Oil & Natural Gas Commission vs Offshore Enterprises Inc

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1992 Supreme(Bom) 584

IN THE HIGH COURT OF BOMBAY
D.R. Dhanuka, J.
Oil Natural Gas Commission..... Petitioner.
Versus
Offshore Enterprises Inc..... Respondents.
Arbitration Petition No. 210 in Award No. 66 of 1989, decided on 18-12-1992.
Advocates appeared :
I.M. Chagla with D.J. Khambata i/b B. Munim Co., for respondents.
G.E. Vahanvati with P.A. Savant i/b Gagrat Co., for the Incorporated Law Society.
A.P. Shah, for the Bar Council of Maharashtra.

Headnote:Order 3, Rule 2 (a) and 4 (1) and Rules framed by the High Court under Advocates Act, 1961, Section 34 (1), Rules 2 (1) and 10-Advocate who acts as constituted attorney of suit or in pursuance of power of attorney from his client to act and appear in a suit is not entitled to combine his role of constituted attorney with that of an Advocate in his professional capacity proceeding at the same time.
       If suitor appoints a firm of Advocates as his, her or its Advocate, it follows that neither of partners of such firm of Advocates or Solicitors can act in respect of same cause in a manner inconsistent with obligations arising from appointment of firm of Advocates as Advocates for the cause and none of partners can act for said party under Power of Attorney.
       If, a suitor appoints a firm of Advocates as his, her or its Advocate, it follows that the suitor has appointed all the partners of the said firm as his Advocates and each one of the partners of the said firm is under an obligation to act consistently with his professional obligation arising from acceptance of the said Vakalatnama. Neither of the partners of such firm of Advocates or solicitors can act in respect of the same cause in a manner inconsistent with obligations arising from appointment of him of Advocates as Advocates for the cause.
       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. It is inherent in the scheme and the provisions of Code of Civil Procedure and implicit in the provisions contained in Order III, Rule 4 of the Code of Civil Procedure and other connected provisions that Advocate who acts or appears or pleads before the Court in a professional capacity must be a client with separate and distinct identity.
       The recognised agent of a suitor is on par with the suitor or client himself, an Advocate is not, as an Advocate, an independent person with a specific role in administration of justice. Detachment and impartiality expected of an Advocate is likely to be jeopardise when an Advocate acts in both the capacities. The risk in allowing combination of two roles is far too serious.
       Practice prevailing in Court in case of foreign or non-resident clients where by the Advocates, firm acts in a professional capacity and on or two parents of the same firm obtains powers of Attorney with authorisation to sign pleadings and affidavits etc. is opposed to law.
       A constituted attorney of the party cannot appoint himself or his copartner or his own firm of Advocates as Advocate on record for purpose of acting in professional capacity in the same cause or matter. An Advocate acting in a professional capacity must be totally independent and detached from his client or his recognised agent. No Advocate is entitled to circumvent -this principle directly or indirectly. The Prothonotary and Senior Master, directed shall not accept any Vakalatnama in favour of a firm of Advocates where one or the other partner of the same firm also holds a power of attorney from the plaintiff or the defendant or any other suitor before the Court in the same cause.

JUDGMENT - D.R. DHANUKA, J.:---While hearing Arbitration Petition No. 210 of 1989, I found that Shri Atul Munim and Shri Pramod Dalal, Partners of Messrs. Bachubhai Munim Co., a firm of Advocates, had filed their own affidavits as Constituted Attorney of the respondent Messrs. Offshore Enterprises Inc., while Messrs Bachubhai Munim Co., were also on record of the proceedings in their professional capacity as advocates for the respondent, I have come across several such cases where Power of Attorney is obtained by one or other partner of the Advocate's firm/Solicitors' firm from a non-resident client and the Advocates' firm acts for that party in a professional capacity. While delivering my judgment dated 20th and 23rd April 1992, I observed as under :

"In case of foreign clients, a practice appears to have grown up to the effect that the Advocate on record acts both as a Constituted Attorney of the client as well as an advocate on record. Time has reached when it shall have to be considered as to whether this practice is in accordance with law and as to whether an Advocate can be permitted to combine the role of a Constituted Attorney of a suiter and that of an Advocate/Solicitor on record of the same case. Since a doubtful practice of this kind has grown up in this Court for many years, this aspect shall have to be examined after issue of notice to the Bar Council of Maharashtra and the Incorporated Law Society. This can be done separately although the occasion for examining the question arises in this petition."

2. In this background, I formulated the following questions for consideration of this Court in this respect.

(i) Whether an Advocate is entitled to act as Constituted Attorney of a party with authorisation to sign the pleadings and affidavits on behalf of the suitor as well as to act and plead for the party concerned in the same litigation?

(ii) Whether the existing practice followed by firm Advocates/Solicitors/Attorneys particularly in case of non-resident clients as aforesaid is in conformity with law and the recognised rules of professional ethics?

(iii) Any other question which may be incidental to the question Nos. 1 and 2?

The Bar Council of Maharashtra and Goa. The Bombay Incorporated Law Society of Bombay and parties to the main proceeding waived notice of hearing in respect of the questions formulated by the Court as aforesaid. Shri Ajit P. Shah, made detailed submission on behalf of Bar council of Maharashtra and Goa on the question referred to hereinabove. The Bar Council of Maharashtra and Goa has filed its written submissions in the matter. Shri G.E. Vahanvati made detail submissions on behalf of Bombay Incorporated Law Society. The Law Society has filed written submissions on the abovereferred questions of importance. Shri D.J. Khambata Counsel of this Court instructed by Messrs Bachubhai Munim Co., made submissions on behalf of respondents in this petition and also filed written submissions on behalf of the respondents in the main proceedings. The Court is well assisted on the subject of considerable importance to the legal profession, the members of the public and this Court.

3. It is necessary to refer to some of the relevant provisions of the Code of Civil Procedure before discussing the contentions urged by the learned Counsel at the Bar. A party may appear in a suit or other legal proceeding in person or by recognised agent or by 'pleader', used in the Code is wide enough to mean and include. Advocate and legal practitioners of all categories Order III, Rule 2(a) of the Code of Civil Procedure provides that the recognised agents of parties by whom such appearances, applications and acts may be made or done are:

"persons holding powers-of-attorney authorising them to make and do such appearances, applications and acts on behalf of such parties;"

Order III, Rule 2(a) of the Code of Civil Procedure is amended in its applicability to the State of Maharashtra by Notification No. 3236 dated 7th

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