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Tag: Advocates Act Section 32

Change the Advocate

Posted on January 21, 2021 by ShadesOfKnife

Here are few case laws to support your effort in changing an advocate who is already on record of a Court in your cases.

 

  1. R.D. Saxena Vs Balram Prasad Sharma on 22 August, 2000
  2. New India Assurance Co Ltd Vs A.K.Saxena on 7 Nov 2003 [SC]
  3. C.V. Sudhindra and Ors. Vs Divine Light School For Blind [KarHC]
  4. Karnataka Power Distribution Vs M RajaShekar on 2 Dec 2016 [NOC not required to engage new advocate, if the advocate was discharged by client, following the procedure established by law]
  5. Bhagya and Ors Vs Jayalakshmi and Ors on 13 Feb 2019 [Only after the advocate was discharged by client, following the due procedure established by law, a client can engage a new advocate]
Posted in Assorted Court Judgments or Orders or Notifications | Tagged Accused Have Right To Change Advocate Advocate Doesnot Have Lien Advocates Act Section 32 Need 'No Objection Certificate (NOC)' From Advocate Before Engaging new Advocate No Need Of No Objection Certificate (NOC) From Advocate Summary Post | Leave a comment

T.C. Mathai and Anr Vs The District and Sessions Judge on 31 March, 1999

Posted on August 1, 2019 by ShadesOfKnife

Apex Court held as follows, in last paragraph,

“Be that as it may, an agent cannot become a pleader for the party in criminal proceedings, unless the party secures permission from the court to appoint him to act in such proceedings. The respondent-couple have not even moved for such permission and hence no occasion has arisen so far to consider that aspect.”

Key passages from the judgment are,

The definition [of a Pleader u.s 2(q) of CrPC] envelopes two kinds of pleaders within its ambit. The first refers to legal practitioners who are authorised to practise law and the second refers to any other person. If it is the latter its essential requisite is that such person should have been appointed with the permission of the court to act in such proceedings. This is in tune with Section 32 of the Advocates Act 1961 which empowers a Court to permit any person, who is not enrolled as an advocate to appear before it in any particular case. But if he is to plead for another person in a criminal court, such permission should be sought for by that person.
It is not necessary that the pleader so appointed should be the power of attorney holder of the party in the case. What seems to be condition precedent is that his appointment should have preceded by grant of permission of the court. It is for the court to consider whether such permission is necessary in the given case and whether the person proposed to be appointed is capable of helping the court by pleading for the party, for arriving at proper findings on the issues involved in the case.

………..

But if the person proposed to be appointed by the party is not such a qualified person the court has first to satisfy itself whether the expected assistance would be rendered by that person. The reason for the Parliament for fixing such a filter in the definition clause [Sec.2(q) of the Code] that prior permission must be secured before a non-advocate is appointed by the party to plead his cause in the court, is to enable the court to verify the level of equipment of such person for pleading on behalf of the party concerned.

T.C. Mathai and Anr Vs The District and Sessions Judge on 31 March, 1999

Precedent used is here


Indiankanoon.org link: https://indiankanoon.org/doc/1728750/

Citation: [1999 SCC 3 614], [1999 AIR SC 1385], [1999 AIR SC 1062], [1999 SUPREME 3 308], [1999 SCC CRI 455], [1999 CRLJ SC 2092], [1999 SCALE 2 359], [1999 ACR SC 1 915], [1999 ALT CRI 1 226], [1999 CTC 1 720], [1999 GLH 1 829], [1999 KLJ 1 879], [1999 KLT SC 2 156], [1999 LW CRL 2 658], [1999 RCR CRIMINAL 2 373], [1999 SCR 2 305], [1999 JT SC 2 494], [1999 AIR SCW 1062]

Posted in Supreme Court of India Judgment or Order or Notification | Tagged Advocates Act Section 32 CrPC 2(q) - Pleader CrPC 303 - Right of person against whom proceedings are instituted to be defended Landmark Case Legal Procedure Explained - Interpretation of Statutes Party In Person Series Power of Attorney T.C. Mathai and Anr Vs The District and Sessions Judge

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

Section 32 of Advocates Act, 1961 – 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 Section 32 Legal Procedure Explained - Interpretation of Statutes | 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

Goa Antibiotics and Pharmaceuticals Ltd. Vs R.K. Chawla on 4 July, 2011

Posted on June 25, 2018 by ShadesOfKnife

Hon’ble Apex Court in this judgment, had rejected the application of a Deputy Manager of a Company to appear and argue on behalf of the petitioner-Company.

