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AswIn Shambhuprasad Patel and ors. Vs. National Rayon Corporation Ltd. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 1313 of 1952
Judge
Reported inAIR1955Bom262; (1955)57BOMLR209
ActsCode of Civil Procedure (CPC), 1908 - Order 3, Rules 1, 2 and 5; Bar Councils Act, 1926 - Sections 8; Bombay Pleaders Act, 1920 - Sections 9
AppellantAswIn Shambhuprasad Patel and ors.
RespondentNational Rayon Corporation Ltd.
Appellant AdvocateK.R. Bengeri and ;C.K. Bengeri, Advs.;M.P. Amin, Adv. General;A.A. Adarkar, Adv.;R.A. Jahagirdar, Adv.
Respondent AdvocateV.B. Rege, Adv.
Excerpt:
.....court.;clause 10 of the letters patent expressly provides that the right to act no less than the right to plead is only conferred upon advocates, vakils and attorneys, and the only exception made in clause 10 is that the suitor himself may appear, plead and act either on his own behalf or on behalf of a co-suitor.;krishnammal v. balasubramaniam [1938] mad. 12, f.b., hurchand bay gobourdhon das v. the bengal-nagpur railway co. (1914) 19 c. w. n. 64 and in re eastern tavoy minerals corporation, ltd. (1933) i. l. r. 61 cal. 324., followed.;g.-g, in council v. bhagwan sahai [1948] a. i. r. east punj. 61, dissented from.;performing right society ltd. v. indian morning post restaurant [1939] bom. 295 : s. c. 41 bom. l. r. 530, referred to. - - 8. turning next to the bombay pleaders' act..........out under what law the right of pleaders arises. in order iii, rule 5, a reference is made to a pleader pleading and that rule provides that when a pleader has been engaged only for the purpose of pleading he need not file a vakalatnama. but neither order iii of the civil procedure code nor any other order strictly deals with the right of a member of the bar to have audience in court.5. now, as far as the high court is concerned, the right of the members of the bar really flow from the letters patent and clause 10 really constitutes the charter of the rights of the bar because that clause provides that no person whatsoever hut such advocates, vakils or attorneys shall be allowed to act or to plead for or on behalf of any suitor in the said high court, except that any suitor shall ho.....
Judgment:
ORDER

1. A question of very great importance to the Bar has been rained by Mr. Bengeri on this petition. The petitioner gave a general power-of-attorney to one Shambhuprasad in a civil revision application and when the application came up before me this Shambhuprasad wanted to address me in Court on behalf of his client, and the question that arises is whether a constituted attorney has the right of audience in this Court on behalf of the party.

2. Mr. Bengeri relies on the provisions of Order III, Rule 1. Order III deals with recognised agents and pleaders and Rule 1 thereof provides that

'Any appearance, application or act in or to any court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, he made or done by the parly in person, or by his recognized agent, or by a pleader appearing, applying or acting, as the case may he, on his behalf.'

It is to be noted that this rule merely deals with an appearance, application or act in or to any Court and such an appearance, application or act may be done (1) by the party in person, (2) by his recognized agent, and (3) by a pleader. It should also be noted that this rule does not apply where a law for the time being in force otherwise, expressly provides. Therefore it would be competent for a law for the time being in force to provide in respect of recognized agents and pleaders differently from what is provided under Order III, Rule 1. Then Rule 2 defines recognised agents and under Clause (a) persons holding powers-of-attorney, authorising them to make and do such appearances, applications and acts on behalf of such parties, are considered as recognised agents. Order III, Rule 2{a), has been amended by our High Court and the amended rule requires that a recognised agent must hold a general power-of-attorney in order that he should he entitled to act under Order III. An exception is made in the case of an attorney of the High Court or an advocate in whose case a general power-of-attorney is not necessary, but a special power of attorney would do.

3. The contention put forward by Mr. Bengeri before me is that 'pleading' is included in the expression 'appearance, application or act in or to any Court.' In my opinion it is clear that 'pleading' would not he included in any of these expressions. The right of audience in Court, the right to address the Court, the right to examine and cross-examine witnesses, are all parts of pleading with which Order III does not deal at all. It deals with restricted class of acts in connection with the litigation in Court and it is with regard to that restricted class of act that Order III permits recognised agents to be appointed, If authority was needed for this proposition, there is ample authority. There is the decision of the full bench of the Madras High Court in -- 'Krishnammal v. Balasubramania Pillai', : AIR1937Mad937 (A), and there are also two decisions of the Calcutta High Court in -- 'Harchand Ray Gobordhon Das v. B. N. Rly. Co.', AIR 1916 Cal 181 and 'In re: Eastern Tavoy Minerals 'Corporation Ltd,', : AIR1934Cal563 (C). Both the Madras High. Court and the Calcutta High Court held that an agent with a power-of-attorney has no right of audience in Court. Mt. Bengeri has drawn my attention to a recent decision of the East Punjab in -- 'G.G. in Council v. Bhagwan Salmi', AIR 1948 EP 61. There the learned Judge Mr. Justice Teja Singh took the view that a recognised agent had the right on behalf of the party to examine & cross-examine witnesses. The learned Judge conceded that pleading was quite different from acting and that Order III did not deal with pleading. But he took the view that examining and cross-examining witnesses was part of acting and not part of pleading. With respect, I find myself unable to agree with the learned Judge. But as far as the right of audience is concerned, there can he no doubt that it is a part of pleading and not a part of acting.

