Bar Council in the hope that this incident would in itself be a lesson enough for the said counsel to mend and mind his ways for future. For reasons aforesaid and in view of the law laid down by the Supreme Court in the case of Vinoy Kumar (supra), this second appeal is dismissed.

IN THE HIGH COURT OF ALLAHABAD

Second Appeal No. 501 of 2017

Decided On: 09.06.2017

Baljeet Singh Vs. Pratap Singh and Ors.

Hon'ble Judges/Coram:
B. Amit Sthalekar, J.
Citation: AIR 2017 ALL165

Print Page

Whether Advocate can give up one ground of sub letting for eviction without consent of his client?

Another ground which is agitated by the learned Counsel for the applicant is about induction of the respondent as a sub-tenant illegally. In fact, on careful perusal of the findings recorded by the Rent Controller, I find that the said ground of the applicant is accepted. The case of the applicant that the respondent is illegally inducted as a sub-tenant has been accepted by the Rent Controller. It appears that the District Court, relying upon the statement of the Advocate appearing for the applicant, observed that so far induction of respondent as sub tenant is illegal, has been given up by the applicant. In fact, it is specifically stated in the present revision application by the applicant that the Advocate who appeared for the applicant, was not instructed by the applicant to give up the said ground. I am of the considered opinion that the District Court should have asked the Advocate either to file affidavit of the applicant stating therein that the applicant is not pressing the said ground or at least the advocate's statement ought to have been recorded in presence of the applicant. Therefore, this Court is of the opinion that so far as the ground taken by the applicant that the respondent has been inducted illegally as sub tenant in the suit shop by original tenant Mr. Samb Madhavrao Patil and he is illegally in possession of the suit shop is concerned, it is required to be adjudicated afresh by the District Court.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Civil Revision Application No. 195 of 2012

Decided On: 09.07.2013

Mohammad Musa Ibrahimsaheb Ghante Vs. M/s. Gajanan Prabhuappa Bidwe

Hon'ble Judges/Coram:

S.S. Shinde, J.

Print Page

Whether Ballot papers relating to designation of senior lawyer are to be disclosed under RTI?

The interpretive indices strongly suggest that 'Judges present' is entirely different from 'Judges present and voting.' We cannot judicially legislate by reading 'present' to mean 'present and voting.' It is impermissible. Of the 32 Judges present, PBSN did not get a two-thirds majority. He contends that-excluding abstentions, the figure of which is indeterminate-if we count the votes polled, he got 19-and no Judge opposed his request. So, he has secured a two-thirds majority.

99. First, no Judge abstained; all voted. Some Judges left the ballots blank. They did not express their choice. Designating an advocate as a Senior is a conscious act-an administrative one, though. The Judges deliberate and calibrate the applicant's merits as have been stated in Section 16 of the Act. However vigorous the deliberations may be, the element of subjectivity in the Judges' assessing the advocate's ability cannot be avoided. An advocate's securing majority, again, is an active measure, not a passive one. A state of affairs or a status already existing continues by default so long as those that can alter the position remain inert. On the other hand, a state of affairs to be brought about or a status to be conferred cannot be achieved by default unless there is express, positive, and active effort to bring about that situation. In the judicial parlance, a plaintiff losing does not amount to a defendant's winning. Similarly, an advocate's not getting a no-vote does not amount his getting a positive or a decisive vote. Abstentions apart, what an advocate must secure under Rule 6 of the Rules is two-thirds of positive or 'yes' votes of all the Judges present. Anything short of this does not enure to the applicant's benefit. I, therefore, hold that the High Court's destroying the ballot papers, and its failing to provide information to PBSN or any other applicant under the Right to Information Act does not alter the resulting position. Listed out, the conclusions are these:

"1. "Judges present" differs from "Judges present and voting". They both cannot be conflated; nor can they be taken as synonymous.

2. "Judges present" includes the Judges abstained or voted "blank."

3. Abstentions, if any, must be counted to reckon two-thirds majority unless the Rules make the position as the High Courts of Delhi and Gujarat have done.

