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Shades of Knife

True Colors of a Vile Wife

Author: ShadesOfKnife

Dasam Vijay Rama Rao Vs M.Sai Sri on 17 June, 2015

Posted on June 25, 2018 by ShadesOfKnife

Hon’ble of Andhra Pradesh High Court has allowed permission for a GPA of a petitioner, to represent the petitioner and depose on his behalf in the court of law.

In view of the above clear cut pronouncement, it is evident that a GPA holder can depose and also lead evidence on behalf of his principal.
Learned Family Court Judge also appears to have entertained an apprehension as to whether the Family Court can entertain an application presented by a legal practitioner in view of the provision contained in Section 13 of the Family Courts Act, 1984.
From the very preamble of the Family Courts Act, 1984, one would gather that every endeavour is required to be made by the Family Court to assist the parties in arriving at a speedy settlement of disputes relating to the marriage and/or family affairs. That explains the reason Section 9 of the said Act provided for an appropriate legal environment for settlement of the disputes in an amicable manner. The parties are not only required to be assisted, but also required to be persuaded by the Judge in arriving at a settlement while keeping in view the importance of protecting and preserving the institution of the marriage between the parties. To the extent possible, the Family Court is required to utilize its skills and wisdom gained over long period of time by careful study of the ills of the society and then finding suitable cure for them and hence, the Family court must try to bring about a reconciliation of the disagreements persisting between the parties. However, when two parties to a marriage come before a Family Court and ask for dissolution of their marriage by mutual consent under Section 13-B of Hindu Marriage Act, 1955, the Court is required to adjourn the motion moved by both parties by a period not earlier than six months, as per sub Section 2 of Section 13-B of the Hindu Marriage Act. Further, Sub Section 2 requires that the Court shall, on being satisfied, after hearing the parties and after making such enquiry as it thinks fit with regard to the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of such decree. Therefore, there may have been a genuine apprehension in the mind of the Family Court Judge as to whether there is any possibility of reconciliation between the parties or change of mind with regard to consent expressed earlier for such dissolution, when the petition is returned by it.
Keeping the very object behind the Family Courts Act, 1984, read with the spirit behind Section 13-B of the Hindu Marriage Act, the Family Court could have entertained the interlocutory application in as much as legal practitioners are not totally forbidden from rendering assistance to the Family Court. One of the reasons why Section 13 of the Family Courts Act, 1984, declared that no party to a suit or proceeding shall be entitled as of right to be represented by a legal practitioner sans technicalities or legal necessities, the parties must be helped by the Court to reconcile the disputes persisting between them. Unlike a traditional setup of the Court, where the Presiding Judge has to maintain not only an equiy distance between the parties to a lis, but also maintain a sense of impartiality towards the cause of both sides and essentially was required to maintain an arms length distance from the parties, in a Family Court, the Judge is donning the robes of a facilitator, a mentor and an expert counselor. A slight tilt in the approach to one of the parties in a Family Court, depending upon the facts and circumstances prevailing in the case and if the ends of justice would be better served by dosing so, is allowable. The emphasis being laid upon essentially preserving the institution and interest of the marriage and the welfare and well-being of the parties etc. Hence, the Family Court is entitled to receive, examine and act upon an affidavit filed by one of the parties before it, acting through a GPA. A petition moved in that regard is maintainable.

Finally,

I am, therefore, of the opinion that the Family Courts are entitled to ascertain the views of the parties and for that purpose adjourning a case by a reasonable period is not to be frowned upon. But, however, if one of the parties, like in the present case, appears before the Family court and expresses no objection for an affidavit of the other party to be taken on record and is not desirous of cross examining the deponent of the affidavit, the Family Court cam entertain, unhesitatingly any such move/application.
Increasingly Family Courts have been noticing that one of the parties is stationed abroad. It may not be always possible for such parties to undertake trip to India, for variety of good reasons. On the intended day of examination of a particular party, the proceedings may not go on, or even get completed possibly, sometimes due to preoccupation with any other more pressing work in the Court. But, however, technology, particularly, in the Information sector has improved by leaps and bounds. Courts in India are also making efforts to put to use the technologies available. ‘Skype’ is one such facility, which is easily available. Therefore, the Family Courts are justified in seeking the assistance of any practicing lawyer to provide the necessary skype facility in any particular case. For that purpose, the parties can be permitted to be represented by a legal practitioner, who can bring a mobile device. By using the skype technology, parties who are staying abroad can not only be identified by the Family Court, but also enquired
about the free will and consent of such party. This will enable the litigation costs to be reduced greatly and will also save precious time of the Court. Further, the other party available in the Court can also help the Court in not only identifying the other party, but would be able to ascertain the required information.

