1. This is an unfortunate case wherein the Presiding Officer of Court below in a simple matter has passed an order entering into inter se dispute between two Advocates and thereby not only has complicated the matter but the manner in which the impugned order has been passed and the other attending circumstances create a reasonable doubt in the mind of this Court about fairness, impartiality and honesty on the part of respondent no. 5.
2. Petitioners admittedly filed a claim petition under Section 163-A read with Section 140 of Motor Vehicles Act, 1988 (hereinafter referred to as "Act, 1988"). A photocopy of application filed by petitioners has been placed on record as Annexure CA-1 to the counter affidavit of respondent no. 4. The aforesaid claim petition was filed by impleading Chola Mandlam M.S. Insurance Company Ltd. and Sri Latoori Singh as defendants no. 1 and 2. The claim petition was signed by both the petitioners. Every page of this claim petition also contains signature and seal of Sri R.M. Singh, Advocate. There is a printed vakalat-nama appended to this application which is in the name of Sri R.M. Singh in printed form but the name of Sri D.K. Saxena, Advocate, has been mentioned by pen. Interestingly the vakalat-name contains signatures of executants namely the two petitioners and Sri D.K. Saxena, Advocate. The seal of Sri R.M. Singh, Advocate, is there but it bears no signature of Sri R.M. Singh.
3. The claim petition was presented in the Court of District Judge, Bareilly by petitioner no. 1 in person duly identified by Sri R.M.Singh, Advocate. The District Judge directed to register the application and sought report of the Munsarim. The order sheet contains the signature of Sri R.M. Singh, Advocate along with his seal. The copy of order sheet placed on record as Annexure 4 to writ petition also shows that on various dates Sri D.K. Saxena, Advocate had appeared on behalf of claimants. The order sheet contains his signatures on the proceedings dated 9.11.2011 and 19.12.2011.
4. It appears that claimants and the Insurance Company arrived at a compromise to settle the case and therefore presented a compromise before the Court below on 28.2.2012 which was signed on behalf of claimants by Sri D.K. Saxena, Advocate. The copy of compromise has been placed on record as Annexure 5 to writ petition showing that the parties were ready to settle the matter. The defendants were to pay Rs. 2,55,000/- to the claimants i.e. the petitioners. The concerned Addl. District Judge i.e. the Court presided by respondent no. 5, in whose Court matter was taken up on 28.2.2012, got the parties identified by their Counsels and thumb impressions of claimants were identified by Sri D.K. Saxena, Advocate. The parties were also present. The claimants were read over the terms of compromise and they accepted to have executed the said compromise as also the terms thereof. These facts were noted by the Court below in order sheet dated 28.2.2012 which reads as under:
^^vkt ;g le>kSrkukek ;kphx.k rFkk foi{khx.k }kjk izLrqr fd;k x;kA ;kphx.k ds fu'kkuh vaxwBs dh f'kuk[r muds vf/koDrk Jh nsos'k dqekj lDlsuk] ,M0 }kjk dh x;hA foi{khx.k dh f'kuk[r muds vf/koDrk Jh lat; dqekj] ,M0 }kjk dh x;hA le>kSrkukek i{kdkjksa dks i<+dj lquk;k x;kA i{kdkjksa }kjk le>kSrkukek dh 'krksZa dks Lohdkj fd;k x;kA^^ English Translation by Court:
"This compromise deed has been presented today by the applicants and opposite parties. Verification of thumb impressions of applicants have been verified by their counsel Sri Devesh Kumar Saxena, Advocate. The thumb impressions of opposite parties were verified by Sri Sanjay Kumar, Advocate. The compromise deed was read over to the parties. The parties agreed to the terms of compromise deed."
5. It appears that Sri R.M. Singh, Advocate, respondent no. 4, however, filed an objection before the Court below stating that he is the main counsel of claimants and since he has not given any consent for engagement of any other counsel, Sri D.K. Saxena, Advocate has no authority to present petitioners' compromise before the Trial Court. It is also mentioned therein that unless the fees of erstwhile counsel is paid, the Court cannot accept vakalat-nama of any other counsel. Copy of this objection has been filed as Annexure CA-2 which appears to be dated 27.2.2012 and it was registered by the Trial Court as Application No. 14-C.
6. The Court below presided by respondent no. 5 heard this objection of respondent no. 4 on 12.3.2012 and thereafter passed impugned order on the same day accepting objection, rejecting the compromise filed by claimants as verified by Sri D.K. Saxena, Advocate. He directed the claimants i.e. petitioners to file a fresh compromise duly identified and verified by Sri R.M. Singh, Advocate, or Sri D.K. Saxena or any other Advocate should file vakalat- name after obtaining no objection from Sri R.M. Singh and then they may file another compromise.
