1. The question raised in these two civil revision applications is, whether the appointment in writing required to be given to an advocate to act and plead for a client in the Small Causes Court, requires a revenue stamp of Re. 1 or not, and the answer depends on the further question of, whether such a document is a power-of-attorney, or not.
2. The facts on which these applications are based were, that on November 30, 1931, Mr. Hormusji K. Bhabha's advocate, Mr. Sorab B. Dadyburjor, made an application to the Registrar of the Small Causes Court to institute a suit for rent due-Rs. 24-from one of Mr. Bhabha's tenants. The application was in order, except that it was not signed by Mr. Bhabha as it might have been, but by Mr. Dadyburjor purporting to act for him, on the strength of what is called in our Courts a vakalatnama, Which was unstamped.
3. It appears that, on November 7, 1931, what is Order III, Rule 4, of the Civil Procedure Code, was applied by the High Court to the Small Causes Court, Bombay, by an amendment of the Schedule and Rules of Procedure and Practice of the Court of Small Causes.
4. On November 12, 1931, the Chief Judge of the Court of Small Causes issued a notice to the effect that from that date the document referred to in the amendment, which authorizes any advocate to act and plead on behalf of his client and which is commonly known as a vakalatnama, falls within the definition of 'power-of-attorney' in Section 2(21) of the Indian Stamp Act, and is chargeable with a stamp duty of Re. 1 under Article 48 (b) of Schedule I of the Indian Stamp Act, as amended. The Chief Judge, therefore, directed that no such document should be accepted in Court or Office, without the requisite stamp, as from November 12, 1931.
5. These orders being in force, the Registrar of the Small Causes Court, Oil December 1, 1931, made an order that the suit could not be filed unless the plaintiff himself signed the application, as Mr. Dadyburjor's vakalatnairta was unstamped. Against this order an appeal was made to the Chief Judge, and the question was argued before him. He upheld the Registrar's order, impounded the document, and sent it to the Collector of Bombay, who held that it was a power-of-attorney and required a stamp of Re. 1 and imposed a penalty of Rs. 5. This is the stage matters have reached in that Court, and the suit for rent remains unfiled.
6. Two Revision Applications have been presented to this Court, and rules have issued in each. One is by Mr. Bhabha the plaintiff, and the second by Mr. Dadyburjor, his advocate, against the Chief Judge and Registrar of the Small Causes Court, for whom the learned Advocate General has appeared.
7. The learned Advocate General has objected that Mr. Dadyburjor's application does not lie at all, as he has no locus standi, and that Mr. Bhabha's does not lie within Section 115 of the Civil Procedure Code, but we have also heard both sides on the merits.
8. It is clear, in the first place, that Mr. Dadyburjor, not being personally a party to the suit, can have no grievance, or, at any rate, cannot have it redressed by means of such an application, and that the rule issued on his application must be discharged.
9. As to the application made by Mr. Bhabha, the usual difficulty of defining a question of jurisdiction under Section 115, its exercise or not, and its exercise with material irregularity or not, has arisen. We have been referred to all the relevant rulings, but the point has been so often discussed that it seems unnecessary to add yet another discussion to those already reported.
10. The relevant facts here are that on a consideration of the question of the necessity or otherwise of a stamp on this vakalatnama, the learned. Chief Judge came to the conclusion that it was not in order for lack of the necessary stamp. This is, I think, a finding on a question of law, and not of jurisdiction. Some order should then have been made, rejecting the plaint or what takes the place of the plaint in the Small Causes Court, on the ground that it had not been legally presented-as not having been feigned by the plaintiff or his duly empowered attorney or recognised agent, but no such order appears to have been made. Assuming, however that it has been, the result does not seem to me to involve a question of jurisdiction, for a Court can have none to exercise until the claim is before it according to law-and the question whether it is so or not, is still a question of law-the interpretation of, in this case, the rules of procedure governing the Small Causes Court and the Indian Stamp Act. I think that the application does not lie under Section 115 of the Civil Procedure Code. But it has been held by this Court that it is not only under that section, but also under Section 7 of the Government of India Act, under the Letters Patent, and under Regulation II of 1827, that this Court has jurisdiction to consider, and, if necessary, to rectify orders passed by Courts subordinate to it. I need only refer to Bombay Steam Navigation Co. v. Vasudev : AIR1928Bom5 and Bai Chandan v. Chhotalal I.L.R (1932) 56 Bom. 585 S.C : 34 Bom. L.R. 1273. I must, therefore, I think, discuss the merits of Mr. Bhabha's application.
