What a Vakalatnama is
Vakalatnama is a legal document being executed by every litigant as prescribed by law for the purpose of engaging an advocate to conduct some specific judicial proceedings and doing all what is lawfully necessary in that regard in a court. It is a species of Power of Attorney. The term originated from Urdu and it means power of attorney.
The Vakalatnama enables the advocate appearing for the litigant to do several acts as an agent of the litigant who remains as the principal. It creates a special relationship between the lawyer and the litigant. It regulates the extent of delegation of authority to the advocate in regard to the conduct of the judicial proceedings and the terms and conditions governing such delegation. It should, therefore, be properly filled, attested and accepted with due care and caution.
What all it authorizes?
A Vakalatnama authorizes the advocate to appear in the court proceedings including miscellaneous proceedings, produce or receive any document / amount on the party’s behalf, apply for copies of documents or return of them, etc.
It authorizes him to accept any notice in any appeal, revision or reference in regard to the case. It declares that all that the advocate legally does is binding on the party himself.
Execution of Vakalatnama
The litigant should sign the Vakalatnama in the presence of witness and the advocate should accept it. The name of the advocate should be inserted in the Vakalatnama before it is executed. It shall be dated when it is executed by the litigant and accepted by the advocate.
The advocate should avoid obtaining the signature of the litigant on blank Vakalatnamas and filling them subsequently.
Attestation of Vakalath
The execution of a Vakalath must be attested by a person such as a judicial officer, a Municipal Councilor, Village Officer, an advocate etc, as specified in the rules.
The attestation can also be made by any person, only when:
· the executant is personally known to the advocate favouring whom the vakalath is executed,
· the litigant signs in the presence of the advocate and
· an endorsement is made by the advocate to the above effect.
The person attesting the Vakalatnama should certify that it has been executed by the litigant in his presence and then should subscribe his signature over his name and designation. The pleader’s name should also be inserted before executing the Vakalatnama. Otherwise it shall not be treated as valid attestation.
When a person who is blind or unacquainted with the language of it, executes a Vakalatnama, the person before whom it is executed shall read, translate and explain the Vakalatnama to the executants. Then he should certify that he has explained everything as above and the executant seemed to have understood it and thereafter he made his signature in his presence.
If a person executes a Vakalatnama is in the custody the Jailor/ Station House Officer/ other Officer in charge should authenticate the execution of it. If the person executing a Vakalatnama is a public officer whose signature can be judicially noticed by the court, the authentication of the Vakalatnama is not necessary.
The pleader accepting the Vakalatnama should endorse that he accepted it and write his address for service of service. But a pleader accepting Vakalatnama is not entitled to attest it, even if he personally knows the executant.
SC warns of defects in filing Vakalatnama
The Supreme Court (SC) in three judge bench judgment in Uday Shankar Triyar v Ram Kalewar Prasad Singh & Anr expressed its concern in regard to the manner in which defective Vakalatnamas are routinely filed in courts. The SC found the following defects routinely occurring in Vakalatnamas filed in courts:-
Failure to mention the name/s of the person/s executing the Vakalatnama, and leaving the relevant column blank;
Failure to disclose the name, designation or authority of the person executing the Vakalatnama on behalf of the grantor (where the Vakalatnama is signed on behalf of a company, society or body) by either affixing a seal or by mentioning the name and designation below the signature of the executant (and failure to annex a copy of such authority with the Vakalatnama).
Failure on the part of the pleader in whose favour the Vakalatnama is executed, to sign it in token of its acceptance.
Failure to identify the person executing the Vakalatnama or failure to certify that the pleader has satisfied himself about the due execution of the Vakalatnama.
Failure to mention the address of the pleader for purpose of service (in particular in cases of outstation counsel).
Where the Vakalatnama is executed by someone for self and on behalf of someone else, failure to mention the fact that it is being so executed. For example, when a father and the minor children are parties, invariably there is a single signature of the father alone in the Vakalatnama without any endorsement/statement that the signature is for ‘self and as guardian of his minor children’. Similarly, where a firm and its partner, or a company and its Director, or a Trust and its trustee, or an organisation and its office-bearer, execute a Vakalatnama, invariably there will be only one signature without even an endorsement that the signature is both in his/her personal capacity and as the person authorized to sign on behalf of the corporate body/firm/ society/organisation.
