This is a compromise money petition challenging an order rejecting an application to recall the withdrawal of a civil suit. The petitioner alleged coercion and unauthorized change of counsel while in custody. The High Court dismissed the petition.
The compromise money petition standing devoid of merit was dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Signature Not Verified
Digitally Signed Signed by: ROJALIN NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA, CU TTACK Date: 13-Nov-2023 14:03:40
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO.758 OF 2023 Tapan Kumar Behuria …. Petitioner
Mr. Satrughna Dash (A), Advocate
-versus-
Sukanta Kumar Sahu
…. Opp. Party
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No.
10.11.2023
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Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA, CU TTACK Date: 13-Nov-2023 14:03:40
“7. As held by the Hon’ble High Court of Bombay in Shafeeque Ahmed Mohammad Sayeed v. Ansari Bilal Mohd : 2016 SCC Online Bom 14057,,
“8.Advocates who have filed a Vakalatnama cannot be discharged at the whim and fancy of a litigant. An application must be made with two clear days' notice to the Advocate. The reasons for that application are to be set out. Similarly when an Advocate applies for a discharge, he must give the notice of this application to the litigant. …
9. This is a pernicious tendency among litigants. It must be stamped out at once. Whenever litigants perceive (often wrongly) that a particular case is not finding immediate favour with the court, they promptly blame their lawyers and insist on changing them. The objective is to blame the lawyer and to delay judgment, perhaps even to frustrate it. If this does not work, then the next step is, of course, to level allegations against the Court and the individual judge in question. Allowing this conduct undermines our entire legal system. It adds to delays. I will not permit either.”
8. The Hon’ble Supreme Court in M. Poornachandran v. State of T.N. :(1996) 6 SCC 755 was also pleased to hold that;
“1. …That apart, he has not obtained “No Objection Certificate” from the Advocate-on-Record in the appeal, in spite of the fact that Registry had informed him of the requirement for doing so. Filing of the “No Objection Certificate” would be the basis for him to come on record. Otherwise, the Advocate-on-Record is answerable to the Court. The failure to obtain the “No Objection Certificate” from the erstwhile counsel has disentitled him to file the review petition. …” Furthermore, a reference may also be made to the Hon’ble High Court of Delhi in Shanti Swarup v. Mahinder Kumar : 1985 SCC Online Del 277, wherein the Hon’ble Court was pleased to hold that;
“7. Order 3 Rule 4 of the C.P.C. provides for the appointment of an advocate and the advocate continues his engagement throughout the
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Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA, CU TTACK Date: 13-Nov-2023 14:03:40
pendency of the proceedings. An advocate can be appointed only by a document in writing signed by a litigant or his duly authorized agent. The appointment of an advocate can be brought to an end by the client or by the advocate himself. But this engagement does not come to an end without the leave of the Court sought by the client or the advocate himself. The leave must be sought from the Court in writing. The appointment once made would continue to be valid for the purposes of review or an appeal or similar proceedings. No advocate shall act for any person in any Court unless he is so authorized in writing by the litigant. From the provisions of Order 3 Rule 4 it is clear that unless the leave of the Court is sought in writing, the advocate will continue on record for representing his client.
11. We put blind faith in the lawyer appearing before us and will continue to do so. Can we ask him to show his authority? Can we doubt the statement made at the Bar or to the administrative officers of the Court? We will not do it because the bulk of the Bar is maintaining the professional standards and not abusing the trust. Deviations are few and far in between. But that apart, our article of faith is at stake. If we suspect a lawyer, people will suspect the whole Institution and that will be the beginning of the end of the Institution.
12. The case has exposed some of the weaknesses in the present practice of appearance of advocates in the court and the procedure for adjournment. It is necessary to frame rules to supplement Order 3 on the following lines:
“If more than one advocate file a Vakalatnama at the initial stage, the litigant must specify which one of them will act on his behalf. Only one advocate should be responsible for filing the applications in the Court and before the administrative officer of the Court. Such advocate should be the only advocate on whom the service shall be effected by the Court at the future stage in the litigation. The advocate who files his Vakalatnama shall ordinarily be the advocate who will act and plead on behalf of his client. However, if he wants to engage any other advocate for pleading, he must file a memorandum of appearance of the pleader in writing in the Court on the date of the hearing. No counsel other than the one who has filed his Vakalatnama or whose memorandum of appearance is filed in the Court shall be heard by the Court.
