A promissory note executed using impressed stamp paper or adhesive stamps are equally valid and admissible in evidence, provided that they are stamped with requisite value.

Hon’ble High Court of Andra Pradesh held in the case of

Gurana Asirinaidu vs Lenka Suryanarayana is extracted herein;

“11. In view of the above position of the rules as well as the decisions referred, to, there is no prohibition as to the execution of a promissory note on an impressed stamp paper. What is required for a valid promissory note is that it should be stamped properly, as provided under the Act and the Rules. Section 10 of the Act refers the mode of duties to be paid. As per this provision, except as otherwise expressly provided in the Act, all duties with which any instrument chargeable shall be payable and such payment shall be indicated on such instruments by means of stamps. Further, as already referred to Section 11, where the word ‘may’ used, is indicative of the choice for the executant of the document. A promissory note executed using impressed stamp paper or adhesive stamps are equally valid and admissible in evidence, provided that they are stamped with requisite value.7”

The Hon’ble High Court of Madras  in the case of Amutha vs Jeyachitra, held as Under

“36. I therefore hold that Promissory Note[Ex.A.1], which has been executed on a Rs.100/- (Rupees One Hundred only) Non-Judicial Stamp paper has been sufficiently stamped and does not suffer from legal infirmity on that ground”.3

The Executing Court shall not dismiss the execution petition by treating the decree to be inexecutable merely on the basis that the decree-holder has lost possession to a third party/encroacher. I

 SUPREME COURT OF INDIA

 CIVIL APPELLATE JURISDICTION 

CIVIL APPEAL NOs. ____________ OF 2023 (Arising out of SLP(C) Nos. 12601-12602 of 2017) 

SMT. VED KUMARI (DEAD THROUGH HER LEGAL REPRESENTATIVE) DR. VIJAY AGARWAL …. APPELLANT 

VERSUS 

MUNICIPAL CORPORATION OF DELHI THROUGH ITS COMMISSIONER ... RESPONDENT

15. In view of the settled legal position, as noted (supra), it was the duty of the Executing Court to issue warrant of possession for effecting physical delivery of the suit land to the decree-holder in terms of suit schedule property and if any resistance is offered by any stranger to the decree, the same be adjudicated upon in accordance with Rules 97 to 101 of Order XXI of the CPC. The Executing Court could not have dismissed the execution petition by treating the decree to be inexecutable merely on the basis that the decree-holder has lost possession to a third party/encroacher. If this is allowed to happen, every judgment-debtor who is in possession of the immoveable property till the decree is passed, shall hand over possession to a third party to defeat the decree-holder’s right and entitlement to enjoy the fruits of litigation and this may continue indefinitely and no decree for immovable property can be executed. 

16. In the result, the appeals succeed and are allowed. Accordingly, the judgment and orders dated 07.04.2016 and 04.11.2016 passed in C.R.P No. 152 of 2012 and R.P No. 487 of 2016 respectively by the High Court of Delhi and the order of the Executing Court dated 11.09.2012 are set aside and the Executing Court is directed to execute the decree by effecting delivery of physical vacant possession to the appellant/decreeholder in accordance with the provisions contained in Order XXI CPC. The parties shall bear their own costs.

 ………………………………………J. (B.V. NAGARATHNA)

 ………………………………………J. (PRASHANT KUMAR MISHRA) AUGUST 24, 2023. NEW DELHI.

Court while terminating vakalat of an advocate under Order III Rule 4 C.P.C should not entertain claim of the advocate for remuneration or fees or professional charges and should not sanction or award the same as a condition precedent for termination of vakalat in that suit itself.

 

  THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU                
CIVIL REVISION PETITION Nos.4516 of 2011 and batch    

dated:19-06-2013 

M/s.Gayatri Projects Limited....Petitioner

The State of Andhra Pradesh, rep. by the Secretary to Government I & CAD 
Department & 3 others.. Respondents  

Counsel for the Petitioners : Sri E.Manohar for Sri S.Rambabu

Counsel for the Respondent :  party-in-person

<Gist :

>Head Note: 

? Cases referred:
1) (2000)7 Supreme Court Cases 264  
2) (2004)1 Supreme Court Cases 117  
3) AIR (32) 1945 Madras 190 
4) AIR 1987 (A.P) 254


CIVIL REVISION PETITION Nos.4516, 4521 & 4522 of 2011    

COMMON ORDER :

Subject matter of these three revision petitions is condition imposed by the lower Court for payment of remuneration at the rate of Rs.80,000/- per month from 01.01.2007 till the date of discharge as an Advocate for the revision petitioner/plaintiff. The 4th respondent herein is one of the four advocates who appeared for the plaintiff in these three suits in the lower Court. The plaintiff filed petitions in three suits under Order III Rule 4 C.P.C for discharging the 4th respondent herein as the plaintiff's advocate. While allowing the said petitions, the lower Court imposed a rider that the plaintiff should pay the 4th respondent's remuneration at the rate of Rs.80,000/- per month after deduction of T.D.S from 01.01.2007 till the date of his discharge.

2) Sheet anchor of the revision petitioner and senior counsel appearing for the revision petitioner is decisions of the Supreme Court in R.D.Saxena V. Balram Prasad Sharma1 and New India Assurance Co. Ltd V. A.K.Saxena2. On the other hand, the 4th respondent in person contended that the lower Court is within its legal jurisdiction to direct the plaintiff to pay remuneration payable to him while discharging him as one of the plaintiff's advocates. He relied upon A.V.Sundaramurthy Chettiar V. S.Muthaiah Mudaliar3 of Division Bench of the Madras High Court and Damodardass Agarwal V. R.Badrilal4 of Division Bench of this Court in support of his contention.

