No fault of Client who appointed a counsel to represent him who failed to appear

The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the court’s procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of, the advocate that the latter appears in the matter when it is listed. It is no part of his job. Continue reading “No fault of Client who appointed a counsel to represent him who failed to appear”

If counsel for accused failed to appear the court can appoint advocate on State cost for hearing

The court can dismiss the appeal for non prosecution and enforce discipline or refer the matter to the Bar Council with this end in view. But the matter can be disposed of on merits only after hearing the appellant or his counsel. The court might as well appoint a counsel at State cost to argue on behalf of the appellants. Since the order of conviction and sentence in the present matter has been confirmed without hearing either the appellants or counsel for the appellants, the order must be set aside and the matter must be sent back to the High Court for passing an appropriate order in accordance with law after hearing the appellants or their counsel and on their failure to engage counsel, after hearing counsel appointed by the Court to argue on their behalf. Continue reading “If counsel for accused failed to appear the court can appoint advocate on State cost for hearing”

Whether appointment of an advocate as a Government Counsel is an appointment in Government service

The ‘appointment of any legal practitioner as a District Government Counsel is only professional engagement,’ it is difficult to appreciate the submission for which sustenance is sought from the provisions contained in the same Manual. The appointment being for a fixed term and requiring express renewal in the manner provided in the Manual, there is no basis to contend that it is not a professional engagement of a legal practitioner but appointment to post in Government service which continues till attaining the age of superannuation. Continue reading “Whether appointment of an advocate as a Government Counsel is an appointment in Government service”

The relationship of counsel and his party or the recognised agent and his principal is a matter of contract

Courts in India have consistently recognised the traditional role of lawyers and the extent and nature of their implied authority to act on behalf of their clients. Speaking for a Full Bench of the Kerala High Court in Chengan Souri Nayakam v. A. N. Menon, AIR 1968 Kerala 213, K. K. Mathew, J. (as he then was) observed:

“The construction of a document appointing an agent is different from the construction of a vakalat appointing counsel. In the case of an agent the document would be construed strictly and the agent would have only such powers as are conferred expressly or by necessary implication. In the case of counsel the rule is otherwise because there we are dealing with a profession where well-known rules have crystallised through usage. It is on par with a trade where the usage becomes an additional term of the contract, if not contrary to the general law or excluded by express agreement.” (p. 215). Continue reading “The relationship of counsel and his party or the recognised agent and his principal is a matter of contract”