IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF NOVEMBER, 2019 PRESENT THE HON’BLE MR.ABHAY S. OKA, CHIEF JUSTICE AND THE HON’BLE MR. JUSTICE S.R.KRISHNA KUMAR WRIT APPEAL NO.3854 OF 2019 (LA-BDA) (F.R. NO.3863 OF 2019) BETWEEN:
SRI. VENKATESH REDDY S/O. LATE THIMMAREDDY AGED ABOUT 70 YEARS 1ST CROSS, MARUTHI LAYOUT OPP. ROYAL SHELTERS LAYOUT BOMMANAHALLI ROAD DEVARACHIKKANAHALLI BEGUR HOBLI BENGALURU SOUTH TALUK -560 076.
... APPELLANT (BY SHRI SHASHIDHAR BELAGUMBA, ADVOCATE) AND:
1 . THE BENGALURU DEVELOPMENT AUTHORITY KUMARA PARK WEST BENGALURU-560 020 REPRESENTED BY ITS COMMISSIONER 2 . THE STATE OF KARNATAKA REP. BY ITS PRINCIPAL SECRETARY DEPARTMENT OF URBAN AND HOUSING VIDHANA SOUDHA BENGALURU-560 001 ... RESPONDENTS ---
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT, 1961, PRAYING TO ALLOW THE APPEAL & SET-ASIDE THE ORDER DATED 16/09/2019 ON IA NOS.2, 3 AND 4 OF 2019 PASSED BY THE LEARNED SINGLE JUDGE IN W.P.NO.23356/2019 WHICH WAS INCLUDED IN W.P.NOS.23318-23497/2016 (LA-BDA) AND ETC.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, CHIEF JUSTICE DELIVERED THE FOLLOWING:
JUDGMENT This writ appeal is preferred by the petitioner No.39 for challenging the order dated 16th September 2019 passed by the learned Single Judge on I.A.Nos.2, 3 and 4 of 2019. The learned Single Judge held that the applications were not maintainable as the applications were filed by an advocate representing the petitioner No.39 who filed vakalath without obtaining ‘No Objection’ from the advocate who was earlier representing the petitioner No.39 (the appellant).
2. The submission of the learned counsel appearing for the appellant is that a General Power of Attorney was executed by the appellant constituting one Shri C.P.Tayal as his attorney. In the writ petitions filed before the learned Single Judge, the said constituted attorney acted on behalf of the appellant and it was the constituted attorney who had appointed an advocate to represent the appellant. The submission of the appellant is that the General Power of Attorney was terminated on 5th August 2019 and a public notice of the termination was published. The submission in short is that as the advocate who was earlier appointed to represent the appellant was appointed by the General Power of Attorney holder, another advocate is entitled to appear for the appellant.
3. We have carefully considered the submissions. As far as the appointment of an advocate is concerned, the same is governed by Rule 4 of Order III of the Code of Civil Procedure, 1908 (for short ‘the said Code’). Sub-rules (1) and (2) of Rule 4 of Order III of the said Code read thus:
“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 recognized agent or by some other person duly authorized 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.”
(underline supplied) 4. The principle laid down is very clear. Once an appointment of the advocate is filed in the Court by filing the vakalath, the same continues to be in force until determined with the express leave of the Court. The leave of the Court can be granted on the basis of a writing signed by the client or the pleader, as the case may be, and filed in the Court. Unless the authority of the advocate who has filed vakalath is determined with the leave of the Court in accordance with sub-rule (2) of Rule 4 of the said Code, the same continues to be in force until the proceeding in which vakalath is filed comes to an end.
5. In the present case, the appellant’s constituted attorney appointed an advocate when admittedly the General Power of Attorney was valid and binding on the present appellant. By appointing an advocate, the constituted attorney of the appellant acted on behalf of the appellant when the power of attorney was valid. Sub-rule (1) of Rule 4 of Order III expressly permits a constituted Attorney to appoint an advocate. The acts done by the constituted attorney in the proceedings of the writ petition when the General Power of Attorney was valid and binding on the appellant will continue to bind the appellant. Therefore, the appointment of an advocate made by the appellant’s constituted attorney is for all purposes the appointment made by the appellant himself. Thus, the appointment of the advocate made by the constituted attorney of the appellant will continue to be valid and in force until determined with the leave of the Court as provided under sub- rule (2) of Rule 4 of Order III of the said Code.
6. A reference will have to be made to a decision of the Division Bench of this Court dated 13th February 2019 in Regular First Appeal No.831/2013. Paragraphs 1 and 2 of the said decision read thus:
“Memo for withdrawal of the appeal is filed on 31-1-2019 signed by the three appellants. The memo filed by the new counsel does not have a ‘No Objection Certificate’ from the earlier counsel. On questioning, he places reliance on the Judgment of this Court passed in MFA No.6526 of 2013 on 2-12-2016 (KARNATAKA POWER TRANSMISSION CORPORATION LIMITED., vs.
M.RAJASHEKAR AND OTHERS) and submits that it is not necessary to obtain a No Objection Certificate to file a vakalath. We are unable to accept the submission. Reliance placed by the counsel on para-8 of the Judgment is misconceived. The Division Bench held therein that ‘No Objection Certificate’ is not required only in a situation where the Advocate is discharged by his client in a manner known to law, only then a new counsel can enter vakalath without a ‘No Objection Certificate’. When the earlier counsel still holds a valid vakalath, the question of a new Advocate entering the case cannot be accepted. Therefore, the counsel has misread the aforesaid Judgment.
2. Under these circumstances, we hold that, until and unless a ‘No Objection Certificate’ is obtained from the existing Advocate who still holds the vakalath, no new counsel can enter appearance on record.”
(underline supplied) 7. The decision rendered by this Court which is referred above is again based on the principles incorporated in sub-rule (2) of Rule 4 of Order III of the said Code. So long as the appointment of an advocate is in force, no other advocate can file vakalath without the consent of the advocate whose vakalath is on record. Even if another advocate files vakalath with ‘No Objection’ of the earlier advocate who had field vakalath, the appointment of the earlier advocate also continues to be in force unless determined with the leave of the Court as provided in sub-rule (2) of Rule 4 of Order III.
8. Therefore, in the facts of the case, the advocate through whom I.A.Nos.2, 3 and 4 of 2019 were filed could not have filed vakalath without obtaining ‘No Objection’ of the advocate who had filed vakalath on behalf of the appellant.
9. Our attention is invited to I.A.No.4/2019. We have perused the prayers in the said application. In the said application, there was no prayer made to determine the appointment of the advocate appointed by the constituted attorney of the present appellant. Without determination of the authority of the earlier advocate, the Court could not have permitted the appellant to engage another advocate. Therefore, we find absolutely no error in the view taken by the learned Single Judge when he was of the view that the advocate newly appointed by the appellant could not have acted as an advocate for the appellant without obtaining the ‘No Objection’ from the advocate on record. We accordingly, dismiss the appeal.
10. We, however, make it clear that it will be always open for the appellant to apply to the learned Single Judge for determining the appointment of the advocate appointed by his constituted attorney. If the appointment is determined, the appellant can always engage another advocate and file fresh applications containing the prayers which were made in I.A.Nos.2 and 3 of 2019. It will be always open for the advocate who has already filed vakalath for the appellant to file ‘No Objection’ in writing of the earlier advocate appointed by the appellant so that the vakalath filed by him will be regularized. Even in that contingency, a fresh applications as aforesaid can be made.
Sd/- CHIEF JUSTICE Sd/- JUDGE AHB