4. The Courts making Rules is not a sine qua non for them to exercise their powers under Section 16 of the Act.

5. "[T]he Conditions subject to which an advocate shall be permitted to practice in the High Court" as prescribed under Section 34 of the Act encompasses the process of designating advocates as Seniors. And the Rules made by the High Court specifying Section 16 of the Act as the source of power do not fall foul.

6. Ballot papers are not part of the record to be preserved; they can be preserved only with the Full Court's consent, not at the request of an applicant.

IN THE HIGH COURT OF KERALA

W.P. (C) No. 21661 of 2016

Decided On: 22.05.2017

 Saharsranaman P.B. Vs. Kerala High Court

Hon'ble Judges/Coram:

Dama Seshadri Naidu, J.

Citation: AIR 2017 Kerala 174

Print Page

Whether accused can make conversation with his lawyer during interrogation by police?

We may, however, at this stage refer to another decision of this Court in D.K. Basu v. State of West Bengal MANU/SC/0157/1997 : (1997) 1 SCC 416. In this case, the Court, extensively considered the issues of arrest or detention in the backdrop of Articles 21, 22 and 32 of the Constitution and made a number of directions to be followed as preventive measures in all cases of arrest or detention till legal provisions are made in that behalf. The direction at serial number 10 in paragraph 35 is as follows:

(10). The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.

28. Strictly speaking the aforesaid direction does not apply to the case of the Respondent, because he being on bail cannot be described as an arrestee. But, it is stated on behalf of the Respondent that he suffers from heart disease and on going to the DRI office, in pursuance to the summons issued by the authorities, he had suffered a heart attack. It is also alleged that his brother was subjected to torture and the Respondent himself was threatened with third degree methods. The medical condition of the Respondent was accepted by the Metropolitan Sessions Judge and that forms one of the grounds for grant of anticipatory bail to him. Taking a cue, therefore, from the direction made in DK Basu and having regard to the special facts and circumstances of the case, we deem it appropriate to direct that the interrogation of the Respondent may be held within the sight of his advocate or any other person duly authorized by him. The advocate or the person authorized by the Respondent may watch the proceedings from a distance or from beyond a glass partition but he will not be within the hearing distance and it will not be open to the Respondent to have consultations with him in course of the interrogation.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1266 of 2011 (Arising out of SLP (Crl.) No. 628 of 2008)

Decided On: 05.07.2011

Senior Intelligence Officer

Vs.

Jugal Kishore Samra

Hon'ble Judges/Coram:

Aftab Alam and R.M. Lodha, JJ.

Print Page

Whether suspect can claim that he should be interrogated in presence of his lawyer?

 We do not find any force in the arguments of Mr. Salve and Mr. Lalit that if a person is called away from his own house and questioned in the atmosphere of the customs office without the assistance of his lawyer or his friends his constitutional right under Article 21 is violated. The argument proceeds thus: if the person who is used to certain comforts and convenience is asked to come by himself to the Department for answering questions it amounts to mental torture. We are unable to agree. It is true that large majority of persons connected with illegal trade and evasion of taxes and duties are in a position to afford luxuries on lavish scale of which an honest ordinary citizen of this country cannot dream of and they are surrounded by persons similarly involved either directly or indirectly in such pursuits. But that cannot be a ground for holding that he has a constitutional right to claim similar luxuries and company of his choice. Mr. Salve was fair enough not to pursue his argument with reference to the comfort part, but continued to maintain that the appellant is entitled to the company of his choice during the questioning. The purpose of the enquiry under the Customs Act and the other similar statutes will be completely frustrated if the whims of the persons in possession of useful information for the departments are allowed to prevail. For achieving the object of such an enquiry if the appropriate authorities be of the view that such persons should be dissociated from the atmosphere and the company of persons who provide encouragement to them in adopting a non-cooperative attitude to the machineries of law, there cannot be any legitimate objection in depriving them of such company. The relevant provisions of the Constitution in this regard have to be construed in the spirit they were made and the benefits thereunder should not be "expanded" to favour exploiters engaged in tax evasion at the cost of public exchequer. Applying the just, fair and reasonable test' we held that there is no merit in the stand of appellant before us.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 301-302 of 1987

Decided On: 14.05.1992

Poolpandi etc. etc.
Vs.
 Superintendent, Central Excise and others etc. etc.

