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Khalil Ahmed Shaikh Vs. Post Master General, Bombay Circle - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberO.C.J. Miscellaneous No. 220 of 1955
Judge
Reported in(1956)58BOMLR231
AppellantKhalil Ahmed Shaikh
RespondentPost Master General, Bombay Circle
Excerpt:
.....of advocate of supreme court to practise on original side of high court whether connotes composite right to plead, act and appear.;the right to instruct an advocate on the original side of the high court is confined to the attorneys, and no advocate on the original side, whether he is an advocate of the high court or an advocate of the supreme court, can appear instructed by anyone who is not an attorney of the high court.;rule 46-b of the rules of the high court of bombay, 1950, gives effect to the decision of the supreme court in aswini kumar ghosh v. arabinda bose [1953] s.c.r. 1 that an advocate of the supreme court has the right to practise on the original side, the right to practise connoting not only the right to plead but also the right to act and to appear. the composite right..........(practice in high courts) act, 1951, as meaning that an. advocate 6f the supreme court has a right to practise on the original side of the high court of bombay and calcutta without being instructed by an attorney, we framed certain rules regulating the rights of advocates of the supreme court on the original side. it was our duty to bring our rules into conformity with the decision of the supreme court, and therefore rules 46-a and 46-b were passed by us, and rule 46-b provides:an advocate of the supreme court shall be required, when not instructed by an attorney of this court, to file with the prothonotaryand senior master a document empowering him to appear, plead and act for a party in any suit, matter, or appeal. this rule is perfectly clear. it gives the right to an advocate.....
Judgment:

M.C. Chagla, C.J.

1. An application is made in this Court to exempt the appellant from depositing Rs. 500 as security for costs in respect of the appeal which he proposes to prefer to this Court. Mr. Latifi appears on behalf of the appellant. This is an appeal from the Original Side. Mr. Latifi is not instructed by an attorney. He says that he is instructed by Mr. Hegde who is an advocate of the Supreme Court, and his contention is that lie has a right to appear instructed by Mr. Hegde. As the right claimed by Mr. Latifi raised important questions affecting the rights of the Bar and of the attorneys, we directed that a notice should be given to the Advocate General, the Bar Association, the Bar Council and the Incorporated Law Society. In response to that notice the Advocate General has appeared, Mr. Purshottam Tricumdas has appeared on behalf of the Bar Association, Mr. Maneksha on behalf of the Incorporated Law Society, and Mr. Banaji on behalf of the Bar Council, and we are thankful to these learned Counsel for the submissions they have made to help us to come to the decision that we have ultimately arrived at.

2. After the Supreme Court gave its decision, which is Aswini Kumar Ghosh v. Arabinda Bose : [1953]4SCR1 construing Section 2 of the Supreme Court Advocates (Practice in High Courts) Act, 1951, as meaning that an. advocate 6f the Supreme Court has a right to practise on the Original Side of the High Court of Bombay and Calcutta without being instructed by an attorney, we framed certain rules regulating the rights of advocates of the Supreme Court on the Original Side. It was our duty to bring our rules into conformity with the decision of the Supreme Court, and therefore Rules 46-A and 46-B were passed by us, and Rule 46-B provides:

An advocate of the Supreme Court shall be required, when not instructed by an Attorney of this Court, to file with the Prothonotaryand Senior Master a document empowering him to appear, plead and act for a party in any suit, matter, or appeal.

This rule is perfectly clear. It gives the right to an advocate of the Supreme Court to appear on the Original Side if he is instructed by an attorney, but if he does not choose to be instructed by an attorney and asserts his right as an advocate of the Supreme Court, which right has now been guaranteed to him by the decision of the Supreme Court, we have permitted him to appear without being so instructed by an attorney provided he files a document empowering him to appear, plead and act for a party in any suit, matter or appeal. The contention of Mr. Latifi is that he is not bound in this case to file any document because he is instructed by Mr. Hegde who is not an attorney but who is an advocate of the Supreme Court. Under Rule 40(2) it is provided:

Advocates may appear and plead in any suit or matter on the Original Side or in any appeal from such suit or matter, but not (and we are not concerned with the exceptions here) unless instructed by an attorney of this Court.