3) The above Madras decision lays down that it would be proper that the advocates on record should be paid their full fees before change of vakalat is sanctioned and that change of vakalat should be declined until satisfactory arrangements have been made to that end. This decision is not helpful to the 4th respondent since the Madras High Court did not grant remuneration or fees or professional charges to the advocate before sanctioning change of advocate. The Madras High Court declined to sanction change of advocate until arrangements have been made for payment of legal remuneration to the advocate. There cannot be any doubt that legal professionals are entitled for their due and agreed remuneration from their clients. But the question in these revision petitions is as to how the said remuneration or amount should be sanctioned by the Courts or should be claimed by the legal professionals.

4) In Damodardass Agarwal (4 supra), Division Bench of this Court held that there is consistent practice in this Court whereunder the Court is empowered to pass appropriate order directing payment of fees to the advocate before his services as an advocate are terminated. The Division Bench also upheld right to lien of an advocate to hold papers until his/her remuneration is paid. It is also held therein that even in the absence of an agreement fixing the fees, the Court has got discretion to fix a reasonable fee on the principle of 'quantum meriut' (as much as he has earned). Finally the Division Bench laid down:

"34. Hence we hold that the enquiry under O.3, R.4, C.P.C, is summary and serious disputed questions of fact cannot be decided under this Rule. In the absence of any allegations of misconduct on the part of the advocate or any dispute regarding fee due or payable, the Court is justified in ordering payment of fee or a reasonable amount of fee if the fee is not fixed when the client wants to seek the leave to terminate the services of the Advocate in the case."

5) But, the Supreme Court in R.D.Saxena (1 supra) declined to uphold right of an advocate to have lien over the papers and documents of the party for the advocate's claim for fees. Therefore, the above Division Bench decision of this Court upholding lien of an advocate to withhold papers and documents of the party, stood overruled.

6) In A.K.Saxena (2 supra) after referring to R.D.Saxena (1 supra), the Supreme Court came to the following conclusion:

"6. This case is fully covered by a decision of this Court in R.D.Saxena V. Bairam Prasad Sharma wherein this Court has held that advocates have no lien over the papers of their clients. It is held that at the most the advocate may resort to legal remedies for unpaid remuneration." (stress is mine).

Therefore, now it is law of this country that remedy of an advocate who is discharged or whose vakalat is terminated under Order III Rule 4 C.P.C is that he may approach any Court by way of legal proceedings or suit for recovery of the remuneration due from his or her client and the Court while terminating vakalat of an advocate under Order III Rule 4 C.P.C should not entertain claim of the advocate for remuneration or fees or professional charges and should not sanction or award the same as a condition precedent for termination of vakalat in that suit itself.

7) Therefore, that part of the orders passed by the lower Court sanctioning remuneration or fees to the 4th respondent is outside the scope of jurisdiction of that Court.

8) In the result, these three revision petitions are allowed setting aside the condition imposed by the lower Court sanctioning remuneration to the 4th respondent at the rate of Rs.80,000/- per month after deduction of T.D.S from 01.01.2007 till the date of discharge. This order will not however prevent the 4th respondent from taking up appropriate legal proceedings before the appropriate Court for recovery of his remuneration, if any payable by his client who is the revision petitioner/plaintiff herein.

_______________________________ SAMUDRALA GOVINDARAJULU, J June 19, 2013

NOC for replacing advocate - Judgment of Orissa High Court

 

Orissa High Court

Beta @ Bibekananda @ vs State Of Odisha .... Opposite Party on 4 August, 2021

Author: S. K. Panigrahi

Bench: S. K. Panigrahi

                           IN THE HIGH COURT OF ORISSA AT CUTTACK

                                          BLAPL No. 9893 of 2019


                   Beta @ Bibekananda @              ....                 Petitioner
                   Santosh Hansdah @ Santosh
                   Hansda
                                                            Mr. S. Rout, Advocate
                                               -versus-
                   State of Odisha                   ....           Opposite Party
                                       Ms. S. Mishra, Additional Standing Counsel

                                  CORAM:
                                  JUSTICE S. K. PANIGRAHI

                                              ORDER

Order No. 04.08.2021

09. 1. This matter is taken up by video conferencing mode.

2. M/s. S. Rout and Associates have filed the Vakalatnama without obtaining the consent from the previous Advocate. The present Advocate, M/s. S. Rout and Associates submit that since the matter was from the jail petition, he had no occasion to get the "No Objection Certificate" (in short 'NOC') from the previous Advocate.

3. The Registry should not have accepted the Vakalatnama without 'NOC' from the previous Advocate or without the letter of consent from the concerned petitioner. It is very often seen that without obtaining the consent from the previous Advocate, another Advocate files Vakalatnama which marks a disturbing trend. When the matter is taken on board, the appearance of so many Advocates' create a chaotic situation.

AKP 4. The Registry need to be more vigilant while accepting Vakalatnama seeking change of Advocates. They should allow such changes only // 2 // when there is consent from the previous Advocate or a letter of consent from the client, so that unintended chaotic situation can be avoided.

5. In fact, the unhealthy practice of change of Advocate without 'NOC' from the previous Advocate is contrary to law and legal ethics. The definition of Vakalatnama can be found in Section 2(u) of the Advocates Welfare Funds Act, 2001, which says that;

" 'Vakalatnama' includes a memorandum of appearance or any other document by which an advocate is empowered to appear or plead before any court, tribunal or other authority;"

Therefore, the Vakalatnama is a document which allows the Advocate to present oneself on behalf of another person in front of any legal authority, covering all court authorities.

6. A vakalatnama is generally considered to be valid till the end of the case for which the same is created. However in certain situations, the advocate may withdraw himself from the case by giving intimation to the client, or the client may wish to withdraw the vakalatnama and grant it to another advocate only after obtaining the 'NOC' from the former advocate.

7. As held by the Hon'ble High Court of Bombay in Shafeeque Ahmed Mohammad Sayeed v. Ansari Bilal Mohd1, "8.Advocateswho have filed a Vakalatnama cannot be discharged at the whim and fancy of a litigant. An application must be made with two clear days' notice to the Advocate. The reasons for that application are to be set out. Similarly when an Advocate applies for a discharge, he must give the notice of this application to the litigant. ...

