1. 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 of that client. His identity must remain distinct from that of his client. It is one thing for an Advocate to file a personal affidavit in his client''s case to explain the delay in filing the case if attributed to him but it is quite another thing for the advocate to file a petition or appeal or proceeding on affidavit swearing to facts which concern only his client more so when the advocate has appeared for the said client in an earlier proceeding in his capacity as the client''s advocate and not as his witness. The Supreme Court in Vinoy Kumar Vs. State of U.P. and Others, (2001) 4 SCC 734 has held as under:-
"1. Aggrieved by the orders passed by the District and
Sessions Judge, Varanasi dated 13-2-2001 transferring a
number of criminal cases for disposal to the Additional
District and Sessions Judge/Special Judge, the petitioner-
Advocate, representing the accused persons in three of such
transferred cases, filed a writ petition in the High Court
praying for quashing of the said order. It was contended that
by the transfer of the cases, the speedy trial of the accused
has been hampered and that the order has been passed in a
casual manner. The writ petition was dismissed by the High
Court holding that the petitioner being an advocate had no
locus standi to challenge the legality of the order by way of a
writ petition.
2. Generally speaking, a person shall have no locus standi to
file a writ petition if he is not personally affected by the
impugned order or his fundamental rights have neither been
directly or substantially invaded nor is there any imminent
danger of such rights being invaded or his acquired interests
have been violated ignoring the applicable rules. The relief
under Article 226 of the constitution is based on the
existence of a right in favour of the person invoking the
jurisdiction. The exception to the general rule is only in
cases where the writ applied for is a writ of habeas corpus or
quo warranto or filed in public interest. It is a matter of
prudence, that the court confines the exercise of writ
jurisdiction to cases where legal wrong or legal injuries are
caused to a particular person or his fundamental rights are
violated, and not to entertain cases of individual wrong or
injury at the instance of third party where there is an
effective legal aid organisation which can take care of such
cases. Even in cases filed in public interest, the court can
exercise the writ jurisdiction at the instance of a third party
only when it is shown that the legal wrong or legal injury or
illegal burden is threatened and such person or determined
class of persons is, by reason of poverty, helplessness or
disability or socially or economically disadvantaged
position, unable to approach the court for relief.
3. In the instant case the petitioner had not filed the petition
in public interest and did not disclose the circumstances
which prevented the affected persons from approaching the
court. In the discharge of his professional obligations, the
petitioner-advocate is not obliged to file the writ petition on
behalf of his clients. No circumstance was mentioned in the
petition which allegedly incapacitated the affected persons
from filing the writ petition. Section 30 of the Advocates Act,
only entitles an advocate to practise the profession of law
and not to substitute himself for his client. The filing of the
writ petition in his own name, being not a part of the
professional obligation of the advocate, the High Court was
justified in dismissing the writ petition holding that the
petitioner had no locus standi.
4. The reliance of the learned counsel on Chairman, Railway
Board & Ors. v. Chandrima Das (Mrs.) & Ors. (2002) 2 SCC
465 is misplaced inasmuch as in that case the writ petition
had been filed in public interest where it was found on facts
that the affected person was not in a position to approach the
court for the redressal of her grievances.
5. There is no merit in this petition which is accordingly
dismissed."
7. The Supreme Court has referred to the provisions of
Section 30 of the Advocates Act, 1961 and has held that the
said section only entitles an advocate to practise the profession
of law and not to substitute himself for his client. The filing of
the writ petition in his own name was not a part of the
professional obligation of the advocate and the High Court
was, therefore, justified in dismissing the writ petition holding
that the petitioner had no locus standi.
8. Section 30 of the Advocates Act, 1961 provides that every advocate whose name is entered in the State roll shall be entitled as of right to practise throughout the territory to which the Act apply. Thus, an advocate gets his right to practise in a court only under Section 30 of the Act. ''Practise'' in itself means to appear on behalf of his client before a Court or Tribunal in the best interest of his client. Practise, however, certainly does not give liberty to an advocate to identify himself with his client and step into the shoes of his client, so far as the rights of his client are concerned. Section 30 of the Act reads as under:-
"30. Right of advocates to practise.-Subject to provisions
of this Act, every advocate whose name is entered in the
[State roll] shall be entitled as of right to practise throughout
the territories to which this Act extends,-
(i) in all Courts including the Supreme Court;
(ii) before any Tribunal or person legally authorised to take
evidence; and
(iii) before any other authority or person before whom such
advocate is by or under any law for the time being in force
entitled to practise."
9. I am, therefore, of the view that pima facie, the said
Advocate, Sri Rohit Kumar Tyagi is guilty of professional
misconduct in identifying himself with his client and filing an
affidavit in support of the present second appeal, but
considering that he himself expresses that he had acted under
naivety and has submitted an unconditional apology, I do not
propose to refer the matter to the Disciplinary Committee of
the State Bar Council in the hope that this incident would in
itself be a lesson enough for the said counsel to mend and mind his ways for future.
10. For reasons aforesaid and in view of the law laid down by the Supreme Court in the case of Vinoy Kumar (supra), this second appeal is dismissed.
