The Advocate Act does not altogether bar an advocate from filing an affidavit in the interest of the client.

Citation

CDJ 2007 MHC 1007

Head note

Code of Civil Procedure - Order 9, 43 Rule 1(c), 8 - Advocate Act - Rule 13 of Section 49 (c) - The Advocate Act does not altogether bar an advocate from filing an affidavit in the interest of the client. Whenever an affidavit is filed on behalf of his party, he assumes the role of a witness. The Court has got a discretionary power to cross-examine the witness, at the instance of either party and that he has to produce the best evidence to prove the contents of the affidavit. Before exercising the discretionary power, the Court should be convinced "that such a course is necessary, in the interest of justice. The power under Order 19 Rule (2) C.P.C. is discretionary. Order 9 Rule 8 C.P.C. applies when a suit is dismissed for default for non-appearance of the counsel and the party, the suit can be restored on the plaintiff establishing a good cause for his non-appearance. When a suit is dismissed for non-prosecution and absence of plaintiff's Counsel, the remedy open to him is to file an application for restoration. In a given case, where the plaintiff instructs his lawyer to seek for an adjournment for some reasons, such as sickness, bereavement in his family or he is unable to attend the Court for some bonafide reason, the party should not suffer for non-appearance of his counsel. If a Counsel files an affidavit, he takes the risk of exposing himself as a witness to the case. The legal practitioners are certainly the agents of the parties in a case and for the fault of the agents, the clients should not suffer. It is the duty of the counsel engaged for conducting a case on behalf of the party to appear on that day, when the matter is listed for hearing. Once the Counsel is engaged as a pleader by his client, the authority to represent his client continues to remain in force. The Lower Court has dismissed the interlocutory application merely on the ground that the application itself is not maintainable in law, since the advocate on record has filed the affidavit. In my opinion, the application cannot be disposed of as not maintainable, but the Counsel can be called upon to explain or he can recuse himself from the case. The Counsel could not represent the matter. Therefore, as a person who is conversant with the facts of the case, it is open to her to explain to the Court for her non-appearance, by filing an affidavit. Appeal allowed.

Cases Referred:
V.P.Nagarajan vs. Prabhavati reported in 1989 (1) L.W. 543
Prahlad Chandra Dey vs. Assam Board of Revenue, reported in AIR 1987 Gujarat
Sitabai vs. Vidhyawati reported in AIR 1972 M.P. 8
Harishankar vs. Rukmani Devi reported in 1996 AIHC 5263
2001 (1) L.W. 130 (L.C.Saptharishi vs. E.D.Balasubramaniam)
2004 (2) MLJ 701 (The Airport Director, Airport Authority of India, Chennai Airport, Chennai vs. Gnanasekaran),

Comparative Citations:
2007 (2) MLJ 1162; 2007 (2) CTC 231, 2007 (3) CTC 231, 2007 (3) LW 1044

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