9. This is a pernicious tendency among litigants. It must be stamped out at once. Whenever litigants perceive (often wrongly) that a particular case is not finding immediate favour with the court, they promptly blame their lawyers and insist on changing them. The objective is to blame the lawyer and to delay judgment, perhaps even to frustrate it. If this does not work, then the next step is, of course, to level allegations 2016 SCC OnLineBom 14057 // 3 // against the Court and the individual judge in question. Allowing this conduct undermines our entire legal system. It adds to delays. I will not permit either."

8. The Hon'ble Supreme Court in M. Poornachandran v. State of T.N.2 was also pleased to hold that;

"1. ...That apart, he has not obtained "No Objection Certificate"

from the Advocate-on-Record in the appeal, in spite of the fact that Registry had informed him of the requirement for doing so. Filing of the "No Objection Certificate" would be the basis for him to come on record. Otherwise, the Advocate-on-Record is answerable to the Court. The failure to obtain the "No Objection Certificate"

from the erstwhile counsel has disentitled him to file the review petition. ..."

Furthermore, a reference may also be made to the Hon'ble High Court of Delhi in Shanti Swarup v. Mahinder Kumar3, wherein the Hon'ble Court was pleased to hold that;

"7. Order 3 Rule 4 of the C.P.C. provides for the appointment of an advocate and the advocate continues his engagement throughout the pendency of the proceedings. An advocate can be appointed only by a document in writing signed by a litigant or his duly authorized agent. The appointment of an advocate can be brought to an end by the client or by the advocate himself. But this engagement does not come to an end without the leave of the Court sought by the client or the advocate himself. The leave must be sought from the Court in writing. The appointment once made would continue to be valid for the purposes of review or an appeal or similar proceedings. No advocate shall act for any person in any Court unless he is so authorized in writing by the litigant. From the provisions of Order 3 Rule 4 it is clear that unless the leave of the Court is sought in writing, the advocate will continue on record for representing his client.

11. We put blind faith in the lawyer appearing before us and will continue to do so. Can we ask him to show his authority? Can we doubt the statement made at the Bar or to the administrative officers of the Court? We will not do it because the bulk of the Bar is maintaining the professional standards and not abusing the trust. Deviations are few and far in between. But that apart, our article of faith is at stake. If we suspect a lawyer, people will suspect the whole Institution and that will be the beginning of the end of the Institution.

(1996) 6 SCC 755 1985 SCC OnLine Del 277 // 4 //

12. The case has exposed some of the weaknesses in the present practice of appearance of advocates in the court and the procedure for adjournment. It is necessary to frame rules to supplement Order 3 on the following lines:

"If more than one advocates file a Vakalatnarna at the initial stage, the litigant must specify which one of them will act on his behalf. Only one advocate should be responsible for filing the applications in the Court and before the administrative officer of the Court. Such advocate should be the only advocate on whom the service shall be effected by the Court at the future stage in the litigation. The advocate who files his Vakalatnama shall ordinarily be the advocate who will act and plead on behalf of his client. However, if he wants to engage any other advocate for pleading, he must file a memorandum of appearance of the pleader in writing in the Court on the date of the hearing. No counsel other than the one who has filed his Vakalatnama or whose memorandum of appearance is filed in the Court shall be heard by the Court. ... Request for withdrawal of an advocate from the proceeding or for engaging any other advocate should be made in writing either by the advocate or by his client. The Registrar may dispose of this application. However, if there is a dispute between the advocate and client in regard to fees or similar matters, the reference may be made to the Court on the administrative side. Ordinarily, an endorsement on the new Vakalatnama (by the previous advocate) that he has no objection to the change should suffice for the purposes of withdrawal by one advocate and engagement of another advocate. Such endorsement would mean that there is no dispute whatsoever between the advocate previously engaged and the client. The Vakalatnama with "No objection"

endorsement by a previous advocate should be placed before the Registrar who will pass an appropriate order effecting a change of the counsel."

9. In light of the above observations, the Registry officials must take adequate measures to ensure that in case the engaged counsel in a particular case is sought to be changed, the latest Vakalatnama must be accompanied with a 'No Objection Certificate'. The unhealthy practice of allowing litigants to change their engaged counsels without prior intimation to the previous advocate or to the court is strongly deprecated. The procedures and rules have a sanctity and they should not be violated by the Advocates and the staff either in a collusion or individually. This Court strongly deplores and discourages the tendency of Advocates filing Vakalatnamas in the midst of the proceedings // 5 // without the earlier Advocate being discharged or the requisite 'NOC' being obtained from him. In fact, most of the Advocates do follow the practice intimating the previous Advocates or obtaining 'NOC' in case of change of Advocate as desired by the litigant. However, I am constrained to express my strong displeasure over some of the cases where deviation brings forth an unhealthy trend.

10. List this matter on 19.08.2021.

11. As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a printout of the order available in the High Court's website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed vide Court's Notice No.4798, dated 15th April, 2021.

