No objection certificate is not required from the advocate on record when a new advocate files Vakalatnama
Sometimes Litigants are not happy with their Advocates and want to change them. But the Advocates demand money and resort to arm twisting to return the case papers and to give no objection.
The law on this point is very clear. No objection is not required from the previous advocate and the Advocate has to return the case papers even if money is due to him.
Karnataka High Court Decision
The following is the decision of the Karnataka High Court dated 2nd December 2016
THE HON’BLE MR. JUSTICE H.G.RAMESH
AND
THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA
MISCELLANEOUS FIRST APPEAL NO.6526/2013 (LAC)
BETWEEN:
KARNATAKA POWER TRANSMISSION
(BY SRI AJITH ANAND SHETTY, ADVOCATE)
AND:
1. M.RAJASHEKAR and others.
“ 1. Whether vakalatnama filed by a new advocate is to be
accepted in the absence of ‘no objection’ of the advocate
already on record, is the short question for consideration in
this case.
2. Registry has raised an objection on the vakalatnama
of the appellant filed by Sri Ajith Anand Shetty, advocate;
objection is that the vakalatnama does not contain
‘no objection’ of the advocate already on record for the
appellant.
3. We have heard Sri Ajith Anand Shetty, learned
counsel, on the objection raised by the Registry. The
learned counsel submitted that a party to a litigation has
an absolute right to appoint an advocate of his choice,
to terminate his services, and to appoint a new advocate.
Hence, a party cannot be compelled to obtain ‘no objection’
from the advocate already on record. Insisting for ‘no
objection’ from the previous advocate will amount to
putting a restriction on the right of a party to appoint an
advocate of his choice. He sought for overruling of the
objection raised by the Registry. In support of his
submission, he relied on two decisions of the Supreme
Court in R.D.Saxena v. Balaram Prasad Sharma [AIR 2000
SC 2912], and in New India Assurance Co. Ltd. v.
A.K.Saxena [AIR 2004 SC 311], and also a Division Bench
decision of this Court in Sri C.V.Sudhindra & Ors.
vs M/s Divine Light School for Blind & Ors. [ILR 2008 KAR
3983].
4. To examine the question raised, it is relevant to refer
to the following observations made by the Supreme Court in R.D.Saxena v. Balaram Prasad Sharma [AIR 2000 SC 2912]:
“15. 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. 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.
17. If a party terminates the engagement of an
advocate before the culmination of the proceedings that
party must have the entire file with him to engage
another advocate. But if the advocate who is changed
midway adopts the stand that he would not return the
file until the fees claimed by him is paid, the situation
perhaps may turn to dangerous proportion. There may
be cases when a party has no resource to pay the huge
amount claimed by the advocate as his remuneration. A
party in a litigation may have a version that he has
already paid the legitimate fee to the advocate. At any
rate 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
premise that fees is yet to be paid.
18. Even if there is no lien on the litigation papers of
his client an advocate is not without remedies to realise
the fee which he is legitimately entitled to. But if he has
a duty to return the files to his client on being
discharged the litigant too has a right to have the files
returned to him, more so when the remaining part of the
lis has to be fought in the court. This right of the litigant
is to be read as the corresponding counterpart of the
professional duty of the advocate.
23. We, therefore, hold that the refusal to return the
files to the client when he demanded the same
amounted to misconduct under Section 35 of the Act.
Hence, the appellant in the present case is liable to
punishment for such misconduct.
……………………. It is true that an advocate is
competent to settle the terms of his engagement and his
fee by private agreement with his client but it is equally
true that if such fee is not paid he has no right to retain
the case papers and other documents belonging to his
client. Like any other citizen, an advocate has a right to
recover the fee or other amounts payable to him by the
litigant by way of legal proceedings but subject to such
restrictions as may be imposed by law or the rules made
in that behalf. ………….”
(Emphasis and underlining supplied)
5. In the context of the question raised, the following
observations made by a Division Bench of this Court in
Sri C.V.Sudhindra & Ors. vs M/s Divine Light School for
Blind & Ors. [ILR 2008 KAR 3983] are also apposite:
“7. We are therefore of the considered opinion that
the contract of vakalathnama can be withdrawn by the
client at any time. There is nothing known as irrevocable
vakalathnama. Precisely the same right has been
exercised by respondent No.1 herein (defendant No.7 in
the suit) who had earlier engaged the petitioners on
their behalf as Advocates to represent them. …………..
8. ……If the Advocate feels that he has any
genuine claim or grievance against his client, the
appropriate course is to return the brief with
endorsement of no objection and agitate such right in an
appropriate forum, in accordance with law and not
indulge in arm twisting methods by holding on to the
brief.”
(Underlining supplied)
6. As could be seen from the observations made in the
two decisions extracted above, a party to a litigation has an
absolute right to appoint an advocate of his choice, to
terminate his services, and to appoint a new advocate. A
party has the freedom to change his advocate any time and
for whatever reason. However, fairness demands that the
party should inform his advocate already on record, though
this is not a condition precedent to appoint a new advocate.
7. There is nothing known as irrevocable vakalatnama.
The right of a party to withdraw vakalatnama or
authorization given to an advocate is absolute. Hence, a
party may discharge his advocate any time, with or without
cause by withdrawing his vakalatnama or authorization. On
discharging the advocate, the party has the right to have
the case file returned to him from the advocate, and any
refusal by the advocate to return the file amounts to
misconduct under Section 35 of the Advocates Act, 1961. In
any proceeding, including civil and criminal, a party has an
absolute right to appoint a new Advocate. Under no
circumstance, a party can be denied of his right to appoint
a new advocate of his choice. Therefore, it follows that any
rule or law imposing restriction on the said right can’t be
construed as mandatory. Accordingly, Courts, Tribunals or
other authorities shall not ask for ‘no objection’ of the
advocate already on record, to accept the vakalatnama filed
by a new advocate.
8. As observed in the decisions referred to above, if an
Advocate is discharged by his client and if he has any
genuine claim against his client relating to the fee payable
to him, the appropriate course for him is to return the brief
and to agitate his claim in an appropriate forum, in
accordance with law.
9. As stated above, under no circumstance, a party can
be denied of his right to appoint a new advocate of his
choice. The right is absolute and not conditional. Hence,
the objection raised by the Registry on the vakalatnama is
overruled. Hereafter, the Registry shall not ask for ‘no
objection’ of the advocate already on record, to accept the
vakalatnama filed by a new Advocate.
Sd/-
JUDGE
Sd/-
JUDGE
KSR
The link to the full decision
http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/143617/1/MFA6526-13-02-12-2016.pdf
