John Beaumont, Kt., C.J.
1. This is a revision application against a refusal by the First Class Subordinate Judge of Thana to allow Mr. Purohit, an advocate enrolled on the Original Side of this High Court, to plead in the First Class Subordinate Judge's Court at Thana without filing a vakalatnama under Order III, Rule 4, of the Civil Procedure Code. That rule provides that no pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognized agent or by some other person duly authorised by or under a power-of-attorney to make such appointment. Then Sub-rule (5) provides that no pleader who has been engaged for the purpose of pleading only shall plead on behalf of any party, unless he has filed in Court a memorandum of appearance signed by himself and giving certain particulars. Then there is a proviso which excludes from the operation of Sub-rule (5) any pleader engaged to plead on behalf of any party by any other pleader who has duly filed his vakalatnama. The definition of ' pleader' in the Civil Procedure Code is clearly wide enough to include an advocate enrolled on the Original Side of this High Court.
2. Mr. Purohit, when the learned Judge refused to hear him without filing a vakalatnama, put in a memorandum signed by himself In accordance with Sub-rule (5) of Order III, Rule 4. But the learned Judge refused to accept that. I do not know why, since he gave no reasons. I understand that Mr. Purohit was only engaged to plead, and in that case a memorandum was sufficient. On that ground alone the case will have to go back to the Court of the learned First Class Subordinate Judge of Thana.
3. The wider question, which has been argued, as to whether an advocate enrolled on the Original Side of this High Court can be required to file, any document authorising him to appear in a Court in the mofussil, is not altogether free from doubt, Rule 40 in Chapter II, part I, of the High Court Rules, provides that no advocate (O.S.), which is a compendious form of saying 'Advocate enrolled on the Original Side,' shall be required to present any document empowering him to act in any appeal or proceeding, civil or criminal. The learned Subordinate Judge considered that that rule applied only to the High Court, But Rule 45 which is in the same Chapter of the High Court Rules provides that advocates of this Court shall have precedence in all Courts in the Bombay Presidency, in which they are entitled by law to plead. Clearly that rule applies to all Courts in the Presidency, and it is to be noticed that in the Edition of the High Court Rules of 1901, Rules 45 and 40 of the present Rules appear next to each other, Rule 45 being Rule 33 of the 1901 Rules and Rule 40 being Rule 34. The Rules appear in the same order in the Appellate Side Rulesof 1920. The relative position of the Rules in those two cases suggests that the present Rule 40 was intended to apply to all Courts in the Presidency. So far as I know, it has always been construted in that sense, and advocates on the Original Side of this High Court never are in practice required to file any authority authorising them to appear in a mofussil Court.
4. The argument of Mr. Kane on behalf of the Bar Council is that any distinction between advocates of the nature suggested is inconsistent with Section 14 of the Indian Bar Councils Act. But that is not so, for the Section merely provides that an advocate shall be entitled as of right to practice in the High Court of which he is an advocate and in any other Court in British India. It is not suggested that the privilege which members of the Original Side Bar may have of not being required to file any authority prevents any other practitioner from practising. Under Section 122 of the Code of Civil Procedure this Court had power to frame a rule in the terms of the present Rule 40, with the sanction of the Local Government. Whether such sanction was obtained is not proved. It is somewhat curious to note that the original Rule 4 of Order III, which was altered in 1926, expressly provided that no advocate of any High Court established under the Indian High Courts Act, 1861, or of any Chief Court, and no advocate of any other High Court who is a barrister shall be required to present any document empowering him to act. Why that provision was omitted when the Code was amended in 1926, I do not know. It may possibly have been thought that such a provision was unnecessary in view of the rules of the various High Courts. However, seeing that Rule 40 of the High Court Rules has been in operation for a long time, we must, I think, assume that it was originally passed in accordance with law and that if the sanction of the Local Government was necessary, that sanction was obtained, and I am not prepared to assume that there is any invalidity about the rule, or that the practice which has been in existence of treating that rule as extending to the mofussil is wrong. As at present advised, I think the learned Judge was not entitled to require Mr. Purohit to file a vakalatnama. Clearly he was not entitled to reject the memorandum under Sub-rule (5) of Order III, Rule 4.
5. The application must, therefore, be allowed and the case remitted to the lower Court to be tried according to law. The opponent must pay the costs of the applicant.
6. I agree.