Hon'ble Judges/Coram: 
L.M. Sharma, J.S. Verma and Yogeshwar Dayal, JJ.

citations: 1992 AIR 1795, 1992 SCR (3) 247

Print Page

Whether court can permit recalling of witness on ground of change of Advocate?

Their Lordships of the Hon'ble Supreme Court in State (NCT of Delhi) v. Shiv Kumar Yadav and another reported in (2016)2 SCC 402 have held that plea of recalling a witness has to be bonafide and mere change of a counsel, can not be a ground for recalling a witness. Their lordships have held as under:

"11. It is further well settled that fairness of trial has to be seen not only from the point of view of the accused, but also from the point of view of the victim and the society. In the name of fair trial, the system cannot be held to ransom. The accused is entitled to be represented by a counsel of his choice, to be provided all relevant documents, to cross-examine the prosecution witnesses and to lead evidence in his defence. The object of provision for recall is to reserve the power with the court to prevent any injustice in the conduct of the trial at any stage. The power available with the court to prevent injustice has to be exercised only if the Court, for valid reasons, feels that injustice is caused to a party. Such a finding, with reasons, must be specifically recorded by the court before the power is exercised.

The above observations cannot be read as laying down any inflexible rule to routinely permit a recall on the ground that cross-examination was not proper for reasons attributable to a counsel. While advancement of justice remains the prime object of law, it cannot be understood that recall can be allowed for the asking or reasons related to mere convenience. It has normally to be presumed that the counsel conducting a case is competent particularly when a counsel is appointed by choice of a litigant. Taken to its logical end, the principle that a retrial must follow on every change of a counsel, can have serious consequences on conduct of trials and the criminal justice system. Witnesses cannot be expected to face the hardship of appearing in court repeatedly, particularly in sensitive cases such as the present one. It can result in undue hardship for victims, especially so, of heinous crimes, if they are required to repeatedly appear in court to face cross-examination."

8. In the present case also, one of the grounds for recalling the witness is change of counsel. It is not permissible. Witness can not be expected to face the ordeal of appearing in the Court repeatedly. No acceptable grounds have been made out for recalling the witness. There is neither any perversity nor any illegality in the order passed by the learned trial Court.

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Cr. MMO No. 254/2016

Decided On: 05.09.2016

 Mohd. Tariq Vs. Jaspal Singh and Ors.

Hon'ble Judges/Coram:

Rajiv Sharma, J.

Citation: 2017 CRLJ 784 HP

Print Page

Whether one party can insist court to direct opposite party to remove his lawyer?

The short question to be considered in the matter is whether the lawyer who is appearing for a party can be removed at the instance of the opposite party. Learned counsel for the petitioner places reliance upon judgment of this Court in Abdhu v.Veeravu (1991 (1) KLT 116). In the said case, the question considered was whether a counsel appearing in a case can be summoned as witness by the opposite party. While considering the said matter, this Court also considered the question whether the Court can direct the Advocate to relinquish the vakalath and withdraw from the case. It was held at para 7 as under:-

“7. The next aspect that falls for consideration is whether the court can direct the Advocate to relinquish the vakalath and withdraw from the case. This Court inMarikar (Motors) Ltd. v. Ravikumar (1988 (2) KLT 986) held that the advocate shall not be asked to relinquish the vakalath if the court or the authority concerned, after enquiry in the lines suggested above, is of the opinion that the disengagement of the Advocate from the case would jeopardise the interests of the party for whom the advocate appears. It was further held that if the court or the authority finds that an examination of the advocate as a witness is indispensable and hence the disengagement of the advocate from the case would not jeopardise the interest of the party for whom he appears, then the court or the authority concerned can ask the advocate to relinquish the vakalath. A Division Bench of the Patna High Court had occasion to consider this aspect in Chhatrapati Shivaji v. State (AIR 1990 Patna 157). It was held: “If it appears that the evidence to be given by the counsel is of formal nature, or that the application has been made with the intention of depriving the party of that counsel's assistance or with some ulterior motive, then such an application is liable to be rejected. Close scrutiny and examination of the situation is a must in this case. But if the Court finds that the prayer for the withdrawal of the counsel for the case is bona fide and without any ulterior motive and not to cause prejudice, but to advance the cause of justice, then it will be the duty of the court to order that the lawyer who has become a relevant and material witness should not appear as a counsel in the case further more”. It has not been shown that the withdrawal of the advocate for defendant from the case would jeopardise the client's interests. The court has therefore every right to direct the advocate to relinquish the vakalath and withdraw from the case for appearing as a witness on the side of the plaintiff. The order passed by the court below earlier permitting the plaintiff to summon the Advocate for the defendant as a witness has therefore to be restored.”

