Senior advocate can appear as counsel and argue the case if son is advocate on record
2) it is not necessary that senior advocate be advocate on record
Advocate without Vakalatnama
A Junior Advocate has appeared on behalf of JD in my EP with proper Vakaltnama signed by JD. The said Jr. Advocate filed his objection to EP on first date fixed by EC. The said VP stands only in the name of that Jr. Advocate. No other Adv's name is mentioned. the said Jr. Advocate did not appear from second date till today, But VP is still alive on the record of Court as "AoR for JD". Similarly JD also did not appear for a single time on all dates. IN short from the first appearance both of them did not appear before Court. His objection application is pending as it is in Court. No order is passed on that Appln such as "Other side to say". Therefore DH did not file any say on it. He choosed to argue directly without filing say as per situation which may arise later on. Now the twist : The senior advocate who is father of above Jr. Advocate appeared on next hearing date (I.e. after filing of objection application by his son that is the Jr. Advocate). The senior advocate filed same (ditto) application under Section 47 on the date of his appearance. This Application though appears that it is filed for JD, the same is not signed by JD anywhere in appln. The said Application is filed (1) without Signature of jd (2) without Vakaltnama (3) vithout verification (4) without affidavit (5) without any papers. The Court directed DH to file say on appln filed by Senior Advocate. DH filed say by taking primary objection that the senior advocate is not advocate in the litigation for two reasons (1) Hee is not Authorised by JD, as the appln is filed by Advocate under his signature. (2) The appln also not counter signed by JD (3) No Vakaltnama is filed (4) No permission is taken from Court to file Vakaltnama as per rules (7) The earlier Jr. Advocate is not discharged by any reason as his Vakaltnama is still alive and on the record (8) The Senior Advocate did not obtain "NoC" from Jr. Advocate (9) The Jr. Advocate did not file discharge letter before Court or to HD (10) JD did not file any letter that he is discharging earlier Advocate to whole he appointed as Authorised Adv. On my preliminary objection the Senior Adv filed reply mentioning that the earlier advocate is his son therefore both of them made some arrangement in family while appearing in any matter. According to me. Both advocates are registered as per Advocate Act and both have independent identity, which cannot be club together unless provided in Vakaltnama, so NoC or Discharge is mandatory. Court is not that serious on my preliminary objection but ready to hear both appln together on comming date. Now my Question. :Before Senior Advocates starts his argunent on the merits of facts of appln he filed, can submit that " The Senior Advocate is not AoR & not to be permitted to argue unless and until he satisfies the Court his capacity b4 arguing without VP /NoC /Permission of Court. Therefore, the appln be dismiss, if he fails to satisfy abt his Authorisation.
Asked 1 year ago in Civil Law
14 Answers
Your objection is valid if vakalatnama filed by Jr. Advocate is not signed by Sr. Advocate. However, you cannot dictate as to who should argue the case or that who cannot argue the case. It is court to permit or deny. An advocate can also appear as proxy consel in the case. You can argue your case only. So far application is concern that too can be decide by court only. As you said that Jr. Advocate had earlier filed same application so court can also take up application filed by Jr. Advocate.
You have already filed your objection properly on all the points of concern hence you may stick on to our objection itself and present your argument on the next hearing on the same lines.
However please note that the senior advocate and his son if are from the same office then the senior advocate can appear on behalf of his team
- As per Allahabad High Court judgement in the matter of the Baru Singh (Deceased By L.R.) Versus Babu Ram Sharma, held , that a Signed Vakalatnama is required to be obtained by a lawyer from his client when it is to be filed in Law Court or Tribunal to plead on behalf of his client.
- Further, as per Order III Rule 4 of the Civil Procedure Code , A pleader can only plead the case of a party in a court only if he has filed his memorandum of appearance and has mentioned the names of the parties to the suit, name of the party who he is representing and name of the person who has authorised him to appear in the suit.
- Further, as per Supreme Court of India , in the matter of Rameshwar Prasad Goyal held that , a lawyer cannot argue in the a case without filing POA in the form of vakalatname.
- Hence, the said senior lawyer having no legal right to appear and argue in the case without filing a proper vakalatname. , and hence you can argue on the said matter , and pray for dismissal of the application on this ground.
The preliminary objection regarding earlier advocate not being discharged and present adv not have taken any noc , is a WASTE OF TIME
Its like being hyper technical
Plz argue both the applications on merits. Other preliminary objections you can always take.
