Whether it is mandatory to file fresh Vakalatnama alongwith Memo of appeal if same Advocate is representing the appellant in appeal?

 It is, thus, now well-settled that any detect in signing the memorandum of appeal or any detect in the authority of the person signing the memorandum of appeal, or the omission to file the vakalatnama executed by the appellant, along with the appeal, will not invalidate the memorandum of appeal, if such omission or defect is not deliberate and the signing of the Appeal memorandum or the presentation thereof before the appellate court was with the knowledge and authority of the appellant. Such omission or defect being one relatable to procedure, it can subsequently be corrected. It is the duty of the Office to verify whether the memorandum of appeal was signed by the appellant or his authorized agent or pleader holding appropriate vakalatnama. If the Office does not point out such detect and the appeal is accepted and proceeded with, it cannot be rejected at the hearing of the appeal merely by reason of such detect, without giving an opportunity to the appellant to rectify it. The requirement that the appeal should be signed by the appellant or his pleader (duly authorized by a Vakalatnama executed by the appellant) is, no doubt, mandatory. But it does not mean that non-compliance should result in automatic rejection of the appeal without an opportunity to the appellant to rectify the defect. If and when the defect is noticed or pointed out, the court should, either on an application by the appellant or suo motu, permit the appellant to rectify the detect by either signing the memorandum of appeal or by furnishing the vakalatnama. It should also be kept in view that if the pleader signing the memorandum of appeal has appeared for the party in the trial court, then he need not present a fresh Vakalatnama along with the memorandum of appeal, as the Vakalatnama in his favour filed in the trial court will be sufficient authority to sign and present the memorandum of appeal having regard to Rule 4(2) of Order 3 CPC, read with Explanation [c] thereto. In such an event, a mere memo referring to the authority given to him in the trial court may be sufficient. However, filing a fresh Vakalatnama with the memo of appeal will always be convenient to facilitate the processing of the appeal by the office. {Para 15}

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 6701 of 2005.

Decided On: 10.11.2005

Uday Shankar Triyar Vs. Ram Kalewar Prasad Singh and Ors.

Hon'ble Judges/Coram:

Ruma Pal, A.R. Lakshmanan and R.V. Raveendran, JJ.

Author: R.V. Raveendran, J.

Citation: 2006 (1) ARC 1 (SC), MANU/SC/2173/2005

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Can the court accept a compromise petition if the party has not given authority to his advocate to compromise the case through a special Vakalatnama?

 The third question that arises for our consideration in context with the legality and validity of the settlement is whether the learned advocate appearing for the cross-objector i.e., Defendant No. 2 could have signed the compromise petition without an express consent. It is an imperative duty of the Court to ascertain the genuineness and lawfulness of the compromise deed. Indisputably, in the case on hand, the First Appellate Court had neither recorded the statements of the parties in the Court nor had made any inquiry into the terms of the settlement. It is in such circumstances that the High Court in its impugned order has observed that the Compromise Petition was signed by the advocate without any express authority or without special vakalatnama executed in favour of the advocate. In fact, the authority was expressly curtailed in the compromise deed. {Para 100}

103. Almost six decades back, the Madras High Court speaking through Justice Ramaswami (as His Lordship then was) in the case of Govindammal v. Marimuthu Maistry and Ors. reported in MANU/TN/0103/1959 : AIR 1959 Mad 7 had sounded the note of caution observing as under:

5.... The decisions appear to be fairly clear that even in cases where there is no express authorization to enter into a compromise, under the inherent authority impliedly given to the Vakil he has power to enter into the compromise on behalf of his client. But in the present state of the clientele world and the position in which the Bar now finds itself and in the face of divided judicial authority and absence of statutory backing prudence dictates that unless express power is given in the vakalatnama itself to enter into compromise, in accordance with the general practice obtaining a special vakalatnama should be filed or the specific consent of the party to enter into the compromise should be obtained. If an endorsement is made on the plaint etc., it would be better to get the signature or the thumb impression of the party affixed thereto, making it evident that the party is aware of what is being done by the Vakil on his or her behalf.

