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What Right A Proxy Counsel Does Have In A Court Proceeding: A Case Study

There has been practice in Trial Courts, not to record the actual names of Junior Counsels who are appearing in the matter.instead of using the name of counsels, the Trial Courts while adjudicating Commercial matters, uses proxy counsels or Junior counsels ,instead of mentioning their names.

Though Junior counsels who appear before the Trial Courts under the instructions of Senior , are aware of proceeding. However because of non recognition of their name in court proceeding discorage their enthusiam.

After all this discouraging practice was required to have been addressed. This issue was raises before Hon'ble High Court of Delhi in recent petition hearing no. CM (M)-IPD 8/2022 titled as Max Healthcare Institute Ltd. Vs Max 24x7 Medicos & Ors.

Though actual matter involved in the said petition was contempt petition for which application under Order 39 Rule 2A CPC was filed. However during the course of proceeding, both the appearing counsels pointed out this practice being followed by Trial Courts while adjudicating Commercial matters.

The Hon'ble Single Judge , High Court of Delhi, relied upon the observation made in Veena Gupta v. Bajaj Allianz Life Insurance Co. Limited, [CM(M) 1555/2019, decided on 30th October, 2019], as under:
"6. Further, it is noticed that in the District Courts, junior counsels, who appear from the chambers of the counsels who file vakalatnamas, are reflected as "Proxy Counsel". From this, it is not clear as to whether the junior counsels, who appear, are ready to assist the Court or not.

The term "Proxy Counsel" ought to be used only when the counsels, who appear, are not able to assist the Court in the matter or are merely seeking an adjournment. Junior counsels, who work in the filing counsel's chamber, and are aware of the facts and assist the court, ought not to be described as proxy counsels.

In the practice of law, courts have a duty to encourage junior counsels who may not have filed vakalatnamas and ought to hear them if they are ready to assist the court. They cannot be simply treated as proxy counsels, as such a treatment, is not only discouraging to such junior advocates but also creates delays in the dispensation of justice.

When junior counsels appearing before the court are prepared and are ready to assist, they ought to be heard and effective orders can be passed. Filing counsel or the counsel in whose favour the client has given the vakalatnama ought to encourage junior advocates and counsels to make submissions and argue matters."

This was the earlier Judgement which emphasised the need of encouraging the Junior Counsels. In fact a healthy Judiciary can be ensured only in case there is inflow of enthusiastic youn generation and the afore mentioned practice was doing just contrary to that.

Having realized this need, the Hon'ble Single Judge , High Court of Delhi, while disposing of the matter vide Judgement dated 08.04.2022, directed that all the Commercial Courts and Trial Courts should record the name of Junior counsel's along with some contact details of the said counsel so that the lawyer, who has appeared and made submissions, can be clearly identified. The Hon'ble Single Judge, High Court of Delhi, discouraged the prwctice of using a generic name such as 'proxy counsel' or `junior counsel' or `advocate'.

One such issue also came up before Hon'ble High Court of Delhi in a petition bearing No.CM(M) 332/2007 titled as Berjesh Goel Vs Daily Foods India. This Petition was filed as the learned ADJ, by virtue of the impugned order dated 24th January, 2007 did not recognise the authority letter issued in favour of Junior counsel.

The Ld. ADJ refused to allow the Junior counsel to conduct the cross examination on the ground that neither the Advocates Act nor the Code of Civil Procedure recognises nor permits any such authority. Thus inspite of issuance of authority letter in favour of Junior counsel, the same was not allowed to.conduct the cross examination. This was the order which was under challenge in the said Petition.
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Vide order dated 30.01.2009 the said Petition was allowed with following discussion and observation by the Hon'ble High Court of Delhi. The Hon'ble High Court of Delhi referred one such Judgement of Calcutta High Court reported as Lutfar Rahaman Laskar Haji Kabadali Naskar vs. The State of West Bengal and Ors. reported in AIR 1954 Cal 455 wherein it has been held as under :-

"If any Advocate, other than the Government Pleader, is to act on behalf of the Government or on behalf of a public officer, who is represented by the Government Pleader, such Advocate can only act after the Court is informed by the Government Pleader that that particular Advocate is acting under his directions for that case.

The Hon'ble High Court of Delhi future relied hoon the Judgement delivered by Hon'ble High Court of Orissa titled as Doki Adinarayana Subudhi and Brothers vs. Doki Surya Prakash Rao reported in AIR 1980 Orissa 110 wherein it has been held as under :

An Advocate, who appears on behalf of another Advocate engaged by a party can only plead but he has no power to 'act' on behalf of a party without a document in writing in his favour. It is the agency created by a client in favour of his Advocate which clothes the latter with the power to act on behalf of the former and it is by virtue of the vakalatnama that the client becomes bound by the actions of his Advocate within the limits of authority.

In the absence of a Vakalatnama executed by the client and duly accepted by the Advocate and filed in Court, no agency at all is created and no undertaking so as to bind the client can be given."

Having referred to afore mention Judgement of Hon'ble High Court of Calcutta and Hon'ble High Court of Orissa, the Hon'ble High Court of Delhi observed that on a perusal of the provisions set out hereinabove as also the legal position as contained in the authorities of various high courts, this Court is of the opinion that there is no bar on a Pleader duly authorized by a party under a vakalatnama to engage another pleader to plead the case on his or her behalf.

The power to - plead would include within its scope and ambit, the right to examine witnesses, to conduct admission & denial, to seek adjournments and to address arguments etc., as may be authorized. Such pleader however would not have the power to compromise a case, withdraw a case or do any other act which may compromise the interest of his or her client.

In procedural matters it is not only expedient but also in the interest of speedy delivery of justice that young lawyers who work with pleaders duly authorized by clients are permitted to appear in matters. This is necessary for speedy disposal of cases and also as an encouragement to the younger professionals who are in the initial/formative years of practice.

The Hon'ble High Court of Delhi further observed that the Judges also have a duty to ensure that such young pleaders and lawyers who enter the portals of courts are permitted to learn but at the same time to ensure that the interest of parties are not permitted to be compromised. In view of the abovementioned provisions of law and case law, this Court is of the view that when a counsel has been authorized under a vakalatnama to represent his client, the junior of the said counsel can be permitted to appear on behalf of the counsel representing the said client as and when the counsel himself is not in a position to appear."

This is How the afore mentioned Judgement allowed the Junior counsel to conduct the cross examination.

These Judgements are progressive in nature and encourage the Junior counsels to take up litigation as a career. But there should be some precaution also. If some substantive work is required to be done in a case, letter of authority should be produced. Once letter of.authority is.produced, any Junior counsel should not be asked for.any further as by passage of time nature of litigation is changing.

Now in India the law firms are coming into existence where lots of lawyers including the Junior lawyers are working. There has been continuous inflow and putr lie of lawyers in a law firm. In such a situation it is extremely inconvenient for asking lawyers sach time to file Vajalatnama. These Judgements surely encourages the law firms and the Junior counsels as well.

Written By: Ajay Amitabh Suman - Advocate High Court of Delhi

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