Gujarat High Court

Jitubhai Rupabhai Raval vs Baria Kanabhai Vaghabhai on 4 September, 2023

Bench: J. C. Doshi

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 9062 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE J. C. DOSHI

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1 Whether Reporters of Local Papers may be allowed YES to see the judgment ?

2      To be referred to the Reporter or not ?                          YES

3      Whether their Lordships wish to see the fair copy                 NO
       of the judgment ?

4      Whether this case involves a substantial question                 NO

of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== JITUBHAI RUPABHAI RAVAL Versus BARIA KANABHAI VAGHABHAI ========================================================== Appearance:

MR PC KAVINA, SR. ADVOCATE with MR VIJAY N RAVAL(2025) for the

MS FORAM TRIVEDI, AGP GOVERNMENT PLEADER for the Respondent(s) No. 3,4,5 MR PA JADEJA(3726) for the Respondent(s) No. 1,2 ==========================================================

CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

Date : 04/09/2023

CAV JUDGMENT

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1. Rule. Learned advocate Mr. PA Jadeja waives service of

rule for respondent Nos.1 and 2 and learned AGP Ms. Foram

Trivedi waives service of rule for respondent Nos.3 to 5.

2. In the petition filed under Article 227 of the Constitution of

India, the petitioner has prayed for the following reliefs:-

"(A) This Hon'ble Court may kindly be pleased to quash and set aside order dated 13.5.2021 passed by the learned Principal Senior Civil Judge, Lunawada below objection application in LAR No.421 of 2005 with a relief to allow the objection application dated 13.5.2021 and reject the Vakalatnama of new advocate.

(B) Pending admission and final hearing of this petition, this Hon'ble Court may kindly be pleased to stay the further proceedings of LAR No.421 of 2005 pending before the learned Principal Senior Civil Judge, Lunawada till the final disposal of the present petition."

3. The necessary facts for deciding this petition can briefly be

stated thus:-

3.1 The petitioner is practising advocate. The respondent

Nos.1 and 2 are the original claimants (in short "the original

claimants") living in Dist: Mahisagar. Their lands were

proposed to be acquired by the State Government for Sujlam

Suflam Spreding Canal project under the provisions of the Land

Acquisition Act, 1894 (in short "the Act"). Necessary

notifications u/s 4 and 6 of the Act were published and

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consequently, the lands of the original claimants were acquired.

The Special Land Acquisition Officer assessed and awarded the

compensation at Rs.5/- per sq mtr for Jirayat land. Assessment

of this compensation was not agreeable to the original claimants

and therefore, they intended to prefer reference under the

provisions of the Act. Therefore, the original claimants have

engaged the petitioner to represent them in the reference case.

The original claimants have signed the Vakalatnama and

authorized the petitioner for appearing, pleading and to do all

needful acts for and on behalf of the original claimants in the

reference case.

3.2 The learned Reference Court favoured the case of the

original claimants and enhanced compensation to Rs.304/- per

sq mtr as additional compensation. The appeal proceedings

were also taken. Subsequent thereto, the government has

deposited the awarded amount before the learned Reference

Court. The original claimants thereafter, engaged new lawyer

and preferred payment withdrawal pursis before the learned

Reference Court. Since the original claimant did not keep and

continue the present petitioner as their advocate in payment

withdrawal pursis, the petitioner has filed objection (Annexure

D) before the learned Reference Court and raised contention that

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since his authority as advocate in the reference proceedings is

continue and in force, the Vakalatnama of the new advocate

cannot be accepted and the original claimants cannot engage

new lawyer for the payment withdrawal pursis without obtaining

no objection from the petitioner. The learned Reference Court,

having heard learned advocates for both the parties, passed the

impugned order rejecting the objection raised by the petitioner.

4. The above proceedings has given rise to the present

petition as the petitioner was aggrieved by the impugned order.

5. Heard learned Senior Counsel Mr. PC Kavina assisted by

learned advocate Mr. Vijay Raval for the petitioner, learned

advocate Mr. PA Jadeja for respondent Nos.1 and 2 - original

claimants and learned AGP Ms.Foram Trivedi for the respondent

Nos.3 to 5.