Therefore Rule 40(2) prohibits any advocate from appearing on the Original Side unless he has been duly instructed by an attorney, and in substance and in effect the contention of Mr. Latifi comes to this that Rule 40(2) is no longer a valid rule after the Supreme Court gave its decision construing Section 2 of the Supremo Court Advocates Act, because what he is asserting is not a right in himself, but a right of Mr. Hegde to instruct him as an. attorney. In other words, according to Mr. Latifi the result of the decision of the Supreme Court is that Mr. Hegde has the right to practise as an attorney instructing advocates on the Original Side. If that is the effect of the Supreme Court's judgment, we must bow to it, but in our opinion the Supreme Court judgment not only does not lay down any such startling proposition but does not even consider this question because this question never arose for their decision.

3. Let us clearly understand what the rights and powers of the High Court are. Under cl. 9 of the Letters Patent the High Court has been authorised and empowered to approve, admit, and enrol such and so many advocates, vakeels and attorneys as the High Court shall seem meet, and such advocates, vakeels and. attorneys shall be and are authorised to appear for the suitors of the High Court, and to plead or to act, or to plead and act for the said suitors according as the High Court may by its rules and directions determine, and subject to such rules and directions. Therefore it is for the High Court to decide whether an advocate or an attorney is to plead and act or to plead or act and subject to what rules and directions. We have made rules for the enrolment of attorneys, we have laid down the qualifications of the attorneys, and we have provided that on the Original Side attorneys alone shall instruct advocates who can only appear on such instruction. Unless the Supreme Court expressly and clearly lays down that any of the powers conferred upon the High Court by the Letters Patent, which the High Courts have enjoyed for a long period of time, has been taken away, we should be very reluctant to come to the conclusion that indirectly and without the matter being properly considered the Supreme Court has seriously curtailed the right and power of the High Courts. But as we said before, fortunately the decision of the Supreme Court is not what Mr. Latin suggests it is.

4. All that the Supreme Court was called upon to decide was whether an advocate of the Supreme Court had the right to practice on the Original Side of the High Court of Bombay and Calcutta without being instructed by a solicitor, and in deciding that it had to construe the expression 'practise' used in Section 2 of the, Supreme Court Advocates Act, and the majority of the learned Judges of the Supreme Court took the view that 'practise' was a composite expression and it included not merely the right to plead but it included all the functions which a lawyer performs-the right to act, the right to appear, and the right to plead. Therefore this decision removed the impediment in the way of a Supreme Court advocate from appearing on the Original Side without being instructed by a solicitor. To that extent it may be said that our power tinder cl. 9 of the Letters Patent to regulate the practice and procedure on. the Original Side was affected. We can no longer say that an advocate must be instructed on the Original Side if that advocate happens to be a Supreme Court advocate. That is the limited extent of the decision of the Supreme Court and we see no reason whatever why we should extend the application of that judgment to cover a matter and a question which was never before the Supreme Court, which was never agitated before it, which was never considered by it, and which was never decided by it.

5. The clear question that Mr. Latifi now raises and which he wants us to decide is whether the High Court has the power to prevent an advocate of the Supreme Court from acting as an attorney. That is the real issue. Mr. Latin has argued about Rule 46-B and Rule 40 and other rules, but the issue fairly and squarely put comes to this: Has the power of the High Court under cl. 9 of the Letters Patent to enrol attorneys and to say that only attorneys shall practise on the Original Side as attorneys, been taken away, and is an advocate of the Supreme Court entitled to say to the High Court, 'Never mind your rules of recruitment, never mind your enrolment, I have as much, right to practise on, the Original Side as an attorney whom you enrol?'' It is clear that the Supreme Court was not considering the case of an advocate of the Supreme Court practising as an attorney. That right was not in question before the Supreme Court. As we said before, the only right that was in question was the right of a Supreme Court advocate to practise as an advocate on the Original Side, or, in other words, to exercise all his functions, that of acting, pleading and appearing, whether on the Appellate Side or on the Original Side, and the Supreme Court decided that the rights of a Supreme Court advocate to act cannot be taken away by the High Court when he appeared on the Original Side. But it is a far cry from considering the rights of an advocate of the Supreme Court to practise on the Original Side to considering his rights to practise as an attorney instructing an advocate on the Original Side.

