1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE20H DAY OF NOVEMBER, 2019 R BEFORE THE HONBLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.9033/2018 C/W WRIT PETITON NO.9034/2018 C/W WRIT PETITION NO.57934/2018 (GM CPC) IN W.P.NO.9033/2018: BETWEEN MR A ASHRAF ALI S/O LATE B.R.ABDULLAH, AGED ABOUT50YEARS, R/AT CITY LINES, NO.15, GROUND FLOOR, COOPER ARCH, NO.83, INFANTRY ROAD, BANGALORE-01. (BY SRI PRASANNA KUMAR C S, ADV.) AND SMT B S SUSHEELA DEVI W/O LATE DR.BJS ACHARYA, AGED ABOUT91YEARS, R/AT NO.24, 2ND MAIN ROAD, TATA SILK FARM EXTENSION, BASAVANAGUDI, BANGALORE-560 004. ...PETITIONER RESPONDENT (BY SMT SUNITHA H SINGH, ADV.) THIS WRIT PETITION IS FILED UNDER ARTICLE227OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED0201.2018 PASSED ON I.A.NO.8 IN O.S.NO.5539/2013, PENDING ON THE FILE OF V ADDL. CITY CIVIL AND SESSIONS JUDGE (CCH13, BANGALORE, VIDE ANNEXURE-A. 2 IN W.P. NO.9034/2018:BETWEEN :
M/S BRIGADE PROPERTIES HAVING OFF.NO.19, NALPAD CHAMBERS, NALPAD RESIDENCY, K.G.ROAD, BANGALORE-560 009 REP BY PARTNER VINAY.C.MENJERS ...PETITIONER (BY SRI PRASANNA KUMAR C S, ADV.) AND:
GARUD S ACHARYA SINCE DEAD BY LEGAL REPRESENTATIVES1 SMT.B.S.SUSHEELA DEVI, W/O LATE DR.BJS ACHARYA, AGED ABOUT91YEARS, R/AT NO.24, 2ND MAIN ROAD, TATA SILK FARM EXTENSION, BASAVANGUDI, BANGALORE-560 004.
2. SMT.RADHA ACHARYA W/O LATE GARUD S ACHARYA AGED ABOUT62YEARS, R/AT NO.24, 2ND MAIN ROAD, TATA SILK FARM EXTENSION, BASAVANGUDI, BANGALORE-560 004.
3. MEERA ACHARYA KRISHNA KUMAR4 W/O KRISHNA KUMAR, AGED ABOUT37YEARS, R/AT NO.24, 2ND MAIN ROAD, TATA SILK FARM EXTENSION, BASAVANGUDI, BANGALORE-560 004. ADHIKAR G ACHARYA S/O LATE GARUD S ACHARYA AGED ABOUT33YEARS, R/AT NO.24, 2ND MAIN ROAD, TATA SILK FARM EXTENSION, BASAVANGUDI, BANGALORE-560 004. RESPONDENTS (BY SMT SUNITHA H SINGH, ADV.) THIS WRIT PETITION IS FILED UNDER ARTICLE227OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED PASSED ON I.A.NO.1/2017 IN O.S.NO.4465/2013, PENDING ON THE FILE OF1307.2017 3 V ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE AT ANNEXURE-A. IN W.P.NO.57934/2018: BETWEEN M/S BRIGADE PROPERTIES HAVING OFF. NO.19, NALPAD CHAMBERS NALPAD RESIDENCY, K.G. ROAD, BANGLAORE56000 REP. BY PARTNER VINAY.C. MENJERS S/O. I.D. PRASAD, AGED ABOUT40YEARS, NO.15, GROUND FLOOR, 83 COPPER ARCH, INFANTRY ROAD, BENGALURU -01. ...PETITIONER (BY SRI PRASANNA KUMAR C S, ADV.) AND SMT B S SUSHEELA DEVI W/O LATE DR. BJS ACHARYA AGED ABOUT88YEARS, R/AT NO.24, 2ND MAIN ROAD, TATA SILK FARM EXTENSION, BASAVANAGUDI, BANGALORE560004. RESPONDENT (BY SMT SUNITHA H. SINGH, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLE227OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED1611.2018 PASSED ON I.A.NO.III IN MISC.NO.541/2013, PENDING ON THE FILE OF VIII ADDL. CITY CIVIL AND SESSIONS JUDGE (CCH15, BANGALORE, VIDE ANNEXURE-A. THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING: COMMON ORDER In the suit for ejectment, the petitioner being the defendant is invoking the writ jurisdiction of this Court 4 finding fault with the counsel on record in the Court below in identifying himself with the plaintiff-Land Lord and deposing as a witness on his behalf. After service of notice, the respondents having entered appearance through their counsel, oppose the writ petitions.