6. Submitting facts of the case, Learned Senior Counsel Mr.

PC Kavina would submit that original claimants by signing the

Vakalatnama had authorized the petitioner to appear, plead and

to do all needful acts for and on behalf of the original claimants.

He would further submit that such authority shall continue to

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remain in force in view of Order 3 Rule 4 of the Code of Civil

Procedure, 1908 (in short "CPC") till the Vakalatnama and the

appearance of the petitioner is determined by the Court or by

the client, who has signed Vakalatnama or the litigant dies. He

would further submit that the payment proceeding is a part of

the reference proceedings. The Vakalatnama, which was signed

by the original claimants appointing the petitioner as their

advocate would continue to remain in force till the payment

proceedings are completed. He would further submit that in the

present case, the original claimants have not issued any notice

to terminate the authority and the Vakalatnama given to the

petitioner. He would further submit that even the Court has not

determined for the appearance of the petitioner as advocate for

the original claimants. He would further submit that in view of

Order 3 Rule 4 of the CPC, if the respondents intended to

engage new advocate or pleader, they are required to take no

objection of the petitioner, but in the present case, the original

claimants have not obtained any NOC from the petitioner before

engaging and appointing new advocate for withdrawal of the

amount of compensation, which is deposited pursuant to the

present reference proceedings.

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6.1 Learned Senior Counsel Mr. Kavina would further submit

that the learned Court below has totally missed to read the

provisions of law as well as principle of fraternity. He would

further submit that the order passed by the learned Court below

and the impugned herein is in teeth of the provisions of Order 3

Rule 4(2) of the CPC. He would further submit that in view of

settled provisions of law, if the original claimants wanted to

engage new advocate, they have to take no objection from the

petitioner whose Vakalatnama is subsist on the record. To

buttress his submission, Learned Senior Counsel Mr. Kavina

relied upon the judgment of of Himachal Pradeh High Court in

case of Oriental Insurance Company Vs. Sheela Devi and others

reported in MANU/HP/0028/2006. Act of filing of Vakalatnama

by the new advocate without obtaining NOC of the previous

advocate, the Learned Senior Counsel termed it as a predatory

approach on the part of the new Advocate and a scruplous

tactics to grab the file from the already engaged advocate and

whose authority continues and exists as Vakalatnama is not

determined. Learned Senior Counsel Mr. Kavina also termed the

approach and tactics of the new Advocate as destructive to the

principal of fraternity and against the principal of harmony

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prevails amongst the fraternity of the Advocate for as much

termed it to be a professional misconduct.

6.2 Taking this court through the objection filed by the

petitioner before the court below, Learned Senior Counsel Mr.

Kavina would submit that considering the poor financial position

of the original claimants, the petitioner was agreed to take his

professional fee and the expenses he has borne for reference

proceedings when the amount of compensation would be arrived.

He would further submit that there is nothing wrong in getting

the professional fee and expense keeping them contingent on the

amount of compensation arrived in the reference proceedings. He

would further submit that present petitioner was waiting for his

professional fee and expenses since the reference proceeding

commenced in the year 2005. The petitioner waited for 16 years

for his professional fee and expenses. However, the original

claimants to negate petitioner's right to get professinal fee and

expenses engaged new lawyer without obtaining the NOC from

the petitioner and withdrew the amount. He would further

submit that the proceedings of withdrawing the awarded amount

deposited pursuant to the award passed by the reference Court

falls within the realm of continuation of the proceedings as

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stated in the exception to sub-rule(2) of Rule 4 of Order 3 of the

CPC. He would further submit that since withdrawal

proceedings are continues proceedings, no fresh Vakalatnama is

required to be filed. The authority, which was granted by the

original claimants by way of earlier Vakalatnama, shall continue

to operate in withdrawal proceedings also. He would further

submit that however, by adopting ersatz and spiritless tactics,

the original claimants, hand in glove with the new Advocate has

dodged and foiled the petitioner's right to get professional fee

and expenses. This is an unethical act and is totally averse to

the legal profession, and as such, such tactics has to be

deprecated.