11. It is common ground that until the Chief Judge's notice of November 12, 1931, 'vakalatnamas', as I will call them for short, used in the Small Causes Court, did not need to be stamped, as that Court is one of those exempted from the application of the Court-fees Act.
12. The definition of a 'power-of-attorney' in Section 2(21) of the Indian Stamp Act is-
'Power-of-attorney' includes any instrument (not chargeable with a fee under the law relating to court-fees for the time being in force) empowering a specified person to act for and in the name of the person executing it;
13. It is clear that a vakalatnama to be used in the Small Causes Court comes within the portion of the definition in brackets as not chargeable with a fee under the Court-fees Act. That Act does not apply to the High Court and the Presidency Small Causes Court, as a different scale of fees is enforced in these two Courts.
14. Mr. Coyajee has argued that vakalatnamas to be used in the Small Causes Court are exempted and that there is a legal difference between the expressions ' exempted ' and 'not chargeable,' but if there is, it can be only verbal, for the effect is exactly the same, and they are but different expressions for the same idea.
15. The vakalatnama in this case is in the following words-
The plaintiff abovenamed appoints Mr. Sorab B. Dadyburjor, B.A., LL.B., Advocate, High Court, to appear, plead and act as Advocate for him in the above suit.
16. Prima facie, this document empowers a specified person to act for Mr. Bhabha, and to sign a pleading is clearly an act. The pleading, called a cause of action, is as follows :
Cause of Action.-
Rent of Room No. 7 in House No. 8-52A, and 2, Khetwady, 13th Lane, for September, October and November 1931 at Rs. 8 per month.' P. Colaba. D. Khetwady.
(Signed) Sorab B. Dadyburjor,
17. 'The cause of action ' is headed with Mr. Bhabha's name as plaintiff. Mr. Dadyburjor was clearly deputising for Mr. Bhabha, and signing the cause of action for him. Mr. Coyajee has suggested that he was not acting in the name of Mr. Bhabha. To act in the name of another, is to act on behalf of that other and not on one's own behalf-to represent that other person in proceedings carried on in that other person's name, and not in one's own, and this was clearly the case here. In the ordinary course the expression used would be-' For Mr. H. K. Bhabha by his constituted power-of-attorney-Sorab B. Dadyburjor.' The expression ' Sorab B. Dadyburjor plaintiff's Advocate ' is, I think, an equivalent, differing only in the description of the person acting in the special case of an advocate. It is true that a barrister is not technically his client's agent-the special character of a barrister depending on an ancient historical reason. But the contract between an advocate, A. S., and his client is one governed by the general rules of contract of the Indian Contract Act. He may be sued for negligence as an agent and can sue for his fees. He is a special kind of agent, or an agent selected out of a special class, for whom this kind of agency contract is reserved by law, but nevertheless governed by the law relating to agency.
18. I think that the distinctions sought to be made on the strength of the expression ' in the name of ' in the definition of a ' power-of-attorney' and the argument that an advocate, A.S., is not his client's agent, are not real ones. If I am correct in so thinking the document in question is a power-of-attorney falling within the definition of that class of documents, and, if so, chargeable with the appropriate stamp duty.
19. Both these rules are discharged, the first by Mr. Bhabha without costs 'and the second with costs.
20. I agree. As regards the preliminary objection, the order applied against is no doubt an interlocutory order made even before the plaint was entertained, and ordinarily this Court would not interfere with such an order. However, in view of the fact that the order implies a reversal of a long-standing practice and the point is not covered by any judicial authority, we have allowed counsel to argue the point on its merits.
21. It is common ground that a vakalatnama filed in a Court of Small Causes at the Presidency-towns does not require any Court-fee stamp by virtue of Sections 3 and 6 of the Court-fees Act, and, therefore, the provisions of Article 10 of Schedule II of that Act which provides generally for Court-fee stamps on a mukhtyarnama or a vakalatnama do not apply to a vakalatnama filed in Presidency Small Causes Courts. The question is, whether the latter is required to be stamped under the Indian Stamp Act as being a sort of power-of-attorney and as such requiring a stamp of one rupee under Article 48(b) of the First Schedule of that Act, as applied to Bombay. The answer must be that if it falls under the definition of 'power-of-attorney' as that term is defined in Section 2(21) of that Act, it must be so stamped. If not, it does not require to be stamped at all under the Indian Stamp Act. Now that definition runs thus:-
'Power of-attorney' includes any instrument (not chargeable with a fee under the law relating to Court-fees for the time being in force) empowering a specified person to act for and in the name of the person executing it.