A natural person can, of course, appear in person and argue his own case personally but he cannot give a power of attorney to anyone other than a person who is enrolled as an advocate to appear on his behalf. To hold otherwise would be to defeat the provisions of the Advocates Act.

Who can be Party in Person?

Section 32 of the Act, however, vests discretion in the court, authority or person to permit any person who is not enrolled as an advocate to appear before the court and argue a particular case. Section 32 of the Act is not the right of a person (other than an enrolled advocate) to appear and argue before the court but it is the discretion conferred by the Act on the court to permit any one to appear in a particular case even though he is not enrolled as an advocate.

… and more…

We make it clear that as regards artificial persons like a company registered under the Indian Companies Act, or a registered co-operative society, or a trust, neither the Director of the Company nor member of the Managing Committee or office bearer of the registered society or a trustee has a right to appear and argue on behalf of that entity, since that entity is distinct from its shareholders or office bearers or directors. However, it is the discretion of the court under Section 32 of the Act to permit such person to appear on behalf of that entity.

From Para 7,

7. There is a distinction between the right to appear on behalf of someone, which is only given to enrolled lawyers, and the discretion in the court to permit a non-lawyer to appear before it. Under Sections 29 and 33 of the Act only those persons have a right to appear and argue before the court who are enrolled as an advocate while under Section 32 of the Act, a power is vested in the court to permit, in a particular case, a person other than an advocate to appear before it and argue the case. A power-of-attorney holder cannot, unless he is an enrolled lawyer, appear in court on behalf of anyone, unless, permitted by the court under Section 32 of the Act, though of course he may sign sale deeds, agreements, etc. and do other acts on behalf of someone else, unless prohibited by law.

Goa Antibiotics and Pharmaceuticals Ltd. Vs R.K. Chawla on 4 July, 2011

Citations : [2011 ACR SC 2 2269], [2011 JKJ SC 3 56], [2011 JT SC 7 559], [2011 KLT SC 3 498], [2011 RCR CIVIL 4 252], [2011 SCALE 7 413], [2011 SCC 15 449], [2011 SCR 7 846], [2014 SCC CIV 2 617], [2011 MWN CR 3 290], [2011 AIOL 469], [2011 RCR CIVIL SC 4 257], [2011 KLT 3 498], [2011 JT 7 559]

Other Sources :

https://indiankanoon.org/doc/170747848/

https://www.casemine.com/judgement/in/5609af02e4b0149711415575


 

Posted in Supreme Court of India Judgment or Order or Notification | Tagged 2-Judge (Division) Bench Decision Advocates Act Section 32 Goa Antibiotics and Pharmaceuticals Ltd. Vs R.K. Chawla Landmark Case Private Person or GPA Holder To Act and Plead for Plaintiff Reportable Judgement or Order | Leave a comment

NagarathnaMurthy Vs S Narayanappa on 20 November, 2011

Posted on June 25, 2018 by ShadesOfKnife

In this judgment of Hon’ble Karnataka High Court, the General Power of Attorney Holder was allowed to act on behalf of Plaintiff under Section 32 of Advocates Act. This is done under the discretionary power of Hon’ble Court and on application of Plaintiff. Plaintiff can not claim this to be one of his rights.

NagarathnaMurthy Vs S Narayanappa on 20 November, 2011

 

Posted in High Court of Karnataka Judgment or Order or Notification | Tagged Advocates Act Section 32 NagarathnaMurthy Vs S Narayanappa Private Person or GPA Holder To Act and Plead for Plaintiff | Leave a comment

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