Vakalatnama Vs Memorandum Of Appearance

Coverage of this article

1. INTRODUCTION
2. WHAT IS VAKALATNAMA
3. DETAILS MENTIONED IN VAKALATNAMA
4. HOW CAN THE VAKALATNAMA BE FILLED?
5. PROVISION OF ADVOCATES ACT, 1961
6. TERMS OF VAKALATNAMA
7. HOW LONG DOES THE VAKALATNAMA LAST
8. CAN VAKALATNAMA BE WITHDRAWN
9. SOME IMPORTANT JUDGEMENTS 1997 All L J 842: Baru Singh vs. Babu Ram Sharma
10. MEMORANDUM OF APPEARANCE
11. HOW TO APPLY FOR A MEMORANDUM OF APPEARANCE
12. COMPARISON BETWEEN VAKALATNAMA AND MEMO OF APPEARANCE

KEY TAKEAWAYS

• Vakalatnama also known as Vakil Patra, is a document submitted to the court stating that a lawyer has been appointed for the case.
• Memorandum of appearance is a temporary document that is required by the lawyer to represent his client in court if the Vakalatnama has not been issued.
• Criminal cases need a Memo of Appearance, whereas civil cases require a Vakalatnama.
• Vakalatnama uses just one signature for the whole case, which emphasizes its permanent nature, whereas the memo of appearance is for one-time or single-use.

INTRODUCTION

The court proceedings always emphasize maintaining discipline. Whenever a part is injured, they file a case in court. However, the lawyer must have the party's permission to argue for the case, and there must be a tangible document stating that the client has given the advocate power to plead for the case in front of the court on the respective party’s behalf. The Vakalatnama is the permanent document that must be provided to the court to prove that the advocate has the party’s permission to present the case in front of the court. It gives the advocate legal authority to conduct the matter.A Memorandum of Appearance is a document that requests that Defendant's presence be recorded by the court Registry.

This article talks about the nature, scope, and procedures needed to submit these documents to the court.Furthermore, the article also throws light on some relevant judgments of cases related to vakalatnama and memorandum of appearance.

WHAT IS VAKALATNAMA

A "Vakalatnama," often known as VP, is the abbreviation for "Vakil Patra." The word Vakalatnama comes from the Urdu language and literally means "power of attorney." It is a document that is submitted to the court of law by the concerned advocate/ solicitor/counsel/lawyer declaring that he or she has been appointed by his or her client to represent them in any legal matter. However, unlike a power of attorney, Indian courts have decided to view "Vakalatnama" broadly as a document conferring broad rights on an advocate.

In terms of the meaning of vakalatnama, neither of the statutesdefines the term. Be it the Power of Attorney Act of 1882 or the Civil Procedure Code of 1908. Only the author P. Ramnathan Aiyar's book "advance legal lexicon" mentions a memorandum of acceptance, which allows an advocate to speak or argue before any court, tribunal, or authority.

The Power of Attorney Act of 1882 and the Civil Procedure Code of 1908 does not define a Vakalatnama which is the legal instrument that authorizes a lawyer to operate on behalf of and for his client. It is possible that the circumstances under which a lawyer is authorized to act are broad. It may particularly provide a lawyer with broad authority.

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 them, etc.

DETAILS MENTIONED IN VAKALATNAMA

A Vakalatnama often includes information such as the name of the court, the number of the courtroom, the number of the case, the parties' names, and the date. A vakalatnama also contains the client's signature, the advocate's signature, the advocate's office address, the advocate's enrollment number, and other information. This document is accessible in a variety of forms. The vakalatnama, while being a one-page document, has far greater significance than one might imagine.

