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Krishna Kumar Saxena and ors. Vs. Chief Justice of the High Court of Judicature at Allahabad and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 4102 of 1967
Judge
Reported inAIR1969All112
ActsAdvocates Act, 1961 - Sections 1(3), 16 to 28, 50(2), 55 and 58(4); Advocates (Amendment) Act, 1962; Legal Practitioners Act, 1879 - Sections 6, 7, 8, 9, 16, 17, 18, 19, 37 and 41
AppellantKrishna Kumar Saxena and ors.
RespondentChief Justice of the High Court of Judicature at Allahabad and anr.
Appellant AdvocateS.C. Kharey and ;B.D. Mandhyan, Advs.
Respondent AdvocateStanding Counsel
DispositionPetition dismissed
Excerpt:
.....of pleaders - sections 50 (2), 55 and 58 (4) of advocates act, 1961 and sections 6 and 7 of legal practitioners act, 1879 - petitioners enrolled as pleaders by the high court - chapter iii of advocates act came into force in december 1961 - legal practitioners act relating to admission and enrolment of legal practitioners stood repealed - person obtains certificate by mistake - could not be said to be practicing as a pleader or vakil - enrollment held invalid. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag...........1967, they contended that in view of the various provisions of the advocates act read with the legal practitioners act their enrolment was valid and was liable to be renewed by the high court. on 27th october, 1967, the joint registrar replied that the power to 'admit' was not reserved by section 58 of the advocates act, consequently admitting new pleaders after 1st december, 1961, was unauthorised.subsequently on 17th november, 1967, the joint registrar issued another circular letter to all district judges directing that only pleaders enrolled prior to 1st december, 1961, are entitled to get their certificates of practice renewed under the legal practitioners act as hitherto. the certificates of pleaders enrolled on or after 1st december, 1961, should not be renewed. the petitioners.....
Judgment:
ORDER

Satish Chandra, J.

1. Petitioners nos. 1 and 2 were enrolled as pleaders by the High Court in 1962. Petitioners nos. 3 and 4 were similarly enrolled in 1964. Petitioners nos. 5 to 9 were also enrolled as pleaders, according to the learned counsel, in 1966. The certificates issued to the petitioners were in due course renewed each year. The current certificate entitles them to practise upto 31st December, 1967. On 20th July, 1967, the Joint Registrar of this Court issued a circular letter to all District Judges indicating that it was doubtful whether the High Court could admit pleaders after the coming into force of Chapter III of the Advocates Act on 1st December, 1961. Under the circumstances it will be advisable for the pleaders enrolled after that date not to apply for renewal of their certificates of practise or for re-enrolment or for simultaneous enrolment but to get themselves enrolled as advocates by moving the Bar Council in the matter. Petitioners nos. 1 and 2 submitted a representation to the Joint Registrar through the District Judge, Shah-jahanpur on 21st September, 1967, They contended that in view of the various provisions of the Advocates Act read with the Legal Practitioners Act their enrolment was valid and was liable to be renewed by the High Court. On 27th October, 1967, the Joint Registrar replied that the power to 'admit' was not reserved by Section 58 of the Advocates Act, Consequently admitting new pleaders after 1st December, 1961, was unauthorised.

Subsequently on 17th November, 1967, the Joint Registrar issued another circular letter to all District Judges directing that only pleaders enrolled prior to 1st December, 1961, are entitled to get their certificates of practice renewed under the Legal Practitioners Act as hitherto. The certificates of pleaders enrolled on or after 1st December, 1961, should not be renewed. The petitioners question the validity of the view taken by the Joint Registrar. The principal question canvassed at the hearing by Mr. Khare appearing for the petitioners related to the interpretation of the phrase 'issue and renewal of the certificate of a legal practitioner' occurring in Sub-section (4) of Section 58 of the Advocates Act, 1961, and also the impact of Sections 50 and 55 on the right of the High Court to enroll pleaders.

2. Prior to the coming into force of the Advocates Act, 1961, the enrolment of pleaders was governed, inter alia, by the Legal Practitioners Act, XVIII of 1879, Section 50 of the Advocates Act provided for repeal of certain enactments. Sub-section (2) stated that on the date on which Chapter III comes into force the following shall stand repealed. Clause (a) alone is relevant. It reads :--

'(a) Sections 6, 7, 18 and 37 of the Legal Practitioners Act, 1879, and so much of Sections 8, 9, 16, 17, 19 and 41 of that Act as relate to the admission and enrolment of legal practitioners.'

