Substitute advocates

by Animesh Sharma | August 07, 2011

What authority enables one advocate appear on behalf on another in proceedings before a court, where the former has not been authorised to appear by the client on his behalf? Any practicing lawyer at any level of courts will tell you how prevalent this practice is. Juniors, associates, and ‘brother lawyers’ appear on behalf of each other on a daily basis, seeking dates or adjournments and occasionally addressing arguments in court. These substitute lawyers have not been engaged by the client at all; they appear only because the advocate who was actually engaged is busy elsewhere and unable (or sometimes unwilling) to appear. While many judges accommodate the unavailable lawyer in such cases by giving a ‘pass over’ or by adjourning the matter, every day there will be some cases where the judges refuse to adjourn or even pass the matter over, and insist on arguments.

"So there is this matter before the Chief at eleven..."

In such a situation, the fate of the case, and that of the client, depends on a lawyer that he never even engaged to appear on his behalf. Such a lawyer may never have been briefed about the facts of the case. When things go wrong (as they often do), does the client have any recourse left by claiming that ‘his’ lawyer never appeared on his behalf? A Single Bench of the Punjab and Haryana High Court, in the case of Munish Sharda and Another v. Bhai Manbir Singh and Others, CR No.1664 of 2011 (O&M), decided on April 20, 2011, has recently answered these seemingly innocuous questions that actually have wide ramifications for the practical aspects of litigation. The question the Court sought to answer was whether an advocate engaged by a party could actually authorise another advocate to appear for him if he was prevented by reasonable cause from appearing and conducting the proceedings at a hearing? Further, to what extent could such an advocate, who appeared on behalf of another without any writing in his favour, act on behalf of the client? Can he only plead on the advocate’s behalf or can he go even further to the extent of compromising or conceding the matter on behalf of the client?

The respondents in the instant case had filed a petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 for evicting the petitioner-tenants on the ground of non-payment of rent. The petitioners had been second and third respondents before the Rent Controller and had engaged Kulwant Singh Bawa as their advocate. However a perusal of the interim orders of the Rent Controller showed that no written statement had been filed on behalf of the petitioners, leading to a striking off of their defence. Thereafter, provisional rent had been assessed by the Rent Controller, which the tenants had failed to pay. As a result of this lapse, the Rent Controller vide his order dated December 24, 2009, had ordered eviction of the tenants from the demised premises within two months.

The petitioner-tenants assailed this order first in front of the Appellate Authority and then before the High Court. The petitioners claimed that they had engaged K.S. Bawa as their lawyer to contest the eviction petition, who told them that the matter had been of a civil nature and did not require their presence in court for every hearing. It was only when the landlord had threatened eviction on December 30, 2009 that they rushed to court and found out that K.S. Bawa had expired on June 10, 2009 and instead of him, the presence of N.S. Bawa had been marked on each and every date of hearing. The petitioners contended that they had never engaged N.S. Bawa to appear on their behalf and his appearance on their behalf was therefore completely inconsequential. This plea had been rejected by the Appellate Authority vide order dated January 5, 2011, which had been challenged before the High Court.

Before the High Court, it was contended that N.S. Bawa had never signed a power of attorney on behalf of the petitioners and that the Rent Controller had committed a serious error of law in permitting a person not duly authorised by them to appear before it and act on his behalf for continuing the proceedings that had ultimately led to their being ejected. An additional plea that the petitioners were sub-tenants and could not be evicted for non-payment of rent by the tenant was also raised (luckily for the tenants, this was the only plea that was decided in their favour, and was enough to prevent eviction). In reply, the landlords averred that the advocate engaged by a party could well authorise another advocate to plead on his behalf for the purpose such as seeking dates and for these purposes, he is not required to file a power of attorney or even a memo of appearance in the court.

To answer the question before him, Justice R.K. Jain turned to some forgotten provisions of the Code of Civil Procedure, 1908 (“the CPC”). Section 119 of the CPC states that no person would be deemed to be authorised on behalf of another to address the court in the exercise of its original civil jurisdiction, except with the permission of the court. Order III Rule 4(5) of the CPC prevents a pleader who has been engaged for the purpose of pleading only, from pleading on behalf of any party, unless he has filed a memorandum of appearance signed by himself, meeting the conditions set forth in the Rule. The proviso however states that the Sub-rule would not apply to any pleader engaged to plead on behalf of any party by any other pleader who has been duly appointed to act in court on behalf of such party. The comprehensiveness of the CPC never ceases to amaze me. In Form 19 to Appendix ‘H’ of the Code, there is a form of a vakalatnama, to which the Court then turned to. It had the following standard clause.

“In the case noted above Sri .............., each of Sarvasri ................. Advocate, is hereby appointed as counsel, to appear, plead and act on behalf of the undersigned, in any manner, he thinks it proper, either himself or through any other Advocate, and in particular to do the following, namely…. to file any applications, petitions or pleadings, to file, produce or receive back any documents, to withdraw or compromise the proceedings…”

The Court then also looked at the High Court Rules and Orders (framed under powers given by the Advocates Act, 1961). Rule 2 of Chapter 6 stated that where an advocate had already filed an appointment in any proceeding, another advocate, engaged to appear in proceedings merely for the purposes of pleading could do so by filing a memorandum of appearance or by declaring before the court that he appeared on instructions from the advocate who had already filed his appointment in the proceedings. Rule 7 also stated that where an advocate appointed by a party in any of the proceedings was prevented by reasonable cause from appearing and conducting the proceedings at any hearing, he could instruct another advocate to appear for him at that hearing.

After looking at these provisions of law, the argument of the petitioners that had appeared very attractive at first blush was negated. The CPC as well as the High Court Rules and Orders had envisaged a situation where an advocate appeared on behalf of another advocate on his instructions, especially in situations where the appointed advocate was prevented by reasonable cause from appearing and continuing proceedings, even without filing a memorandum of appearance. This view has been supported by the Bombay High Court in Jayant Madhav Chitale v. Garware Wall Ropes Limited and Others, AIR 1997 Bombay 126, as well as the Delhi High Court in Berjesh Goyal and Another v. Daily Foods (India), AIR 2009 AIR (Delhi) 118, where the courts had in fact concluded that in the aforesaid circumstances, a court could not insist that the other pleader file a memorandum of appearance.

In the instant case, K.S. Bawa had reportedly been keeping bad health, which was taken to be a reasonable cause for another advocate to appear on his behalf. However while concluding thus, the court also sought to temper this seemingly unchartered authority given to an appointed advocate. Justice R.K. Jain relied on decisions of the Orissa and the Delhi High Courts to hold that that an advocate, who appears on behalf of another advocate engaged by a party, can only “plead” but has no power to “act” on behalf of such party without a document in writing in his favour. The power to “plead” would include within its scope and ambit, the right to examine witnesses, to conduct admission and denial, to seek adjournments and to address arguments, as may be authorised, but such pleader would not have the power to compromise a case, withdraw a case, or do any other act which may compromise the interest of his or her client.

This position of law, while it is clearly against the larger interests of clients in general and has potential for abuse, creates a much-needed breathing space for young lawyers. Tomorrow, if I appear on behalf of my senior in front of a cranky judge who wants to dismiss my case only because my senior is absent, I have an authority in my defence (although I am reasonably sure the production of such an authority would anger him further and he would then find another way to surely dismiss my case).

Animesh Sharma is an advocate at the Punjab and Haryana High Court.