According to Order 3 Rule 4 of the Code of Civil Procedure 1908, in a broader sense, the vakalatnama has the following details mentioned within itself:

• Should be filed on demy-foolscap size paper and only one side of the paper is to be used.
• The date the vakalatnama is to be executed.
• The name of the court to which the suit is to be filed.
• Name of the party.
• Full name of the plaintiff or defendant, name and full address of his father or husband or guardian.
• Name of the advocate who is being appointed to appear before the court.
• Signature of plaintiff or defendant (in case of more than one plaintiff or defendant, the signature of all).
• Signature of Advocate.
• If the vakalatnama is executed on the record in the presence of the advocate, he must attest that it was done so.
• Where an advocate on the record simply accepts a vakalatnama that has previously been correctly completed in the presence of a Notary or an advocate, he must sign an endorsement stating that he has satisfied himself that the vakalatnama has been properly executed.

HOW CAN THE VAKALATNAMA BE FILLED?

The Vakalatnama is the paperwork that the lawyer will deliver to the court under the Advocates Act, 1961, to proclaim the applicant's permission. The Vakalatnama gives the lawyer permission to represent the petitioner in court and to be submitted with an appearance in court. It is a legal instrument in which the individual permits the advocate to act on his behalf in the court's legal procedures. Vakalatnama includes the plaintiff's, defendant's, an advocate's personal information, as well as the advocate's signature or thumb imprint and appointment.

PROVISION OF ADVOCATES ACT, 1961

The Advocates Act, 1961 was enacted to carry out the recommendations of the All-India Bar Committee (as supported by the Law Commission's fourteenth Report in 1955). Except for the state of Jammu & Kashmir, the Act covers all of India. The purpose of the Act is to alter and consolidate the laws governing legal practitioners, as well as to establish State Bar Councils and an All-India Bar Council.Secondly, it is intended to provide a uniform Bar qualification.It also planned to establish an All -India Bar Council as well as state bar councils across the country.

TERMS OF VAKALATNAMA

The terms are applicable in vakalatnama, which are as follows:

1. All the costs involved in the legal processes and procedures are to be borne by the client.
2. The lawyer has the ultimate right to take any decision he or she feels is needed or deems to find fit for the hearing in the court.
3. At any stage of the legal process, the client has the power to withdraw the vakalatnama and disengage the lawyer from that case.
4. The lawyer has the right to keep all the documents with him or her until the fees are paid to him.
5. The vakalatnama is attached to the last page of the suit and is also stored by the court for reference purposes.
6. The vakalatnama in itself does not have a fee, but according to the current guidelines of the Delhi High Court, an Advocate welfare stamp of Rs. 10 must be attached to the vakalatnama.
7. Lastly, the court fee payment receipt should also be attached to it, which the Court Fees Stamp Act prescribes.

COURT FEES STAMP ACT states that all court costs charged under the Act must be paid using stamps, according to the Court Fees Act of 1870. This is the most common method of paying court fees across the country. The sorts of stamps to be used for this purpose, however, may be governed by state legislation.

HOW LONG DOES THE VAKALATNAMA LAST

• The Vakalatnama will continue to exist until,

1. The lawyer or the client dies,
2. The court orders for withdrawal or the client himself withdraws,
3. The decision on the case is taken.

CAN VAKALATNAMA BE WITHDRAWN

In certain situations, the client may lose confidence in the lawyer’s performance, or for any other reasons. In such cases usually, the client may try to withdraw the Vakalatnama and try to associate and find a better lawyer who is much more suitable for their case.

The steps involved in the withdrawal of Vakalatnama are:

1. The client must write a letter or email to the previously appointed lawyer about his wish to discontinue the lawyer, i.e., to withdraw the vakalatnama.
2. The client must also ensure that the drafted letter or email reaches the advocate is acknowledged by him or her.
3. On the acknowledgment of the previous lawyer, the vakalatnama stands withdrawn or becomes invalid.
4. The client is then supposed to send the copy of this withdrawn vakalatnama to the new lawyer and must proceed with the process of applying for a new vakalatnama with the new lawyer.
5. On the successful completion of the new vakalatnama, a copy of the same must be submitted to the court.

SOME IMPORTANT JUDGEMENTS

1997 All L J 842: Baru Singh vs. Babu Ram Sharma

• "An advocate must acquire a signed Vakalatnama from his client before filing it in Court or Tribunal to plead on his client's behalf." Vakalatnama is not required for any other legal task such as drafting, opinion, and so on.

