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
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