(S. K. Panigrahi) Judge

Return Of Documents Under Order XIII Rule 9 CPC Not Limited To Party Physically Submitting Documents But To Ensure Rightul Ownership: Karnataka HC

IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH 

DATED THIS THE 24TH DAY OF JUNE, 2024 

BEFORE THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM 

WRIT PETITION NO. 100487 OF 2022 (GM-CPC) 

BETWEEN R. SHANKAR S/O. R. PRABHAKAR, AGED ABOUT 38 YEARS, OCC: PRIVATE SERVICE, R/O. HOUSE NO.64, 53, W.NO.35 , VEERANAGOUDA COLONY, GANESH NAGAR, SIRUGUPPA ROAD, BALLARI. ...PETITIONER (BY SRI. S. B. DODDAGOUDAR, ADVOCATE) 

AND 

E. RAMMOHAN CHOWDARY S/O. E. YERRAPPA, AGED ABOUT 60 YEARS, OCC: R/O. 3RD CROSS, VENKATESH NAGAR, BALLARI. …RESPONDENT 

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT OF CERTIORARI QUASHING THE ORDER DATED 31/01/2021 IN REVIEW PETITION NO.1/2021 PASSED BY THE FIRST ADDL. SENIOR CIVIL JUDGE BALLARI (ANNEXURE-A); TO ISSUE WRIT OF CERTIORARI QUASHING THE ORDER 27/08/2020 IN CIVIL MISC NO.20/2018 PASSED BY THE HON’BLE FIRST ADDL. SENIOR CIVIL JUDGE BALLARI WHEREIN THE HON’BLE COURT PARTLY ALLOWED THE APPLICATION U/SEC 151 OF CPC IN CIVIL MISC NO.20/2018 (ANNEXURE-B); TO ALLOW APPLICATION U/SEC 151 OF CPC IN CIVIL MISC NO.20/2018, AND DIRECT THE TRIAL COURT TO RETURN THE DOCUMENTS MENTIONED IN THE CIVIL MISC NO.20/2018 (ANNEXURE-C). THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDER ON 05.07.2024, COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT DELIVERED THE FOLLOWING: R VERDICTUM.IN - 2 - 

ORDER

 1. This petition is filed by the petitioner challenging the order passed by the learned Judge in Civil Miscellaneous No.20/2018, seeking return of the original documents produced by the petitioner-defendant and the original title documents produced by the respondent-plaintiff in O.S.No.62/2001. 

2. The learned Judge partially allowed the civil miscellaneous petition, ordering the return of original documents i.e., Exs.D-1 and Ex.D-2 after obtaining certified copies. Aggrieved by the non-return of the original title documents produced by the respondent-plaintiff, the petitioner filed a review petition. The review petition was dismissed on the ground that the title documents were produced by the respondent-plaintiff and under Order XIII Rule 9 of the Code of Civil Procedure, 1908 (CPC), documents admitted in evidence should be returned to the person who produced them in the suit. These two orders are now under challenge.

 3. Heard learned counsel appearing for the petitioner. Perused the records. 

4. The facts leading to the case are as under: The respondent-plaintiff initiated a suit for specific performance in O.S.No.62/2001 based on an agreement to sell dated 09.03.1998. The respondent-plaintiff had collected the original title deed from the petitioner, which included the sale deed obtained by the petitioner’s maternal grandfather from the Co-operative Housing Society dated 14.08.1985, and an original Will dated 19.12.1986 executed by the maternal grandfather in favour of the petitioner. The Trial Court, upon assessing the evidence, dismissed the suit for specific performance. The said judgment was upheld by this Court in RFA No.1005/2004. Following the dismissal, the petitioner sought the return of the original documents from the Trial Court. The learned Judge allowed the return of documents produced by the petitioner but declined to order the return of the registered sale deed and the Will. 

5. The primary ground for the rejection of the petitioner’s application was that although the original title documents were produced by the respondent-plaintiff, they belong to the petitioner. It appears that the respondent-plaintiff handed over these title documents while executing the agreement to sell. Therefore, the petitioner contends that he has a legitimate claim to seek the return of these documents as the respondent-plaintiff’s suit for specific performance is dismissed. 

6. On examining both the orders under challenge, the Trial Court's view in rejecting the petitioner’s application based on the production of documents by the respondent-plaintiff is fundamentally flawed. 

7. Though Order XIII Rule 9 of CPC contemplates that admitted documents shall be returned to the party who produced them, this does not bar a party from seeking the return of original documents even if they were not produced by such party. The provisions of Order XIII Rule 9 of CPC should not be narrowly interpreted. This Court recognizes the petitioner’s entitlement to these documents, despite their production by the respondent-plaintiff during the suit for specific performance. 

8. The petitioner basis his application on his rightful ownership of the original documents. These documents pertain directly to the property and testamentary disposition of the petitioner’s grandfather. 

9. The failure to return the original documents to the petitioner, who is legally entitled, carries significant consequences. It deprives the petitioner of vital, legal and proprietary evidence, potentially hindering his ability to manage, transfer, or assert rights over the property. The absence of these documents could result in substantial financial and administrative burdens, complicating property transactions and estate management. Additionally, withholding these documents violates the petitioner’s legal rights and procedural fairness as mandated by the Civil Procedure Code. It undermines the principles of justice, equity, and good conscience, leading to potential reputational damage to the judicial system. 

10. Upon thorough consideration of the facts and relevant legal provisions, this Court finds that the petitioner is indeed the rightful owner of the original documents in question. These documents, including the sale deed executed by the Cooperative Housing Society in favour of the petitioner’s grandfather and the registered Will, should be returned to the petitioner. The fact that these documents were produced by the respondent-plaintiff during the suit does not negate the petitioner’s entitlement to them. The Trial Court's decision to reject the petitioner’s application on this ground is therefore erroneous. The Trial Court erred in narrowly interpreting Order XIII Rule 9 of CPC. The intent of this provision is to ensure that documents, once they have served their purpose in litigation and are no longer required by the Court, should be returned to their rightful owners. 

11. In this case, the Trial Court's decision to withhold the documents from the petitioner based solely on the fact that they were produced by the respondent, ignores the broader purpose of Order XIII Rule 9. The provision is not strictly limited to the party that physically submits the documents in Court. Instead, it extends to ensuring rightful ownership and fair administration of justice. This means that the Rule should be applied in a manner that recognizes the rightful owner of the documents, irrespective of who produced them during trial.

 12. By rigidly applying the literal language of Order XIII Rule 9, the Trial Court lost sight of an essential principle: the plaintiff, having lost the suit, has no legitimate claim to retain the title documents. These title documents inherently belong to the petitioner. The respondent's role in producing the documents during the litigation process does not confer ownership or a right to retain them postlitigation, especially after losing the suit for specific performance. Courts must be pragmatic while dealing with such situations. If the captioned petition is not allowed, the petitioner will lose the title documents forever.