6.3 Learned Senior Counsel Mr. Kavina would further submit

that in view of provisions of the Contract Act, the Solicitor can

keep lien upon the awarded amount to recover his professional

fee and expenses which he has incurred for the client. He would

further submit that the reference Court was required to expose

itself to such legal proposition and was required to decide the

aspect in impugned order, but the learned Reference Court. He

would further submit that the learned Reference Court has

rendered clear error in reaching to the impugned order.

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6.4 Upon such submission, Learned Senior Counsel Mr.

Kavina prays to allow this petition and to set aside the impugned

order and to grant the relief claimed in the petition.

7. Strong resistance has been put to the submissions as well

as to the relief claimed in the petition by learned advocate Mr.

Jadeja for the original claimants by arguing that there is no need

to obtain NOC from the earlier advocate to engage new lawyer.

He would further submit that it is the wish and choice of the

litigating party, whom he has to engage as advocate. He would

further submit that in the present case, the original claimants

on their own choice engaged new lawyer for identifying

themselves before the learned Reference Court for withdrawal of

the awarded amount of compensation. He would further submit

that in fact, the petitioner being a practising lawyer tried to

misuse his position and power and further tried to exploit the

poor farmers by demanding hefty 40% of the awarded amount

towards professional fees and expenses. He would further

submit that such an act on behalf of the petitioner is against the

ethics of the advocate so also, it is contrary to the morality.

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7.1 Taking this Court through the objection raised by the

present petitioner before the Court below, learned advocate. Mr

Jadeja would submit that in any case if the professional fees

agreed by the original claimants with the petitioner are not paid,

it would be open for the petitioner to file civil suit for recovery of

his professional fees, but by no means, the petitioner can insist

that his Vakalatnama should continue forever and withdrawal

application can be moved only with his signature until his

professional fees are recovered. He would further submit that the

petitioner though says that he has made some expenses to

enable the original claimants to get the enhanced compensation,

these are mere words; no documentary evidence supporting said

words are produced, and in that event, the learned court below

has rightly passed the order rejecting the objection filed by the

petitioner against withdrawal of the amount of the

compensation.

7.2 Learned advocate. Mr Jadeja would also submit that the

original claimants since were not intending to continue the

petitioner as advocate to represent them, they have engaged

another advocate. No rule is prohibiting them from engaging

fresh/new advocate. He would further submit that no provision

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contained in the CPC or any other law or rule for the time being

in force, could insist that the original claimants, who did not

wish to continue the petitioner as their advocate, are required to

obtain NOC from the petitioner. He would further submit that

insisting such things would amount to giving a premium to the

tactics adopted for exploiting the poor litigant, which is often

taking place in the matter where compensations are granted.

Upon such submission, learned advocate Mr. Jadeja submits to

dismiss the petition.

8. Learned AGP Ms. Foram Trivedi supports the reasons and

findings given in the impugned order and further submits to

dismiss the petition.

9. No other and further submissions are canvassed.

10. Having heard learned advocates for both the sides, at the

outset, following questions are posed for consideration:-

(i) whether advocate continue to represent the litigant even

against litigant's wish?

(ii) whether advocate insist that without his no objection,

litigant cannot change his advocate and file fresh Vakalatnama?

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(iii) whether advocate stipulate professional fee and expenses

on the outcome of the litigation in which he represents the

party?

11. To examine the questions raised, it is relevant to refer to

the following observations made by the Hon'ble Apex Court in

case of R.D. Saxena Vs. Balaram Prasad Sharma reported in AIR

2000 SC 2912.

"15. A litigant must have the freedom to change his advocate when he feels that the advocate engaged by him is not capable of espousing his cause efficiently or that his conduct is prejudicial to the interest involved in the lis, or for any other reason. For whatsoever reason, if a client does not want to continue the engagement of a particular advocate it would be a professional requirement consistent with the dignity of the profession that he should return the brief to the client. It is time to hold that such obligation is not only a legal duty but a moral imperative.

