Right of a litigant to withdraw vakalatnama is absolute, Karnataka High Court

​http://barandbench.com/right-litigant-withdraw-vakalatnama-absolute-karnataka-high-court/

http://www.livelaw.in/karnataka-hc-asks-registries-accept-vakalatnama-new-advocates-without-insisting-noc-previous-ones-read-order/

The Karnataka High Court recently ruled that the right of a litigant to withdrawvakalatnama is absolute, and that the Registry of a court should not ask for a ‘no-objection’ from the advocate already on record.

The order was delivered by Justices HG Ramesh and John Michael Cunha on December 2 in a petition filed by the Karnataka Power Transmission Corporation. Advocate Ajith Anand Shetty appeared for the petitioner.

The question which arose for the consideration of the Court was,

“Whether vakalatnama filed by a new advocate is to be accepted in the absence of ‘no objection’ of the advocate already on record.”

The High Court Registry had insisted on a ‘no-objection’ from the advocate already on-record. The petitioner had objected to the same.

Advocate Shetty, appearing for the petitioner, had contended that 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. Hence, a party cannot be compelled to obtain ‘no objection’from the advocate already on record.

He sought for overruling the objection raised by the Registry. In support of his submissions, he relied on two decisions of the Supreme Court in R.D.Saxena v. Balaram Prasad Sharma [AIR 2000 SC 2912], and inNew India Assurance Co. Ltd. v. A.K.Saxena[AIR 2004 SC 311].

The Court relying on these decisions, held that 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. It held that though fairness demands that the advocate already on-record be informed of the change in counsel, it is not a condition precedent for appointing a new advocate.

“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.”

The Court went on to clarify that avakalatnama is not irrevocable and the right of a party to withdraw vakalatnama is absolute.

The Court also made it clear that oncevakalatnama is withdrawn, the litigant has the right to have the case file returned to him by the advocate and any refusal by the advocate to return files will amount to misconduct under Section 35 of the Advocates Act, 1961.

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.”

The Court also held that any rule or law imposing any restriction on the aforesaid right of litigant cannot be construed as mandatory and therefore, no courts, tribunals or other authorities can demand a ‘no-objection’ of the advocate already on record.

“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.”

The Court, therefore, overruled the objection raised by the Registry and directed that the Registry shall not ask for ‘no objection’ of the advocate already on record, to accept thevakalatnama filed by a new Advocate.

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