A Division Bench of High Court of Karnataka has clarified that 'no objection certificate' from the counsel holding vakalath is necessary for a new counsel to enter appearance in the case, if the previous counsel has not been discharged from the case.
"...we hold that until and unless a 'no objection certificate' is obtained from the existing advocate who still holds the vakalath, no new counsel can enter appearance on record", held the Division Bench of Justices Ravi Malimath and M Shyam Prasad in a Regular First Appeal.
In the case, a memo was filed by the appellants for withdrawing the case. However, the memo was signed by a new counsel, who did not have a 'no objection certificate' from the earlier counsel.
The new counsel submitted that no NOC was required, relying on the judgment in Karnataka Power Transmission Corporation Ltd v M Rajashekar delivered on December 2, 2016 by a bench of Justice H G Ramesh and Michael Cunha.
In that case, the Division Bench had observed as follows : "There is nothing known as irrevocable vakalatnama. The right of a party to withdraw vakalatnama or authorization given to an advocate is absolute. Hence, a party may discharge his advocate any time, with or without cause by withdrawing his vakalatnama or authorization. On discharging the advocate, the party has the right to have the case file returned to him from the advocate, and any refusal by the advocate to return the file amounts to misconduct under Section 35 of the Advocates Act, 1961"
It was further held in paragraph 8 of the judgment in Karnataka Power Transmission case that "if an Advocate is discharged by his client and if he has any genuine claim against his client relating to the fee payable to him, the appropriate course for him is to return the brief and to agitate his claim in an appropriate forum, in accordance with law".
However, the present bench held that the dictum in Karnataka Power Transmission was not applicable in the instant case, saying that it was applicable only in cases where the earlier advocate was discharged by client, and not applicable in cases where earlier counsel was still retaining the brief.
"The Division Bench held therein that 'no objection certificate' is not required only in a situation where the advocate is discharged by his client in a manner known to law; only then a new counsel can enter appearance without a 'No Objection Certificate", held the bench.
Observing that the counsel misread the Karnataka Power Transmission decision, the bench said " When the earlier counsel still holds the vakalath, the question of a new advocate entering the case cannot be accepted".