Gauhati High Court
Ismail Hoque vs Jinnatara Begum And 3 Ors on 12 June, 2024
Author: Sanjay Kumar Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/5
GAHC010111022024
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP(IO)/189/2024
ISMAIL HOQUE
S/O- LATE KHOKA SHEIKH, R/O- SARAIGHAT NAGAR, NEAR MOSQUE, P.O.
PANDU, P.S. JALUKBARI, DIST- KAMRUP (M), ASSAM, E-MAIL ID-
[email protected], MOBILE NO.- 9678801275
VERSUS
JINNATARA BEGUM AND 3 ORS
D/O- LATE MOTIUR RAHMAN, R/O- C.R. DAS ROAD, WARD NO.8, DHUBRI
TOWN, BUILDING OF BANDHAN BANK, NEAR HORISABA, P.O. P.S.
DHUBRI, DIST.- DHUBRI, ASSAM, PIN- 783301, MOBILE NO. 6003974676
2:SMTI. ZARIN RAHMAN
W/O- SRI QAMAR YUSUF
PERMANENT RESIDENT OF HOUSE NO. 42M/2M
AINUDDINPUR
NEAR CHETNA BOYS INTER COLLEGE
P.O. P.S. KARELI
DIST.- ALLAHABAD
UTTAR PRADESH
PIN- 211016 CORRESPONDING ADDRESS- C/O- JINNATARA BEGUM
R/O- C.R. DAS ROAD
WARD NO.8
DHUBRI TOWN
BUILDING OF BANDHAN BANK
NEAR HORISABA
P.O. P.S. DHUBRI
DIST.- DHUBRI
ASSAM
PIN- 783301
MOBILE NO. 6003974676
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3:MR. HARMOHAN DAS
PUBLIC PROSECUTOR OF THE COURT OF DISTRICT AND SESSION JUDGE
DHUBRI
MEMBER OF DHUBRI BAR ASSOCIATION
P.O. P.S. DHUBRI
DIST.- DHUBRI
ASSAM
PIN- 783301
MOBILE- 9435324196
4:MR. JAMSHEDUL BARI SARCAR
MEMBER OF DHUBRI BAR ASSOCIATION
P.O. P.S. DHUBRI
DIST.- DHUBRI
ASSAM
PIN- 783301
MOBILE- 943584897
BEFORE
Hon'ble MR. JUSTICE SANJAY KUMAR MEDHI
Advocates for the appellant : Shri M. H. Ahmed, Advocate.
Advocates for the respondent : xxxx
Date of hearing : 12.06.2024
Date of Judgment : 12.06.2024
Judgment & Order
Heard Shri M. H. Ahmed, learned counsel for the petitioner, who has filed
this application under Article 227 of the Constitution of India challenging an
order dated 22.04.2024 passed by the learned Civil Judge, Dhubri in TS No.
7/2023.
2. By the aforesaid order, leave has been granted to the respondent to engage
another counsel.
3. It is submitted that the petitioner, who is an advocate was initially engaged
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by the respondent nos. 1 and 2 to represent themselves in TS No. 7/2023.
However, during the pendency of the suit, they wanted to engage respondent
nos. 3 & 4 as their counsel and accordingly, the application was filed for leave of
the Court for such change of counsel and engagements of respondent nos. 3 &
4. It is the case of the petitioner that the respondent nos. 1 & 2 did not seek
any no objection from the petitioner and without such no objection, new
counsel could not have been engaged. The learned counsel has referred to Rule
12 of the Gauhati High Court (Conditions of Practice of Advocates)
Rules, 2010. Reliance has also been placed upon the judgment of the Hon'ble
Supreme Court in the case of M. Poornachandran and Anr Vs State of
Tamil Nadu and Ors. reported in (1996) 6 SCC 755 and another judgment
of the Hon'ble Orissa High Court in Beta @ Bibekananda @ Santosh
Hansdah @ Santosh Hansda Vs State of Odisha [order dated 04.08.2021
in BLAPL No. 9893 of 2019]. The learned counsel accordingly submits that
interference of this Court may be made.
4. It transpires that in the aforesaid suit, the petitioner who is a counsel was
initially engaged. It also transpires from the materials on record that the said
respondent nos. 1 & 2 had chosen to change their counsel. In the context of the
submission made that the petitioner did not issue any No Objection Certificate,
Rule 12 of the aforesaid Rules of 2010 may be examined. For ready reference,
the said Rule is extracted herein below:-
"12. No Advocate shall be permitted to file an appointment or memorandum of
appearance in any proceedings 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 practice or has by reason of infirmity
of mind or body or otherwise become unable to continue to act."
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5. As per the said Rule, no advocate shall be permitted to file an appointment
or memorandum of appearance in which another advocate is already on record
without the consent of the former advocate on record or the leave of the Court.
The Rules has contemplated a situation wherein the consent of the former
advocate may not be given and under those circumstances, the provision has
been left for the Court to grant leave.
6. A litigant is free to choose his advocate and no advocate can claim any lien
over any lis. It would be an absolutely unreasonable proposition that only on
account of non-issuance of No Objection Certificate, another advocate may not
be engaged by the party in accordance with law.
7. The materials on record would also show that the petitioner himself had
issued a notices dated 05.09.2023 (Annexures-D & E) to the clients (respondent
nos.1 & 2) by registered post expressing his intention to withdraw from the
case. The said notice was also replied to by the respondent no. 1 on
19.09.2023. The application filed for leave to engage new counsel has stated all
the aforesaid facts which was duly considered by the learned Court.
8. The reliance upon the case of M. Poornachandran (supra) is wholly
misplaced. In that case, the Hon'ble Supreme Court was dealing with a review
petition in which appearance was made by a counsel without the no objection
by the advocate on record. It is under that context that the Hon'ble Supreme
Court had dismissed the petition.
9. The case of the Orissa High Court sought to be relied upon is not
applicable as the facts are entirely different. In the said case the change was
done not only in absence of any NOC from the previous counsel but also without
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the consent of the party. In the instant case, the party (respondent nos. 1 & 2)
had duly filed an application seeking leave to engage new counsel who had
subsequently appeared by filing Vakalatnama.
10. As held above, the litigation has every right to engage a counsel of his
choice and no fetters can be put on such exercise of discretion.
11. In the considered opinion of this Court, no case for exercise of the
jurisdiction under Article 227 of the Constitution of India is made out.
12. Petition is accordingly dismissed.
JUDGE
Comparing Assistant
