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The Tamil Nadu Electricity Board vs R. Srinivasan on 25 September, 1991

Madras High Court
The Tamil Nadu Electricity Board vs R. Srinivasan on 25 September, 1991
Equivalent citations: (1991) 2 MLJ 635
Author: N Sundaram


ORDER

Nainar Sundaram, J.

1. The writ appeal has been preferred against the order of the learned single Judge in W.P. No. 11437 of 1981. There is no gainsaying that the writ petition is one preferred under Article 226 of the Constitution of India. However, the writ appeal is one preferred pursuant to Clause 15 of the Letters Patent of this Court. We are adverting to this fact for the purpose of showing that we are exercising appellate jurisdiction, and not a jurisdiction as conferred by Article 226 of the Constitution of India, though the decision in the writ appeal may take in a discussion of the relevant aspects under that Article. For the said appellate jurisdiction, the Code of Civil Procedure, hereinafter referred to as the Code, would apply. A view to the said effect has been expressed by a Bench of this Court, to which one of us (Nainar Sundaram, J.) has been a party in Govindarajulu and Anr. v. Dharman and Anr. C.M.A.S.R. No. 76357 of 1980 and C.M.P.S.R. No. 76358 of 1980, order dated 27.7.1984, concisely reported in 1984 T.L.N.J. 279, wherein it has been noted “When the statute directs on appeal to an ordinary civil court, without in any manner circumscribing the practice, procedure and powers of such court as a civil appellate court, the Court will have to deal, with the appeal, with all the trappings and powers as an ordinary civil court of appeal”. The definition of “Code” as found in Section 2(1) of the Code, includes rules. “Rules” as defined by Section 2(18) of the Code takes in rules and forms contained in the First Schedule or made under Section 122 or Section 125 of the Code. There are rules of this Court on its Appellate Side, hereinafter referred to as the Appellate Side Rules, formulated pursuant to powers under Section 122 of the Code. There are rules bearing the nomenclature Civil Rules of Practice, which are also formulated pursuant to powers under Section 122 of the Code. The Civil Rules of Practice may not apply to this Court and they are intended for courts, subordinate to this Court. We are obliged to trace the above features, legal in character in view of the point that has arisen before, us, which relates to the entry of a new counsel in the place of a counsel, who earlier entered appearance for the party, and who has given his consent in writing for change of appearance and the insistence of the office of this Court to obtain orders of Court for that purpose, on an application to be taken out in this behalf.

2. Mr. M. Krishnappan earlier entered caveat for the respondent. However, when C.M.P. No. 5429 of 1991 came up for hearing on 26.8.1991 after service of notice on the respondent, Mr. M.R. Raghavan stated that he has got instructions to appear for the respondent and he wanted time to enter appearance and file a counter. For this purpose, we adjourned the matter to 2.9.1991. On 2.9.1991 Mr. M.R. Raghavan submitted that he had the vakalath, with the endorsement of consent from the previous counsel, but he could not file it without “an application since the office of this Court insists for that. We directed Mr. M.R. Raghavan to file the vakalath on 2.9.1991 itself and we further s directed that if the office of this Court should find any difficulty to take note of the change of the appearance, to put up a detailed note before us indicating as to how the vakalath could not be entertained, as that we may consider the question. The matter was adjourned to 3.9.1991. The office of this Court had put up the requisite note wherein after tracing the relevant provisions of law it was notified that the insistence for an application for a change of counsel is being made, taking note of the pronouncement of Srinivasan, J., in Sathappan v. Andhra Bank Ltd. C.M.A. No. 771 of 1985, order dated 8.10.1990, now . On 3.9.1991 Mr. M.R. Raghavan made his submissions advancing the proposition that where the written consent for change of appearance has been given by the counsel, who earlier entered appearance, as it is in the present case there is no need to file an application and obtain permission for change of counsel. Considering the importance of the question from the angle of the members of the Bar at large, we decided to take up the assistance of another counsel also as amicus curiae, and in this behalf we requested Mr. T.R. Rajagopalan to take up the above role and he has willingly taken up the above role, and he has done a very laudable service to this Court by gathering the relevant authorities throwing light on the subject and placing them before us. We place on record our appreciation for his services. The matter has been ultimately taken up on 24.9.1991. We must also record that Mr. R. Muthukumaraswamy, learned Counsel for the appellant, without standing on any formality made submissions, supporting the learned Counsel for the respondent on this question. Thus, we had the benefit of the submissions of the three counsels, namely, Mr. R. Muthukumaraswamy, learned Counsel appearing for the appellant; Mr. M.R. Raghavan, learned Counsel appearing for the respondent and Mr. T.R. Rajagopalan, learned Counsels, who acted as amicus curiae. We must say that all the counsel did their best in the exposition of the relevant provisions of law and authorities on the subject and this only enabled us to assess the question properly and come to a decision as per our discussion infra.