 13. For the reasons stated supra, this Court proceeds to pass the following: ORDER (i) The writ petition is allowed; (ii) The impugned order dated 31.08.2021 passed in Review Petition No.1/2021 by the           I-Additional Senior Civil Judge, Ballari vide Annexure-A confirming the order dated 27.08.2020 passed in Civil Misc.No.20/2018 is hereby quashed. - (iii) The petitioner’s application for the return of the original documents is hereby allowed; (iv) The trial court is directed to return the original sale deed and the registered Will to the petitioner; (v) The return of these documents shall be subject to petitioner providing certified copies to be substituted for the originals. (vi) In view of disposal of the petition, pending interlocutory applications, if any, do not survive for consideration and are disposed. 

Sd/- JUDGE YAN VERDICTUM.IN 

In Civil cases the appointment of an advocate shall be deemed to be in force to the extent provided in that behalf by Rule 4 of Order 3 of CPC

 

Rules made by the High Court under Section 34 (1) of the Advocates Act. 1961

R.O.C. 27/SO/71:   Rule 9 (1)  In civil cases the appointment of an advocate. Unless othenvise limited, shall be deemed to be in force to the extent provided in that behalf by Rule 4 of Order 3 of the Code of Civil procedure. 1908.

Order 3 Rule 4 of CPC. Appointment of pleader.

(1) No pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognised agent or by some other person duly authorised by or under a power-of-attorney to make such appointment.

(2) Every such appointment shall be filed in Court and shall, for the purposes of sub-rule(1), be deemed to be in force until determined with the leave of the Court by a writing singed by the client or the pleader, as the case may be, and filed in Court, or until the client or the pleader dies, or until all proceedings in the suit are ended so far as regards the client.

Rule 30 of Civil Rules of Practice 

CHAPTER-III Advocates and Recognised Agent 

30. (19) Form of Vakalat:- Every Vakalat shall unless otherwise ordered by the Court, be in Form No. 12 and shall authorise the Advocate to appear in all execution and miscellaneous proceedings in the suit or matter subsequent to the final decree or order passed therein. 

Form of Vakalath prescribed in Civil Rules of Practice.

FORM No.12 Rule 19

 – Vakalat (Cause-title) I do here by appoint and retain-to appear for me in the above Original……………………… Miscellaneous Petition and to conduct and prosecute (or defined) the same and all proceedings that may be taken in respect of any application for execution of any decree or order passed therein. I empower any vakil to appear in all miscellaneous proceedings in the above suit or matter till and decrees or orders are fully satisfied or adjusted and to obtain the return of documents and draw any moneys that might be payable to me in the suit or matter and I do further empower my vakil to accept on my behalf, service of notice of all any appeal or petitions filed in any court of Appeal, Reference or Revision with regard to the said suit or mater before the disposal of the same in this Honorable Court. “Accepted” The address for service of the said (pleader) 

Rules made by the High Court under Section 34 (1) of the Advocates Act. 1961- Rule 12 permits the party for change of advocate with the leave of the Court

 

Rules Made under Section 34(1) of the Advocates Act, 1961

(No. 25 of 1961)

Rules made by the High Court under Section 34 (1) of the

Advocates Act. 1961

R.O.C. 27/SO/71:- Under the provision of Section 34 of the Advocates, Act. 1961 (Act No. 25 of 1961) the following draft rules framed by the High Court of Andhra Pradesh are published for the information of all the persons interested. It is notified that the said rules as well as any objections or suggestions relating thereto which may be received from any person will be considered by the High Court on or after 20^th  March, 1972.

   1. In these rules, unless there is any thing repugnant in the subject or context, the word advocate shall include a partnership or a firm advocates.

       2.     Save as otherwise provided for in any law for the time being in force, no advocate shall be entitled to appear, plead or act for any person in any court in any proceeding, unless the advocate fiIes an appointment in writing signed and dated by such person or his recognisod agent or by some other person duly authorised by or under a power of attorney to make such appointment and signed by the advocate in token of its acceptance or the advocate files a memorandum of appearance in the form prescribed by the High Court.

             Provided that where an advocate has already filed an appointment in any proceeding, it shall be sufficient for another advocate, who is engaged to appear in the proceedings merely for the purpose of pleading to file a memorandum of appearance.

Provided further that nothing herein contained shall apply to any advocate who has been requested by the court to assist the court amicus curie in any case or proceeding or who has been appointed a t the expense of the Stare to defend an accused person in a criminal proceeding.

Note: - Form No. 12 at page 200 Civil Rules of Practice, Volume II shall be used for appointment of an advocate.

     3.   Where the same advocate is retained for the party in two or more connected proceedings, a separate appointment or memorandum of appearance shall be flied in each of the several connected proceedings notwithstanding that the same advocate is retained for the party in all the connected proceedins.

     4.   An Advocate who is not on the roll of advocates of the Bar Council of the State in which the court is situate, shall not appear, act or plead in such court, unless he files an appointment dong with an advocate who is on the Roll of such State Bar Council and who is ordinarily practising in such court.

    5.    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.

          Provided that where an appointment in favour of one advocate has already been filed, a fresh appointment in favour of all the advocates accepted by all of them in substitution for the original or a separate appointment for each of the additional advocates shall be filed.

     6.    The acceptance ofan appointment on behalf of a firm or partnership of advocates shall be indicated by a partner affixing his own signature as a partner on behalf of the firm or partnership of advocates.

     7.   An advocate at the time of acceptance of this appointment shall also endorse on it his address, which address shall be regarded as one for service within the meaning of rule 5 of Order 3 of the Code of Civil Procedure 1908.

Provided that where more than one advocate accepts the appointment it shall be sufficient for one of them to endorse his address, which address shall be regarded as one for service within the meaning of rule 5 of Order 3 of the Code of Civil Procedure.