104. Thus, in view of the aforesaid discussion, we hold that the High Court committed no error in holding that the settlement between the Defendant Nos. 1 and 2 was unlawful.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 2913-2915 of 2018

Prasanta Kumar Sahoo and Ors.  Vs.  Charulata Sahu and Ors.

Hon'ble Judges/Coram:

A.S. Bopanna and J.B. Pardiwala, JJ.

Author: J.B. Pardiwala, J.

Decided On: 29.03.2023

Citation: MANU/SC/0326/2023.

Read full Judgment here: Click here

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Whether client can refuse to pay fees to an Advocate if he has filed joint vakalatnama along with his Junior?

 Any senior lawyer having briefs of various clients

cannot effectively prosecute or defend cases without the

assistance of junior or other lawyers. When a client

authorises an Advocate to conduct or prosecute a case, the

authority given is to conduct/prosecute the case effectively

and the Advocate is empowered to file joint Vakalat for and

on behalf of the client. There is no illegality in filing a joint

Vakalat and the petitioner in Ext.R1(b) has agreed that

everything lawfully done or made by the petitioner in the

conduct of the Suit shall be as valid and binding on him as if

done by the respondent. The respondent cannot deny fees if

any due to the petitioner on that ground. {Para 10}

 IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) NO. 24362 OF 2021

P.G.MATHEW Vs THE AIRPORT DIRECTOR

PRESENT

 MR.JUSTICE N.NAGARESH

 28TH DAY OF MARCH 2022 

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Whether the court can allow the compromise of a suit if Advocates of parties only sign the compromise petition?

We may, however, hasten to add that it will be prudent for counsel not to act on implied authority except when warranted by the exigency of circumstances demanding immediate adjustment of suit by agreement or compromise and the signature of the party cannot be obtained without undue delay. In these days of easier and quicker communication, such contingency may seldom arise. A wise and careful counsel will no doubt arm himself in advance with the necessary authority expressed in writing to meet all such contingencies in order that neither his authority nor integrity is ever doubted.

This essential precaution will safeguard the personal reputation of counsel as well as uphold the prestige and dignity of the legal profession.

47. Considering the traditionally recognised role of counsel in the common law system, and the evil sought to be remedied by Parliament by the C.P.C. (Amendment) Act, 1976, namely, attainment of certainty and expeditious disposal of cases by reducing the terms of compromise to writing signed by the parties, and allowing the compromise decree to comprehend even matters falling outside the subject-matter of the suit, but relating to the parties, the legislature cannot, in the absence of express words to such effect, be presumed to have disallowed the parties to enter into a compromise by counsel in their cause or by their duly authorised agents. Any such presumption would be inconsistent with the legislative object of attaining quick reduction of arrears in Court by elimination of uncertainties and enlargement of the scope of compromise.

48. To insist upon the party himself personally signing the agreement or compromise would often cause undue delay, loss and inconvenience, especially in the case of non-resident persons. It has always been universally understood that a party can always act by his duly authorised representative. If a power-of-attorney holder can enter into an agreement or compromise on behalf of his principal, so can counsel, possessed of the requisite authorisation by vakalatnama, act on behalf of his client.

Not to recognise such capacity is not only to cause much inconvenience and loss to the parties personally, but also to delay the progress of proceedings in court.

If the legislature had intended to make such a fundamental change, even at the risk of delay, inconvenience and needless expenditure, it would have expressly so stated.

49. Accordingly, we are of the view that the words 'in writing and signed by the parties', inserted by the C.P.C. (Amendment) Act, 1976, must necessarily mean, to borrow the language of Order III rule 1 C.P.C.:

any appearance application or act in or to any court, required or authorized by law to be made or done by a party in such court, may except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader, appearing, applying or acting as the case may be, on his behalf:

Provided that any such appearance shall, if the court so directs, be made by the party in person.