3. Order 3, Rule 4 of the Code speaks about the appointment of a Pleader and the determination of the appointment. For our purpose it is sufficient if we refer the Sub-rules (1), (2) (Explanation omitted) and 5 of Rule 4 of Order 3 and they stand extracted as follows:

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 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 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.

(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 name 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.

Sub-Rule (1) of Rule 4 of Order 3 requires the appointment of a Pleader to be made by a document in writing by the persons mentioned therein. Sub-rule (2) of Rule 4 of Order 3 deals with the determination of the appointment. Sub-rule 2 is of much significance in the context of the question that has arisen for our consideration. The appointment when filed in Court shall be deemed to be in force until determined. The determination shall take place by a writing signed by the client or the Pleader as the case may be and filed in Court. The determination should be with the leave of the Court. There are other contingencies on which the appointment would get determined, namely, When the client or the pleader dies, or all the proceedings in the suit are ended so far as regards the client.

4. Case law is not lacking with regard to the question as to how the determination of the appointment of the Pleader could effectively take place. In Manickam Pillai v. Bathummal 47 M.L.J. 398 I.L.R. 47 Mad. 819 : 92 I.C. 162, a Full Bench of this Court dealt with a case when a Pleader engaged asked for an adjournment and stated that if adjournment were hot granted, he had no instructions to go on with the case and he further took the plaint drawn and signed by him and made an endorsement saying that he had no instructions, except to apply for an adjournment. The question arose as to whether although the pleader made the endorsement as above, his appearance must be deemed to continue in force, until something further was done. It must be noted here that the then language of Order 3, Rule 4(2) was slightly different, but the substantive requirements were the same as found in the provisions amended later. The opinion of the Full Bench as spoken through Coutts Trotter, C.J., though brief, is succinct on the relevant aspect and were obliged to extract the relevant portions of the same as follows:

In our opinion, the statute does not require the writing containing the withdrawal by the pleader of his vakalath to be in any specified form, and it appears to us that that which he endorsed on the back of the plaint was a perfectly good written withdrawal from his duties and obligations under the vakalath.

The exact question put to us is, if when a pleader reports no instructions, whether after he has asked for an adjournment and been refused, or not, the Court is correct in holding that the party for whom the pleader was appearing has not appeared. We think that the only answer can be that, at any rate in the circumstances of this case, the pleader cannot be deemed to have appeared.

I should and one other word. The section says that the withdrawal of the pleader must be with the leave of the Court. It does not say, nor do I think we are to import into it, that any formality is necessary in the manner of the granting of the leave of the court, and in the circumstances we must presume that, in a case like the present, the Court in assenting to the conduct of the vakil and in raising no question about his withdrawal, must be taken within the meaning of the section to have given its consent.

5. In Krishna Pillai v. Ranganathan , Horwill, J., dealt with a case of the counsel reporting no instructions and trying to come on record once again on the same vakalath and while discountenancing this, the learned Judge followed the ratio of the Full Bench in Manickam Pillai v. Bathummal 47 M.L.J. 398 : I.L.R. 47 Mad. 819 : 92 I.C. 162 : A.I.R. 1925 Mad. 21, and observed as follows:

I have no doubt that the courts below decided this matter correctly. When a vakil reports no instructions, it means that he withdraws his vakalath. If authority was necessary for that it is found very clearly in Manickam Pillai v. Mahadum Bathummal 47 M.L.J. 398 : I.L.R. 47 Mad. 819 : 92 I.C. 162 : A.I.R 1925 Mad. 21 (F.B.), when the learned Chief Justice in several parts of his judgment equates the reporting of no instructions to the withdrawal of the vakalath.

6. An Sathiraju v. Sathamma , Krishnaswami Nayudu, J., was confronted with a case where the report of no instructions was only oral and it was not in writing, and in that context, the learned Judge, though he adverted to the ratio of the Full Bench, was of the view there was nothing in writing, to cancel the vakalatnama. The learned Judge did observe as follows:

I entirely agree that there is, nothing even in the present rule prescribing the form of withdrawal excepting that there must be a withdrawal in writing signed by the Pleader.

