The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 13-Nov-2023 14:03:40 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO.758 OF 2023 Tapan Kumar Behuria …. Petitioner Mr. Satrughna Dash (A), Advocate Sukanta Kumar Sahu …. Opp. Party -versus- Order No. 04. 1. 2. CORAM:
Decision
JUSTICE K.R. MOHAPATRA ORDER 10.11.2023 This matter is taken up through hybrid mode. Order dated 18th May, 2023 (Annexure-2) passed by learned Senior Civil Judge, Jajpur in CMA No.37 of 2023 (arising out of CS No.147 of 2022) is under challenge in this CMP, whereby an application under Section 151 CPC filed by the Plaintiff-Petitioner, has been rejected. 3. Mr. Dash, learned counsel for the Petitioner submits that CS No.147 of 2022 was filed for cancellation of sale deed executed in favour of the Defendant. In the guise of executing the Power of Attorney, the Defendant, who is an influential person and moneyed man, managed to get a registered sale deed in his favour. As such, the suit was filed. During pendency of the suit, an FIR was lodged on false allegations, for which the Petitioner was taken to custody on 1st June, 2022 and he remained as such till 23rd August, 2022. When he was in judicial custody and was put behind bars, the Defendant, by exerting pressure on the wife and children of the Petitioner, managed to file an application through the Petitioner on 8th August, 2022 (Annexure-3) for withdrawal of the suit. The said application was considered on 23rd August, 2022 and the suit was allowed to be withdrawn. Page 1 of 6 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 13-Nov-2023 14:03:40 // 2 // 4. It is his submission that the Defendant, exerting pressure, also managed to change the learned counsel appearing for the Petitioner and engage counsel of his choice, who appeared on behalf of the Petitioner before learned trial Court on 23rd August, 2022 and withdrew the suit. In view of the above, the Petitioner, after being released on bail, filed an application to recall the order dated 23rd August, 2022 (Annexure-1). Learned trial Court by order dated 18th May, 2023 (Annexure-2) passed the impugned order rejecting such application. Hence, this CMP has been filed. 5. Mr. Dash, learned counsel for the Petitioner relied upon the case of Beta @ Bibekananda @ Santosh Hansadah @ Santosh Hansda vrs. State of Odisha reported in 2021 (II) OLR 514, wherein it is held as under: “7. As held by the Hon’ble High Court of Bombay in Shafeeque Ahmed Mohammad Sayeed v. Ansari Bilal Mohd : 2016 SCC Online Bom 14057,, “8.Advocates who have filed a Vakalatnama cannot be discharged at the whim and fancy of a litigant. An application must be made with two clear days’ notice to the Advocate. The reasons for that application are to be set out. Similarly when an Advocate applies for a discharge, he must give the notice of this application to the litigant. … 9. This is a pernicious tendency among litigants. It must be stamped out at once. Whenever litigants perceive (often wrongly) that a particular case is not finding immediate favour with the court, they promptly blame their lawyers and insist on changing them. The objective is to blame the lawyer and to delay judgment, perhaps even to frustrate it. If this does not work, then the next step is, of course, to level allegations against the Court and the individual judge in question. Allowing this conduct undermines our entire legal system. It adds to delays. I will not permit either.” 8. The Hon’ble Supreme Court in M. Poornachandran v. State of T.N.:(1996) 6 SCC 755 was also pleased to hold that; “1. …That apart, he has not obtained “No Objection Certificate” from the Advocate-on-Record in the appeal, in spite of the fact that Registry had informed him of the requirement for doing so. Filing of the “No Objection Certificate” would be the basis for him to come on record. Otherwise, the Advocate-on-Record is answerable to the Court. The failure to obtain the “No Objection Certificate” from the erstwhile counsel has disentitled him to file the review petition. …” Furthermore, a reference may also be made to the Hon’ble High Court of Delhi in Shanti Swarup v. Mahinder Kumar: 1985 SCC Online Del 277, wherein the Hon’ble Court was pleased to hold that; “7. Order 3 Rule 4 of the C.P.C. provides for the appointment of an advocate and the advocate continues his engagement throughout the Page 2 of 6 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 13-Nov-2023 14:03:40 // 3 // pendency of the proceedings. An advocate can be appointed only by a document in writing signed by a litigant or his duly authorized agent. The appointment of an advocate can be brought to an end by the client or by the advocate himself. But this engagement does not come to an end without the leave of the Court sought by the client or the advocate himself. The leave must be sought from the Court in writing. The appointment once made would continue to be valid for the purposes of review or an appeal or similar proceedings. No advocate shall act for any person in any Court unless he is so authorized in writing by the litigant. From the provisions of Order 3 Rule 4 it is clear that unless the leave of the Court is sought in writing, the advocate will continue on record for representing his client. 11. We put blind faith in the lawyer appearing before us and will continue to do so. Can we ask him to show his authority? Can we doubt the statement made at the Bar or to the administrative officers of the Court? We will not do it because the bulk of the Bar is maintaining the professional standards and not abusing the trust. Deviations are few and far in between. But that apart, our article of faith is at stake. If we suspect a lawyer, people will suspect the whole Institution and that will be the beginning of the end of the Institution. 