(emphasis supplied)

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 3698 of 1991

Decided On: 20.09.1991

Byram Pestonji Gariwala Vs. Union Bank of India 

Hon'ble Judges/Coram:

T.K. Thommen and R.M. Sahai, JJ.

Citation: (1992) 1 SCC 31)

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Whether incorrect statement in vakalatnama amounts to forgery?

 Applying the ratio of the above decisions, in our view, there
is no prima facie evidence to show that the appellants had
intended to cause damage or injury or any other acts. Since the
disputed version in the vakalatnama appears to be an inadvertent
mistake with no intention to make misrepresentation, in our view,
the direction of the High Court to lodge a criminal complaint
against the appellants cannot be sustained and the same is liable
to be set aside.
22. The learned counsel for the State submitted that in Crime
No.1331/2016, criminal case was registered based on the
direction of the High Court and upon completion of the
investigation, charge sheet has also been filed. As held in Pepsi
Foods Limited and another v. Special Judge Magistrate and
others (1998) 5 SCC 749, summoning of an accused in a criminal
case is a serious thing; more so to face a trial in criminal case
registered with the direction of the High Court. Since the
appellants themselves have admitted their signatures in the
vakalatnama and the version in the vakalatnama that they have
signed at Madurai on 18.08.2016 is an advertent mistake, in our
view, even if the trial proceeds, there may not be any possibility of

the appellants being convicted for the alleged offences of forgery
and for making forged document.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.855 OF 2019

SASIKALA PUSHPA Vs   STATE OF TAMIL NADU 

R. BANUMATHI, J.
Dated:May 07, 2019

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Whether two different Advocates can conduct case of co-plaintiffs separately?

Mr. Bhabha was unable to point out even a single instance of any case in England in which different counsel were engaged for different plaintiffs who had joined in one suit. On the other hand the learned Government Pleader, Mr. Chandrachud, invited my attention to a very old case Wedderburn v. Wedderburn, (1853) 51 ER 993, decided as far back as in 1853, where the Master of the Rolls observed;

"When persons undertake the prosecutions of a suit they must make up their minds whether they will become co-plaintiffs; for if they do, they must act together. I cannot allow one of several plaintiffs to act separately from and inconsistently with the others."

In fact, I never expected any reported case on this question, because, in my opinion, the practice of one or more counsel appearing for all the co-plaintiffs in a suit jointly and not severally both here and in England has been so uniform and confirmed that there would not be any possibility of any question ever arising of different plaintiffs in one suit being represented by different counsel. The case cited by the learned Government Pleader, however, clears up any difficulty or doubt that might have never existed in regard to this question.

3. It is clear that two or more persons would agree to join as co-plaintiffs in a suit only if there is any common question of law or fact between them, and their respective claims arise out of the same transaction. The law permits these different plaintiffs to join in one action by filing one common plaint only with a view to save multiplicity of suits and consequent wastage of time of the Court. If this is the object of allowing several persons to join as plaintiffs in one action, the object would be frustrated if each of these persons is allowed to be represented by a separate counsel and each one of the counsel is also permitted to be in charge of the case for his own client. I fail to see how, if such things are permitted, the wastage of the time of the Court, which is otherwise intended to be saved by allowing several persons to join together as co-plaintiffs in one action, could at all be saved. On the contrary, far more time would be taken and a number of unnecessary complications would arise in trying one such action if every one of the plaintiffs is allowed to be represented by his own counsel and each counsel is allowed to conduct the case separately for his own client. It may be for this reason that the tradition has taken deep roots both in the courts here as in England that in cases where more persons than one join as co-plaintiffs in one action they should all be jointly represented by one or more counsel. It may be that at some stage or the other of the action some of the plaintiffs might feel that there is a conflict of interest between them and the other plaintiffs. Just for that reason, however, as was held by the Master of the Rolls in the case cited above, such plaintiffs cannot be allowed to engage a different counsel. If they so wish, they might well apply to the Court to transpose them as defendants.