Under Sub-section (3) of Section 50 certain provisions were to stand repealed on the date Chapter IV comes intoforce. Clause (a) mentioned Sections 4, 5, 10 and 20 cf the Legal Practitioners Act, 1879, and so much of Sections 8, 9, 19 and 41 of that Act as conferred on legal practitioners the right to practise in any Court or before any authority or person. Similarly, under Sub-section (4) of Section 50 some other provisions of the Legal Practitioners Act were to stand repealed on the date on which Chapter V came into force.

3. Chapter III of the Advocates Act, consisting of Sections 16 to 28, dealt with admission and enrolment of advocates. This chapter came into force on 1st December, 1961 (vide Notification No. S. O. 2790 dated 24th November, 1961, issued by the Central Government under Sub-section (3) of Section 1 of the Act). Chapter IV of the Advocates Act, which dealt with the right to practise, has not yet been enforced. In the result, Sections 6, 7, 18 and 37 and so much of Sections 8, 9, 16, 17, 19 and 41 of the Legal Practitioners Act as relate to the admission and enrolment of legal practitioners stood repealed on 1st December, 1961.

4. Section 6 of the Legal Practitioners Act authorised the High Court to frame rules relating inter alia to qualifications, admission and certificate of proper persons to be pleaders and mukhtars. Under Section 7, on the admission under Section 6 of any person as a pleader or a mukhtar, the High Court shall cause a certificate to be issued to such person authorising him to practise upto the end of the current year. The certificate was entitled to be renewed by the High Court each year by the issuance of a fresh certificate and the cancellation of the existing one. Thus, with effect from 1st December, 1961, the High Court's power to admit as well as the function of issuing the certificate or renewing it, stood abrogated. So the High Court could neither admit pleaders nor renew the certificates of the existing ones.

5. The Advocates Act did not initially contain any provision for the transitional period. The amending Act 14 of 1962 introduced, inter alia, Section 58 in the Act. Sub-section (4) of Section 58 provided that notwithstanding the repeal of the provisions of the Legal Practitioners Act by Sub-section (2) of Section 50, the provisions of that Act and any rules made thereunder shall, in so far as they relate to 'the issue and renewal of the certificate of a legal practitioner' have effect until Chapter IV comes into force. It further provided that accordingly every certificate issue or renewed to a legal practitioner (who is not enrolled as an advocate under this Act) which is or purports to be issued or renewed under the provisions of the Legal Practitioners Act during the period beginning with the 1st day of December, 1961, and ending with the date on which Chapter IV comes into force, shall be deemed to have been validly issued or renewed. This provision came into force on 24th January, 1962. Thus, the power of the High Court to issue or renew a certificate of practice to a legal practitioner was revived retrospectively with effect from 1st December, 1961, and was to continue till Chapter IV came into force. All certificates issued or renewed during this period were to be deemed to have been validly issued or renewed.

6. Before dealing with the arguments of the learned counsel another development may be noticed. Section 24 of the Advocates (Amendment) Act, 1964, further amended Sub-section (4) of Section 58. It provided that in Sub-section (4) of Section 58 of the principal Act, for the words 'the issue and renewal' the words 'the renewal or the issue by way of renewal' shall be substituted. This Amendment Act came into force on 16th May, 1964. With effect from this date the preexisting power of renewal or the issue by way of renewal alone remained in operation.

7. For the petitioners Mr. Khare submitted that the phrase 'the issue and renewal' as used in Section 58(4) included the function of admission of pleaders. The High Court thus continued to retain the power of enrolment of proper persons to be pleaders. In order to judge the significance and import of a provision it is permissible to look at its legislative history. Under Section 6 of the Legal Practitioners Act, the High Court could frame rules relating to admission and certificates of proper persons to be pleaders. Under Section 7 on the admission under Section 6 of any person as a pleader the High Court has to issue a certificate to him. Such certificate could be renewed each year by the issuance of a fresh certificate and the cancellation and retention of the old one. These provisions indicate that the power of the High Court related to admission. After the exercise of power the High Court had to perform more or less a ministerial function of issuing a certificate and of renewing it subsequently. The issuance of the certificate under Section 7 followed the admission under Section 6. The issuance was the consequence of the exercise of the power of admission. It was not the power itself.