Dasam Vijay Rama Rao Vs M.Sai Sri on 17 June, 2015

Citations : [2015 ALD 4 757], [2015 ALT 5 150], [2015 AIR AP 191]

Other Sources :

https://indiankanoon.org/doc/123683887/

https://www.casemine.com/judgement/in/5608f8e1e4b01497111439d9

Posted in High Court of Andhra Pradesh Judgment or Order or Notification | Tagged 1-Judge Bench Decision Advocates Act Section 32 Dasam Vijay Rama Rao Vs M.Sai Sri Family Courts Act Sec 13 HM Act Sec 13B - Divorce by Mutual Consent Legal Procedure Explained - Interpretation of Statutes Private Person or GPA Holder To Act and Plead for Plaintiff Reportable Judgement or Order Skype facility | Leave a comment

Mukanchand Bothra Vs Inspector of Police on 25 January, 2018

Posted on June 25, 2018 by ShadesOfKnife

Hon’ble Madras High Court has permitted a son, who is not a advocate, to represent his sick father in a case of bail petition.

Mukanchand Bothra Vs Inspector of Police on 25 January, 2018
Posted in High Court of Madras Judgment or Order or Notification | Tagged Advocates Act Section 32 Party In Person Series Private Person or GPA Holder To Act and Plead for Plaintiff | Leave a comment

Advocates Act 1961 Section 32 – Power of Court to permit appearances in particular cases

Posted on June 25, 2018 by ShadesOfKnife

32. Power of Court to permit appearances in particular cases.—

Notwithstanding anything contained in this Chapter, any court, authority, or person may permit any person, not enrolled as an advocate under this Act, to appear before it or him in any particular case.

Posted in Bare Acts or State Amendments or Statutes or GOs or Notifications issued by Central or State Governments | Tagged Advocates Act 1961 Section 32 - Power of Court to permit appearances in particular cases Legal Procedure Explained - Interpretation of Statutes | Leave a comment

CrPC 2(q) – Definition of Pleader per Criminal Procedure Code of India

Posted on June 25, 2018 by ShadesOfKnife

(q) ” pleader”, when used with reference to any proceeding in any Court, means a person authorised by or under any law for the time being in force, to practise in such Court, and includes any other person appointed with the permission of the Court to act in such proceeding;

Posted in Bare Acts or State Amendments or Statutes or GOs or Notifications issued by Central or State Governments | Tagged CrPC 2(q) - Pleader Legal Procedure Explained - Interpretation of Statutes | Leave a comment

Harishankar Rastogi Vs Girdhari Sharma And Anr on 13 March, 1978

Posted on June 25, 2018 by ShadesOfKnife

The Apex Court held as follows in regards to the right or lack thereof of a party to go as in-person in a case in a court. Legendary Judge Krishnaiyer, V.R. has allowed permission to a friend of a Plaintiff, who is not a advocate, to plead his case in court of law.

“1. A private person who is not an Advocate, has no right to barge into Court and claim to argue for a party. He must get the prior permission of the Court for which the motion must come from the party himself. It is open to the Court to grant or withhold permission in its discretion. In fact, the Court may even after grant of permission, withdraw it half-way through if the representative proves himself reprehensible. The antecedents, the relationship, and reasons for requisitioning the services of the private person and a variety of other circumstances must be gathered before grant or refusal of permission.

2. The Advocates are entitled as of right to practice in this Court under S. 30(1) of the Advocates Act, 1961 subject to the reasonable restriction provided under s. 29 of that Act viz. that the only class of persons entitled to practice the profession of law shall be advocates. Even so, it is open to a party, who is unable for some reason or the other to present his case adequately, to seek the help of another person in his behalf. To negative such a plea may be denying justice altogether in certain cases, especially in a land of illiteracy and indigence and judicial processes of sophisticated nature…………….