Bombay High Court

Venkatrao A. Pai And Sons Ltd. vs Narayanlal Bansilal And Ors. on 2 August, 1960

Equivalent citations: AIR 1961 Bom 94, (1960) 62 BOMLR 947, ILR 1961 Bom 459

Bench: Shah

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Precaution to be taken by court while permitting Advocate to withdraw his vakalatnama

 Even if it is held that the said letter/notice (Exhibit-77) was duly served on the appellant, the question is whether that was enough to show compliance with Clause 660(4) of the Civil Manual. In this regard a perusal of the aforesaid provision becomes relevant :-

"Section 660(4)- When an Advocate who has filed a Vakalatnama for a party wishes to withdraw his appearance, he shall serve a written notice of his intention to do so on his client at least seven days in advance of the case coming up for hearing before the Court. Leave of the Court to withdraw appearance may also be applied for if the client has instructed the Advocate to that effect. The Advocate shall file a note in writing requesting the Court for permission to withdraw appearance and shall also file along with the Note the letter or the client instructing him to withdraw his appearance or a copy of the intimation given to the client as above together with its written acknowledgment by the client. The Court, if it is satisfied that no inconvenience is likely to be caused to the Court or the client, may permit the Advocate to withdraw his appearance and while permitting the Advocate to do so may also impose such terms and conditions as it may deem proper either in public interest or in the interest of the parties."

13. The aforesaid provision shows that when an Advocate wishes to withdraw his appearance, he is required to send a written notice of his intention to do so to his client at least 7 days in advance of the case coming up for hearing before the Court. Thereafter, his Advocate is required to file a note in writing requesting the Court for permission to withdraw appearance. He is also required to file along with the note the letter that he has sent to his client together with its written acknowledgment. Upon such documents being filed by the appellant intending to withdraw his appearance, the Court has to satisfy itself that no inconvenience is likely to be caused to the Court or the client and thereafter the Court may permit the Advocate to withdraw his appearance. The Court can also impose such terms and conditions as it may deem proper either in public interest or in the interest of the parties while permitting the Advocate to withdraw his appearance. The facts of the present case show that even if the findings of fact rendered by the appellate Court are accepted, what is proved on record is that the Advocate of the appellant did issue letter/notice (Exhibit-77) to him and that it was served upon the appellant which was proved by the acknowledgment at Exhibit-78. The Advocate for the appellant filed no instructions pursis and along with the same he placed on record letter/notice at Exhibit-77 and the acknowledgment at Exhibit-78. Thus, up to this stage there has been compliance with Clause 660(4) of the Civil Manual in the present case. But, it appears that, thereafter, the trial Court has simply taken note of the aforesaid pursis and documents filed by the Advocate for the appellant. There is no order or direction passed by the trial Court regarding its satisfaction that no inconvenience is likely to be caused to the Court or to the appellant while permitting the said Advocate to withdraw his appearance. In fact, there is no order permitting the Advocate in the present case to withdraw his appearance on behalf of the appellant and obviously there are no terms and conditions recorded for grant of such permission to withdraw in the present case. In the absence of any such order passed by the trial Court, there is non compliance of the last and the most crucial limb of Clause 660(4) of the Civil Manual in the present case.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 175 of 2016

Decided On: 13.04.2018

Rameshkumar Vyankatswami Poona   Vs. Swami Vivekanand Cooperative Housing Society and Ors.

Hon'ble Judges/Coram:

Manish Pitale, J.

Citation: 2018(6) MHLJ 227

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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 Advocate can file no instruction pursis without issuing notice to client?

