Allowed

Jai Hind Buildcom and Anr. v. Heeralal Sharma andORS

Rajasthan HC15 May 2015CW/6078/2015

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging a trial court order that barred an advocate from appearing for petitioners-defendants. The court held that an earlier opinion given to the opposing party, without objection or conflict of interest, was insufficient to bar the advocate from representing the petitioners after filing a Vakalatnama.

What did the court decide?

The impugned order dated 17/3/2015 was set aside, and Advocate Mr. Indresh Kumar was permitted to appear for the petitioners in the suit.

Jai Hind Buildcom and Anr. Vs Heeralal Sharma andORS — Service and Employment | Rajasthan HC (2015)

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S.B. Civil Writ Petition No.6078/2015

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR

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S.B. Civil Writ Petition No.6078/2015 Jai Hind Buildcom & Anr.-Petitioners Versus Heeralal Sharma & Ors.-Respondents.

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Date of Order :: 15/05/2015

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Hon 'ble Ms. J ust ic e Bela M. Trivedi

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Mr. Mahendra Goyal, for the petitioners. Mr. Peush Nag, for the respondent Nos.1 to 3.

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ORDER

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BY THE COURT :

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The petitioners-defendant Nos.2 and 3 have filed the present petition under Article 227 of the Constitution of India, challenging the orders dated 24/1/2015 (Annexure-3) and 17/3/2015 (Annexure-7) passed by the Civil Judge (Junior Division) and Judicial Magistrate, Kishangarh (hereinafter referred to as 'the Trial Court') in Civil Suit No.89 of 2014, whereby the application filed by the petitioners under Section 30 of the Advocates Act, 1961 read with Section 151 of CPC has been dismissed.

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In the instant case, it appears that the respondent Nos.1 to 3-plaintiffs have filed the suit for permanent and mandatory injunction against the respondent Nos.4 to 6, and the present petitioners-defendants alleging that the petitioners i.e. the defendant Nos.2 and 3 were raising the construction on the land in question without obtaining legal permission from the respondent No.5 i.e. the defendant No.1 in the suit. In the said suit, the Advocate Shri Indresh Kumar had filed a memo stating that he would be appearing for the defendant Nos.2 and 3. The said memo having been objected by the respondents-plaintiffs on the ground that the said Advocate had earlier given the opinion in respect of the property in question sought by the respondent No.5-Nagar Parishad-defendant No.1, he could not be permitted to appear for the defendant Nos.2 and 3. The Trial Court vide order dated 24/1/2015 had allowed the said application of the plaintiffs, and held that the said Advocate Mr.Indresh Kumar cannot be permitted to appear for the petitioners-defendant Nos.2 and 3 on the basis of the said memo. It appears that thereafter the said

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S.B. Civil Writ Petition No.6078/2015

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Advocate had filed his Vakalatnama on behalf of the petitioners i.e. the defendant Nos.2 and 3, who had filed the application under Section 30 of the Advocates Act. The said application has been dismissed by the Trial Court vide the impugned order dated 17/3/2015.

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It has been sought to be submitted by the learned counsel Mr. Mahendra Goyal for the petitioners that there was no conflict of interest amongst the defendant No.1 Nagar Parishad and the defendant Nos.2 and 3 on whose behalf the Advocate had filed the Vakalatnama and even otherwise as per Section 30 of the Advocates Act, he has right to practice in all the Courts. Mr. Goyal submitted that the impugned orders passed by the Trial Court not permitting the said Advocate to appear for the petitioners is without authority and illegal. However, the learned counsel Mr. Peush Nag for the respondents-plaintiffs has submitted that the said Advocate Mr. Indresh Kumar had given his opinion in respect of the property in question, as sought by the defendant No.1-Nagar Parishad and he being also member of the Committee constituted by the defendant No.1 for conversion of land use, he could not be permitted to appear for the petitioners. According to him, there being no illegality in the order passed by the Trial Court, this Court should not interfere with the same.

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Having regard to the submissions made by the learned counsels for the parties, and to the documents on record, it appears that the Trial Court had earlier not allowed the said Advocate Mr. Indresh Kumar, to appear for the respondent Nos.2 and 3 on the ground that he had filed the memo and that earlier had given the opinion to the defendant No.1. Thereafter, the said Advocate having filed his Vakalatnama, and the petitioners having filed the application under Section 30 of the Advocates Act, the same has been rejected on the ground that by earlier order, the said Advocate was not permitted to appear for the petitioners. In the instant case, it appears that though the said Advocate Mr.Indresh Kumar had earlier given some opinion in respect of the property in question, to respondent No.5-the defendant No.1 Nagar Parishad, there does not appear to be any conflict of interest between the defendant Nos.1 and the defendant Nos.2 and 3. If there was any conflict of interest, the respondent No.5-defendant No.1 would have certainly objected to it. Even otherwise as rightly submitted by the learned counsel Mr. Mahendra Goyal for the petitioners, every Advocate has right to practice in all

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S.B. Civil Writ Petition No.6078/2015

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the Courts as per Section 30 of the Advocates Act, and the Trial Court could not have prevented the said Advocate from appearing on behalf of the present petitioners.

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Of course, no pleader can 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 as per Order III, Rule 4 of CPC. Hence, the Advocate or the pleader has to produce the document in writing signed by the party to the suit, appointing him as the pleader. In the instant case, it is not disputed that the concerned Advocate had earlier filed a memo but subsequently had filed the Vakalatnama duly signed by the petitioners to appear on their behalf and therefore the Trial Court could not have prevented him from appearing for the petitioners, in absence of any cogent reasons.

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In that view of the matter, the impugned order dated 17/3/2015 deserves to be set aside, and is accordingly set aside. The petition is allowed accordingly. Advocate Mr. Indresh Kumar shall be permitted to appear for the petitioners in the suit.

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(Bela M. Trivedi) J .

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Sanjay Solanki PA204 “ All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.” Sanjay Solanki Personal Assistant

Jai Hind Buildcom and Anr. v. Heeralal Sharma andORS

Case brief

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Jai Hind Buildcom and Anr. v. Heeralal Sharma andORS

Case brief

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