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”.
A earlier judgment related to same parties here.
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.
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:
Other Judgements on this subject here.
This is a wonderful and interesting judgment from Hon’ble Allahabad High Court involving advocate fraud.
Salient Point of interest:
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In this case, the advocate asked for a percentage of the alimony amount from the Knife !!
Interesting act of counsel !!
In Para 14,
Strangely, when the appellant’s application for the payment of current maintenance in C.M. No.18869 of 2013 was listed on 27.5.2014 before the High Court along with other connected matters in Appeal (Crl. Misc. Case No.1975 of 2013) preferred by the respondent, the application of the appellant was dismissed as “not pressed” on representation made by the counsel appearing for the appellant. The
appellant appeared in person before us and made a statement that such instructions not to press the application were never given to the counsel who appeared in the High Court and hence the present appeal.
The same parties have been fighting DVC case still and the case number at Apex Court is “Petition(s) for Special Leave to Appeal (Crl.) No(s). 3935/2016“.
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Another instance of advocate fraud this time whereby an advocate demanding percentage on the permanent alimony is against professional ethics which is not permissible in law.
Gujarat High Court delivered this Judgment highlighting many key judicial aspects.
Merely because the husband is possessing valuable movable and immovable properties it is hardly of any relevance in the matter for grant of temporary maintenance. It is understandable if the husband is having regular income from the properties then it may be taken into consideration. However, as per the case of the petitioner herself, these are all ancestral properties and at this stage, it is difficult to find out what is the ultimate share of the husband – respondent therein. The petitioner has not given out what regular income per month husband is getting from these properties. The valuation of properties irrespective of the fact whether what is stated is correct or not, is not sufficient to take that what claim has been made for maintenance and other things has to be accepted.
Key point to note is:
To reach to a reasonable sum of maintenance to be awarded to the wife on her application under section 24 of the Hindu Marriage Act what income regularly per month the husband is having has to be considered. He is in employment and accordingly his salary is taken into consideration and the amount of interim maintenance awarded can not be interfered with.
Exploitation of petitioner by advocate:
The rejoinder affidavit has given shocking facts and really after going through the contents of this affidavit, it touches the conscience of the court that how the lady who has no source of income whatsoever and entitled for free legal aid under the Legal Services Authorities Act, 1987 has been exploited by an advocate.
Final touch:
The petitioner was entitled for free legal aid but she could not get this facility either because of unawareness of her right or that her advocate has not made known her of this right, the innocent husband cannot be saddled with the costs of this revision application. Hence, no order as to costs.
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