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bhanudassss (service)     11 August 2010

pleading by third advocate

Can a third advocate without written authority (may be oral) of the the advocate engaged by a party, give represeantion in the court?  What will be the validity of such proceeding when no written authority is on the record in criminal case?

bhanudasssss



Learning

 19 Replies

Ravikant Soni (LAWYER IN JAIPUR)     11 August 2010

Yes by the General rules civil or criminal an advocate can brief other advocate and give him authority to represent on behalf of him.. No written authority is required but he himself to file memo of appearance in the court.

1 Like

Ravikant Soni (LAWYER IN JAIPUR)     11 August 2010

In Criminal procedure code nowhere provided to file vakalatnama. So an advocate may represent only filing a memo of appearance.

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bhanudassss (service)     11 August 2010

Thanks for the reply. What would be position in above case when not even memo filed by the third advocate?

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Ravikant Soni (LAWYER IN JAIPUR)     11 August 2010

It is not fatal even if no memo filed.

Plz ask more precisely.

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Adv Archana Deshmukh (Practicing Advocate)     11 August 2010

I differ from the opinion of Adv. Ravikant Soni regarding the filing of vakalatnama. Para 4 of chapter 6 of the criminal manual and para 658 of the civil manual are the relevant provisions regarding the same.

1 Like

Vijay Kumar (Advocate)     11 August 2010

I agree with Mr. Soni. In civil cases, an Advocate can appear as Proxy for another Advocate.

In a criminal case, the accused is present; and the Advocate is defending him. It itself implies that he has been  authorised to do so.

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Ravikant Soni (LAWYER IN JAIPUR)     11 August 2010

Thanks vijay for supporting me.

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Ravikant Soni (LAWYER IN JAIPUR)     11 August 2010

I request Adv Archana please reproduce relevant provisions. 

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Adv Archana Deshmukh (Practicing Advocate)     11 August 2010

 

It is para 652 and not 658 of the civil manual---
 
652. (1) No Advocate shall act for any person in any Court unless he has been
appointed for the purpose by such person by a Vakalatnama in the form annexed hereto
and signed by such person or by his recognised agent or by some other person duly
authorised by or under a Power of Attorney to make such appointment.
(2) No Advocate who has been engaged for the purpose of pleading only shall
plead on behalf of any party unless he has filed in Court a memorandum of appearance
signed by himself and stating (a) the names of he parties to the suit, (b) the name of the
party for whom he appears and (c) the name of the person by whom he is authorised to
appear :
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Adv Archana Deshmukh (Practicing Advocate)     11 August 2010

 

Para 4 of chapter 6 of the criminal manual

vakalatnama

4. (a) Vakalatnamas shall be filed by all pleaders, as defined in the code of criminal

procedure, appearing on behalf of any part in all classes of cases, including

appeals and revisional or miscellaneous applications,in all courts in the state of

Maharashtra, provided that no Vakalatnama shall be necessary in the cases of i.

A public prosecutor appearing on behalf of Government

ii. A pleader appointed by the Court in any case to defend persons who are too poor

to engage counsel for themselves.

iii.A pleader appearing as amicus curiae ;

iv. a pleader engaged to plead on behalf of any party by any pleader who has been

duly appointed to act as a pleader on behalf of such party.

(b) When a pleader who has filed a vakalatnama for a party wishes to withdraw

his appearance, he shall serve a written notice of his intention to do so on his

client at least seven days in advance of the case coming up for hearing before the

court. Leave of the court to withdraw appearance may also be applied for if the

client has instructed the pleader to that effect. The pleader shall file a note in

writing requesting the court for permission to withdraw appearance and shall also

file along with the Note the letter of the client instructing him to withdraw his

appearnce or a copy of the intimation given to the client as above together with

his written acknowledgment by the client . The court, if it is satisfied that no

inconvenience is likely to be caused to the court or the client, may permit , may

permit the pleader to withdraw his appearance and while permitting the pleader to

do so may also impose such terms and conditions as it may deem proper either in

public interest or in the interest of the parties.

1 Like

(Guest)
It is para 652 and not 658 of the civil manual---
 
652. (1) No Advocate shall act for any person in any Court unless he has been
appointed for the purpose by such person by a Vakalatnama in the form annexed hereto
and signed by such person or by his recognised agent or by some other person duly
authorised by or under a Power of Attorney to make such appointment.
(2) No Advocate who has been engaged for the purpose of pleading only shall
plead on behalf of any party unless he has filed in Court a memorandum of appearance
signed by himself and stating (a) the names of he parties to the suit, (b) the name of the
party for whom he appears and (c) the name of the person by whom he is authorised to
appear :
 
Ms.Archana, your quotation is a self-serving statute. "... unless he has filed in Court a memorandum of appearance signed by himself and stating..........." This is what Mr.Soni said that any Advocate can file a Memo on behalf of the party and defend him. He is correct. But your answer is also partly correct only in the circumstances when a company/firm is a complainant/accused in a criminal case and the Advocate shall file Vakalatnama in that event to prosecute or defend. Memo is not allowed if the company/firm is a party. But in civil cases, Vakalatnama for engaging an Advocate is must.
In case of adhoc representations, Advocates-on-Record take help of outside Advocates. But their voice is very less in proceedings e.g., taking adjournments, pause overs, etc., where the endorsements of all sorts are not required.
1 Like

adv. rajeev ( rajoo ) (practicing advocate)     12 August 2010

Third advocate cannot give a representation in a case on the basis of the oral instruction of the client of an another advocate who is representing them in the case, without obtaining the no objections on the valkalat from the present advocate who has already filed vakalat on behlaf of the parties.  It amounts to professional misconduct.

IN case if the advocate is unable to attend the case for the unavoidable circumstances on the date of adjournment then on the request  either by the parties or an advocate third advocate can represent the case on behalf of an advocate.

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adv. rajeev ( rajoo ) (practicing advocate)     12 August 2010

Ravikant Soni is wrong, third advocate cannot file memo of appearnace without no objections to appear from the present advocate.

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DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     12 August 2010

Irrespective of the provisions given by the learned friends , please note that client is master and advocate is his / her agent.

No objection , memo these are just clerical formatlies and can be compied in due course.

The basic right of the client is to get justice from the administration of justice. And the SC has time and again expressed the view that the law and rules must be used for  dispensing justice and not for denial of justice.

So an advicate can appear even on oral instructions of the client or even instructions from other advocate and clerical formalities can be completed at later stage.

I appear in various courts all over the country particularly for accused in NI 138 and Sarfasi cases and I have not faced this problem any where.

In the latest incident I appeared in Hydrabad and the opponent advocate took this objection of no objection from the earlier advocate on record and the Honble Court just even did not allow to persue this argument instead directed to give response to my submissions on legal platform other than the minor formalities which can be completed in due process.

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