Before proceeding to the next stage of the suit, viz., filing of written statement by the defendant to controvert the plaint allegations, a few words may be said about pleaders and recognised agents. A pleader is a person who is entitled to appear and plead for another in court, and includes an advocate, a vakil or an attorney of a High Court. He represents his client in various stages of the litigation and takes necessary steps for properly presenting the case of the client before the court.
Any appearance, application or act in or to any court may be made or done by the party in person, or by his recognised agent, or by a pleader on his behalf. [Order III, Rule 1],
Recognised agents are: (1) persons holding powers of attorney, (2) persons carrying on trade or business for and in the names of parties not resident within the local limits of the jurisdiction of the court in matters connected with such trade or business only, where there is no other agent authorised to make and do such appearances, applications and acts [Order III, Rule 2], and (3) persons specially appointed by Government to prosecute or defend on behalf of foreign rulers. (S. 85).
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ADVERTISEMENTS:
In appeal under Land Acquisition Act the Counsel of State is not required to file vakalatnama and memo of appearance by him is sufficient. The counsel for State is entitled to represent in all proceedings initiated in
No permission to lead evidence through power of attorney holder:
Where applicant was running bakery and petty shop and there was no disability or hardship in coming to the Court to give evidence. Held, that rejection of permission was proper.
ADVERTISEMENTS:
Appointment of pleader:
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 the party, and filed in court, and shall be in force until the client or the pleader dies, or until all proceedings in the suit are ended so far as regards the client. [Order II, Rule 4(1-2)].
No mention had been made in the application that the defendant had withdrawn instructions from his counsel. Therefore, under the provisions of Order III, Rule 4(2), C.P.C., the said counsel continued to represent the defendant. In view of the provisions of Order III, Rule 4(2), C.P.C., therefore even though the counsel for the defendant had written no instructions on the order-sheet, he continued to represent the defendant as he did not seek any permission in writing from the court to withdraw from the case and no such permission was granted to him by the Court.
Termination of Authorities of an Advocate by Client— Continuation till then:
ADVERTISEMENTS:
Thus, once an Advocate is engaged as a pleader by a client, the authority of the Advocate to represent his client continues to remain in force until it is determined with the leave of the Court in writing signed by the client or the pleader.
In the absence of a written termination of the relationship of the client and the pleader, the pleader is not absolved of his duty to appear on behalf of his client. Any statements made by him that he had no instructions does not terminate his authority. Once he has accepted the brief and the client has paid his fee, he continues to represent the client and be responsible for the conduct of the case.
He is, no doubt, entitled to terminate his status as a leader of the client but that cannot be done orally. It must be done in writing with the permission of the Court in the manner laid down by clause (2) of the Rule 4 of Order III.
Nothing above shall be construed: (a) as extending, as between the pleader and his client, the duration for which the pleader is engaged, or (b) as authorising service on the pleader of any notice or document issued by any court other than the court for which the pleader was engaged, except where such service was expressly agreed to by the client in the document referred to in sub-rule 1 [Order III, Rule 4(3)].
Implied Authority Conditions—Good faith and precedence:
The actual, though implied, authority of a pleader to act by way of compromising a case in which he is engaged even without specific consent from his client, must be upheld, subject undoubtedly to two overriding considerations: (1) he must act in good faith and for the benefit of his client; otherwise the power fails; (2) it is prudent and proper to consult his client and take his consent if there is time and opportunity. In any case, if there is any instruction to the contrary or withdrawal of authority, the implicit power to compromise in the pleader will fall to the ground.
Erroneous concession by counsel-not binding on party:
Erroneous concession by counsel does not bind the party.
Standards of Profession and fees and lien:
In the absence of any rules relating to the standards of profession, conduct and etiquette under section 49(l)(c) of the Advocates Act, an advocate has lien over the papers of his client entrusted to him during the pendency of a case for payment of his fees.
The common law right of passive and retaining lien available to a solicitor in England is accepted by courts in India as part of the law of his country. The said common law right is not abrogated by section 171, Contract Act.
The party has right to change his counsel and previous counsel cannot insist on fees till conclusion of proceedings. One fourth of scheduled fees were directed to be paid by party to counsel who has worked till settlement of issues and leading evidence on behalf of party. Further the previous counsel was directed to give unconditional consent to engage another counsel.
Service of process on pleader:
Any process served on the pleader who has been duly appointed to act in court for any party or left at the office or ordinary residence of such pleader, and whether the same is for the personal appearance of the party or not, shall be presumed to be duly communicated and made known to the party whom the pleader represents. (Order III, Rule 5).
Processes served on the recognised agent or a party shall be as effectual as if the same had been served on the party in person unless the court otherwise directs. (Order III, Rule 4).
Government Advocate Order Xxvii, Rule 8b:
The order passed on concession made by Government contrary to statute is liable to be recalled. Government advocate cannot make concession that the State would act contrary to the provisions of the statute.