7. This Court issued notices to respondents 2 to 5 on 15.5.2012. Only respondent no. 4 has appeared and filed a detailed counter affidavit through his Advocate Sri Shesh Kumar. Respondent no. 5 has not chosen to appear. Having perused the office report dated 29.5.2012 about service, I deem service sufficient upon respondent no. 5.
8. Sri Shesh Kumar, learned counsel for respondent no. 4 submitted that if another counsel appears subsequently without obtaining no objection from the Advocate already appearing on behalf of the same party, it is against the Rule of Conduct contained in Rule 39 Chapter 2 Para 4 of Bar Council of India Rules. He also placed reliance on a Single Judge judgment of this Court in Chitharo Vs. Sita Ram and others 1992 Alld. Civil Journal 854 and contended that a counsel engaged during the subsisting engagement of another counsel, for the same party, without obtaining consent, it amounts to professional misconduct.
9. A perusal of Rule 39 shows that it is a rule of conduct providing disability to an Advocate to subsequently appear on behalf of a party in a pending case where the party is already represented by another counsel without obtaining his consent but Rule as such does not prevent a litigant from engaging another counsel without obtaining consent from already engaged counsel. Moreover whether a rule of conduct made by Bar Council to be followed by its members, would bind a litigant also is a question which has not been considered in the aforesaid judgment.
10. Even otherwise the aforesaid provision and aforesaid situation has no application in the present case. It is admitted case of parties before this Court that Sri D.K. Saxena, Advocate did not file his vakalat-nama subsequently during the subsisting engagement of respondent no. 4 but it is one and the same vakalat-nama wherein Sri D.K. Saxena, Advocate has signed as an Advocate representing the claimants i.e. petitioners. Such vakalat-nama was part of application presented before the District Judge on 15.7.2011 when the District Judge after initial scrutiny registered the case. In other words, though Sri R.M. Singh, Advocate, presented application before District Judge, but along with application the vakalat-nama which was also presented by Sri R.M. Singh, Advocate contained signature of Sri D.K. Saxena, Advocate as one of the counsel for claimants. The signature of Sri D.K. Saxena on vakalat-nama has neither been disowned by Sri R.M. Singh, Advocate nor disputed at that time. In the subsequent proceedings also Sri D.K. Saxena, Advocate has actually represented the claimant-petitioners as is evident form the order sheet (Annexure 4 to writ petition) and on two dates namely 9.11.2011 and 19.12.2011 Sri R.M. Singh, respondent no. 4, was not present but the claimants were represented by Sri D.K. Saxena, Advocate, who also signed Court's order sheet.
11. Respondent no. 5 in the impugned order though has observed that the name of a counsel is printed on vakalat-nama, and also contains his signature, it would mean that the client intend to engage only such counsel but thereafter has completely misdirected himself by ignoring the fact that the client namely the claimants never disputed engagement of Sri D.K. Saxena, Advocate. On the contrary, when they filed compromise, the identification was made by Sri D.K. Saxena, Advocate about signatures etc. and the claimants duly accepted such compromise presented through their Advocate Sri D.K. Saxena.
12. In these circumstances, respondent no. 5 had no business at all to enter into arena as to whether the litigants i.e. claimants have actually engaged Sri D.K. Saxena, Advocate or not and to examine an otherwise inter se dispute between two Advocates representing the claimants and that too on sheer conjectures when as a matter of fact claimants admitted their representation through Sri D.K. Saxena, Advocate.
13. The tone and the manner of order impugned in this writ petition, passed by respondent no. 5 clearly smacks lack of bona fide. It speaks volume of favouritism on the part of respondent no. 5 and partial attitude towards respondent no. 4. The reasoning given by Court below besides being absurd shows perversity. He has gone to the extent of referring to an alleged Government Order without giving details thereof and stating that he does not remember its number yet has referred the same in the impugned order for fortifying his logic penned in the impugned order. This kind of order smacks of something other than bona fide and in the peculiar facts and circumstances of the case I am of the view that impugned order passed by respondent no. 5 lacks honesty on his part. There is some hidden agenda between these two i.e. respondents 4 and 5.
14. Besides above, the Court has also examined whether the kind of dispute entertained by Court below was at all justified or permissible while looking into a compromise presented before it by the parties.
15. Order 23 Rule 1 C.P.C. provides for compromise and reads as under:
1. Withdrawal of suit or abandonment of part of claim.- (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim:
Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court.