7. In Pavoorayil Mamu alias Muhammad v. Kunhimon alias Muhammad and Ors. (1955) 2 M.L.J. 124, Mack, J., while dealing with a case of dismissal of the suit on the counsel for the plaintiffs reporting no instructions, and the application for restoration being taken out by the same counsel without a fresh vakalath filed within time, but filed later before disposal of the application, was prepared to condone the said latches. The learned Judge viewed the provisions of Order 3, Rule 4 of the Code in the following terms:

Order 3, Rule 4, Civil Procedure Code, is primarily intended to protect clients from anybody other than advocates authorised by them appearing, acting and making representations on their behalf and it certainly was not intended to penalize clients who had in fact instructed an advocate at one stage of the litigation, and immediately ratified his authority after he reported to instructions when his failure to file a fresh vakalath was brought was brought to notice. The Advocate is really more to blame than the client for filing his restoration application without writing to his clients and obtaining from them a fresh vakalath.

8. From the pronouncements which we have adverted to as above, what has been expatiated over Order 3, Rule 4(2) is that while the determination of the appointment of a counsel save in the case of his demise or of his client or termination of all proceedings should be in writing and with the leave of the Court, that leave of the Court need not assume any formality of a particular character. The leave of the Court could also be implied when the determination of the appointment is taken note of and acted upon by the Court. The rule expressed in Order 3, Rule 4 of the Code is one intended to facilitate the prosecution of the proceedings through counsel, to serve the cause of the parties, and certainly it should not be worked to bring in a situation, which puts the parties to inconvenience and hardship, on account of insistence over undue formalities in the determination of the authority given to an earlier counsel. On account of any technical formality to be insisted in this connection, the parties cause should not suffer. The experience of the Court also certainly favours a liberal construction, which in our view is a proper construction of the set of expressions “with the leave of the Court” occurring in Sub-rule (2) of Rule 4 of Order 3 of the Code.

9. Coming to the Appellate Side Rules, we have to take note of Order 3, Rules 5 and 6, the language of which runs:

(5) A practitioner shall not be permitted to file an appearance in any proceeding in which another practitioner is already on record, unless he produces the written consent of the practitioner on record, or obtains the permission of the Court.

(6) No practitioner shall be entitled to act in any civil proceeding, unless he files a vakalatnama in Form No. 1 of the Schedule to these Rules. Provided that-

(1) where a practitioner is already on record in any proceeding, it shall be sufficient for another practitioner who desires to appear in the proceeding merely for the purpose of pleading, to file a memorandum of appearance bearing the Court-fee payable on a vakalatnama. The consent of the practitioner on record must be endorsed on such memorandum.

(2) when any practitioner appears on behalf of the Government or any public servant sued in his official capacity, it shall be sufficient for him to file an unstamped memorandum of appearance signed by the practitioner.

The Appellate Side Rules can be worked along with the provisions of the Code and they can certainly co-exist with them. The Appellate Side Rules supplement the provisions of the Code as expressed in Order 3, Rule 4(2). The implications of the rules formulated pursuant to powers under Section 122 of the Code have been taken note of by a Bench of this Court, while adverting to the Original Side Rules of this Court, which also got formulated, as the Appellate Side Rules under Section 122 of the Code, in B. Soundarapandian v. Industrial Finance Corporation of India , in the following terms:

Under Section 122 of C.P.C., the High Court can make rules regulating their own procedure. The preamble to the Original Side Rules specifically states that the Rules are framed by virtue of the powers conferred by the C.P.C., and other enactments set out in Appendix I. In that sense, the modification contained in the Original Side Rules can be treated as part of the C.P.C., also.

Even if there is any inconsistency between the Appellate Side Rules and the provisions of the Code, the Appellate Side Rules; having been formulated pursuant to powers under Section 122 of the Code, under which it is permissible to annul, alter or add to all or any of the rules in the First Schedule to the Code, shall take precedence.