    8.     Where an advocate appointed by a party in any of the proceeding is prevented by reasonable cause from appearing and conducting the proceedings at any hearing, he may instruct another advocate to appear for him at that hearing, with the leave of the court.

      9.   (1)  In civil cases the appointment of an advocate. Unless othenvise limited, shall be deemed to be in force to the extent provided in that behalf by Rule 4 of Order 3 of the Code of Civil procedure. 1908.

           (2) In criminal cases, the appointment of an advocate, unless otherwise limited. shall be deemed to be in force until determined  with the leave of the court by writing signed by the party or the advocate as the case may be and filed in court or until the party or the  advocate dies, or until all proceedings in the case  are ended so far as regards the party.

           (3) For the purposes of sub-rule (2) a case shall be deemed to mean every kind of enquiry trial or proceeding before a criminal court whether instituted on a police report or otherwise.

Provided that no fresh appointment need be filed where the case or the proceedings is transferred from court to another and the advocate who filed the appointment referred to in sub-rule ( 1 ) and (2) in the former court is willing to act in the court to which the case or the proceedings is transferred.

         10. (1) Except when specially authorised by the court or by consent of the party, an advocate who has advised in connection with the institution of a suit, appeal or other proceedings or has drawn up pleadings in connection with such matter or has during the progress of any suit, appeal or other proceeding appeared, acted or pleaded for a party, shall not, unless he first gives the parry whom he has advised or for whom he has drawn up pleadings, appeared, acted or pleaded, an opportunity of engaging his services, appear, or act or plead in such suit appeal or other proceeding or in an appeal or application for revision arising therefrom or in any matter connected therewith for any person whose interest is in any manner in conflict with that of such party;

           Provided that the consent of the party may be presumed if he engages another advocate to appear, act or plead for him in such suit, appeal or other proceeding without offering an engagement to the advocate whose services were originally engaged by him or on his behalf.

              (2) Where it appears on the face of the record that the appearance of an advocate in any proceeding for any party is prejudicial to the interest of the other party on account of the reasons mentioned in sub rule (1) above, the court may refuse to permit the appearance to be filed or cancel such appearance if it has already been filed after giving the said advocate a n opportunity of being heard.

               (3) An advocate who discloses to any party information confided to him in his capacity as an advocate by another party without the latter's consent shall not be protected merely by reason of his being permitted t o appear, act or plead for the said party.

                 (4) When a suit or other proceeding is remitted by order of an Appellate Court for a rehearing or finding on an issue, the proceeding on such order shall be regarded as a further proceeding in the trial of the suit or proceeding, and consequently an advocate shall not change sides and accept an appointment for the party opponent to the one for whom he appeared at the first hearing.

               11. (1) The appointment of a firm or partnership of advocates may be accepted by any partner on behalf of the firm.

                     (2) No such firm or partnership shall be entitled to appear, act or plead in any court unless all the partners thereof are entitled to appear, act or plead in such court.

                    (3) The name of the firm or partnership may contain the names of the persons who were or are members of the partnership but of no others.

                     (4) The words 'and company' shall not be affixed to the name of any such partnership or firm.

                    (5) The names of all the members of the firm shall be recorded with the Registrar of the High Court and or the District Judge, as the case may be, and the State Bar Council, and the names of all the partners shall also be set out in all professional communications issued by the partners of the firm.

                     (6) The firrn of advocates shall notify to the Registrar of the High Court and or the District Judge, as the case may be, and the State Bar council, any change in the composition of the firm or the fact of its dissolution as soon as may be from the date on which such change occurs or its dissolution takes place.

                        (7) Every partner of the firm of advocates shall be bound to disclose the names of all the partners of the firm whenever called upon to do so by the Registrar of the High Court, the District Judge, the State Bar Council, any court or any party for or against whom the firm or any partner thereof has filed the appointment or memorandum of appearance.

                      (8) In every case where a partner of a firm of advocates signs any document or writing on behalf of the firm he shall do so in the name of the partnership and shall authenticate the same by affixing his own signature as partner.

                      (9) Neither the firrn of advocates nor any partner thereof shall advise a party to appear, act or plead on behalf of a party in any matter or proceeding where the opposite party is represented by any other partner of the firm or by the firm itself.

          12. No advocate shall be permitted to file an appointment of memorandum of appearance in any proceeding in which another advocate is already on record for the same party, save with the consent of the former advocate on record or the leave of the court, unless the former advocate has ceased to practice or has by reason of infirmity of mind or body or otherwise become unable to continue to act.

           13. An advocate may correct any clerical error in any proceedings with the previous permission of the Registrar or an officer of the court specially empowered in this behalf by the court obtained on a memorandum stating the correction desired.

            14. No advocate who has been debarred or suspended or whose name has been struck off the Roll ofAdvocates shall be permitted to act as a recognised agent of any party within the meaning of Order 3 of the Code of Civil Procedure, 1908.

15. No advocate who has been found guilty of contempt of court sha11 be permitted to appear, act or plead in any court unless he has purged himself of contempt.

16. Advocates appearing before the court shall wear the following dress:-

              ( 1) Advocates other than lady advocates:

                    (a) Black buttoned up-coat Chapkan. Achakan or Sherwani,

                            Barrister'sgown or Black Gown prescribed by the University for Degree  of Bachelor of Law with bands, or

                       (b) Black open collar coat. white shirt, stiff white collar with

                            Barrister's gown or a Black Gown prescribed by the 

                             University for the degree of Bachelor of Law and bands.

               (2) Lady Advocates:-

                   Regional dress of subdued colour or colours with Black coat and  Barrister's gown, or the Black Gown prescribed by the University for thedegree of Bachelor of Law, stiff white collar and bands.