Time and again I have noticed the some of the civil Courts and the District Courts proceed on the assumption that once an advocate files "no instruction purses" he is automatically discharged as an Advocate representing his client. The said practice of the Courts taking cognizance of a no instruction purses which is filed without following the procedure laid down by the rules framed by this Court is to be deprecated. An Advocate cannot simply walk out of a proceeding only by filing such no instruction purses. He owes a duty to his client to appear for him in the proceedings till his appointment is terminated by an order of the Court. In view of the express provisions of the said Code and the Rules framed by this Court, the vakalatnama of the Advocate continues until leave is granted by the Court concerned in favour of the Advocate to withdraw his vakalatnama.
IN THE HIGH COURT OF BOMBAY

Second Appeal No. 755 of 2004 along with Civil Application Nos. 1200 of 2002 and 1398 of 2003

Decided On: 02.08.2004

Govinda Bhagoji Kamable and Ors.

Vs.

Sadu Bapu Kamable 

Hon'ble Judges/Coram:

Abhay Shreeniwas Oka, J.

Citation: 2005(1) MHLJ 651

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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

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Whether decree in summary suit can be set aside on ground that through oversight vakalatnama was not filed?

To accept the contention of the respondents in that regard would virtually amount to legislating upon Rule 4 that it is nothing but the repetition of the provision of law comprised under Sub-rule (7) of Rule 3 of Order 37.

8. The Order 9, Rule 13 of the C.P.C. specifically provides that when the defendant approaches the Court to set aside an ex parte decree in a regular suit, he has to satisfy the Court that either the summons was not duly served upon him or that he was prevented by sufficient cause from appearing when the suit was called out for hearing. It is pertinent to note that this provision has been made in addition to the provision of law comprised under Rule 7 of Order 9 whereby the defendant appearing on the adjourned date of hearing is permitted to assign good cause for previous non-appearance in the suit and to seek setting aside of the order to proceed ex parte. Similar is the provision in Order 37, Rule 3(7) which speaks about opportunity being made available to the defendant to satisfy the Court with sufficient cause for failure on the part of the defendant in entering the appearance or for applying for leave to defend. In other words, while in a regular suit the defendant seeking to set aside the ex parte decree is bound to disclose sufficient cause for non-appearance of the defendant when the suit was called out for hearing and decreed ex parte, in the case of summary suit it is not only the requirement of law that the defendant has to disclose sufficient cause for his failure to enter an appearance and apply for leave to defend the suit, but it is also necessary to make out availability of a good defence to the defendant in answer to the claim put forth by the plaintiff and that is the import of the expression "special circumstances" in Rule 4 of Order 37.

9. Bearing in mind the above provisions of law as is found in the C.P.C. in relation to the procedure to be followed when the defendant approaches the Court for setting aside the ex parte decree in a summary suit, mere failure to file Vakalatnama or failure to enter an appearance, that itself cannot be said to be a special circumstance for setting aside the decree. It is not that every failure, including for the reason of being not vigilant, that would be sufficient to categorise the same as a special circumstance for setting aside the decree under Rule 4 of Order 37. Undoubtedly, bona fide lapse on the part of the party to be established from the facts as they have happened in a particular matter, could perhaps be a special circumstance in a given case to exercise power under Rule 4 of Order 37. Mere claim on the part of the defendant that due to oversight and being under tension of other litigation that there was failure to enter an appearance, can by no stretch of imagination be said to be a special circumstance to exercise power under Order 37, Rule 4 of the C.P.C. Bare perusal of the impugned order discloses that the learned Single Judge in a most casual manner had held that failure on the part of the respondents to file Vakalatnama in the case in hand was sufficient to set aside the ex parte decree. With respect, we are unable to agree with the said view taken by the learned Single Judge and, therefore, the impugned order cannot be sustained.

IN THE HIGH COURT OF BOMBAY

Appeal No. 663 of 2004 in Notice of Motion No. 2322 of 2004 in Summary Suit No. 3835 of 2003

Decided On: 02.06.2008

 Madhusudan Shrikrishna Vs. Emkay Exports and Anr.

Coram:
R.M.S. Khandeparkar and P.B. Majmudar, JJ.

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Whether compromise decree can be passed on basis of endorsement by advocate who has no vakalatnama in case?