Where the Vakalatnama is executed by a power-of- attorney holder of a party, failure to disclose that it is being executed by an Attorney-holder and failure to annex a copy of the power of attorney;
Where several persons sign a single vakalatnama, failure to affix the signatures seriatim, without mentioning their serial numbers or names in brackets. (Many a time it is not possible to know who have signed the Vakalatnama where the signatures are illegible scrawls);
Pleaders engaged by a client, in turn, executing vakalatnamas in favour of other pleaders for appearing in the same matter or for filing an appeal or revision. (It is not uncommon in some areas for mofussil lawyers to obtain signature of a litigant on a vakalatnama and come to the seat of the High Court, and engage a pleader for appearance in a higher court and execute a Vakalatnama in favour of such pleader).
The SC has points out that these routine defects occur mainly because the Registries / Offices do not verify the Vakalatnamas with the care and caution they deserve. Such failure many a time leads to avoidable complications in the fate of the case at later stages.
Signed Vakalatnama necessary
In Baru Singh (Deceased By L.R.) And … v Babu Ram Sharma, the Allahabad High Court in its 1997 judgment says as follows:
“Signed Vakalatnama is required to be obtained by a lawyer from his client when it is to be filed in Law Court or Tribunal to plead on behalf of his client- No Vakalatnama is needed for performing other legal work viz. giving opinion, sending notices, drafting petition or other documents.- No lawyer is under legal duty to obtain a signed Vakalatnama from his client for performing any legal work, say, giving opinion, sending notices, drafting petitions or other documents. A signed Vakalatnama, however, is required to be obtained when it is to be filed in Law Courts or Tribunals where the law requires such documents to be filed to enable the lawyer to appear and plead cases in Courts and Tribunals on behalf of his client executing the Vakalatnama is his favour”.
Pleader alone can be authorized to argue a case
A party can, of course, appear in person and personally argue his own case. But he cannot give a power of attorney to anyone, other than a person who is enrolled as an advocate, to appear on his behalf. To hold otherwise would be to defeat the provisions of the Advocates Act (M/s Goa Antibiotics & Pharmaceuticals Ltd. V R.K. Chawla & Another).
A party who files a Vakalatnama and retains an advocate for a case shall not appear in person, unless he withdraws his Vakalatnama.
Non-advocate requires court’s permission
Normally a qualified advocate alone can plead on behalf of someone else in any judicial proceedings.
However in any exceptional case, the court has enough authority to permit a person to act as a pleader for an accused in order to prevent a possible miscarriage of justice by recording its reasons for doing so and filing a power of attorney of the litigant. This, in fact, is not a general license.
That means the power of attorney holder cannot appear in the Court on behalf of anyone unless permitted by any Court under Section 32 of the Advocates Act. However when a person habitually represents parties in public interest litigations and conducts cases regularly would be a violation of Section 32 of the Advocates Act, 1961.
In Nimbaram Bora v Union of India the court observed that ‘practice’ means repeated action or habitual performance or succession of acts of a similar kind and it is absolutely clear that anyone who is not an advocate cannot, as a matter of right, claim to plead for another despite the person holds a power of attorney.
Re-filing of Vakalathnama when changing one’s advocate
When a litigant wants to cancel the Vakalatnama of an advocate in order to engage a new advocate, he should send a letter of cancellation to the present advocate and ensure that he receives it. Then send a copy of it along with the new Vakalatnama to the new advocate who should file them in the court for obtaining court’s permission and regularizing the new Vakalatnama.
That, in other words, means an advocate who wants to appear for a litigant in the middle of a case where another advocate is already there on record, the former advocate should produce the written consent of the latter. In case the latter refuses to give written permission the former should obtain special permission of the court. In such a situation it is binding on the court to give permission to the advocate.
Judgments for further reading
Judgment of the three member bench of the SC in Uday Shankar Triyar v Ram Kalewar Prasad Singh & Anr, available at https://indiankanoon.org/doc/690646/
Judgment in M/s Goa Antibiotics & Pharmaceuticals Ltd. vs. R.K. Chawla & Another ( (3) KLT 499 (SC) ) available at https://indiankanoon.org/doc/170747848/
Baru Singh (Deceased By L.R.) And…v Babu Ram Sharma (AIR 1997 All 185 ) https://indiankanoon.org/doc/1719038/
Nimbaram Bora v Union of India (AIR 1992 All 185Gau.54), available at https://indiankanoon.org/doc/12291/