8. Therefore, it is clear that if the Court has to issue a direction to the Advocate to relinquish the vakalath, necessary enquiry in that regard has to be conducted and the Court will have to form an opinion that the disengagement of the Advocate from the case would not jeopardize the interest of the party for whom the Advocate appears. Further, it was held that if the Court or the authority finds that an examination of the Advocate as a witness is indispensable and therefore disengagement of the Advocate from the case would not jeopardise the interest of the party for whom he appears, then the Court concerned can ask the Advocate to relinquish the vakalath.

9. Two conditions therefore have to be complied with for directing an Advocate to relinquish his vakalath. One is that the direction to relinquish the vakalath by the counsel appearing should not jeopardise the interest of the party for whom he appears and secondly the examination of the Advocate as a witness is indispensable and that the disengagement would not jeopardise the interest of the party for whom he appears. In the case on hand, the Family Court had come to the conclusion that the petitioner had not filed any witness list citing Advocate as witness on his side and secondly in order to consider the reliefs sought for, there is no necessity to examine the Advocate appearing on behalf of the respondent as he is not a material witness to prove the contentions raised in the written statement. Further, it is also held that if the counsel is directed to relinquish the vakalath, it will jeopardise the interest of the respondent. That apart, evidence of witnesses on behalf of the petitioner was also over.

Going by the findings of the Family Court, we do not find error on the part of the Family Court to enable us to interfere with the said order.

In the High Court of Kerala at Ernakulam

(Before A.M. Shaffique and K. Ramakrishnan, JJ.)

Kabeer  v. Nazrin 

OP(FC) No. 702 of 2016

Decided on January 5, 2017

Citation: 2017 SCC OnLine Ker 41

Print Page

Whether lawyers can ask Judge to recuse from particular case?

 Again, at this stage, Shri V.V. Bhangde, the learned counsel
for the appellant/defendant No.2, submits that the office be given
direction not to list the matters in which he is appearing for any of the
parties before this Court.   In other words, he submits that I should
recuse   from   taking   up   the   matters   wherein   Shri   V.V.   Bhangde   is
appearing   for   any   of   the   parties.   The   submission   shocks   my
conscience,   particularly   when   it   suddenly   came   from   a   regular
practitioner   from   this   Court,   who   was   being   looked   at   as   an
experienced   and   responsible   officer   of   the   Court.     The   entire
arguments   in   this   matter   went   on   smoothly,   patiently   and   with
interest. After conclusion of the arguments, both the learned counsels
were   asked   as   to   whether   they   intend   to   make   any   additional
submissions, and thereafter the dictation commenced as per the usual
practice.  I need not delve upon any further and I refrain from making

any comments against Shri V.V. Bhangde.   However, the increasing
trend need to be commented upon; so as to caution the lawyers and
the litigants about the consequences of it, which can be avoided.
15. A lawyer has his own choice of appearing before the Court
presided over by a particular Judge to conduct the matter.   If his
matter is listed before the Court where he does not want to appear, he
is at liberty *to return such matter and/or fees to his client and can
ask him to engage some other lawyer or he may refuse to accept the
matter if he has not already filed his vakalatnama.  A Judge may also
recuse himself from taking up the matters of the lawyers with whom
he is closely related or where his conscious does not permit him to
take up the matters of some lawyers.  In these situations, there may
not be any problem either with a Judge or a lawyer, but where the
Court passed an order against a particular lawyer not to appear in his
Court, it takes a colour of penalty or punishment to such a lawyer,
which may result in taking some disciplinary action against him by the
Bar Council of India or of State, which issued him a Sanad of Practice.
Such a stage by a Court may be construed of blacklisting of a lawyer.
Seldom, such event occurs, and the Courts also normally avoid it.