(2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person.
(3) Where the Court is satisfied,-
(a) that a suit must fail by reason of some formal defect, or
(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.
(4) Where the plaintiff-
(a) abandons any suit or part of claim under sub-rule (1), or
(b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be preclude from instituting any fresh suit in respect of such subject-matter or such part of the claim.
(5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs."
16. The only thing which is necessary to be examined before accepting a compromise between the parties is the identity of parties, free will in executing the compromise and understanding and volition in execution thereof. In respect to all these aspects the Trial Court satisfied itself as is evident from order dated 28.2.2012 which has been quoted above. In the impugned order also the Court below has not disputed anything about the identity or bona fide of compromise filed by the parties but has only directed that either it should be filed through the Advocate Sri R.M. Singh or if any other Advocate has to present the same, he must ensure no objection from Sri R.M. Singh which in the words of Sri R.M. Singh, he was not inclined to grant since allegedly his fees was not paid. Thus he has in effect tended to ensure payment of fees claimed by respondent no. 4 from the claimants.
17. The Apex court has castigated the dispute of fees to be entertained by a Court while hearing a case unless the counsel himself brings an action against the litigant for payment of fess. In this context, The Apex court has also stressed upon unimpeded right of litigant to take action for disposal of his matter in a Court of Law instead of watching the interest of legal professionals.
18. In R.D. Saxena Vs. Balaram Prasad Sharma AIR 2000 SC 2912, the Apex Court has said:
".. the cause in a court/tribunal is far more important for all concerned than the right of the legal practitioner for his remuneration in respect of the services rendered for espousing the cause on behalf of the litigant. If a need arises for the litigant to change his counsel pendente lite, that which is more important should have its even course flowed unimpeded. Retention of records for the unpaid remuneration of the advocate would impede such course and the cause pending judicial disposal would be badly impaired. ... For whatever reason, if a client does not want to continue the engagement of a particular advocate it would be a professional requirement consistent with the dignity of the profession that he should return the brief to the client. It is time to hold that such obligation is not only a legal duty but a moral imperative."
19. Further in para 17 the Court said:
".. if the litigation is pending the party has the right to get the papers from the advocate whom he has changed so that the new counsel can be briefed by him effectively. In either case it is impermissible for the erstwhile counsel to retain the case bundle on the premises that fees is yet to be paid."
20. In the present case, the counter affidavit filed by respondent no. 4 before this Court as also objection filed before the Court below shows that his basic complaint was that his fees was not paid and therefore, the claimants could not have filed compromise through Sri D.K. Saxena, Advocate. Before this court, the respondent no. 4 has also filed his fees bill along with the application which was presented before the Court below on 18.4.2012 showing that he claimed Rs. 27,000/- from petitioner-claimants. The conduct of respondent no. 4 is neither befitting to the role and model conduct of an Advocate which was expected from him nor he has shown a conduct, in the interest of the person, he represented.
21. The Apex Court's observation in R.D. Saxena (supra) are very apt to this kind of situation where it is said:
"A Litigant must have the freedom to change his advocate when he feels that the advocate engaged by him is not capable of espousing his cause efficiently or that his conduct is prejudicial to the interest involved in the lis, or for any other reason." It has also observed that the professional misconduct under Section 35 of Advocates Act, 1961 is not defined but in terms of what was said by Darling J. in In Re: A Solicitor ex parte the Law Society (1912) 1 KB 302, "If it is shown that an Advocate in the pursuit of his profession has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his profession brethren of good repute and competency, then it is open to say that he is guilty of professional misconduct."
22. The Court also referred to the meaning of "professional misconduct" assigned by Corpus Juris Secundum, Vol. 7 at page 740 which reads as under:
"Profession misconduct may consist in betraying the confidence of a client, in attempting by any means to practise a fraud or impose on or deceive the Court or the adverse party or his counsel, and in fact in any conduct which tends to bring reproach on the legal profession or to alienate the favourable opinion which the public should entertain concerning it."
23. Hon'ble R.P. Sethi, J. concurring with the judgment delivered by K.T. Thomas J. in R.D. Saxena (supra) referred to the Bar Council of India Rules that an Advocate shall, at all times, compose himself in a manner befitting his status as an officer of the Court, a privileged member of the community and a gentleman, bearing in mind that what may be lawful and moral for a person who is not a member of the Bar or for a member of the Bar in his non professional capacity may still be improper for an advocate.