16. xxxxxxxxxxxxxxxxx

17. If a party terminates the engagement of an advocate before the culmination of the proceedings that party must have the entire file with him to engage another advocate. But if the advocate who is changed midway adopts the stand that he would not return the file until the fees claimed by him is paid, the situation perhaps may turn to dangerous proportion. There may be cases when a party has no resource to pay the huge amount claimed by the advocate as his remuneration. A party in a litigation may have a version that he has already paid the legitimate fee to the advocate. At any rate if the litigation is pending the party has the right to get the papers from the advocate whom he has changed so that

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the new counsel can be briefed by him effectively. In either case it is impermissible for the erstwhile counsel to retain the case bundle on the premise that fees is yet to be paid.

18. Even if there is no lien on the litigation papers of his client an advocate is not without remedies to realise the fee which he is legitimately entitled to. But if he has a duty to return the files to his client on being discharged the litigant too has a right to have the files returned to him, more so when the remaining part of the lis has to be fought in the Court. This right of the litigant is to be read as the corresponding counterpart of the professional duty of the advocate.

23. We, therefore, hold that the refusal to return the files to the client when he demanded the same amounted to misconduct under Section 35 of the Act. Hence, the appellant in the present case is liable to punishment for such misconduct.

42...............It is true that an advocate is competent to settle the terms of his engagement and his fee by private agreement with his client but it is equally true that if such fee is not paid he has no right to retain the case papers and other documents belonging to his client. Like any other citizen, an advocate has a right to recover the fee or other amounts payable to him by the litigant by way of legal proceedings but subject to such restrictions as may be imposed by law or the rules made in that behalf...."

(Emphasis and underlining supplied)

12. The Division Bench of the Karnataka High Court has also

addressed this issue. The observations and findings of the

Division Bench of the Karnataka High Court in case of Sri C.V.

Sudhindra & Ors. v. M/s. Divine Light School for Blind & Ors

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reported in AIR 2009 Karnataka 5 are as under:-

"7. We are therefore of the considered opinion that the contract of vakalathnama can be withdrawn by the client at any time. There is nothing known as irrevocable vakalathnama. Precisely the same right has been exercised by respondent No. 1 herein (defendant No. 7 in the suit) who had earlier engaged the petitioners on their behalf as Advocates to represent

8........... If the Advocate feels that he has any genuine claim or grievance against his client, the appropriate course is to return the brief with endorsement of no objection and agitate such right in an appropriate forum, in accordance with law and not indulge in arm twisting methods by holding on to the brief."

13. In case of Karnataka Power Transmission Corporation Ltd.,

Mysore Vs. M. Rajashekar and others reported in 2017 ILR Kar

59, the Division Bench of Karnataka High Court addressed this

issue as under:-

"6. 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 reasonHowever, fairness demands that the party should inform his advocate already on record, though this is not a condition precedent to appoint a new advocate.

7. There is nothing known as irrevocable vakalatnamaThe 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

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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. 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 an record, to accept the vakalatnama filed by a new advocate."

14. What perceives from the aforesaid proposition of law that

there is no concept of irrevocable Vakalatnama. It is unfettered

and absolute right of the party to withdraw Vakalatnama or

authorisation given to an advocate. The party may discharge his

advocate at any time with or without any cause or reason. The

advocate has no authority to retain the file of the client which

includes the authority to appear as an advocate. In any

proceeding, the party has absolute right to appoint new

advocate. Under any circumstances, the party can avail his

right to appoint new advocate of his choice. The advocate cannot

insist that his authority and Vakalatnama should continue, even

if litigant party does not wish him to continue as their advocate.

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15. Perusing the objection filed by the petitioner before the

court below against the payment of withdrawal pursis (Annexure

D), what perceives from the pleading therein that the petitioner

raised the objection inter-alia on the ground that the original

claimants have promised him that they will pay the professional

fee and expenses to the petitioner, if the award comes in their

favour and the amount of award is deposited. According to the

petitioner, he has relied upon the words of the original claimants

and put his Vakalatnama and also made expenses. Therefore,

the original claimants cannot engage new advocate till they pay

the professional fees and expenses borne by the petitioner.

16. What prima facie transpires that the petitioner agreed to

take share from the amount of compensation, which could have

been granted by the Reference Court. In other words, he has

made partnership in the outcome of the result of the litigation.