3. A comprehensive programme of free legal services, is in a sense,a serious obligation of the State if the rule of law were to receive vitality in its observance. Until then, parties should appear through advocates, and where they are not represented by one such, through some chosen friend. Such other person cannot practice the profession of habitually representing parties in Court. If a non-advocate pecialises in practicing in Court, professionally he will be violating the text of the interdict in the Advocates Act, which the Court cannot allow him to do so. Nevertheless it is open to a person who is a party to a proceeding to get himself represented by a non-advocate in a particular instance or case. Practicing a profession means something very different from representing some friend or relation on one occasion or in one case or on a few occasions ,or in a few cases. “

 

Harishankar Rastogi Vs Girdhari Sharma And Anr on 13 March, 1978

Citation: [1977 ACR SC 363], [1978 AIR SC 1019], [1978 SCC 2 165], [1978 SCC CRI 168], [1978 SCR 3 493], [1978 ALR 4 353], [1978 CAR 174], [1978 CRLR 161], [1978 MLJ CRI 1 640], [1978 UJ SC 301], [1978 CRLJ SC 778]

Other Sources:

https://indiankanoon.org/doc/1704613/

https://www.casemine.com/judgement/in/5609abd1e4b014971140d6a8

Posted in Supreme Court of India Judgment or Order or Notification | Tagged Harishankar Rastogi Vs Girdhari Sharma And Anr Landmark Case Legal Procedure Explained - Interpretation of Statutes Party In Person Series Private Person or GPA Holder To Act and Plead for Plaintiff | Leave a comment

Advocate, Lawyer, Pleader, Attorney – Various Terms and their definition

Posted on June 25, 2018 by ShadesOfKnife

Welcome back dear friend.

Gathered from the various sources here are the definitions of different terms for the person who is related to law in a way or more.

 

Lawyer is a person who has completed his bachelors degree in law (LLB) but has not registered his name with any bar council in India.

 

Advocate is a person who has not only completed his law degree but also got his registration done with the bar council and are governed by the Advocates Act, 1961. Thus, advocate is a person who can represent you in a legal dispute before the appropriate court.

 

Pleader includes any person other than one authorised by law to practice in a court if he is appointed with the permission of the court, to act in a particular proceeding (under section 32 of Advocates Act of India, 1961).

Also read this page here:

 

Attorney:

 

Solicitor

 

Barrister

Posted in General Study Material | Tagged Advocates Act Section 32 Legal Procedure Explained - Interpretation of Statutes | Leave a comment

C.V. Sudhindra and Ors. Vs Divine Light School For Blind on 21 July, 2008

Posted on June 25, 2018 by ShadesOfKnife

Another awesome judgment from Karnataka reiterating that when a client loses confidence and faith in his Advocate he can choose to terminate the vakalathnama and seek for return of the case file.

Be that as it may, neither the trial Court in the present suit nor this Court in this petition would be required to go into the correctness or otherwise of the said allegations and counter allegations except to reckon the same to notice that the Advocates on record and their clients have been trading charges against each other, which alone is sufficient for a client to loose confidence and faith in the Advocate so as to choose to terminate the vakalathnama and seek for return of the file. The very fact that the Advocate is clinging on to the file without initiating any other action which would have been open to them in law, if in fact the Trustees had acted contrary to the interest of the Trust would indicate that the contentions put forth before the trial Court was not bonafide, at least in so far as claiming a right to remain on record as saviours of the first respondent when the first respondent has been in existence from the year 1958 as indicated from their letterhead and have taken care of themselves.

Honourable Profession… hmmm

In fact as and when any such unfortunate situation arises, the learned Advocate who has been appearing for such a client, should on his own free will come forward to advise the client to take back the file and should express lack of interest to appear on their behalf. That is why, this profession is known as honourable profession.

C.V. Sudhindra and Ors. Vs Divine Light School For Blind on 21 July, 2008

Other Judgements on this subject here.

Posted in High Court of Karnataka Judgment or Order or Notification | Tagged Accused Have Right To Change Advocate Advocate Antics C.V. Sudhindra and Ors. Vs Divine Light School For Blind No Need Of No Objection Certificate (NOC) From Advocate Sandeep Pamarati | Leave a comment

G Deepak Adv Vs Rangegowda on 1 April, 2014

Posted on June 25, 2018 by ShadesOfKnife

This WP is dismissed by the Hon’ble Karnataka High Court in a dispute between a advocate and his client who wanted to change to a different advocate and seeking No objection certificate.

The writ petition is not maintainable as the relief sought is in respect of breach of contract between a lawyer and his client. The remedy lies elsewhere and not before this court in this writ jurisdiction. The petition is disposed of without prejudice to the claim of the petitioner.