10. The specific problem which has arisen in the instant case is; there is a counsel who has entered appearance earlier; and a need has arisen to change the counsel. The counsel who has entered appearance earlier has endorsed in writing his consent for change of appearance. It is not a case of refusal by the counsel, who had entered appearance earlier to give the consent for the change of appearance. Though under Order 3, Rule 4(2) of the Code nothing is specifically stated with reference to an entry of a new counsel when a counsel has earlier entered appearance and is on record, so far as appellate jurisdiction of this Court is concerned, the guidance is found in Order 3, Rule 5 of the Appellate Side Rules. This rule is specific and it says that when the written consent of the practitioner on record is there, there can be an entry of a new counsel. If, on the other hand, there is a withholding of the written consent of the earlier counsel, a need to obtain the permission of the court will arise. We cannot envisage a need to obtain such a permission where there is a written consent of the counsel already on record for change of appearance. The filing of the appearance by the new counsel with the written consent of the earlier counsel, in that context, may take in two aspects, namely, the determination of the appointment of the earlier counsel and the appearance of the new counsel. To effectuate the cause and to safeguard the interests of the client, leave of Court must be deemed to have been granted for the determination of the appointment of the earlier counsel, without the formality of filing an application and obtaining orders thereon when the appearance of the new counsel with the written consent of the earlier counsel is entertained. It has already been noted that, as per the ratio of the Full Bench in Manickam Pillai v. Bathummal 47 M.L.J. 398 : I.L.R. 47 Mad. 819 : 92 I.C. 162 : A.I.R. 1925 Mad. 21, no particular formality is required for leave of Court for determination of the appointment of a counsel. Hence, we are obliged to hold and we do hold that on the Appellate Side of this Court, there is a filing of appearance by a new counsel with the written consent of the earlier counsel for change of appearance, when there could not be an insistence for obtaining of a formal order of Court therefor on a formal application taken out in this behalf. Regarding Courts, subordinate to this Court guidance is found in Rule 20-A of the Civil Rules of Practice, which runs as follows:

Rule 20-A : Consent for change of vakalath : An advocate or pleader, proposing to file an appearance in a suit, appeal or other proceedings in which there is already an advocate or pleader, on record, may not do so, unless he produces the written consent of such advocate or where the consent of such advocate or pleader is refused, unless he obtains the special permission of the court.

In the context of the said rule, the principle set down by us, as above would hold good to govern a similar situation before Courts, subordinate to this Court. It must be noted that Civil Rules of Practice govern both Original and Appellate Side of Courts, subordinate to this Court.

11. A problem with another dimension may arise when the counsel already on record withholds his consent for change of appearance. That is a special contingency. Though that has also not been specifically provided for in Order 3, Rule 4(2) of the Code, provision therefor has been expressed in the Appellate Side Rules in Order 3, Rule 5, for the appellate jurisdiction of this Court. When the earlier counsel does not subscribe his consent for change of appearance in a matter on the appellate jurisdiction of this Court, the permission of this Court has got to be obtained. This permission could be properly obtained only on an application taken in this behalf. This Court, in this context, cannot dispense with the formality of an application. Rule 20 of the Civil Rules of Practice governing Courts, subordinate to this Court, also brings out the same implication and principle. The propositions discussed above will hold good and could be worked out even in the case of appearance of another counsel along with the appearance of the counsel already on record and not in substitution thereof, according to exigencies.

12. From the preceding discussion, the following propositions get settled.

(i) On the appellate jurisdiction of this Court, the determination of the appointment of a counsel save in the case of his demise or of his client or termination of all proceedings, though should be in writing, the leave of the Court therefor, need not assume any formality of a particular character, and could also be implied.

(ii) On the appellate jurisdiction of this Court, when there is a filing of appearance by a new counsel, with the written consent of the earlier counsel for change of appearance, there is no need to obtain a formal order of this Court for change of appearance; on a formal application taken out in this behalf.

(iii) If, on the other hand, the counsel already on record, withholds his consent for change of appearance, permission of this Court has got to be obtained on an application taken out in this behalf.

(iv) The aforesaid propositions will govern the position before the courts, subordinate to this court, but on their original and appellate side.

(v) The aforesaid propositions will hold good and could be worked out even in the case of appearance of another counsel along with the appearance Of the counsel already on record, and not in substitution thereof, according to exigencies.

13. Coming to the judgment of Srinivasan, J., in Sathappan v. Andhra Bank Ltd. , the main factor, which seemed to have weighed with the learned Judge to hold that a petition for revocation of vakalath or for change of Practitioner is absolutely necessary and unless such a petition is filed, the vakalath already on record would continue to be valid, is Order 2, Rule 4(3) of the Appellate Side Rules, and how the learned Judge dealt with the question can be gleaned from paragraphs 1 to 5 of his pronouncement, which run as follows:

The appeal was in the list for final hearing on 21.4.1988 and learned Counsel, who was on record at that time reported no instructions; the party’s name was called and the appellant did not appear. Hence, the appeal was dismissed on that date.