22. The contention urged on behalf of the petitioner is that a vakalatnama does not come under this definition because, although it empowers an advocate to act for the party giving it, it does not authorise him to act in the name of his client, and it is also contended that the definition applies to an instrument which is not chargeable with a Court-fee stamp while a vakalatnama in a Presidency Small Causes Court is exempt from the Court-fees Act, and is not simply not chargeable, as contrasted with documents stated in Section 19 of that Act which, are made not chargeable under the Act. It is finally urged that the words ' document in writing ' used in Order III, Rule 4(1), of the Civil Procedure Code, in juxtaposition with the words ' a power-of-attorney ' in the same sub-rule would show that the legislature has made a distinction between a vakalatnama and a power-of-attorney.
23. Now in the first place it is necessary to observe that the relation between a client and his advocate who is engaged to act for him is that of a principal and agent. If any authority is necessary, it would be found in Appa Rao v. Subba Rao LIR (1926) Mad. 249. The document, therefore, creates agency and clearly enables the advocate to act for his client, but does it empower him to act in his name also? I think when an advocate acts for his client, he does all his work in the name of his client in the sense that it is by virtue of his vakalatnama which is an instrument of substitution that he. does all acts in the litigation which otherwise his client would have done himself in his own name, and he carries on the litigation not in his own name but in the name of his client. It is true that his rights and liabilities under the vakalatnama are different from those of a lay agent holding a power-of-attorney on behalf of a litigating party, called a recognised agent, e. g., he can plead and exercise all the rights accorded to an advocate, which a mere recognised agent cannot enjoy. At the same time he cannot terminate his appointment without the leave of the Court, while a recognised agent can do so without any such leave. But all these considerations do not take a vakalatnama out of the category of a power-of-attorney if it fulfils all the conditions laid down in its definition. The fact that under Order III, Rule 4(1), the appointment of a pleader could be made not only by a party himself but also by a person holding a power-of-attorney from the party to make such appointment does not mean that the pleader's authority itself does not amount to a power-of-attorney. It only means that a party can authorise a person to do all acts on his behalf in a litigation including the appointment of a pleader. That, however, does not imply a contra-distinction between a pleader and a person holding a power-of-attorney. A pleader can derive his authority not only from his client directly but from any person who is specially authorised to make such appointment.
24. Then there remains the expression ' not chargeable with a fee under the law relating to Court-fees for the time being in force ' in the said definition. It is clear as stated above that a vakalatnama in the Presidency Small Causes Court is not chargeable with a Court-fee. This expression includes all instruments which do not require a Court-fee stamp and this vakalatnama is such an instrument. The distinction sought to be made between 'exempted' and 'not chargeable' does not, in my opinion, hold good, because just as Section 19 of the Court-fees Act enacts that certain documents are not chargeable with any fee, so also under Section 6 of that Act the present document is excepted from chargeable documents which would mean that it is not made chargeable. The intention of the legislature, therefore, appears to be that a' document fulfilling the requirements of a power-of-attorney must be stamped under the Indian Stamp Act provided it does not require a Court-fee stamp.
25. In my opinion, all the conditions of the definition are fulfilled in this case, and, therefore, the vakalatnama requires to be stamped under Schedule I, Article 48(b), of the Indian Stamp Act.
26. None of the authorities cited during the arguments are decisive of the point. The case of Sheikh Abdul Ghaffar v. F.B. Downing I.L.R (1925).Pat. 255 is concerned with the distinction between power of appointment filed by a barrister advocate and a non-barrister advocate, although it is observed there that a power of appointment to an advocate who acts for his client comes within the category of a power-of-attorney. The case of Parmanand v. Sat Prasad I.L.R (1911) All. 487 F.B. also does not touch the present point. It simply decides that a power of appointment given to a person who is not a pleader or a certified mukhtyar cannot fall under Article 10 of Schedule II of the Court-fees Act.
27. For these reasons, I agree that the order made by the learned Chief Judge is correct and both these applications should be dismissed.