16. A tendency has started growing amongst lawyers to dictate a
Judge to recuse from taking up his matters when the decision goes
against his client or his wavelength does not match with the Judge or
he does not find comfort in conducting the matter or for some such
reasons.  This is an insult personally to a Judge.  Such reactions are
normally experienced when the lawyers take heavy fees from their
clients with an assurance to bring the result of the cases in their favour
or to impress upon the clients sitting in the court room during the
course of hearing, the boldness which he possesses to browbeat the
Court.  If a lawyer exercises his choice of not conducting the matter,
he loses his client and fees, which he does not want to do.  If a Judge
accedes   to   such   demand   of   a   lawyer   for   recusal,   the   effect   is
three­fold ­ (i) the confidence of a lawyer to browbeat the Court is
boosted, (ii) a lawyer gets rid of the Court where he finds discomfort
in conducting the matter, and (iii) it creates an additional source of
income for him, from the other lawyers and the litigants, who do not
want their matters listed or dealt with by such a Judge.  This promotes
the practice of bench­hunting.  No system of justice can tolerate such
practice   by   a   lawyer   and   the   same   is   required   to   be   curbed   and
deprecated. 

17. Recently, in the judgment, which I have delivered in Civil
Revision Application No.26 of 2016 on 6­6­2016 (Satish Mahadeorao
Uke v. The Registrar, High Court of Bombay, Bench at Nagpur, Nagpur),
I have observed in para 25 thereof as under :
“25. A Judge may recuse at his own choice from a case
entrusted to him by the Chief Justice and it would be a matter
of his own choosing.  But recusal at the asking of the litigating
party, unless justified, must never be acceded to.  This is what
the Apex Court has held recently in NJAC case instituted by the
Supreme Court Advocates­on­Record ­ Association and another
v.   Union   of   India,   reported   in   2015   (11)   SCALE   1.   The
question of recusal is normally decided by a Judge on the basis
of his personal or private interest in the subject­matter of the
litigation, his intimacy with the party/parties to a lis before
him, his perception about conflict of interest in taking up the
matter, and his own conscience.  Such decision does not depend
upon the dictates of lawyers or litigants. ...”
18. Recusal to take the matters to be conducted by some lawyers,
is a matter of Judge's own choosing and it cannot be at the dictates of
the lawyers.  What a Judge has to see is that he performs his duty of
deciding the matters before him without fear or favour, affection or
ill­will.  He has to keep in mind the principle that the justice should

not only be done, but it must appear to have been done.  The decision
of recusal to take the matters of lawyers, depends upon the Judge's
personal   relations   or   intimacy   with   such   lawyers,   and   his   own
conscience to decide a case by observing the oath which he has taken
while occupying the position as a Judge. Ultimately, a Judge is also a
human­being and the Judges come from different strata of the Society,
having   their   own   views,   ideas,   angle   or   perception,   based   on   the
varied individual experience in life, which may or may not match with
each others or with some lawyers or litigants.  However, this cannot be
a reason to avoid conducting the matters listed before such a Judge or
the Judges.  Once the constitutional authority of a Judge or the Judges
to adjudicate the matters is accepted, it cannot be lowered down by
asking him or them to recuse to hear and decide the matter. 
19. To prevent a Judge or the Judges from performing his or
their   duties   in   this   fashion   causes   distraction   of   attention   in   the
judicial proceedings, which amounts to interference in the course of
justice.  Merely because a lawyer, litigant or public at large feels that
the approach adopted or a decision is wrong, the authority or the force
of the decision does not get eroded.  A wrong decision in the matter is
equally enforceable like a correct decision.  If the Constitution and the

laws provide a remedy to get such decision corrected in a higher
forum, such a remedy can be availed.  Even a wrong decision becomes
final, binding and enforceable like a correct decision, if there is no
remedy available.  The lawyers, litigants or public at large cannot run
away from such decision and they have to be cautioned about the
authority of the Courts.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Second Appeal No.24 of 2002
Ganesh s/o Ramkisan Bairagi,

V

Yeshoda wd/o Purushottam Landge,

Coram : R.K. Deshpande, J.
Dated  : 16th June, 2016
Citation: 2016(6) MHLJ 393

Print Page

Whether lawyer outside state can appear in Court without Local lawyer’s appointment ?