8. The rules framed by this court lead to the same position. Rules 12 and 13 of Chapter XXV, prescribe the qualifications for admission as a pleader. Rule 14 contemplates an application for admission as a pleader. Under Rule 15 if the application is granted by the Court, a certificate is to be issued to the applicant under Section 7 of the Legal Practitioners Act under the signature of the Registrar. Thus, the issuance of the certificate by the Registrar follows the grant by the Court of the application for admission. The act of admission is done by the Court. The ministerial function of issuing the certificate is performed by an executive official of the Court. The issuance of the certificate thus is not the power of enrolment.

9. In this background the use of the phrase 'issue and renewal of the certificate' in Sub-section (4) of Section 58 clearly excludes the continuance of the power of admission possessed by the High Court under the Legal Practitioners Act. The word 'issue' of the certificate would relate to Section 7 of the Legal Practitioners Act and Rule 15 of Chapter XXV of the Rules of this Court. It would not attract or preserve the power conferred by Section 6 of the Act read with the relevant rules. The word 'issue' has been used in conjunction with the word certificate. The function of issuing the certificate alone has been preserved. Similarly the work of renewing the certificate continues.

10. The amendment of 1964 restricts the content of the preserved power. The power to issue the certificate no longer remains in force. Only the renewal or the issue by way of renewal of a certificate remained operative. From then onwards even a certificate could not be issued for the first time. It could only be issued by way of renewal.

11. The policy of the Legislature in making this transitional provision appears to have been to provide for the continuance of the conditions under which pleaders could practise till Chapter IV came into force. The policy of the Legislature had from the beginning been to have only advocates practising the profession of law. Section 16 in Chapter III contemplated only advocates though of two classes, namely senior advocates and other advocates. Section 29 (which is in Chapter IV) provides that from the appointed day there will be only one class of persons entitled to practise the profession of law, namely the advocates. The Act contemplated that all the varieties of legal practitioners like pleaders, mukhtars, vakils, Revenue agents, etc., would in due course be enrolled as advocates under the Act; but to obviate hardships in the period of transition, Section 58(4) provided the continuance of power of renewal of existing certificates. Initially the power to issue a certificate was also continued to cater for those limited classes of cases where the High Court had prior to 1st December, 1961, made an order of admission of a person as a pleader, but had not for some reason been able to issue the requisite certificate. In my opinion the registry of this Court was right in taking the view that after 1st December, 1961, the High Court did not possess the power to admit or enrol fresh persons as pleaders.

12. Learned counsel placed reliance upon Section 55 of the Act. This section provides that notwithstanding anything contained in the Advocates Act every pleader or vakil practising as such immediately before the date on which Chapter IV comes into force, by virtue of the provisions of the Legal Practitioners Act, 1879, who does not elect to be or is not qualified to be enrolled as an advocate under the Act, shall, notwithstanding the repeal of the relevant provisions of the Legal Practitioners Act, 1879, continue to enjoy the same rights as respects practice in any court and be subject to the disciplinary jurisdiction of the same authority which he enjoyed or, as the case may be, to which he was subject immediately before the said date. It further provided that accordingly the relevant provisions of the Acts or law aforesaid shall have effect in relation to such persons as if they had not been repealed. This provision does not purport to confer any power of enrolling fresh persons as pleaders. It preserves right to the existing practitioners, who did not wish to be enrolled as an advocate, to continue to enjoy pre-existing rights and liabilities as respects practice.

In my opinion this provision would apply to such pleaders or vakils who were in the eye of law validly practising as such immediately before the date on which Chapter IV comes into operation. A person must be practising lawfully as a pleader or a vakil. A person who happens to obtain a certificate as a pleader by mistake or contrivance could not be said to be practising as a pleader or vakil 'as such', because in the eye of law he is not a pleader or vakil. This provision would not preserve the right to practise for a person who was not lawfully admitted as a pleader. As seen above the High Court could not validly admit any person as a pleader after 1st December, 1961. The order of admission in the cases of all the present petitioners was passed by the High Court after that date. Their enrolment was invalid. The Joint Registrar was right in directing that the certificates of such persons should not be henceforth renewed.

13. Learned Senior Standing Counsel appearing for the respondents invited my attention to Sunil Kumar Sinha v. State of West Bengal, AIR 1963 Cal 614. In that case a Division Bench took the same view as I have expressed above.

14. In the result, the petition fails and is dismissed but I decline to make any order as to costs.


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