Berjesh Goyal and Anr. v. Daily Foods (India)

Berjesh Goyal and Anr. v. Daily Foods (India)

2009 (39) PTC 549 (Del)

Respondent had filed a suit against the Petitioners in the Delhi High Court. The said suit was transferred to the district court by the High Court of Delhi.

In the said suit, the Respondent’s witness had tendered his evidence being examination in chief. When the suit was listed for cross-examination of Respondent’s witness the counsel for the Petitioners, in whose favour the Petitioner had signed and executed the Vakalatnama, gave an authority letter to one Junior Advocate authorizing him to appear, argue and cross examine the witness on his behalf.

The Additional District Judge did not recognise the said authority letter on the premise that neither the Advocates Act, 1961 nor the Code of Civil Procedure, 1908 recognises nor permits any such authority. Therefore, Additional District Judge did not permit Junior Advocate to cross examine the Respondent’s witness.

The Respondent closed his evidence in the suit and thereafter the matter was listed for Petitioners’ evidence.
Against the said order of the Additional District Judge, Petitioners preferred the present petition under Article 227 of the Constitution of India.

Petitioners’ Contentions:

• Once an advocate has been authorized by a Counsel holding a Vakalatnama from the client he ought to have been permitted to cross examine the witness. The right to cross examine ought not to have been closed. The counsel relied upon Order 3 Rule 4 of the Code of Civil Procedure, 1908.

The same is reproduced herein:

“4. Appointment of pleader

(1) No pleader shall 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 Ms recognized agent or by some other person duly authorized by or under a power-of-attorney to make such appointment….

(5) No pleader 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 the 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 authorized to appear:

Provided that nothing in this sub-rule shall 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.”

• It was clear that one pleader can be permitted by another Pleader duly authorized by the party to plead the case and further the right to cross examine is part of the right to plead before a Court.

• Vakalatnama contained in the Code of Civil Procedure, 1908 in Form – 19 also gives a guiding light towards the same.

• Chapter V Rule 1 of the Delhi High Court Rules clearly specifies the rights of a pleader appointed by a party.

Court’s Observations:

The legal position as contained in the authorities of various High Courts an the provisions of the Code of Civil Procedure, 1908 and the Delhi High Court Rules, 1967, this Court is of the opinion that there is no bar on a Pleader duly authorized by a party under a vakalatnama to engage another pleader to plead, the case on his or her behalf. The power to “plead” would include within its scope and ambit, the right to examine witnesses, to conduct admission & denial, to seek adjournments and to address arguments etc., as may be authorized. Such pleader however 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. In procedural matters it is not only expedient but also in the interest of speedy delivery of justice that young lawyers who work with pleaders duly authorized by clients are permitted to appear in matters. This is necessary for speedy disposal of cases and also as an encouragement to the younger professionals who are in the initial/formative years of practice.

Judges also have a duty to ensure that such young pleaders and lawyers who enter the portals of courts are permitted to learn but at the same time to ensure that the interest of parties are not permitted to be compromised.

Held:

When a counsel has been authorized under a vakalatnama to represent his client, the junior of the said counsel can be permitted to appear on behalf of the counsel representing the said client as and when the counsel himself is not in a position to appear.