Ram Kaleshwar Prasad Singh and Others v. Uday Shanker Triyar and Others, SC 2005

• "Vakalatnama, a sort of Power of Attorney, is a crucial instrument that empowers and authorizes the advocate appearing on behalf of a petitioner to perform many actions as an Agent that are binding on the petitioner who is the principal."

MEMORANDUM OF APPEARANCE

The defendant can enter into an appearance via a Memorandum of Appearance. It's a court document that asks the court Registry to record the Defendant's attendance. The plaintiff must be served with the Memorandum of Appearance on the date Defendant entered an appearance.

1. A memo of appearance shall, inter alia, consist of a declaration signed by the advocate on record that he has been authorized, instructed, and engaged to appear, act, and plead for the party.
2. The memo of appearance must be countersigned by the party who has personally authorized, instructed, and engaged the advocate on the record. Where the party is illiterate, at least two literate witnesses must swear to the party's thumb impression or another mark on the memo of presence, stating their names and addresses, including the police station in the event of a criminal proceeding.
3. When a person who is not a party to the cause, appeal, or matter has authorized, instructed, and engaged an advocate on record on behalf of a party, the memo of appearance must be accompanied by a Power of Attorney signed by the party authorizing such person to authorize, engage, and instruct an advocate on-record to appear, act, and plead on his behalf. The nature of the person's connection with the party must be explicitly stated in the Power of Attorney.
4. If the authorization is not accompanied by a Power of Attorney, the case will be considered faulty.

HOW TO APPLY FOR A MEMORANDUM OF APPEARANCE

• To schedule an appearance, one should fill out a Memorandum of Appearance and submit it to the Court which is usually accepted for a single day.
• On instructions of a party, an Advocate files memo of appearance in the court.
• It’s of a temporary nature.
• The memo of appearance is usually filedwhen a client withdraws the previous vakalatnama from the previous lawyer and handover the case to the new lawyer.
• Memo of appearance is an important document needed for the new lawyer to carry on the proceedings.

CONTENTS OF MEMO OF APPEARANCE

The memorandum of appearance contains the following details:

1. Civil suit number
2. Name of place
3. Advocate signature
4. Client’s signature
5. Date of application on which it is valid
6. Name of client and advocate.

SOME IMPORTANT DECISIONS

State of Kerala vs. Krishnan

• Advocate General filed Memo of appearance on behalf of the State of Kerala. The office pointed out that the memo of appearance is not in order and that he cannot appear for the State. But then it was clarified in the corresponding reply that the above decision is inapplicable since it was in connection with the presentation of an appeal against acquittal. Advocate General filed a Memo of appearance on behalf of the State of Kerala. The office pointed out that the memo of appearance is not in order that he cannot appear for the State. But then it was clarified in reply that the above decision is inapplicable since it was in connection with an appeal against acquittal under Section 378 CrPC.

COMPARISON BETWEEN VAKALATNAMA AND MEMO OF APPEARANCE

• Vakalatnama is permanent to some extent until its withdrawn, whereas a memorandum of appearance is temporary.
• Criminal cases need a Memo of Appearance, whereas civil cases require a Vakalatnama.
• Vakalatnama uses just one signature for the whole case, which emphasizes its permanent nature, whereas the memo of appearance is for one-time or single-use.
• The cost of filing a memorandum of appearance is Rs. 5 whereas, the cost of filing vakalatnama is Rs. 10.
• Vakalatnama ensures the lawyer is committed or present for the entire case, whereas a memorandum of appearance ensures the lawyer’s presence at one hearing of the case.

CONCLUSION

Vakalatnama is a document that addresses the appointment of a lawyer for a case whereas, a memorandum of appearance is a document that allows a single-time appearance of a lawyer in a court to represent his client. Summing up, we can say that Vakalatnama is a permanent document whereas a memo of appearance is a temporary document.

Drawing similarities, we can say that both the documents are essential and are prepared by an advocate or lawyer, and submitted in court. These help the lawyers in different ways.