A counsel, who has not been appointed by a party by executing a memorandum of appointment envisaged under Order 3 Rule 4 CPC (same as vakalath referred to in the Civil Rules of Practice, Kerala) may plead as permitted by the proviso to Order 3 Rule 4(5) CPC. In appropriate cases such power to plead may include even taking evidence or addressing arguments. But, he has no authority to compromise a suit, confess judgment in the suit or make an admission so as to bind the party. No court shall accept or act on such a compromise or confession or admission without verifying whether the Advocate doing so had been authorized by the party by executing a vakalathnama. A decree passed in a case on the basis of an endorsement by an Advocate, who has no vakalath in the case, cannot be said to be a consent decree.

IN THE HIGH COURT OF KERALA AT ERNAKULAM 

PRESENT:  MR. JUSTICE A.HARIPRASAD 

WEDNESDAY, THE 20TH DAY OF MAY 2015/

RSA.No. 1109 of 2013

APPELLANT(S)//APPELLANT/IST DEFENDANT

M/S. MANUEL SONS FINANCIAL ENTERPRISES (P) LTD

RESPONDENT(S)/RESPONDENTS/2ND DEFENDANT AND PLAINTIFF

RAMAKRISHNAN AND ANR.

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Whether application for restoration of petition can be filed by advocate with his signature?

 Apex Court had occasion to consider the same legal question in 

Ananta Pandu Porobo Desai and others v. Lalita Poi [(1978) 2 SCC 681(1)]

in which it is held as follows: 

"Mr. Vineet Kumar, who appears on behalf of the respondent has not been able to contest the position that the very same advocate who appeared in the suit on behalf of the plaintiff could file an application for restoration of the suit on the authority of the original vakalatnama executed by the plaintiff in his favour.

2. On the merits, it is in the interests of justice that the order dismissing the suit for default be set aside and the suit restored to file. We accordingly direct that the trial Court will restore the suit and dispose it of in accordance with law. The appellants shall pay the costs of this appeal to the respondent, which we quantify at Rs.1000, as a condition precedent to the restoration of the suit. The costs of the suit, from its institution until its disposal hereafter, shall be paid by the appellants to the respondent in any event. The appeal is disposed of accordingly." 

Therefore, the above decision of the Apex Court shows that a suit, which was dismissed for default, can be restored to file under Order IX Rule 9 of the Code on the basis of an application made by the Advocate on the strength of vakalatnama executed by the plaintiff in his favour in the interest of justice. The order of dismissing the suit for default can be set aside and the suit restored to the original file. Accordingly, the Apex Court directed the trial Court to restore the suit and dispose of it accordingly to law. Therefore, a lawyer could file a petition, on behalf of the party he represents, under Order IX Rule 9 of Code of Civil Procedure duly signed by him on behalf of the party he represents, even though the vakalatnama did not expressly authorise an Advocate to file an application for restoration. If the Court is satisfied that there was no express prohibition in doing so, it has to assume that the counsel had implied authority to file such application.

Therefore, by virtue of vakalatnama, without having any special authority, it is presumed that counsel had an implied authority to present a petition under Order IX Rule 9 of the Code, duly signed by him for the party he represents. From the facts and circumstances of the case, we find that there was sufficient cause for the petitioner's counsel for presenting the above petition in the Family Court and we cannot say that the petition, filed by a lawyer is not in accordance with law. Therefore, the order passed by the Family Court is liable to be set aside.

IN THE HIGH COURT OF KERALA AT ERNAKULAM 

PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN & THE HONOURABLE MR. JUSTICE P.D.RAJAN 

THURSDAY, THE 22ND DAY OF JANUARY 2015/

Mat.Appeal.No. 325 of 2014

BALAKRISHNAN Vs  GEETHA N.G.

P.D.Rajan, J. 

