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M/S Prochem Industries Pvt. Ltd. v. The Pradeshiya Industrial And Investment Corp. U.P. Ltd. - WRIT - C No. 10926 of 2002 [2007] RD-AH 8663 (8 May 2007)


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Court No.35

Civil Misc. Writ Petition No. 10926 of 2002

M/s Prochem Industries Pvt.Ltd.


 The Pradeshiya Industrial and Investment Corporation U.P.Ltd.

           and another

Hon.R.P.Misra, J.

Hon.Shishir Kumar, J.

The present writ petition has been filed for the following reliefs:-

(a)     To issue a writ order or direction in the nature of certiorari quashing the revised Bill dated 22.2.2002 (Annexures 15 and 16 to the writ petition).

(b) To issue a writ order or direction in the nature of mandamus directing the respondent No.1 to issue No Dues Certificate to the petitioner as on 4.4.1997 and further to withdraw the recovery against the petitioner.

( c)  To issue a writ order or direction in the nature of mandamus commanding the respondent no.1 to produce its original O.T.S./Ledger/Payment Register.

(d)   To issue any such other suitable writ order or direction as this Hon'ble Court may deem fit and proper under the circumstances of the case.

(e)     To award the costs of this writ petition to the petitioner.  

While entertaining the writ petition this Court had passed an order on 16.3.2002 to this effect that till the next date of hearing of the case, further action pursuant to the impugned citation dated 24.10.2001 (Annexure 8 to the writ petition) shall remain stayed.

Counter and rejoinder affidavits were exchanged, therefore,when the case was listed on 10.4.2007 a request was made that the case may be taken up tomorrow for further hearing.  On 11.4.2007, after hearing Sri A.K.Gupta, counsel for the petitioner and Sri Anurag Khanna, who appears for the  Pradeshiya Industrial & Investment Corporation of U.P. Ltd, the counsel for the respondents was directed to produce the original records pertaining to the amounts of payment made by the petitioner and the interim order was extended till the next date of listing.  Subsequently, the case was ordered to be listed on 7.5.2005.  The question for consideration before this Court was whether the amount which has already been paid by the petitioner as one time settlement was in time and whether there is any liability of payment of Rs.1,18,000/- as interest. Mr.Khanna fairly contended before the Court that he will advised his client to settle the matter amicably.  Nothing was to be argued further.

On 7.5.2007 a mention was made on behalf of Mr.N.K.Sharma, Advocate for adjournment of hearing on the ground that some counsel from outside Allahabad will argue the matter.  As the hearing was adjourned only  regarding  verification of the amount which is to be paid by the petitioner by way of interest and nothing was to be argued on merits, only accounting was to be done. As there was an interim order operating in favour of the petitioner from 2002, therefore, the court was not inclined to adjourn the case but in spite of the repeated requests made by Mr. N.K.Sharma, Advocate, the writ petition was ordered to be listed on 8.5.2007 with a clear indication that no senior counsel or any counsel from outside will be permitted to argue the case.  As it appears to the Court that matter was being got adjourned due to the fact that interim order was in favour of the petitioner and the one time settlement was already cancelled by the respondents.

When the case was taken up on 8.5.2007, another counsel from District Court Aligarh namely Mr. Chandrashekhar, Advocate,  wanted to argue to matter.  The court has objected to it as it was indicated yesterday that the case will not be adjourned.  A question was asked by the Court regarding  whether Sri Sharma Advocate or Mr.Chadrashekhar, Advocate have filed any Vakalatnama or not and whether any consent as provided under the Bar Council Rules framed by the Bar Council of India has been obtained in writing or not.  There is nothing on record to show that any vakalatnama has been filed by  Mr.N.K.Sharma and Mr.Chandrashekhar, Advocates. It was informed by Mr.Sharma that only permission has been taken from the earlier counsel. The Court is of the opinion that this is not the requirement of the Rules framed by Bar Council of India. Rule 39 of Chapter II of Rules framed by Bar Council of India amended up to 31st July, 1995, there is a requirement that no advocate shall enter appearance in any case where already a vakalatnama has been filed by an advocate except with his consent in writing. Rule 39 is being reproduced below:-

"39. An Advocate shall not enter appearance in any case in which there is already a vakalat or memo of appearance filed by an Advocate engaged for a party except with his consent; in case such consent is not produced he shall apply to the Court stating reasons why the said consent should not be produced and he shall appear only after obtaining the permission of the Court."

In view of the aforesaid fact, in the interest of the Court, there must be a consent in writing.  The Court feels that all these exercise has been done by the alleged subsequent counsel only to get the case adjourned. When the Court has not permitted to argue Sri Chandrashekhar then he has uttered a word "that this is a new thing in this Court that the Court is taking shelter of earlier counsel." In the opinion of the Court the word "utter" by the counsel was not in a good taste and the Court feels that it was all done only due to the fact that the petitioner anyhow got an impression from the observation made by the Court that his case may not go in his favour.  The total exercise was only to get the case adjourned.    

In view of the aforesaid fact, as these things have been uttered by a counsel, the Court is not inclined to hear the matter.

In these circumstances, we release this case.  The file of the writ petition may be placed before Hon'ble The Chief Justice for nomination to another Bench in which both of us (Hon.R.P.Misra & Hon.Shishir Kumar, JJ.) are not  member .  Put up before Hon'ble The Chief Justice for nomination.





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