Appellant's challenge to the aforesaid Rules is mainly on the ground that

these Rules put an unreasonable restriction on his right to practice as an

Advocate and are also ultra vires the provisions of Section 30 of the

Advocates Act, 1961 (hereinafter referred to as the 'Act'). The High

Court of Allahabad has framed the Rules in question which came into

force on 15.09.1952. Chapter XXIV thereof relates to “Rules Framed

under Section 34(1) read with Section 16(2) of the Advocates Act, 1961”.

As we are concerned with the validity of Rule 3 and Rule 3A of the said

Chapter, the same are reproduced below:

“3. Advocate who is not on the Roll of Advocates :

An advocate who is not on the Roll of Advocate or the

Bar Council of the State in which the Court is situated,

shall not appear, act or plead in such Court, unless he

files an appointment along with an advocate who is on

the Roll of such State Bar Council and who is ordinarily

practicing in such Court.

In cases in which a party is represented by more than

one advocate, it shall be necessary for all of them to file

a joint appointment or for each of them to file a separate

one.

3-A. (i) Unless the Court grants leave, an Advocate

who is not on the Roll of Advocates in the High Court at

Allahabad or Lucknow shall not be allowed to appear,

act or plead in the High Court at Allahabad or Lucknow

as the case might be unless he files appointment along

with an Advocate who is on such roll for Allahabad

Cases at Allahabad and for Lucknow Cases at

Lucknow.

We, thus, are of the opinion that Rules 3 and 3A of the Allahabad High

Court Rules, 1952 and perfectly valid, legal and do not violate the right

of the appellant under Article 19(1)(g) of the Constitution of India. The

appeal, therefore, fails and is hereby dismissed.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6120 OF 2016

JAMSHED ANSARI .....APPELLANT(S)

VERSUS

HIGH COURT OF JUDICATURE AT

ALLAHABAD & ORS.

Dated:AUGUST 26, 2016.

A.K. SIKRI, J.

Print Page

Madras HC Directs media not to Publish names of Lawyers and Judges while reporting Court matters

It appears that
he is a practitioner of law. If a practitioner of law is seeking to use the
platform of High Court for purposes of gaining popularity and publicity, so
that he will be able to attract more number of clients, if not the alleged
victims themselves in this case, it would amount to an unethical practice of
soliciting work on one's part. When once the Code of Conduct is prescribed by
the Bar Council of India to be always adhered to and followed by every
practitioner of law, any attempt to overreach the situation and also to
breach it, even in an indirect manner, as has been done in the present case,
it must attract necessary corrective action.
                We therefore, direct the Registrar (Judicial) of this Bench to
place a copy of the affidavit filed by the writ petitioner in this case
before the Bar Council of Tamil Nadu and Puducherry at Chennai for initiating
necessary action for the breach of Code of Ethics and professional conduct by
the writ petitioner. In the event the Bar Council agrees with our prima facie
opinion that the writ petition is instituted by a practicing lawyer, seeking
publicity and mileage for his professional activity rather than propelled by
genuine desire to protect the larger public-good and interest, the Bar
Council shall take appropriate action.  We hope and trust that the Bar
Council will be placing its 'action taken report' before this Court within a
period of six months.
                6.Often times, we have been noticing that the Print and
Electronic Media is carrying on publication of the names of legal
practitioners as well as the names of the Judges of the High Court concerned,
who dealt with particular cases, publication of names of practitioners who
may have appeared for one party or the other in a particular case can lead to
an indirect method of soliciting or indulging in advertisement of the
professional abilities or skills of the advocates. We, therefore, direct the
Registrar (Administration) of this Bench to immediately circulate
instructions to all Print, Electronic and Media Houses not to publish the
names of the practitioners as part of news item.
                7.We also direct, for the present, the Registrar (Administration)
to request the Print, Electronic and Media House, not to publish the
individual names of the Judges unless it is so essentially required. The
reason being every Judge of the High Court is carrying on with his work
sitting in a particular division/roster as assigned by My Lord The Hon'ble
Chief Justice. The Judges do perform their duties dispassionately and to the
extent possible by not allowing their individual notions and philosophies to
be a guiding factor in deciding the causes brought before them.  Therefore,
we feel that the names of the Judges should not be published and on the other
hand, the name of the High Court alone should be published.
                8.We further direct the Registrar (Administration) to place this
matter before My Lord The Hon'ble Chief Justice, so that appropriate
instructions can be issued in this regard by My Lord The Hon'ble Chief
Justice.
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT               

