It will be necessary to examine the relevant previsions of the Code of Civil Procedure, 1908 (“code” for short), in that behalf. Rule 4 of Order III of the Code reads thus:
4. Appointment of pleader – (1) No pleader shall act for any person in any Court, unless he has been appointed for the purpose of such person by a document in writing signed by such person or by his recognized by or under a power-of-attorney to make such appointment.
(2) Every such appointment shall be filed in Court and shall, for the purposes of Sub-rule (1), be deemed to be in force until determined with the leave of the Court by a writing signed by the client of the pleader, as the case may be, and filed in Court, or until the client or the pleader dies, or until all proceedings in the suit are ended so far as regards the client.
Explanation.- For the purposes of this Sub-rule, the following shall be deemed to be proceedings in the suit. –
“…………………………………..”
7. It is therefore very clear from the said Rule that once Advocate files his vakalatnama, the same continues to be in force till he obtains leave of the Court to withdraw his vakalatnama. It is also necessary to refer to the Rules framed by this Court in exercise of power under Section 34(1) of the Advocates Act, 1961. The said rules lay down the procedure for withdrawal of appearance by an Advocate. Rule 8(4) of the said Rules provides that when an Advocate who has filed a vakalatnama for a party wishes to withdraw his appearance he shall serve a written notice of his intention to do so on his client at least seven days in advance of the case coming up for hearing before the Court. The Rule further provides that the Advocate shall file a note in writing requesting the Court for permission to withdraw appearance and shall also file along with the Note the letter of the client instructing him to withdraw his appearance or a copy of the intimation given to the client as above together with its written acknowledgement by the client. After such note in writing is filed and if the Court is satisfied that no inconvenience is likely to be caused to the Court on the client, the Court may permit the Advocate to withdraw his vakalatnama. In view of the provisions of the said Code and the Rules, no Advocate can withdraw his vakalatnama without obtaining leave of the Court. Till such time leave is not granted, the Advocate concerned continues to represent his client.
8. In the present case, it is obvious that the mandatory procedure laid down by the aforesaid Rules has not been followed. There is nothing on record to show that before filing no instruction pursis, the Advocate had given any intimation in writing to the Appellants. It is not a case where the appellant had intimated to the Advocate to withdraw his appearance. It is not reflected from the order that the Appellate Court granted leave to the Advocate to withdraw his appearance.
REF: Govinda Bhagoji Kamable And Ors. vs Sadu Bapu Kamable – 2004 (6) BomCR 552, 2005 (1) MhLj 651
