[Anabik Gupta & Ors. v. Swapan Saha, AIR 2011 Gauhati 100]
In a suit when the counter-claim was pending for cross-examination of the witnesses of the opposite party, Shri P. Deshmukhya, counsel for the plaintiff-petitioners, filed an application, stating to the effect, inter alia, that the plaintiff-petitioners had taken away all their papers, documents/files from him as they had decided to engage another lawyer and that he (P. Deshmukhya) and Shri B. K. Acharyya, another counsel, had accordingly withdrawn from the suit. On considering the application, so filed, the learned Munsiff passed an order dispensing with the cross-examination of the defendant, namely, Swapon Saha, (i.e., opposite party No. 1) and fixed the counter-claim, on next date, for cross-examination of further witness of the counter-claimant.
On the date so fixed, while the defendant’s counsel was present, none appeared on behalf of the plaintiffs. The learned Trial Court, then, passed an order dispensing with the cross-examination of the defendant’s witness, closed the evidence of the defendant’s side and fixed the counter-claim, for argument. Before the date, so fixed, the plaintiffpetitioner, namely, Anamika Gupta filed a petition, with the prayer to adjourn the argument and give another opportunity to the plaintiff-petitioners to cross-examine the defendant and his witness. The plaintiff-petitioners stated that Shri Acharyya, advocate, had expressed his inability to conduct the suit and advised the plaintiff-petitioners to engage another lawyer; the plaintiff-petitioners came to know that their engaged counsel had already withdrawn from their case, but the relevant papers/files remained with the said counsel and all the efforts made by the plaintiff-petitioners to obtain the papers/files from the said counsel did not yield any result; thereafter, the plaintiffpetitioner No. 1 applied for certified copies of the plaint, written statement, counter-claim, evidence, orders, etc., which were received in May 2010, and it was after receipt of the said certified copies that they were able to engage, in June 2010, Shri P. Deb, advocate, as their counsel. The Trial Court rejected the application.
Aggrieved by order rejecting the application, the same was challenged before the High Court. The Court observed that while considering the provisions, embodied in Rules 1, 2 and 4 of Order III of CPC, it may be noted that in a civil suit, it is not necessary for a party to remain present, in person, on every date of hearing unless there is a specific order passed, in this regard, by the Court. It is for this reason, therefore, that order III Rule 1 provides that appearance, on behalf of the parties, may be made by recognised agents. A party or his recognised agent may also appoint a pleader and every such appointment shall be filed in the Court. Once duly appointed, the engagement of the pleader subsists until engagement is determined with the leave of the Court. It logically follows that withdrawal of engagement cannot be an arbitrary act and the permission of the Court is necessary to terminate engagement of a counsel.
It is also worth noticing that the appointment of a pleader, filed in the Court, shall be deemed to have remained in force until determined ‘with the leave of the Court’ by (i) a writing, signed by the client or the pleader, as the case may be, and filed in the Court, or (ii) until the client or the pleader dies, or (iii) until all proceedings, in the suit, have ended so far as regards the client. This clearly shows that until the client or the pleader dies or until all proceedings, in the suit, end as far as the client is concerned or until the leave of the Court is obtained determining the relationship of pleader and client, the appointment, once made and filed in a suit, shall continue to remain in force.
In the present case too, when no leave had been granted by the learned Trial Court, mere filing of the petition by the plaintiffs’ pleader intimating the Court that the plaintiffs had taken away all the papers or documents from their counsel had not determined the relationship of client and pleader, which had existed between the plaintiffs’ pleader and the plaintiffs. In such circumstances, the order, dispensing with the cross-examination of the defendant, could not have been made.
