'Advocates Can't Be Made Guarantors For Petitioner’s Whereabouts': Gauhati High Court Sets Aside Costs After Petitioner Could Not Be Traced

The Court was hearing an appeal by two advocates against a Single Judge’s judgment and subsequent review order in a writ petition seeking a court-monitored investigation into the death of the writ petitioner’s father. The Single Judge had suspected “ghost filing” after the petitioner could not be traced.

A Division Bench of Chief Justice Ashutosh Kumar and Justice Arun Dev Choudhury, while stating that "... the appellants being Advocates cannot be made guarantors for the physical whereabouts of a writ-petitioner after filing of the writ petition and arguing the same", further held that "the appellants ought not to have been held responsible for the non-appearance of the writ-petitioner.”

Advocate Harbinder Singh Kalsi appeared as appellant-in-person. Advocate A. Mena appeared for the respondents.

Background

The appellants were advocates before the High Court. According to them, a fellow advocate requested that they appear in a matter because a conflict of interest prevented that advocate from signing the vakalatnama.

The appellants claimed that they accepted the request in good faith after satisfying themselves about the writ petition’s averments and the petitioner’s existence. They stated that the petitioner was physically present on the High Court premises and was identified before the Oath Commissioner by the fellow advocate’s registered clerk.

The writ petition, which sought a court-monitored probe into the death of the petitioner’s father, remained pending for approximately six years. During its pendency, some respondents alleged that the petitioner was a fictitious person. A CID inquiry reported that she could not be located at the address furnished in the proceedings.

The Single Judge dismissed the writ petition, imposed costs of ₹50,000 on each advocate and referred the matter to the Bar Council for disciplinary proceedings.

The appellants subsequently obtained a copy of a caveat that one of the respondents had filed against the writ petitioner in a property dispute. They sought review on the ground that the document supported their contention that the petitioner existed. The review petition was dismissed because the assertion of her existence based on the caveat was considered inferential.

Before the Division Bench, the appellants argued that the inability to locate a litigant after a petition had been filed could not make the advocates guarantors of her physical whereabouts. They also relied on the registered clerk’s statement that he had seen and identified the petitioner when the writ petition was filed.

Court’s Observations

The Court considered the circumstances in which the appellants had accepted the vakalatnama at another advocate’s request and the institutional procedure through which the writ petition was filed.

Taking a holistic view, the Court held that the appellants ought not to have been held responsible for the writ petitioner’s subsequent non-appearance.

The Court did not disturb the Single Judge’s conclusion that the petitioner could not be found. It also did not hold that the underlying writ petition should be restored merely because the advocates disputed the allegation that the petitioner was fictitious.

The Court held that the writ petition had been rightly dismissed because the petitioner, who had sought a court-monitored investigation into her father’s death, could not be found.

The Court observed: “The conclusions of the learned Single Judge were correct in so far as the writ-petitioner was not to be found, who actually had prayed for a Court monitored probe with regard to the death of her father.”

The Court therefore maintained the dismissal of the writ petition while separately examining whether the advocates deserved the professional and monetary consequences imposed upon them.

The Court held that imposing costs upon the appellants in their professional capacity was not justified in the circumstances.

The Court stated: “The writ petition was rightly dismissed but the cost imposed on the Advocates as professionals, does not appear to be justified in the facts and circumstances of the case.”

The Court similarly found that referring the advocates to the Bar Council for disciplinary proceedings would amount to unduly harsh treatment.

The Court added: “Similarly, any referral to the Bar Council over this issue would also tantamount to a very harsh treatment to the learned Advocates, who have practiced before this Court and have spent good time at the Bar.”

The Court consequently set aside both the costs and the Bar Council referral while leaving the dismissal of the writ petition intact.

Although it granted relief to the appellants, the Court cautioned advocates to exercise greater care when accepting a vakalatnama at the request of a friend.

The Court stated: “However, while parting, we express a note of caution for the learned Advocates to be more careful in accepting Vakalatnama on the request of a friend without probing into the correctness of the averments made in the writ petition and being satisfied that the writ-petitioner is not masquerading as a litigant.”

The Court thus required advocates in such circumstances to probe the correctness of the pleadings and satisfy themselves about the person presenting herself as the litigant.

Conclusion

The Gauhati High Court partly modified the Single Judge’s judgment. It upheld the dismissal of the writ petition but set aside the costs of ₹50,000 imposed upon each appellant and the referral to the Bar Council of Assam, Nagaland, Mizoram and Arunachal Pradesh.

The Court also set aside the order dismissing the review petition. The appeal was allowed to the extent of these modifications, accompanied by a caution to advocates concerning the verification expected when accepting a vakalatnama through a friend.

Cause Title: Harbinder Singh Kalsi and Another v. State of Assam and Others

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