….Request for withdrawal of an advocate from the proceeding or for engaging any other advocate should be made in writing either by the advocate or by his client. The Registrar may dispose of this application. However, if there is a dispute between the advocate and client in regard to fees or similar matters, the reference may be made to the Court on the administrative side. Ordinarily, an endorsement on the new Vakalatnama (by the previous advocate) that he has no objection to the change should suffice for the purposes of withdrawal by one advocate and engagement of another advocate. Such endorsement would mean that there is no dispute whatsoever between the advocate previously engaged and the client. The Vakalatnama with “No objection” endorsement by a previous advocate should be placed before the Registrar who will pass an appropriate order effecting a change of the counsel.”
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Signature Not Verified
Digitally Signed Signed by: ROJALIN NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA, CU TTACK Date: 13-Nov-2023 14:03:40
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Signature Not Verified
Digitally Signed Signed by: ROJALIN NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA, CU TTACK Date: 13-Nov-2023 14:03:40
learned counsel appearing for the Petitioner was changed without consent of the previous counsel. It is only stated that the Petitioner had given signature on a blank Vakalatnama while in custody, without understanding the consequences of the same, but the Defendant, using his signature in Vakalatnama, changed the lawyer of the Petitioner and directed the lawyer to withdraw the Civil Suit. The averment at Paragraph-10 of the petition under Annexure-1 clearly indicates that the Plaintiff-Petitioner had given signature on the Vakalatnama. It is not the case of the Plaintiff-Petitioner that without his consent, counsel appearing for him was changed. The falsehood adopted by the Petitioner is apparent from his own conduct from the observation made by learned trial Court while dismissing the petition under Annexure-1. It is categorically observed by learned trial Court that on 23rd August, 2022, the day on which the Petition under Order XXIII Rule 1 CPC was taken up, the Petitioner had appeared through VC from the Jajpur Sub-Jail and agreed to engage Mr. S. Samal and Mr. M.R. Tripathy, learned Advocates by disengaging his lawyer, namely, Mr. Satrughna Das. Thus, the Vakalatnama of Mr. Samal, learned counsel and his associate was accepted and Mr. Das, learned Advocate was disengaged. Further the Petitioner on that date also submitted to withdraw the suit. Accordingly, order dated 23rd August, 2022 was passed allowing the petition for withdrawal of the suit.
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Signature Not Verified
Digitally Signed Signed by: ROJALIN NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA, CU TTACK Date: 13-Nov-2023 14:03:40
Urgent certified copy of this order be granted on proper application.
(K.R. Mohapatra) Judge
Rojalin
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2 issues framed by the court
Whether the High Court should recall the order allowing withdrawal of a civil suit filed by the petitioner while he was in judicial custody.
Whether the change of counsel and subsequent filing for withdrawal were effected without the valid consent of the petitioner.
Colour shows how this judgement treated each authority
Beta @ Bibekananda @ Santosh Hansadah @ Santosh Hansda vrs. State of OdishaReferred¶21
Beta @ Bibekananda @ Santosh Hansadah @ Santosh Hansda vrs. State of Odisha, 2021 (II) OLR 514
Shafeeque Ahmed Mohammad Sayeed v. Ansari Bilal MohdReferred¶22
Shafeeque Ahmed Mohammad Sayeed v. Ansari Bilal Mohd, 2016 SCC Online Bom 14057 · Who else cites this
M. Poornachandran v. State of T.N.Referred¶25
M. Poornachandran v. State of T.N., (1996) 6 SCC 755 · Who else cites this
Shanti Swarup v. Mahinder KumarReferred¶26
Shanti Swarup v. Mahinder Kumar, 1985 SCC Online Del 277 · Who else cites this
3 provisions across 1 enactments
Tapan Kumar Behuria
Sukanta Kumar Sahu
K.R. Mohapatra
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