6. Mr. Latifi says that the right to act necessarily includes the right to instruct, and if a Supreme Court advocate has been given the right to act then you cannot deny him the right to instruct on the Original Side. The Supreme Court was considering the composite right of an advocate to perform the different functions of a lawyer. It was concerned to construe the expression 'practise', and whereas on the one side the contention was that the expression 'practise' in the context meant merely the right to appeal, the contention on the other side was that the right to practise included all the functions which a lawyer normally performs, and the Supreme Court had to consider which of the two contentions was the proper contention, and ultimately the majority judgment of the Supreme Court came to the conclusion that the language of the section and the past history of the Bar in India did not warrant a narrow and limited construction being put upon the expression 'practise'. It must also be borne in mind that the Supreme Court, with respect, was not considering the question of the dual system on the Original Side, nor Avas it considering how the dual system should be regulated and whether the High Court was right in permitting only attorneys to instruct advocates on the Original Side. Therefore, the question which now has been raised by Mr. Latin that Mr. Hegde has the right to instruct an advocate on the Original Side and that Rule 40 to the extent that it confines the right only to attorneys is invalid, is a question which comes up for consideration for the first time before us, and as we have already pointed out, under cl. 9 of the Letters Patent it is for the High Court to regulate the conditions on which attorneys, advocates and vakeels should practise on the different sides of the High. Court. In brief, the only question which the Supreme Court considered and decided was the right of the individual Supreme Court advocate to practise on the Original Side. What the Supreme Court held was that the Supreme Court advocate was not bound and. should notbe compelled to avail himself of the dual agency which was being insisted upon on the Original Side of the High Courts of Bombay and Calcutta.

7. The second contention urged by Mr. Latifi is really subsidiary to the main contention which we have examined and discussed, and that is the validity of Rule 46-B. It was argued by Mr. Latifi that as an advocate of the Supremo Court having the right to practise on the Original Side, he should not be compelled as a condition, precedent to that practice to file a document empowering him to plead before this Court, and Mr. Latifi raised the interesting question as to whether an advocate who is authorised merely to plead or a counsel can possibly in law file a document from his client authorising him to plead. His contention was that a counsel or an advocate authorised only to plead was not the agent of hisclient and therefore no such document could be insisted upon from his client. In our opinion, it is unnecessary to consider or decide that question, because if Mr. Latifi cannot be instructed by Mr. Hegde, no further question arises as to the conditions under which Mr. Latifi can be allowed to plead before this Court.

8. The learned Judge has construed Rule 46-B to mean that the expression used in it 'a document empowering him to appear, plead and act for a party in any suit, matter or appeal' should be read disjunctively and not conjunctively and it would be open to an advocate of the Supreme Court merely to file a document empowering him to plead. 'With great respect to the learned Judge, he construed this rule without considering the implication of that construction and the effect that that construction would have on the construction of Rule 40(2), He did not consider the right of Mr. Hegde to instruct Mr. Latifi. If he had considered that question, then again, with respect, he would have clearly realised that if Mr. Hegde had no right to instruct Mr. Latifi, no question of Mr. Latifi filing a document merely empowering him to plead could possibly arise. Therefore, the rule has been advisedly drafted and advisedly it insists upon a Supreme Court advocate, who does not wish to avail himself of the dual agency prevailing on the Original Side and wishing to practise on the Original Side, filing a document which empowers him to appear, plead and act. The question of a Supreme Court advocate merely pleading without being instructed by a solicitor cannot possibly arise, because if he merely wishes to plead and wishes to be instructed by another advocate of the Supreme Court, he would be doing so in contravention of Rule 40(2), The rule gives effect to the decision of the Supreme Court that an advocate of the Supreme Court has the right to practise on the Original Side, the right to practise connoting not only the right to plead but also the right to act and to appear. Therefore the composite right has been given effect to in Rule 46-B, and if a Supreme Court advocate wants to practise on the Original Side, he can only do so provided he files a document empowering him to appear, plead and act for his client. The authority given to him must be a conjoint authority, not merely an authority to plead, because an authority to plead would presuppose that some other advocate has been given the authority to act and that would further presuppose that the authority given to an advocate to act also carries with it the right to instruct the advocate who is merely authorised to plead. As we already pointed out, the right to instruct an advocate on the Original Side is confined to the attorneys and no advocate on the Original Side, whether he is an advocate of this Court or an advocate of the Supremo Court, can appear instructed by anyone who is not an attorney of this Court. The result, therefore, is that we must hold that Mr. Hegde, who is not an attorney of this Court, cannot instruct Mr. Latifi to appear in this appeal. Mr. Latifi has two alternatives open to him. He is an advocate of the Supreme Court. He can appear without being instructed by an attorney by filing the proper document referred to in Rule 46-B. Or if he wants toavail himself of the dual agency prevalent on the Original Side, then he can only do so by conforming to the rules of the High Court and those rules are that he must be instructed only by an attorney and no one else.


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