1. Legal Position (India – Civil & Criminal Practice)

In civil matters, change or substitution of counsel is governed primarily by:

• Order III Rule 4 of the Code of Civil Procedure, 1908 (CPC) – withdrawal and appointment of pleader
• Advocates Act, 1961 – professional right of appearance
• In criminal matters, the right to counsel is linked to Article 21 of the Constitution

A litigant can change counsel at any stage, but when it happens just before hearing, courts scrutinize:

• Timing of substitution
• Reason for change
• Possibility of delay
• Whether adjournment is being sought as a tactic

2. Judicial Approach to Late Substitution

Courts generally follow these principles:

(A) Right to counsel of choice is fundamental but not absolute

Courts recognize that litigants may lose confidence in counsel or need new representation, but this cannot be used to obstruct proceedings.

(B) Late substitution cannot be used to delay proceedings

If substitution is sought on the eve of hearing without sufficient cause, courts may:

• refuse adjournment
• proceed ex parte
• impose costs

(C) Counsel negligence is not always a valid ground for delay

The litigant is generally bound by acts of their lawyer unless exceptional circumstances exist.

3. Important Case Laws (Principles Applied)

1. Rafiq v. Munshilal (1981) 2 SCC 788

The Supreme Court held that a litigant should not suffer for the mistake or negligence of their advocate.

• Principle: Client should not be penalized for counsel’s failure.
• However: Not a blanket rule for repeated delay tactics.

2. M.H. Hoskot v. State of Maharashtra (1978) 3 SCC 544

The Court emphasized that access to legal representation is part of fair procedure under Article 21.

• Principle: Right to effective legal assistance is fundamental.
• Relevance: Supports substitution where justice requires it.

3. Sushil Kumar Sen v. State of Bihar (1975) 1 SCC 774

The Court discussed that procedural law is meant to advance justice, not defeat it.

• Principle: Courts may allow substitution if it serves substantial justice.

4. Salil Dutta v. T.M. & M.C. Private Ltd. (1993) 2 SCC 185

The Court held that a party is generally bound by acts of their counsel.

• Principle: Change of advocate does not automatically erase prior procedural consequences.
• Relevance: Late substitution cannot undo strategic defaults.

5. Bani Singh v. State of Uttar Pradesh (1996) 4 SCC 720

In criminal appeals, the Court held that matters should not be dismissed merely due to absence of counsel; courts should decide on merits.

• Principle: Ensures fairness even when counsel changes or fails to appear.

6. Madan Lal v. Shyam Lal (2002) 1 SCC 535

The Court held that adjournments should not be granted casually and delay tactics must be discouraged.

• Principle: Late change of counsel cannot be a ground for routine adjournment.

4. Practical Court Approach (Before Hearing)

When substitution is sought just before hearing, courts usually consider:

Allowed when:

• Genuine breakdown of trust between client and advocate
• Serious professional misconduct alleged
• Illness, withdrawal, or conflict of interest of counsel
• New counsel needs reasonable time to prepare

Refused or restricted when:

• Attempt is clearly to delay proceedings
• Case is already part-heard
• No explanation for last-minute change
• Opposite party is prejudiced

5. Consequences of Late Substitution

If the court disapproves or is unconvinced:

• Hearing may proceed ex parte
• Limited adjournment may be granted with costs
• New counsel may be required to argue immediately with existing record
• Court may refuse repeated substitution requests

6. Key Takeaway

Late substitution of a lawyer before hearing is legally permissible but judicially controlled. Courts prioritize:

• fairness of trial
• avoidance of delay
• integrity of procedure

The guiding principle across Supreme Court jurisprudence is:

“Justice must be done, but it must also be seen to be done without unnecessary delay.”