H.G.RAMESH, J.

1. Whether vakalatnama filed by a new advocate is to be accepted in the absence of ‘no objection’ of the advocate already on record, is the short question for consideration in this case.

2. Registry has raised an objection on the vakalatnama of the appellant filed by Sri Ajith Anand Shetty, advocate; objection is that the vakalatnama does not contain ‘no objection’ of the advocate already on record for the appellant.

3. We have heard Sri Ajith Anand Shetty, learned counsel, on the objection raised by the Registry. The learned counsel submitted that a party to a litigation has an absolute right to appoint an advocate of his choice, to terminate his services, and to appoint a new advocate. Hence, a party cannot be compelled to obtain ‘no objection’ from the advocate already on record. Insisting for ‘no objection’ from the previous advocate will amount to putting a restriction on the right of a party to appoint an advocate of his choice. He sought for overruling of the objection raised by the Registry. In support of his submission, he relied on two decisions of the Supreme Court in R.D.Saxena v. Balaram Prasad Sharma [AIR 2000 SC 2912], and in New India Assurance Co. Ltd. v. A.K.Saxena [AIR 2004 SC 311], and also a Division Bench decision of this Court in Sri C.V.Sudhindra & Ors. vs M/s Divine Light School for Blind & Ors. [ILR 2008 KAR 3983].

4. To examine the question raised, it is relevant to refer to the following observations made by the Supreme Court in R.D.Saxena v. Balaram Prasad Sharma [AIR 2000 SC 2912]:

“15. A litigant must have the freedom to change his advocate when he feels that the advocate engaged by him is not capable of espousing his cause efficiently or that his conduct is prejudicial to the interest involved in the lis, or for any other reason. For whatever reason, if a client does not want to continue the engagement of a particular advocate it would be a professional requirement consistent with the dignity of the profession that he should return the brief to the client. It is time to hold that such obligation is not only a legal duty but a moral imperative.

17. If a party terminates the engagement of an advocate before the culmination of the proceedings that party must have the entire file with him to engage another advocate. But if the advocate who is changed midway adopts the stand that he would not return the file until the fees claimed by him is paid, the situation perhaps may turn to dangerous proportion. There may be cases when a party has no resource to pay the huge amount claimed by the advocate as his remuneration. A party in a litigation may have a version that he has already paid the legitimate fee to the advocate. At any rate if the litigation is pending the party has the right to get the papers from the advocate whom he has changed so that the new counsel can be briefed by him effectively. In either case it is impermissible for the erstwhile counsel to retain the case bundle on the premise that fees is yet to be paid.

18. Even if there is no lien on the litigation papers of his client an advocate is not without remedies to realise the fee which he is legitimately entitled to. But if he has a duty to return the files to his client on being discharged the litigant too has a right to have the files returned to him, more so when the remaining part of the lis has to be fought in the court. This right of the litigant is to be read as the corresponding counterpart of the professional duty of the advocate.

23. We, therefore, hold that the refusal to return the files to the client when he demanded the same amounted to misconduct under Section 35 of the Act. Hence, the appellant in the present case is liable to punishment for such misconduct.

42. ……………………. It is true that an advocate is competent to settle the terms of his engagement and his fee by private agreement with his client but it is equally true that if such fee is not paid he has no right to retain the case papers and other documents