DATED:  22.08.2016  

CORAM   
THE HONOURABLE MR.JUSTICE NOOTY.RAMAMOHANA RAO                 
and 
THE HONOURABLE MR.JUSTICE S.S.SUNDAR           

Writ Petition (MD) No.15480  of 2016
and 
W.M.P(MD)Nos.11379 to 11381 of 2016    

S.Baskar Mathuram                                               ... Petitioner
Vs.
The State of Tamil Nadu,
   

Print Page

Judges and Lawyers should update themselves with latest trend of law

Thus, it seems that the learned Additional Sessions Judge, Fast Track
Mahila Court, Thoothukudi, has not been informed of the latest trend of law
on this aspect.  Judges and Lawyers should update themselves with the latest
trend of law.  Law is a living organism.  It grows every day.  It must be
'dynamic' and also 'pragmatic.  And should not be 'static'.  Law and judge-
made law (case-law) must undergo change in tune with the change in Society.
Otherwise, it will be a dull subject.  Thus, March of Law is bound to be.
 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT               

DATED: 17.08.2016  

CORAM   
THE HONOURABLE DR.JUSTICE P.DEVADASS            

Crl.R.C.(MD) No.181 of 2016 
and 
Crl.M.P.(MD) No.2543 of 2016 

                                                                                       
Samuel Jebakani                                       ... Petitioner /   
Petitioner /
                                                                 De facto Complainant (LW-1) 
-vs-

The Superintendent of Police

Print Page

Whether territorial jurisdiction of court in copyright cases can be decided on basis of convenience of lawyers?

It was also submitted that as the bulk of litigation of such a
nature is filed at Delhi and lawyers available at Delhi are having
expertise in the matter, as such it would be convenient to the parties
to contest the suit at Delhi. Such aspects are irrelevant for deciding the
territorial jurisdiction. It is not the convenience of the lawyers or their
expertise which makes out the territorial jurisdiction. Thus, the
submission is unhesitatingly rejected.
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.10643-10644 OF 2010
Indian Performing Rights Society Ltd. 
Vs.
Sanjay Dalia & Anr.
(With C.A. No.4912/2015 @ SLP [C] No.8253/2013)
Citation;AIR 2015 SC 3479

Print Page

Whether lawyer must be specifically authorised to settle and compromise a claim?

 Apart from the above, in our view lawyers
are perceived to be their client’s agents. The law
of agency may not strictly apply to the client –
lawyer’s relationship as lawyers or agents, lawyers
have certain authority and certain duties. Because
lawyers are also fiduciaries, their duties will
sometimes more demanding than those imposed on other
agents. The authority-agency status affords the
lawyers to act for the client on the subject matter
of the retainer. One of the most basic principles of
the lawyer-client relationships is that lawyers owe
fiduciary duties to their clients. As part of those
duties, lawyers assume all the traditional duties
that agents owe their principals and, thus, have to
respect the client’s autonomy to make decisions at a
minimum, as to the objectives of the representation.
Thus, according to generally accepted notions of
professional responsibility, lawyers should follow
the client’s instructions rather than substitute

their judgment for that of the client. The law is
now well settled that a lawyer must be specifically
authorised to settle and compromise a claim, that
merely on the basis of his employment he has no
implied or ostensible authority to bind his client
to a compromise/ settlement. To put it
alternatively that a lawyer by virtue of retention,
has the authority to choose the means for achieving
the client’s legal goal, while the client has the
right to decide on what the goal will be. If the
decision in question falls within those that clearly
belong to the client, the lawyers conduct in failing
to consult the client or in making the decision for
the client, is more likely to constitute ineffective
assistance of counsel.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 4360-4361 OF 2015

HIMALAYAN COOPERATIVE GROUP
HOUSING SOCIETY V BALWAN SINGH 

Citation;(2015) 7 SCC 373

Print Page