2. C.M.P. No. 9919 of 1990 has been filed for setting aside the order, of dismissal dated 21.4.1988. It is stated in the affidavit that at the time when the appeal was filed M/S. M.N. Padmanabhan and R. Singaravelan had filed vakalath for the appellant and on 12.1.1987 they had given consent for change of vakalath. It is further stated that on 19.1.1987 a vakalath was filed by M/s. M. Shamdoss and Thulasidoss, Advocates, Madras. But, admittedly no application was filed for revocation of vakalath given already to M/s. M.N. Padmanabhan and R. Singaravelan. Under Order 2, Rule 4(3) of the. Appellate Side Rules, the Registrar is empowered to order change of practitioners on application made on stamped petition. Though no petition was filed by the appellant or his new counsel M/s. M. Shamdoss and Thulasidoss, the Registry simply accepted the vakalath filed by M/s. M. Shamdoss and Thulasidoss and kept it alongwithrecordswithoutmakinganyentryof the fresh vakalath. Accordingly, the vakalath of M/s. M.N. Padmanabhan and R. Singaravelan continued to be valid and the Registry was right in not recognising the vakalath of M/s. M. Shamdoss and Thulasidoss and making entries in the registers. The registry is also right in showing the names of M/S. M.N. Padmanabhan and R. Singaravelan as counsel for the appellants in the cause list when the case was posted in the list for disposal.

3. At the time when the appeal was dismissed as stated above, M/s. M. Shamdoss and Thulasidoss did not appear before Court and inform the court that they were representing the client; nor did the appellant inform M/s. M.N. Padmanabhan and R. Singaravelan that he had engaged M/s. M. Shamdoss and Thulasidoss and M/s. M.N. Padmanabhan and R. Singaravelan had given consent for change of vakalath.

4. Hence, there is no necessity for this Court to entertain this application, which has been filed after a period of more than two years. When the application came up for hearing, I felt it better to hear the appeal on merits and dispose of the same. Consequently, the petition for setting aside the order of dismissal dated 21.4.1988 was also posted along with the appeal today and the appeal was heard on merits. It should also be mentioned that counsel who are appearing for the appellant today are not M/s. M. Shamdoss and Thulasidoss. These counsels filed their vakalath on 2.1.1989 and they too have not filed an application for change of practitioners.

5. It is seen that the Registry has been simply accepting vakalaths with endorsements of consent for change of practitioners without stamped petitions for orders. This practice is clearly against the rules and it is not permitted in law. The Registry has been adopting this practice and counsel have also been ignoring the rules. A petition for revocation of vakalath or for change of practitioners is absolutely necessary and unless such a petition is filed, the vakalath already on record would continue to be valid. Only such counsel’s name would appear in the record. I have issued directions to the Registry that hereafter no change of vakalath shall be accepted unless there is an application for an order for change of practitioners. This should be strictly followed by the Registry hereafter.

The learned Judge has referred to Order 2, Rule 4(3) of the Appellate Side Rules. We must straightway point out that Order 2 of the Appellate Side Rules speaks about the Officers of this Court and allocation of exercise of powers by them; and nothing more. Rule 4 speaks about the powers, which could be exercised by the Registrar of this court. Under Sub-rule (3) the Power “to make an order for change of practitioner” on application made by stamped petition is conferred on the Registrar. But that rule does not envisage and set down as to when there should be an order for change of practitioners. That position has got to be gathered from elsewhere only. When a contingency or a need for obtaining an order for change of practitioners on a stamped petition arises, the power therefor could be exercised by the Registrar. But when once it is found that no petition is required to obtain an order, where there is an endorsement of consent for change of counsel, we cannot go anywhere near Order 2, Rule 4(3) of the Appellate Side Rules, to speak about a contrary theory. Hence, we are not able to subscribe our support to the view of the learned Judge expressed in Sathappan v. Andhra Bank Ltd. .

14. It is true that we have dealt with the questions only from the angle of the appellate jurisdiction of this Court and we have also touched the position, which is same before Courts, subordinate to this Court, both on their original and appellate side. This writ appeal has stemmed out of an order in a writ petition. The rules formulated by this Court to regulate proceedings under Article 226 of the Constitution of India are silent on this aspect. We are convinced that the salutary principles discussed by us above can certainly be imported to form a guidance with regard to same situations, arising in proceedings under Article 226 of the Constitution of India.

15. We have refrained from expressing any view with reference to the position on the Original Side of this Court. There are rules governing the Original side of this Court, similar to the Appellate Side Rules. It is for the learned Judge or Judges, exercising powers on the Original Side of this Court, to take guidance from what we have expressed on the questions, if that could be relevantly taken note of, in the discretion and view of the learned Judge or Judges.

16. Thus, we uphold the filing of the vakalath by Mr. M.R. Raghavan, learned Counsel for the respondent already done, without insisting for an application and an order thereon in this behalf. Post C.M.P. No. 5429 of 1991 along with the Writ Appeal. W.A. No. 519 of 1991, for further consideration on 7.10.1991.

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