24. Here is a case which requires this Court to remind members of the Bar that professional services rendered by the Lawyers are/were always looked with great honour and respect. The reward to the Lawyer(s) never treated to be the salary, fees or compensation for discharge of legal functions or assistance but actually in the nature of gratitude in recognition to the honorary service rendered by him. It may be that change in time has compelled drastic changes in the conduct, practice and status of lawyers and their requirements but still the basic concept has to sustain otherwise the consequences would be very serious. Still the Lawyers are considered to be an Officer of the Court. Therefore the basic and fundamental traditions have to be maintained so as to maintain confidence reposed by Society and public at large in the Courts of law. The record and pleadings of parties show that respondent no. 4 was claiming fees in terms of proportionate compensation. Such a practice and attitude on the part of an Advocate has been seriously condemned by Apex Court in the matter of ''G' a Senior Advocate of the Supreme Court, AIR 1954 SC 557 where the Court said that it was highly reprehensible for an advocate to stipulate for or receive a remuneration proportionate to the result of litigation or a claim whether in the form of a share in the subject-matter, a percentage or otherwise. It cannot be doubted that an advocate who departs from the high standards which the profession has set for itself and conducts in a manner which is not fair, reasonable and according to law, is liable to disciplinary action.
25. In the case in hand, the petitioners did not authorize respondent no. 4 to contest an application or any document or claim of petitioners filed themselves. The objection filed by respondent no. 4 before the Court below has not been shown as to under which authority the same was filed. The Court below thus has also acted illegally by entertaining objection of respondent no. 4 and then to adjudicate thereon. It was wholly warranted.
26. There is one more interesting factor. The vakalat-nama was not signed admittedly by respondent no. 4. The Court below has observed that the contract can be oral or written. It has also observed that the vakalat-nama was not signed by respondent no. 4 but then has proceeded to observe that probably by mistake it could not be signed by him though his seal is there and his name is also printed therein. Whether that was a sufficient compliance of Rules applicable to filing vakalat-nama in the Court below? Here this Court may refer to Order 3 Rule 4 (5) C.P.C. reads as under:
"4. 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 signed 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.
Explanation.-For the purposes of this sub-rule, the following shall be deemed to be proceedings in the suit,-
(a) an application for the review of decree or order in the suit,
(b) an application under section 144 or under section 152 of this Code, in relation to any decree or order made in the suit,
(c) an appeal from any decree or order in the suit, and
(d) any application or act for the purpose of obtaining copies of documents or return of documents produced or filed in the suit or of obtaining refund of moneys paid into the Court in connection with the suit.
(3) Nothing in sub-rule (2) shall be construed-
(a) as extending, as between the pleader and his client, the duration for which the pleader is engaged, or
(b) as authorising service on the pleader of any notice or document issued by any Court other than the Court for which the pleader was engaged, except where such service was expressly agreed to by the client in the document referred to in sub-rule (1).
(4) The High Court may, by general order, direct that, where the person by whom a pleader is appointed is unable to write his name, his mark upon the document appointing the pleader shall be attested by such person and in such manner as may be specified by the order.
(5) No pleader who has been engaged for the purpose of pleading only shall plead on behalf of any party, unless he has filed in Court a memorandum of appearance signed by himself and stating-
(a) the names of the parties to the suit,
(b) the name of the party for whom he appears, and
(c) the name of the person by whom he is authorized to appear :
Provided that nothing in this sub-rule shall apply to any pleader engaged to plead on behalf of any party by any other pleader who has been duly appointed to act in Court on behalf of such party."
(emphasis added)
27. The above provision clearly show that the documents have to be signed by pleader himself. Mere existence of seal or printing of name is not sufficient since the Rule requires signature of pleader on the memorandum of appearance.
28. In the result, the writ petition is allowed. The impugned order dated 12.3.2012 (Annexure 6 to writ petition) is hereby quashed. The Court below is directed to proceed with the compromise filed by petitioners through their Counsel Sri D.K. Saxena and pass appropriate order in accordance with law without any further delay, if not already passed.
29. Petitioners shall also be entitled to cost which I quantify to Rs. 20,000/- equally to be borne by respondents no. 4 and 5. They shall pay the above cost within two months from the date of service of a copy of this order upon them failing which on an application submitted by petitioners before the Court below, the amount of cost may be realised as arrears of land revenue.
30. Registrar General is directed to place copy of this order before Hon'ble the Chief Justice for His Lordship's kind perusal and appropriate action against respondent no. 5, as the case may be. Further, a copy of this judgment shall be furnished to Bar Council of Uttar Pradesh for appropriate action with regard to conduct of respondent no. 4.
Dt. 3.7.2012 PS