4. Mr. Bengeri has contended that if that construction were to be put on Order III, Rule 1, then even a party in person would have no right to plead. That is not the correct view of Order III. Order III does not deal with rights of parties who appear in person in Court, and it cannot be disputed that a party in person has the right of audience in Court. As I have already mentioned, Order III merely deals with recognised agents and pleaders. It does not even deal with the right of pleaders to plead, because the right of a pleader to plead arises independently of Order III and I shall presently point out under what law the right of pleaders arises. In Order III, Rule 5, a reference is made to a pleader pleading and that rule provides that when a pleader has been engaged only for the purpose of pleading he need not file a vakalatnama. But neither Order III of the Civil Procedure Code nor any other Order strictly deals with the right of a member of the Bar to have audience in Court.

5. Now, as far as the High Court is concerned, the right of the members of the Bar really flow from the Letters Patent and Clause 10 really constitutes the charter of the rights of the Bar because that clause provides that no person whatsoever hut such advocates, vakils or attorneys shall be allowed to act or to plead for or on behalf of any suitor in the said High Court, except that any suitor shall ho allowed to appear, plead or act on his own behalf or on behalf of a co-suitor. It is worth considering, but the question does not strictly arise before me today, whether in view of Clause 10 of the Letters Patent it is open to a recognised agent, as far as the High Court is concerned, even to act, leave aside to plead, because Order III, Rule 1 is made subject to any other law for the time being in force, & in my opinion Clause 10 of the Letters Patent expressly provides that the right to act no less than the right to plead is only conferred upon advocates, vakils & attorneys and the only exception made in Clause 10 is that the suitor himself may appear, plead and act either on his own behalf or on behalf of a co-suitor.

6. My attention has also been drawn by Mr. Bengeri to a decision of Mr. Justice B. J. Wadia in -- 'Performing Right Society Ltd. v. Indian Morning Post Restaurant', AIR 1939 Bom 347. All that the learned Judge decided in that case was that a solicitor of the Bombay High Court could act as a recognised agent under a special power-of-attorney and no general power-of-attorney was necessary. The learned Judge Was construing the amendment effected by the High Court to Order III, Rule 2 (a), and Mr. Bengeri says that the learned Judge has held that a recognised agent can act even in the High Court of Bombay. Now, I do not find that the attention of the learned Judge was drawn to Clause 10, Letters Patent, and so the learned Judge has not considered whether there was any law for the time being in force, under which there was an express provision to the contrary. This decision therefore is of no help in construing Clause 10 of the Letters Patent.

7. The next provision of the law to which attention might be drawn is the Bar Councils Act and Section 8 provides that no person shall be entitled as of right to practice in any High Court unless his name is entered in the Roll of Advocates of the High Court maintained under this Act. Now, 'right to practise' in my opinion is an expression much wider than the right to plead. It includes both pleading and acting, and the Bar Councils Act has conferred that right only upon those persons who have been enrolled as Advocates of the High Court. Therefore Section 8, Bar Councils Act, really is in conformity with Clause 10, Letters Patent and there again Section 8 seems to me to provide expressly otherwise than what Order III, Rule I; enacts. Therefore, again, it is possible to take the view that as far as the High Court is concerned, under Section 8 of the Bar Councils Act the right not only to plead but to act is restricted to those who are enrolled by the High Court and that right cannot be conferred upon recognised agents.

8. Turning next to the Bombay Pleaders' Act which applies to the districts, that makes the position perfectly clear. Section 9 provides that no person shall appear, plead or act for any party in any civil proceeding in any Court unless ho is a pleader as defined in the Act and is duly empowered to appear, plead and act for such party in such proceeding. But the proviso is very significant:

'Provided that nothing in this section shall apply to any party appearing, pleading or acting on his own behalf or appearing or acting by his recognised agent as defined in Rule 2, Order III of the Code of Civil Procedure, or to any advocate of the High Court'.

Therefore the proviso makes a distinction between appearing, pleading or acting and- appearing or acting. Whereas a party may not only appear or act but he may also plead, a recognised agent as defined in Rule' 2, Order III can only appear or act and not plead. Therefore as far as the districts are concerned, a recognised agent has no right to plead by reason of the proviso to Section 9, and, as I have already pointed out, right of audience -is a natural and necessary concomitant of the right to plead, and therefore if a recognised agent has no right to plead, it follows that he has no right of audience in Court. Therefore, as far as the question that directly arises for my decision as raised by Mr. Bengeri is concerned, there is no doubt that even on a strict construction of Order III, Rule 1, and even assuming that the provisions of Order III, Rule 1, apply to the High Court, Shambhuprasad has no right of audience in this Court, as the right of audience does not form part of an appearance, application or act in or to any Court. The larger and the wider question to my mind is also of great importance to the Bar as to whether a recognised agent can act in the High Court. It may be considered by the Bar and may come up for decision on a suitable and appropriate occasion.

9. I am thankful to the Advocate General who has appeared on behalf of the Original Side Bar Association, to Mr. Jahagirdar who has appeared on behalf, of the Western India Advocates Association and to Mr. Adarkar who has appeared on behalf of the Bar Council, in response to the notice directed to be issued by me. They have given me considerable assistance in coming to the conclusion that I have.

10. No orders as to costs.

11. Order accordingly.


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