Hon’ble B. Amit Sthalekar, J.—Heard Sri Akhilesh Tripathi, learned counsel for the appellant and Sri Ayank Mishra and Sri A.P. Mishra, learned counsel for the respondents No. 2 and 3.

2. This is the defendant’s second appeal. Without going into the merits of the impugned order, at the time of admission Sri Varun Dev Sharma, learned counsel for the respondents raised a preliminary objection that the person who has filed the affidavit in support of the stay application in this second appeal is one Sri Rohit Kumar Tyagi, who has claimed in para 1 of the affidavit that he is the family friend of the appellant and states that he is doing pairvi of the case on behalf of the appellant. The learned counsel for the respondents submits that Sri Rohit Kumar Tyagi was in fact the counsel for the appellant before the lower appellate Court and therefore, as a counsel he cannot be the pairokar of his client and file an affidavit to the stay application in support of the present second appeal and this act of his amounts to professional misconduct.

3. On the preliminary objection so raised by the learned counsel for the respondent, the Court vide its order dated 10.5.2017, directed Sri Rohit Kumar Tyagi to be present in the Court on 16.5.2017 and file his affidavit. Sri Rohit Kumar Tyagi appeared before the Court on 16.5.2017 and also filed an affidavit. In para 1 of the affidavit, he has stated that he is the family friend of the appellant and is doing pairvi of the case and is well versed and acquainted with the facts and circumstances deposed to in the affidavit. However, the preliminary objection and the allegations of the learned counsel for the respondents that Sri Rohit Kumar Tyagi was the counsel for the appellant before the lower appellate Court and, therefore, he could not have filed the affidavit in support of the present second appeal as a family friend, has not been denied in the affidavit filed by Sri Rohit Kumar Tyagi. In paragraph 3 of the affidavit, the deponent Sri Rohit Kumar Tyagi submits an unconditional apology for the alleged misconduct as it was out of naivety and that he did not committ the alleged misconduct intentionally. Paragraph 3 of the affidavit reads as under :

“3. That at the outset the deponent submit that the deponent submit an unconditional apology for the alleged misconduct as it was purely out of naivety and the deponent intentionally did not commit the alleged misconduct.”

4. In paragraph 5 of the affidavit, the deponent submits that he filed the affidavit under the instructions of his client, who was also his family friend on the impression that there is no legal bar in swearing the affidavit inasmuch as he is not the counsel for the appellant in the High Court. Paragraph 5 of the affidavit reads as under :

“5. That the deponent submits that the deponent on the instructions of his earlier client who also appears to be his family friend sworn the affidavit on the impression that there is no legal var in swearing the affidavit in as much as the deponent is not a counsel of Sri Baljeet Singh before the Hon’ble High Court and no Vakalatnama has been executed in his favour.”

5. In paragraph 6 of the affidavit, he submits that he has sworn the affidavit in his capacity as pairokar and not as an Advocate and there is no legal bar as provided in Order III Rule 3 & 4 C.P.C. or Order 19 C.P.C. He further submits that there is no express bar in the Rules as contained in the Bar Council of India Rules under the Advocates Act, 1961. In paragraph 7 of the affidavit, he submits that even an Advocate has an implied authority of law to swear an affidavit on behalf of his client and in the instant case, though the deponent was counsel in the lower appellate Court but he is not counsel for the appellant before the High Court.

6. In my opinion, the contention of Sri Rohit Kumar Tyagi, Advocate is thoroughly misconceived. A counsel who appears though a Vakalatnama on behalf of his client cannot step into the shoes o