But the present objection regarding earlier and present advocate is not going to help you in any way
Yes you can submit. But the issue of Vp is not so important
Thanks for replying. However I wish to draw kind attention on below : 1. Gazette of Magaeashtra Govt published on 11.01.1973 wherein at No. P. 0108 /61 the amendment carried by Bombay High Court came into effect from 01.02.1973 as per Serial No. 11 states as : No Advocate shall be permitted to file an appointment or memorandum of appearance in the proceeding in which another Advocate is already on record for the same party save with the consent of the former Advocate on record or the leave of the Court, unless the former Advocate has ceased to practise or has by reason of infirmity of mind or body or otherwise become unable to continue to act. 2. Rules framed by the High Court under Section 34 (1) of the Advocates Act 1961 : Rule 652 (1) No Advocate shall Act for any person in any Court unless he has been appointed for the purpose by such person by a Vakaltnama in the form annexed hereto and signed by such person or by his recognised agent or by some other person duly authorised by or under a power of Attorney to make such appointment. 3. In the case of "M. Poornachadran & Anr vs Srate of Tamil Nadu & ors decided on 06.11.1996 by Bench of Three Judges held as below : ..............It would be not in the interest of the profession to permit such practice. That part, he has not obtained "No Objection Certificate" from the Advocate-on-Record in the appeal...........Filing of the "No Objection Certificate" would be the basis for him to come on record. Otherwise the Advocate on record is answerable to Court. The failure to obtain "NoC" from the erstwhile counsel has disentitled him to file review petition.....on these grounds, we dismiss the review petition. This decision of SC has taken up by many HC in many cases. 4. Senior Counsel in HC and SC are different than at District level. In HC and SC the Adv is appointed as Senior Counsel by Court of Law where VP is not required but in District Court , Advocates are said Senior by practice not by appointment
Asked 1 year ago
You should fight your case on merits
your application to dis entitle senior advocate to appear to argue the case would be rejected
You seem to not read replies. You have misconstrued and wrongly applied the rules. In trial court also a lawyer can appear as proxy counsel, by filing memo of appearance and slso as a arguing advocate with the oral permission of court and for that purpose vakalatnama is not required. Even if your objection is taken as correct then also it may be irregularity but not illegality.
The earlier advocate is the son of the subsequent advocate
The subsequent advocate has filed an affidavit stating that there is some arrangement between him and his son as regards the matter on hand
So that is consent/noc by implication by the former advocate
Further neither the earlier advocate has come forward to object against his father representing the JD nor has the JD so far objected against her representation by the subsequent advocate
You are burning yourself unnecessarily
Rather than focusing on the main points you are merely going after preliminary objections regarding earlier and present advocate, which will hold no water
You can nevertheless take this objection alongwith other objections. Had this objection been the sole objection , it would not help having the JD's application dismissed on that point alone at the threshold
AOR has simply availed services of a senior to argue. The senior needn't file any vakalatnama in such a scenario as the junior remains the AOR.
- I have already replied your query above
- Further, if the application file by the senior lawyer is not signed by the party , then itself it will be dismissed by the court .
You have already filed the objections from your side.
Section 47 deals with the power of court executing decree. The executing court have the power to consider each and every question which is determined while passing the decree by the other or same court. All questions must arise between the parties to the suit or their representative.
You are concerned with the execution of the decree or you want to unnecessarily stretch the issue at the preliminary stage itself which is nothing but you are putting an obstruction to your own case by yourself.
The senior advocate is the father of the junior advocate, first of all without knowing the proper details of the office to which both belong your objections raised in this aspect will not be accepted by court
As stated the issue of VP is blown out of proportion by you
Dear Client
Enforce Applicable Rules and Regulations: You have correctly pointed out various provisions from the Bombay High Court and Advocates Act that require proper authorization (Vakaltnama) and/or a No Objection Certificate (NOC) when changing legal representation. You can continue to argue before the court that the senior advocate's appearance is in violation of these rules.
Request Discharge of Earlier Advocate: You can emphasize that the junior advocate who initially appeared on behalf of JD has not been discharged by JD, and his Vakaltnama is still on record. This is a valid point, and it should be brought to the court's attention. It's important to highlight the need for a formal discharge or NOC in such situations.
Invoke Supreme Court Precedent: The decision of the Supreme Court in the case sets a precedent that obtaining a No Objection Certificate (NOC) from the previous counsel is crucial. You can refer to this case and argue that the senior advocate's failure to obtain an NOC should disqualify him from representing JD.
Emphasize the Distinction Between Senior Counsel and District Advocates: You've rightly mentioned the distinction between senior counsel in high courts and district-level advocates. Emphasize the local court's requirement for proper authorization through a Vakaltnama and the need for adherence to local court rules.
Argue the Lack of Consent from the Previous Advocate: Stress that the junior advocate and the senior advocate did not provide any evidence of consent or an arrangement between them regarding representation in this case. Highlight that this absence of consent or arrangement violates the established rules and norms.
Seek Dismissal of the Senior Advocate's Application: Before the senior advocate begins his arguments on the merits of the case, you can request that the court dismiss his application on the grounds that he has not satisfied the court regarding his authorization to represent JD. You can refer to the relevant rules and precedents as discussed above to support your argument.
Ultimately, the court will decide how to proceed based on the arguments presented by both parties. It's important to ensure that your objections are well-documented and supported by relevant legal provisions and precedents. Additionally, consulting with a senior advocate or legal expert who specializes in such matters in the specific jurisdiction may provide valuable insights and strategies