Sale of Gutka packets- Charge Sheets filed by police under Sections - 188, 270, 269, 271, 272, 273, 328, 336 & 420 read with 34 and 511 of the Indian Penal Code, 1860 (for short 'IPC'); Sections - 20 (1), 20 (2) and 5 read with 7(2) and 7 (3) of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (for short 'COTP Act'); Sections - 58 and 59 of the Food Safety and Standards Act, 2006 (for short 'FSS Act'); quashed by Hon'ble High Court

 IN THE HIGH COURT FOR THE STATE OF TELANGANA

                                    AT: HYDERABAD
                                          CORAM:
                    * THE HON'BLE SRI JUSTICE K. LAKSHMAN

               + CRIMINAL PETITION No.152 OF 2020 & Batch

% Delivered on: 05-07-2021

Between in Crl.P. No.152 of 2020:
# Mr. Mohd. Jameel Ahmed                                                    .. Petitioner
                                                Vs.
$ The State of Telangana, rep.by Public Prosecutor
  High Court of Telangana, Hyderabad & another                             .. Respondents

4. The main allegations against the petitioners - accused are that they were transporting, possessing, storing, selling and purchasing the banned products viz., tobacco / tambaku / gutka / khaini / zarda / pan masala respectively. The offences alleged against the petitioners are under Sections - 188, 270, 269, 271, 272, 273, 328, 336 & 420 read with 34 and 511 of the Indian Penal Code, 1860 (for short 'IPC'); Sections - 20 (1), 20 (2) and 5 read with 7(2) and 7 (3) of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (for short 'COTP Act'); Sections - 58 and 59 of the Food Safety and Standards Act, 2006 (for short 'FSS Act'); Section - 3 of the Epidemic Diseases Act, 1897 (for short 'ED Act') and Section - 51 (b) of the Disaster Management Act, 2005 (for short DS Act) respectively.

