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Tag: R.D. Saxena Vs Balram Prasad Sharma

Ashem Shyamkesho Singh Vs Thokchom Ranjan Meetei on 08 Jul 2016

Posted on March 11, 2021 by ShadesOfKnife

Single Judge bench of Manipur High Court held as follows:

From Para 4,

[4] Although it is nowhere mentioned in the application that the same has been filed under the provisions of CPC, it is the provisions of Order 3 Rule 4(2) of CPC which provide that appointment of an Advocate shall be filed in the court and shall be deemed to be in force until determined with the leave of the court by a writing signed by the client or the Advocate as the case may be. An Advocate does not only represent his client but he is also an officer of the court. In any matter in which he is engaged, he has to assist the court till his vakalatnama is determined in accordance with law.

From Para 6,

The normal conduct of a client is that if he wishes to change his counsel for some reason or the other, he should approach him for return of the brief and to obtain “No Objection” from him. In case his counsel returns the brief, it is well and good and if he refuses to return the brief or refuses to give “No Objection”, the client may invoke the provisions of Order 3 Rule 4 of the CPC to redress his grievances. However, in the present case, the applicants have failed to that and without determining the appointment of their earlier counsel, Shri Ng. Kumar, Advocate, they had moved an application for deleting their names from the array of parties in the writ petition through another Advocate which is unfair and unreasonable on the part of the applicants. The moment an Advocate is engaged, a client is expected to be fair and reasonable to him and ought to give proper instructions accordingly. But in any case and for whatever reasons, the applicants have expressed their view that they don’t want Shri Ng. Kumar, Advocate to continue as their counsel and that a new Advocate be engaged in his place and since the Hon’ble Supreme Court in the said R.D. Saxena’s Case (supra) has categorically observed that 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 would return the brief to the client and it is time to hold that such obligation is not only a legal duty but a moral imperative, this court is of the view that this application is liable to be allowed. In view of the above observations of the Hon’ble Supreme Court, it is the duty of Shri Ng. Kumar, Advocate to give “No Objection” so that the applicants could engage a new Advocate of their choice. If Shri Ng. Kumar, Advocate is of the view that the action of the applicants being unfair and unreasonable, has caused prejudice to his professional right and privilege as a counsel, it is open to him to seek appropriate relief and redress his grievance from an appropriate forum.

Ashem Shyamkesho Singh Vs Thokchom Ranjan Meetei on 08 Jul 2016
Posted in High Court of Manipur Judgment or Order or Notification | Tagged 1-Judge Bench Decision Accused Have Right To Change Advocate Advocate Antics Bar Council of India Rules Part IV Chapter-II Rule 39 CPC Order 3 Rule 4 - Appointment of Pleader Legal Procedure Explained - Interpretation of Statutes R.D. Saxena Vs Balram Prasad Sharma | Leave a comment

New India Assurance Co Ltd Vs A.K.Saxena on 7 Nov 2003

Posted on February 1, 2021 by ShadesOfKnife

Relying on Apex Court decision in R.D. Saxena Vs Balram Prasad Sharma from 2000, Apex Court again held that,

This case is fully covered by a decision of this Court in R.D. Saxena V. Balram Prasad Sharma reported in [2000] 7 SCC 264 wherein this Court has held that advocates have no lien over the papers of their clients. It is held that at the most the advocate may resort to Legal remedies for unpaid remuneration. It has been held that the right of the litigant to have the files returned to him is a corresponding counterpart of the professional duty of the advocate and that dispute regarding fees would be a lis to be decided in an appropriate proceeding in Court.

New India Assurance Co Ltd Vs A.K.Saxena on 7 Nov 2003

Casemine copy:

New India Assurance Co Ltd Vs A.K.Saxena on 7 Nov 2003 (Casemine)

Indiankanoon copy:

New India Assurance Co Ltd Vs A.K.Saxena on 7 Nov 2003 (Indiankanoon)

Citations : [2004 ALLMR SC 5 18], [2003 AIOL 259], [2003 SCALE 9 531], [2004 AIR SC 311], [2004 BOMCR SC 3 753], [2004 SCC 1 117], [2003 SUPREME 8 128], [2004 FLR 102 99], [2004 LLN 1 446], [2003 ALR 53 810], [2003 SUPP SCR 5 387], [2004 JCR SC 2 54], [2004 MLJ SC 2 13], [2003 CTC 4 799], [2004 PLR 136 650], [2004 UJ 1 591], [2004 COMPCAS SC 120 284], [2003 ALL LJ 3062]

Other Sources :

https://indiankanoon.org/doc/463738/

https://www.casemine.com/judgement/in/5609ade6e4b01497114127c5

Posted in Supreme Court of India Judgment or Order or Notification | Tagged New India Assurance Co Ltd Vs A.K.Saxena No Need Of No Objection Certificate (NOC) From Advocate R.D. Saxena Vs Balram Prasad Sharma | Leave a comment

Karnataka Power Distribution Vs M RajaShekar on 2 Dec 2016

Posted on January 31, 2021 by ShadesOfKnife

Karnataka High Court held that (which is wrongly understood by many) once the advocate of a case on record of the Court is discharged, as per procedure established by law (termination letter and communicating the same to advocate), a party has absolute right to engage another advocate and no need of obtaining a separate NOC from the advocate, who was discharged. This was further clarified by a Division Bench here.

From Paras 6 to 9,

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.

Karnataka Power Distribution Vs M RajaShekar on 2 Dec 2016

Citations : [2016 SCC ONLINE KAR 6470], [2017 ILR KAR 59], [2017 AIR KAR 1], [2017 KCCR 1 383], [2017 AIR KANT R 4 210]

Other Sources :

https://indiankanoon.org/doc/128027421/

https://www.casemine.com/judgement/in/5845968353bee765a86aed81

Posted in High Court of Karnataka Judgment or Order or Notification | Tagged 2-Judge (Division) Bench Decision C.V. Sudhindra and Ors. Vs Divine Light School For Blind Karnataka Power Distribution Vs M RajaShekar Need 'No Objection Certificate (NOC)' From Advocate Before Engaging new Advocate R.D. Saxena Vs Balram Prasad Sharma | 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

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
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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