He had further pleaded that he has made contract with the

original claimants qua payment of the fees (professional fees and

expenses). The learned Court below has noted that no such

contract is placed before him. The objection filed by the

petitioner is to the tune that the original claimants now do not

want to share the fee from the awarded amount of compensation

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and with that intention, the original claimants have filed the

withdrawal pursis through new advocate, and in absence of the

petitioner. It is also claim of the petitioner that since he has not

been relieved or determined by the original claimants or by the

Court concerned, during the pendency of the proceedings, as a

client's advocate, he can prefer application for withdrawal of the

amount. These submissions are totally boneless and unbacked

by provision of law. It is all that litigant's wish and choice

prevails. The petitioner being practising advocate, once engaged

by the original claimants, cannot insist that his Vakalatnama

and authority to represent the original claimants continue, even

though, the original claimants do not want to continue him.

Entire contentions are fathomless.

17. The Advocate may have outstanding dues towards his

professional fee or the expenses he has incurred for the litigant,

but that cause does not give him authority to retain litigant's

paper or the file as well as the authority given to him by the

litigating party through Vakalatnama. Retention of the file of the

client for non-payment of the dues by the client has been

considered as misconduct within sections 35 and 38 of the

Advocate Act by the Hon'ble Apex Court in case of R.D. Saxena

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(supra). Apt to note that if an advocate has outstanding dues in

form of professional fees and expenses, he has other remedy to

realize the same, which he is legitimately entitled to.

18. In the present case, the petitioner stated that professional

fees were outstanding so the expenses, which he could recover

from the amount of the compensation paid to the original

claimants. In other words, the petitioner claimed that his

professional fees and expenses are contingent on the outcome of

the result of reference. Let us consider that whether such claim

can legitimately be made.

19. Rule 20 of Part (VI), Chapter II, Section II of the Standard

of Professional Conduct and Etiquette reads as "an advocate

shall not stipulate for a fee contingent on the results of litigation

or agree to share the proceeds thereof. The Standard of

Professional Conduct and Etiquette clearly prohibits an advocate

from contingent his fee on the outcome of the litigation and

further prohibits from making any share from the proceeds

received from the outcome of the litigation.

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20. Qua the value of the professional services rendered by a

lawyer, the Hon'ble Apex Court in case of R.D. Saxena (supra),

has observed as under:-

"19. Even if there is no lien on the litigation papers of his client an advocate is not without remedies to realise the fee which he is legitimately entitled to. But if he has a duty to return the files to his client on being discharged the litigant too has a right to have the files returned to him, more so when the remaining part of the lis has to be fought in the Court. This right of the litigant is to be read as the corresponding counterpart of the professional duty of the advocate."

21. It is apt to refer the observations made by the Hon'ble Apex

Court in regards to the professional ethics in case of B. Sunitha

Vs. State of Telangana reported in 2018(1) SCC (Cri) 638,

following observation in para 20 is material, which reads as

under:-

"20. Undoubtedly, the legal profession is the major component of the justice delivery system and has a significant role to play in upholding the rule of lawSignificance of the profession is on account of its role in providing access to justice and assisting the citizens in securing their fundamental and other rights.

Can justice be secured with the legal professionals failing to uphold the professional ethics? This Court has even earlier expressed the concern on the falling professional norms in the legal profession2. In Tahil Ram Issardas Sadarangani v. Ramchand Issardas Sadarangani, this Court noted the trend of increasing element of commercialisation and decreasing element of service. In V.C. Rangadurais (SCC paras 30-32), this Court observed that confidence of the public in the legal profession was integral to the confidence of the public

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in the legal system. Commercialisation to the extent of exploiting the litigant and misbehaviour to the extent of browbeating the Court, breach of professional."

22. Perusing the above ratio, it is clear that objecting to

withdrawal of compensation amount for the reason of recovering

professional fee and expenses, which were made contingent

upon the outcome of the reference and restraining the litigant

from engaging new lawyer are groundless objections, rather such

objections can be treated as breach of the professional duties

and against standard professional ethics

23. To buttress petitioner's claim, Order 3 Rule 4 of the CPC

has been pressed into service by learned Senior Counsel for the

petitioner. Plain reading of Order 3 Rule 4 of the CPC indicates

that this provision vouch what duties pleader owes towards the

Court. It indicates that the pleader shall continue representing