22. Vide Notification No.501/FSS-1/2020, dated 06.01.2020, the Commissioner of Food Safety, Telangana Directorate of Institute of Preventive Medicine, Public Health Labs and Food (Health) Administration, Narayanguda, Hyderabad, restricted the manufacture, storage, distribution, transportation and sale of gutka / pan masala, which contains tobacco and nicotine, as ingredients and chewing tobacco products, like chap tobacco, pure tobacco, khaini, kharra, scented tobacco / flavoured tobacco or by whatever name locally it is called packed in sachets / pouches / package in the entire Stage of Telangana under FSS Act, 2006. It is for one year. Vide Notification No.505/FSS-1/2021, dated 06.01.2021, the same was extended for one more year. As per the information furnished and instructions received, several writ petitions were filed challenging the said KL,J Crl.P. No.152 of 2020 & batch Notifications before this Court as well as the Hon'ble Supreme Court. A Division Bench of this Court declined to entertain some writ petitions on the ground that the Hon'ble Supreme Court seized of the said issue. It is also relevant to note that the Hon'ble Supreme Court remanded back the matter to this Court. Therefore, such a notification can only be issued for emergency situations and for prohibiting the distribution and sale of any article of a food cannot be lost sight of. Therefore, in view of the law laid down in the above judgments including the judgments in Chidurala Shyamsubder4, Sri Jaganath Enterprises5 and V. Nageswara Rao11. According to this Court, Section - 188 of IPC will not attract to the allegations leveled against the petitioners herein in this batch of criminal petitions.
23. As far as Section - 328 of IPC is concerned, it deals with causing hurt by means of poison, etc., with intent to commit an offence. As per the said provision, whoever administers to or causes to be taken by any person any poison or any stupefying, intoxicating or unwholesome drug, or other thing with intent to cause hurt to such person, or with intent to commit or to facilitate the commission of an offence or knowing it to be likely that he will thereby cause hurt, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Therefore, there should be administering poison, intoxicating etc., with intent to cause hurt to such person or with intent to commit or to facilitate the commission of an offence or knowing it to be likely that he will KL,J Crl.P. No.152 of 2020 & batch thereby cause hurt. As stated above, the allegations in the entire batch of criminal petitions are lacking. Therefore, according to this Court, the contents of the complaints / charge sheets lacks the ingredients of Section - 328 of IPC.
24. As far as Section - 336 of IPC is concerned, it deals with an act endangering life or personal safety of others, and as per which, whoever does any act so rashly or negligently as to endanger human life or the personal safety of others, shall be punished with impris- onment of either description for a term which may extend to three months, or with fine which may extend to two hundred and fifty rupees, or with both. In the complaints / charge sheets, there is no such allegation of rash and negligent act which endangers human life or personal safety of others. Therefore, according to this Court, the contents of the complaints / charge sheets lacks the ingredients of Section - 336 of IPC.
25. As far as Section - 420 of IPC is concerned, it deals with Cheating and dishonestly inducing delivery of property. There is no such inducement either at the inception or at a later stage. Thus, the contents of complaints / charge sheet lack the ingredients of Section - 420 of IPC.
26. As far as Section - 269 of IPC is concerned, it deals with negligent act likely to spread infection of disease dangerous to life, and as per which, whoever unlawfully or negligently does any act KL,J Crl.P. No.152 of 2020 & batch which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both. But, a perusal of the contents of complaints / charge sheets in the present batch of cases, such ingredients are lacking and, therefore, Section - 269 of IPC does not arise in the present batch of cases.
27. In view of the above said discussion, according to this Court, transportation, possession, storage, sale and purchase of tobacco products are not totally banned in the State of Telangana and also in the Country. Therefore, it cannot be said that Sections - 269, 270, 271, 272 and 273, 328, 336 and 420 of IPC are attracted to the cases in this batch.
28. As far as the offences under FSS Act is concerned, as already discussed above, in Chidurala Shyamsubder4, the learned Single Judge following the guidelines laid down by the Hon'ble Supreme Court in Bhajan Lal10 held that the police are incompetent to take cognizance of the offences punishable under Sections - 54 and 59 (1) of the FSS Act, investigating into the offences along with other offences under the provisions of the IPC. It was further held that filing charge sheet is a grave illegality, as the Food Safety Officer alone is competent to investigate and to file charge sheet following the Rules laid down under Sections - 41 and 42 of FSS Act. In the present case, the police have registered the crime for the offences KL,J Crl.P. No.152 of 2020 & batch under Sections - 188, 270 and 273 of IPC. Therefore, in the present batch of cases, entertaining the complaints / filing the charge sheets by the police is contrary to the principle laid down in Chidurala Shyamsubder4.
29. With regard to the offences under COTP Act, it is relevant to mention the objects and the reasons of the said Act itself clearly state that the act is meant to prohibit the advertisement of, and to provide for the regulation of trade and commerce in, and production, supply and distribution of, cigarettes and other tobacco products and for matters connected therewith or incidental thereto. A reading of the said objects of the said Act would reveal that a total ban of tobacco products was not envisaged by the said Act. The Parliament merely felt it expedient to control the advertisement and sale of tobacco products. As noted earlier in the order, Section - 3 (p) of the COTP Act and the schedule therein define tobacco products. Pan masala, gutkha and chewing tobacco are included in the definition of tobacco products. Section - 5 of the COTP Act deals with prohibition of advertisement of cigarette and other tobacco products only. No person, who is engaged in the production, supply or distribution of cigarettes or other products shall advertise the same. Similarly, no person having the control over a medium can advertise cigarettes or tobacco products, and no person shall be a part of any advertisement.
30. Section - 7 of the COTP Act deals with the imposition of restriction on the sale, trade, commerce of tobacco products unless KL,J Crl.P. No.152 of 2020 & batch every package of cigarette or tobacco product contains a specified warning (pictorial or otherwise). Section - 4 of the COTP Act, bans smoking in public places. In addition, Section - 6 of the COTP Act, prohibits the sale of cigarettes or other tobacco products to a person who is under the age of 18 years are in an area within 100 yards of any educational institution.
31. A reading of this Act, particularly Sections - 4, 5, 6 and 7 clearly shows that there is no general ban or general prohibition on the manufacture/sale of tobacco products. 22 What is barred is merely the sale of these products to a person, who is below the age of 18 years and in an area within 100 yards of an educational institution. The other aspects covered by Sections - 5 and 7 of the COTP Act, deal with the advertisement and the warning, which is to be contained on a package, in which the tobacco product is packed. This is a regulatory mechanism only. Therefore, according to this Court, the above said allegations of transportation, possession, storage, sale and purchase of banned tobacco products will not attract the offence under Section -7 of the COTP Act.
32. As far as Section - 20 (2) of the COTP Act is concerned, as stated above, the allegations against the petitioner in respective complaints / charge sheets are that they were transporting, possessing, storing, selling and purchasing the banned tobacco products to the customers illegally in order to gain wrongful profits. In view of the said allegation, it is apt to refer to Section - 20 (2) of the COTP Act KL,J Crl.P. No.152 of 2020 & batch for better appreciation of the case and to decide the issue in question, and the same is as under:
"20. Punishment for failure to give specified warning and nicotine and tar contents.-
(1) ...
(2) Any person who sells or distributes cigarettes or tobacco products which do not contain either on the package or on their label, the specified warning and the nicotine and tar contents shall in the case of first conviction be punishable with imprisonment for a term, which may extend to one year, or with fine which may extend to one thousand rupees, or with both, and, for the second or subsequent conviction, with imprisonment for a term which may extend to two years and with fine which may extend to three thousand rupees."
33. Thus, Section - 20 of COTP Act deals with punishment for failure to give specified warning and nicotine and tar contents. But, in the complaints / charge sheets, there is no allegation against the petitioners that they were carrying on trade or commerce in contraband or any other tobacco products without label and specified warning on the said products. In view of the same, the contents of the complaints / charge sheets lack the ingredients of Section - 20 (2) of the COTP Act. Even, there is no allegation that the seized products do not contain labels with statutory warning. Thus, registering the crimes for the said offence against the petitioners is not only contrary to Section - 20 (2) of COTP Act, but also contrary to the principle laid down in Chidurala Shyamsubder4. In view of the same, the offence under Section - 20 (2) of COTP Act is also liable to be quashed against the petitioners. I once again reiterate that I agree with the KL,J Crl.P. No.152 of 2020 & batch principle laid down by the learned Single Judges of the High Court of Andhra Pradesh in Chidurala Shyamsubder4, Sri Jaganath Enterprises5 and V. Nageswara Rao11.
34. For the foregoing discussion and the authoritative principle of law, Criminal Petition Nos. 3768, 3879, 4046, 4077, 4098, 4099, 4100, 4102, 4141, 4151, 4157, 4182, 4187, 4247, 4249, 4251, 4258, 4262, 4277, 4405, 4415, 4542, 4615, 4640, 4681, 4727, 4775, 4825 and 5826 of 2021 are allowed quashing the proceedings against the petitioners therein in the respective crimes mentioned therein. Since the proceedings in the aforesaid Criminal Petitions are quashed against the respective petitioners, the respective Station House Officers / Investigating Officers are hereby directed to return the seized property / vehicles on proper identification and verification of ownership under due acknowledgment.
35. Further, Criminal Petition Nos. 152, 153, 155 & 162 of 2020, 3498, 3500, 3509, 3514, 4070, 4110, 4119, 4140, 4178, 4194, 4216, 4230, 4361, 4612, 4622 and 4632 of 2021 are also allowed quashing the proceedings against the petitioners therein in the respective Calendar Cases mentioned therein. Since the proceedings are quashed, the respective petitioners are at liberty to file appropriate applications before the concerned Magistrate for return of the seized property / vehicle and the Magistrate shall consider the same in accordance with law.
KL,J Crl.P. No.152 of 2020 & batch As a sequel, miscellaneous petitions, if any, pending in all the Criminal Petitions shall stand closed.
_________________ K. LAKSHMAN, J 05TH JULY, 2021 Note: L.R. copy to be marked.