12. The case has exposed some of the weaknesses in the present practice of appearance of advocates in the court and the procedure for adjournment. It is necessary to frame rules to supplement Order 3 on the following lines: in the applications the Court and before “If more than one advocate file a Vakalatnama at the initial stage, the litigant must specify which one of them will act on his behalf. Only one advocate should be responsible for filing the administrative officer of the Court. Such advocate should be the only advocate on whom the service shall be effected by the Court at the future stage in the litigation. The advocate who files his Vakalatnama shall ordinarily be the advocate who will act and plead on behalf of his client. However, if he wants to engage any other advocate for pleading, he must file a memorandum of appearance of the pleader in writing in the Court on the date of the hearing. No counsel other than the one who has filed his Vakalatnama or whose memorandum of appearance is filed in the Court shall be heard by the Court. ….Request the for withdrawal of an advocate proceeding or for engaging any other advocate should be made in writing either by the advocate or by his client. The Registrar may dispose of this application. However, if there is a dispute between the advocate and client in regard to fees or similar matters, the reference may be made to the Court on the administrative side. Ordinarily, an endorsement on the new Vakalatnama (by the previous advocate) that he has no objection to the change should suffice for the purposes of withdrawal by one advocate and engagement of another advocate. Such endorsement would mean that there is no the advocate previously dispute whatsoever between engaged and the client. The Vakalatnama with “No objection” endorsement by a previous advocate should be placed before the Registrar who will pass an appropriate order effecting a change of the counsel.” from Page 3 of 6 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 13-Nov-2023 14:03:40 // 4 // 6. It is his submission that during the relevant period, when the petition under Order XXIII Rule 1 CPC was filed, the Petitioner was in custody. Taking advantage of the same, the Defendant managed to engage some other lawyer without consent of the previous counsel appearing for the petitioner. As such, the counsel, who moved the application for withdrawal of the suit, had no authority to do the same. The Petitioner also filed several documents in support of his case. But without considering the above, the impugned order under Annexure-2 has been passed. Hence, the same is not sustainable and is liable to be set aside. The Petitioner should be permitted to pursue the suit on merit. 7. Upon hearing learned counsel for the Petitioner and on perusal of the record, it appears that the petition under Order XXIII Rule 1 CPC (Annexure-3) was filed, when the Petitioner was in custody. On perusal of the petition under Annexure-3, it appears that the signature of the Petitioner was attested by the Superintendent of Sub-jail, Jajpur where the Petitioner was incarcerated. It is alleged by the Petitioner that without taking consent from the previous counsel, another set of counsel was engaged at the instance of the Defendant for withdrawal of the suit. The copy of the Vakalatnama is not available in the case record to test the veracity of the allegation made by Mr. Dash, learned counsel for the Petitioner. 8. Be that as it may, on perusal of the order dated 23rd August, 2022, it appears that learned trial Court, taking into consideration the petition stating that the dispute has been settled between the parties, allowed the prayer for withdrawal of the suit. Further in the petition for recall of the order dated 23rd August, 2022 in CMA No. 37 of 2022 (Annexure-1) there is no averment to the effect that the Page 4 of 6 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 13-Nov-2023 14:03:40 // 5 // learned counsel appearing for the Petitioner was changed without consent of the previous counsel. It is only stated that the Petitioner had given signature on a blank Vakalatnama while in custody, without understanding the consequences of the same, but the Defendant, using his signature in Vakalatnama, changed the lawyer of the Petitioner and directed the lawyer to withdraw the Civil Suit. The averment at Paragraph-10 of the petition under Annexure-1 clearly indicates that the Plaintiff-Petitioner had given signature on the Vakalatnama. It is not the case of the Plaintiff-Petitioner that without his consent, counsel appearing for him was changed. The falsehood adopted by the Petitioner is apparent from his own conduct from the observation made by learned trial Court while dismissing the petition under Annexure-1. It is categorically observed by learned trial Court that on 23rd August, 2022, the day on which the Petition under Order XXIII Rule 1 CPC was taken up, the Petitioner had appeared through VC from the Jajpur Sub-Jail and agreed to engage Mr. S. Samal and Mr. M.R. Tripathy, learned Advocates by disengaging his lawyer, namely, Mr. Satrughna Das. Thus, the Vakalatnama of Mr. Samal, learned counsel and his associate was accepted and Mr. Das, learned Advocate was disengaged. Further the Petitioner on that date also submitted to withdraw the suit. Accordingly, order dated 23rd August, 2022 was passed allowing the petition for withdrawal of the suit. 9. It is also submitted that although none had appeared on behalf of the Defendant but in the impugned order, learned trial Court observed that the petition was dismissed on contest. The said observation of the learned trial Court cannot be considered that he has not applied its mind to the case of the Petitioner. Page 5 of 6 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 13-Nov-2023 14:03:40 // 6 // 10. Admittedly, the Petitioner had filed an application under Annexur-3 for withdrawal of the suit and his signature was attested by the Superintendent, Sub-Jail, Jajpur. The Petitioner also does not dispute that he had filed an application for withdrawal of the suit. Further appearing through VC he expressed his willingness to withdraw the suit. Since the Petitioner himself has filed an application for withdrawal of the suit and consented for withdrawal of the suit, subsequent application for recall of the order under Section 151 CPC merits no consideration, being misconceived. The conduct of the Petitioner is also deprecated. 11. On perusal of the impugned order, it appears that learned trial Court has taken the pain to discuss the materials on record and passed a reasoned order. 12. In that view of the matter, I am not inclined to interfere with the impugned order. 13. Accordingly, the CMP, being devoid of any merit, stands dismissed. Urgent certified copy of this order be granted on proper application. Rojalin (K.R. Mohapatra) Judge Page 6 of 6