2. In view of the varying stand taken up by the counsel for the parties, the following common question of law and professional ethics arises in these matters for consideration: Whether the counsel on record after retiring from the case with the leave of the Court can become an agent of the party for prosecuting the suit proceedings?. since the fact matrix from which the above question arises is inbuilt in the question itself, the factuals need no mention. Except that, the advocate appearing for the respondent landlady having retired from the case was appointed as an attorney/agent by her to act on her behalf and to conduct the proceedings in these suits.
3. learned counsel for the petitioner in support of his submission that the answer to the above question has to be in the negative banked upon the following rulings:
5. 1. BRENDA BARBARA FRANCIS AND ORS. VS. ORS.-RFA COURT ADRIAN NO.353/2016, REPORTED IN MANU/KE/0507/2017. KERALA HIGH G.MIRANDA AND2 OIL AND NATURAL GAS COMMISSION VS. OFFSHORE ENTERPRISES INC. REPORTED IN AIR1993BOM217 3. VATECH GLOBAL CO. LTD VS. UNICORN DENMART LTD AND OTHERS REPORTED IN CDJ2017DHC390 4. SMT.KAMALA BAKSHI VS. UNION OF INDIA REPORTED IN AIR2004J AND K65 5. BALIHEET SINGH VS.PRATAP SINGH AND OTHERS REPORTED IN20177) ADJ507 4. Per contra, the learned counsel appearing for the respondents relied upon the following decisions soliciting an answer to the above question in the affirmative.
1. SAJIDA BANU VS. HALEEMA BANU AND OTHERS, ILR2015KAR635 2. R. NARASIMHA VS. S.P.SRIDHAR, ILR2014KAR843. BHIMAPPA AND OTHERS VS. ALLISAB ANDOTHERS, ILR2006KAR31294. BAKER OIL TOOLS (INDIA) PVT. LTD., BS. BAKER HUGHES LTD. AND ANOTHER, RFA5832004 5. NAGAPPA MALLAPPA BANDI VS. SHIVRAJ, LAWS(KAR) 2005 916 6. COLUMBIA PICTURES INDUSTREIS VS. SITI DATED NETWORK LIMITED,D CABLE3003.2001, 2001(60) DRJ11 7. MADANLALA DHARIWAL VS. BHERRULA, AIR1965MYSORE2726 5. Having heard the learned counsel for the parties and having perused the petition papers, this Court is of the considered opinion that the answer to the above question has to be in the negative for the following reasons: (a) in the case of Brenda Barbara Francis supra, the High Court of Kerala concurred with the decision of the Bombay High Court in ONGC Vs. Offshore Enterprises, AIR1993BOMBAY217which held in Advocates their professional capacity are enjoined to act with complete impartiality and detachment and not entitled to identify themselves with the clients or the cause personally. The paramount duty of an advocate is to assist the Court in its task of administering justice- - - advocates belong to noble profession of law. On the other hand, a constituted attorney is entitled to identify himself with the donor of power of attorney and act in the same manner as the suitor litigant is entitled to act. An advocate is governed not merely by written provisions of the Advocates, Act 1961 but also by traditions of Bar built up for generation during the course of administration of justice for centuries. (b) the High Court of Delhi in the case of Vatech Global Company supra, has too echoed the same as has done the High Court of J & K, in the case of Smt. Kamla Bakshi Vs. UOI, AIR2004J & K65 Similar is the view of High Court of 7 Allahabad in the case of Akhilesh Thripati Vs. Varun Dev Sharma, supra.
6. The decision cited by the counsel for the respondents do not have a fact matrix wherein the counsel having retired from the case was acting as the agent of a litigant in the very same case. Therefore, they do not justify the contention of the respondents that the answer to the aforesaid question should be in the affirmative. the advocate on record in the Court below (whose name is consciously left unmentioned herein) should not be permitted to act as an agent of the landlady in these proceedings, 7. In the above circumstance, these writ petitions succeed; the learned counsel Sri Siraj Ahmed is restrained from participating in the proceedings in O.S.No.4465/2013, O.S.No.4462/2013 & Miscellaneous No.541/2013 either as a party or as an agent of the party or as a counsel of the party or otherwise. No costs. JUDGE Sd/- PN/Bsv