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Guidelines of Supreme court in respect of filing of vakalatnama

 We may at this juncture digress and express our concern in regard to the manner in which defective Vakalatnamas are routinely filed in courts. Vakalatnama, a species of Power of Attorney, is an important document, which enables and authorizes the pleader appearing for a litigant to do several acts as an Agent, which are binding on the litigant who is the principal. It is a document which creates the special relationship between the lawyer and the client. It regulates and governs the extent of delegation of authority to the pleader and the terms and conditions governing such delegation. It should, therefore, be properly filled/attested/accepted with care and caution. Obtaining the signature of the litigant on blank Vakalatnamas and filling them subsequently should be avoided. We may take judicial notice of the following defects routinely found in Vakalatnamas filed in courts :-

(a) Failure to mention the name/s of the person/s executing the Vakalatnama, and leaving the relevant column blank;

(b) Failure to disclose the name, designation or authority of the person executing the Vakalatnama on behalf of the grantor (where the Vakalatnama is signed on behalf of a company, society or body) by either affixing a seal or by mentioning the name and designation below the signature of the executant (and failure to annex a copy of such authority with the Vakalatnama).

(c) Failure on the part of the pleader in whose favour the Vakalatnama is executed, to sign it in token of its acceptance.

(d) Failure to identify the person executing the Vakalatnama or failure to certify that the pleader has satisfied himself about the due execution of the Vakalatnama.

(e) Failure to mention the address of the pleader for purpose of service (in particular in cases of outstation counsel).

(f) Where the Vakalatnama is executed by someone for self and on behalf of someone else, failure to mention the fact that it is being so executed. For example, when a father and the minor children are parties, invariably there is a single signature of the father alone in the Vakalatnama without any endorsement/statement that the signature is for 'self and as guardian of his minor children'. Similarly, where a firm and its partner, or a company and its Director, or a Trust and its trustee, or an organisation and its office-bearer, execute a Vakalatnama, invariably there will be only one signature without even an endorsement that the signature is both in his/her personal capacity and as the person authorized to sign on behalf of the corporate body/firm/ society/organisation.

(g) Where the Vakalatnama is executed by a power-of- attorney holder of a party, failure to disclose that it is being executed by an Attorney-holder and failure to annex a copy of the power of attorney;

(h) Where several persons sign a single vakalatnama, failure to affix the signatures seriatim, without mentioning their serial numbers or names in brackets. (Many a time it is not possible to know who have signed the Vakalatnama where the signatures are illegible scrawls);

(i) Pleaders engaged by a client, in turn, executing vakalatnamas in favour of other pleaders for appearing in the same matter or for filing an appeal or revision. (It is not uncommon in some areas for mofussil lawyers to obtain signature of a litigant on a vakalatnama and come to the seat of the High Court, and engage a pleader for appearance in a higher court and execute a Vakalatnama in favour of such pleader).

We have referred to the above routine defects, as Registries/ Offices do not verify the Vakalatnamas with the care and caution they deserve. Such failure many a time leads to avoidable complications at later stages, as in the present case. The need to issue appropriate instructions to the Registries/Offices to properly check and verify the Vakalatnamas filed requires emphasis. 

Supreme Court of India

Uday Shankar Triyar vs Ram Kalewar Prasad Singh & Anr on 10 November, 2005

Bench: Ruma Pal, Dr. A. Lakshmanan, R. V. Raveendran

Citation;AIR 2006 SC 269,

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What are exceptions to rule that suit or appeal will not be dismissed for non compliance of procedural requirement?

 Non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure, a hand-maiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The well recognized exceptions to this principle are :- i) where the Statute prescribing the procedure, also prescribes specifically the consequence of non-compliance.

ii) where the procedural defect is not rectified, even after it is pointed out and due opportunity is given for rectifying it;

iii) where the non-compliance or violation is proved to be deliberate or mischievous;

iv) where the rectification of defect would affect the case on merits or will affect the jurisdiction of the court.

v) in case of Memorandum of Appeal, there is complete absence of authority and the appeal is presented without the knowledge, consent and authority of the appellant;

Supreme Court of India

Uday Shankar Triyar vs Ram Kalewar Prasad Singh & Anr on 10 November, 2005

Bench: R Pal, . A Lakshmanan, R V Raveendran

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