G Deepak Adv Vs Rangegowda on 1 April, 2014

 

Posted in High Court of Karnataka Judgment or Order or Notification | Tagged G Deepak Adv Vs Rangegowda No Need Of No Objection Certificate (NOC) From Advocate | Leave a comment

Rangegowda Vs G.Deepak Adv on 7 July, 2014

Posted on June 25, 2018 by ShadesOfKnife

Awesome Judgment from Hon’ble Karnataka High Court that vividly affirms that there is no need for a No Objection certificate from a advocate if a client wants to change to a different advocate.

 

The second respondent in any event cannot hold on to the brief when the petitioner has issued a notice terminating his Vakalathnama and has sought for issue of “No objection”.

Rangegowda Vs G.Deepak Adv on 7 July, 2014

 

A earlier judgment related to same parties here.

Posted in High Court of Karnataka Judgment or Order or Notification | Tagged Advocate Antics No Need Of No Objection Certificate (NOC) From Advocate Rangegowda Vs G.Deepak Adv Sandeep Pamarati | Leave a comment

R.D. Saxena Vs Balram Prasad Sharma on 22 August, 2000

Posted on June 25, 2018 by ShadesOfKnife

This is a wonderful judgment from Hon’ble Supreme Court of India on two aspects

(a) Has the advocate a lien for his fees on the litigation papers entrusted to him by his client?

(b) Does the client has freedom to choose and engage a advocate and change the advocate?

Thus, even after providing a right for an advocate to deduct the fees out of any money of the client remaining in his hand at the termination of the proceeding for which the advocate was engaged, it is important to notice that no lien is provided on the litigation files kept with him. In the conditions prevailing in India with lots of illiterate people among the litigant public it may not be advisable also to permit the counsel to retain the case bundle for the fees claimed by him. Any such lien if permitted would become susceptible to great abuses and exploitation.

… and more…

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.

In criminal cases, every person accused of an offence has the right to consult and be defended by a legal practitioner of his choice which is now made a fundamental right under Article 22(1) of the Constitution. The said right is absolute in itself and it does not depend on other laws. In this context reference can be made to the decision of this Court in State of Madhya Pradesh vs. Shobharam and ors. (AIR 1966 SC 1910). The words of his choice in Article 22(1) indicate that the right of the accused to change an advocate whom he once engaged in the same case, cannot be whittled down by that advocate by withholding the case bundle on the premise that he has to get the fees for the services already rendered to the client.

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.

R.D. Saxena Vs Balram Prasad Sharma on 22 August, 2000

Citations : [2000 AIR SC 3049], [2001 ALLMR CRI SC 375], [2000 ALT SC 5 1], [2001 BLJR 1 174], [2000 CTC 3 757], [2001 GLH 3 624], [2000 JT SC 9 432], [2000 KLT SC 3 438], [2001 LW 1 284], [2001 MHLJ SC 1 23], [2000 MPLJ SC 613], [2000 PLJR 4 161], [2000 RD 91 692], [2000 SCALE 6 42], [2000 SCC 7 264], [2000 SUPP SCR 2 598], [2001 UJ 1 27], [2000 UPLBEC 3 2404], [2000 AIR SC 2912], [2000 CTR 163 32]

Other Sources :

https://indiankanoon.org/doc/151656/

https://www.casemine.com/judgement/in/5609ad8de4b0149711411a9d

https://www.indianemployees.com/judgments/details/r-d-saxena-vs-balram-prasad-sharma

http://www.briefcased.in/r-d-saxena-vs-balram-prasad-sharma/

https://www.legalauthority.in/judgement/r-d-saxena-vs-balram-prasad-sharma-22160


Karnataka High Court Judgments:

  • NOC not required
Karnataka Power Distribution Vs M RajaShekar on 2 Dec 2016
  • NOC required:
Bhagya Vs Jayalakshmi on 13 Feb 2019

Other Judgements on this subject here.

Posted in Supreme Court of India Judgment or Order or Notification | Tagged 2-Judge (Division) Bench Decision Accused Have Right To Change Advocate Advocate Antics Advocate Doesnot Have Lien Landmark Case Legal Procedure Explained - Interpretation of Statutes R.D. Saxena Vs Balram Prasad Sharma Reportable Judgement or Order Sandeep Pamarati | Leave a comment

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