TAMIL NADU ELECTRICITY BOARD Vs. R SRINIVASAN

JUDGEMENT

(1.) The writ appeal has been preferred against the order of the learned single Judge in W.P. No. 11437 of 1981. There is no gainsaying that the writ petition is one preferred under Article 226 of the Constitution of India. However, the writ appeal is one preferred pursuant to Clause 15 of the Letters Patent of this Court. We are adverting to this fact for the purpose of showing that we are exercising appellate jurisdiction, and not a jurisdiction as conferred by Article 226 of the Constitution of India, though the decision in the writ appeal may take in a disolution of the relevant aspects under that Article. For the said appellate jurisdiction, the Code of Civil Procedure, hereinafter referred to as the Code, would apply. A view to the said effect has been expressed by a Bench of this Court, to which one of us (Nainar Sundaram, J.) has been a party in Govindarajulu and another v. Dharam and another, C. M. A. S. R. No. 76357 of 1980 and C.M.P.S.R. No. 76358 of 1980, order dated 27-7-1984, concisely reported in 1984 TLNJ 279 : AIR 1985 Mad 264. Wherein it has been noted "When the statute directs an appeal to an ordinary civil court, without in any manner circumscribing the practice, procedure and powers of such Court as a civil appellate Court, the Court will have to deal, with the appeal, with all the trappings and powers as an ordinary civil Court of appeal". The definition of "Code" as found in Section 2(1) of the Code, includes rules. "Rules" as defined by Section 2(18) of the Code takes in rules and forms contained in the First Schedule or made under Section 122 or Section 125 of the Code. There are rules of this Court on its Appellate Side, hereinafter referred to as the Appellate Side Rules, formulated pursuant to powers under Section 122 of the Code. There are rules bearing the nomenclature Civil Rules of Practice, which are also formulated pursuant to powers under Section 122 of the Code. The Civil Rules of Practice may not apply to this Court and they are intended for Courts, subordinate to this Court. We are obliged to trace the above features, legal in character in view of the point that has arisen before us, which relates to the entry of a new counsel in the place of a counsel, who earlier entered appearance for the party, and who has given his consent in writing for change of appearance and the insistence of the office of this Court to obtain orders of Court for that purpose, on an application to be taken out in this behalf.

(2.) Mr. M. Krishnnappan earlier entered caveat for the respondent. However, when C.M.P. No. 5429 of 1991 came up for bearing on 26-8-1991 after service of notice on the respondent. Mr. M.R. Raghavan stated that he has got instruction to appeal for the respondent and he wanted time to enter appearance and file a counter. For this purpose, we adjourned the matter to 2-9-1991. On 2-9-1991 Mr. M.R. Raghavan submitted that he had the vakalath, but he could not file it without an application since the office of this Court insists for that. We directed Mr. M. R. Raghavan to file the vakalath on 2-9-1991 itself and we further directed that if the office of this Court should find any difficulty to take note of the change of the appearance, to put up a detailed note before us indicating as to how the vakalath could not be entertained, so that we may consider the question. The matter was adjourned to 3-9-1991. The office of this Court had put up the requisite note wherein after tracing the relevant provisions of law, it was notified that the insistence for an application for a change of counsel is being made, taking note of the pronouncement of Srinivasan, J., in Sathapran v. Andhra Bank Ltd., C.M.A. No. 771 of 1985, order dated 8-10-1990, now reported in 1991 (2) MLJ 9. On 3-9-1991 Mr. M. R. Raghavan made his submissions advancing the proposition that where the consent for change of appearance has been given by the counsel, who earlier appeared, there is no need to file an application and obtain permission for change of counsel. Considering the importance of the question from the angle of the members of the Bar at large, we decided to take up the assistance of another counsel also as Amicus Curiae, and in this behalf we requested Mr. T. R. Rajagopalan to take up the above role and he has willingly taken up the above role, and he has done a very laudable service to this Court by gathering the relevant authorities throwing light on the subject and placing them before us. We place on record our appreciation for his services. The matter has been ultimately taken up on 24-9-1991. We must also record that Mr. R. Muthukumaraswamy, learned counsel for the appellant, without standing on any formality made submissions, supporting the learned counsel for the respondent on this question. Thus, we had the benefit of the submissions of the three counsels, namely, Mr. R. Muthukumaraswamy, learned counsel appearing for the appellant; Mr. M. R. Raghavan, learned counsel appearing for the respondent and Mr. T. R. Rajagapolan, learned counsel, who acted as Amicus Curiae. We must say that all the counsel did their best in the exposition of the relevant provisions of law and the authorities on the subject and this only enabled us to assess the question properly and come to a decision as per our discussion infra.

(3.) Order 3, Rule 4 of the Code speaks about the appointment of a Pleader and the determination of the appointment. For our purpose it is sufficient if we refer to sub-rules (1), (2) (Explanation omitted) and (5) of Rule 4 of Order 3 and they stand extracted as follows :