TMI Blog1992 (12) TMI 230X X X X Extracts X X X X X X X X Extracts X X X X ..... be considered as to whether this practice is in accordance with law and as to whether an Advocate can be permitted to combine the role of a Constituted Attorney of a suitor and that of an Advocate/Solicitor on record of the same case. Since a doubtful practice of this kind has grown up in this Court for many years, this aspect shall have to be examined after issue of notice to the Bar Council of Maharashtra and the Incorporated Law Society. This can be done separately although the occasion for examining the question arises in this petition. 2. In this background, I formulated the following questions for consideration of this Court in this respect. (i) Whether an Advocate is entitled to act as Constituted Attorney of a party with authorisation to sign the pleadings and affidavits on behalf of the suitor as well as to act and plead for the party concerned in the same litigation? (ii) Whether the existing practice followed by firm of Advocates/Solicitors/Attorneys particularly in case of non-resident clients as aforesaid is in conformity with law and the recognised rules of professional ethics? (iii) Any other question which may be incidental to the question Nos. 1 and 2? ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parties not resident within the local limits of the jurisdiction of the Court within which limits the appearance, application or act is made or done, authorising them or him to make and do such appearances, applications and acts on behalf of such parties. Thus as far as our State is concerned, recognised agents must hold a General Power of Attorney and not a special Power of Attorney except to the extent permissible in the exception carved out as aforesaid. The said amended rule provides that In case of parties non resident within the local limits of the jurisdiction of the Court a suitor can appear through a recognised agent by executing a special Power of Attorney in favour of an attorney of the High Court (meaning thereby an Advocate), in case the proceedings are filed or continued in the High Court of Bombay and in favour of any advocates or pleader in case the proceedings are filed before the District Court. Order III Rule 4 of the Code of Civil Procedure provides that; No pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognised agent or by some other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereof are entitled to appear, act or plead in such court. If, a suitor appoints a firm of advocates as his, her or its advocate, it follows that the suitor has appointed all the partners of the said firm as his advocates and each one of the partners of the said firm is under an obligation to act consistently with his professional obligation arising from acceptance of the said vakalatnama. Neither of the partners of such firm of Advocates or Solicitors can act in respect of the same cause in a manner inconsistent with obligations arising from appointment of firm of Advocates a Advocates for the Cause. 6. Section 49 of the Advocates Act 1961 empowers the Bar Council of India to frame rules laying down standard of professional conducts and etiquette, the said rules are not exhaustive. Rule 9 of the said rules provide that an advocate should not act or plead in any matter in which he is himself pecuniarily interested . Rule 13 of the said rules provides that: An Advocate should not accept a brief or appear in a case in which he has reason to believe that he will be a witness, and on his being engaged in the case, it becomes apparent that he is a witness on a material quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plete impartiality and detachment and not entitled to identify themselves with the clients or the cause personally. The paramount duty of an Advocate is to assist the Court in its task of administering justice. In, the event of there being any conflict between interest and duty, the Advocate must yield in favour of his duty to assist the cause of fair and impartial justice. An Advocate is expected to be fair and reasonable towards his opponent. All these principles bind the Advocates in discharge of their professional duties. Advocates belong to noble profession of law. On the other hand, a constituted attorney is entitled to identify himself with the donor of Power of Attorney and act in the same manner as the suitor-litigant is entitled to act. An Advocate is governed not merely by written provisions of the Advocates Act 1961 but also by traditions of the Bar built up for generation during the course of administration of justice for centuries. It is provided by Order III Rule 4 of the Code of Civil Procedure that a vakalatmana should be signed by the party or by his recognised agent in favour of the pleader. The question to be asked illustratively is as to whether the pleader act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Advocate/Solicitors acts, appears and pleads in a professional capacity. The said practice is not sanctioned by law. To my mind such a practice is opposed to law. 9. Shri Ajit P. Shah, the learned Counsel appearing for the Bar Council of Maharashtra and Goa has invited the attention of the Court to several authorities and passages from leading text books on professional ethics and particularly a passage from page 187 of Sanjiva Row's Commentaries on Advocate's Act and Legal Practitioners Act, 5th Edition summarising with two English cases referred to therein. The relevant portions from the said book are extracted hereinafter : -- In New Burnswich and Canada Railway Co. v. Conybears (sic) the Respondent was a Barrister. On the first day of hearing the leading Counsel for the Respondent suggested that the Respondent might appear at his junior in the cause. The Lord Chancellor (Lord Westbury) said : Certainly. But not as a party and counsel. The respondent must elect to argue in person or not. There cannot be a mixture of the two characters . (The underlining is done to supply emphasis). On principle, the Advocate cannot act in dual capacity and cannot be a mix ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the firm. All the partners need not place their signatures on the vakalatnama. Each and every partner of Advocates' firm is enjoined to act in such cases in professional capacity or no other capacity. No conflicting role can be assumed by one or other partners of the same firm in respect of the same cause or the matter. 12. There is an additional facet. On close scrutiny of Order III Rule 4 of the Code and other connected provisions, I hold that an Advocate acting in professional capacity must be independent of the suitor or his constituted Attorney. Rule of professional ethics framed by the Bar Council clearly provide in terms that no one can accept a brief or appear as an advocate if he is likely to be a witness in the case. Affidavits may be filed under Order XIX Rule 2 of the Code of Civil Procedure. On several occasions Affidavits are filed, by the constituted attorney of the suitor. Pleadings can be signed and verified by a Constituted Attorney. Once the constituted attorney of a suitor files an affidavit, he can be summoned by the Court at the instance of other side or suo motu for cross-examination. The very possibility of the advocate holding power of Attorney being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M. Hastley was entitled to act as recognised agent of the plaintiffs by virtue of a General Power of Attorney executed by the client in favour of M/s. Little and Co., a firm of Solicitors of which Mr. Hastley was a partner. M/s. Little and Co. were acting as attorney for the plaintiffs in that case. It was argued before the Court in this case that Order III Rule 2(a) of the Code of Civil Procedure as amended in Bombay provided that an attorney may act for a non-resident client in pursuance of a special power of attorney from a suitor and the Attorney concerned could not therefore, act on basis of a General Power of Attorney from the client. It was held by the Court that an attorney of the High Court could sign the pleadings on behalf of the plaintiff whether authorised to do so under a special power of attorney or as under a general Power of Attorney. I have read and re-read this judgment. With respect, this judgment has no relevance for purpose of consideration of questions formulated herein. I have already observed that the Order III Rule 2, Order III Rule-4 of the Code of Civil Procedure read with Order XIX Rule 2 of the Code of Civil Procedure contemplated inherent and implied ..... X X X X Extracts X X X X X X X X Extracts X X X X
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