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Samdukhan Vs. Madanlal and ors. - Court Judgment

LegalCrystal Citation
CourtRajasthan High Court
Decided On
Case NumberCivil Misc. Appln. No. 177 of 1958
Reported inAIR1959Raj35
ActsCode of Civil Procedure (CPC) , 1908 - Order 3, Rule 1; Rajasthan High Court Ordinance, 1949 - Sections 15; Bar Council's Act, 1926 - Sections 8
RespondentMadanlal and ors.
Advocates: Vallabh Lal, Adv.
DispositionApplication dismissed
Cases ReferredA. S. Patel v. National Rayon Corpn. Ltd.
Excerpt: the prayer made by him, 8. it is well to remember in this connection that section 15 of the rajasthan high court ordinance (no. clearly this section does not permit any body except the advocates on its rolls to appear or plead for the parties appearing in the high court......of this court if and when it does properly arise.11. bearing in mind the above provisions of law,i have no hesitation in coming to the conclusion thatthe petitioner cannot be permitted to have a rightof audience for his general attorney in this court.the application is, therefore, dismissed.

I.N. Modi, J.

1. This is an application by Samdukhan appellant in S. B. Civil Miscellaneous Appeal No. 28 of 1958 praying that his recognised agent Mr. Hafi-zullah be permitted as a special case to plead before this Court, the main reason for the prayer being that the former is too poor to engage a counsel to argue his case.

The application is an omnibus one and covers a similar request with respect to several other cases of the petitioner, which are not before me and to that extent it seems to me to be entirely misconceived. In deciding this application, therefore, I shall confine myself to the particular appeal which is before me.

2. Before proceeding further, it may be mentioned that the particular attorney with respect to whom the present application has been made is a revenue agent, and it is pointed out that he has been practising before all the revenue Courts in this State.

I may, however, state at once that that is a matter governed by separate rules with which I am not concerned in the present case, and, therefore, that circumstance has scarcely any relevance for the determination of the point that is raised before me. The point to decide is whether Mr. Hafizullah who is holding a general power of attorney for the petitioner can be permitted to plead in this Court or for that matter in any civil Court.

3. I have carefully considered this question with the attention which it deserves. The first provision of law which requires notice in this connection and upon which some reliance is placed on behalf of the petitioner is Rule 1, of Order 3, C.P.C. That rule reads as follows :

'Any appearance, application or act in or to any Court, required or authorised 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, be made or done by the party in person, or by his recognized agent, or by a pleader appearing, applying or acting, as the case may be, on his behalf.

Provided that any such appearance shall, if the Court so directs, be made by the party in person.' It is contended that the expression 'any appearance, application or act' as used in the aforesaid rule embraces pleading also. This contention, to my mind. has no force, as the words 'appearance' and 'act' do not include 'pleading.'

4. In re, Eastern Tavoy Minerals Corpn. Ltd. AIR 1934 Cal 563, it was held that to plead is not to make or do an appearance or an application or an act, and, therefore, a recognized agent as such had no right of audience. In that case the right of audience was claimed on behalf of the company by one of its directors who held the power of attorney authorising him to appear for and on behalf of the company, to conduct and represent the company in various proceedings in Court, and it was held that he had no right of audience.

5. In Jivan Lal v. Ram Ratan, AIR 1936 Oudh 261, it was again held that the words 'any appear-ance, application or act' could not include pleading or arguing. It was, therefore, held that a recognized agent could not be allowed to plead and argue for his principal.

6. The same view appears to have been taken in Thayarammal v. Kuppuswami Naidu, AIR 1937 Mad 937 (FB) and also in A. S. Patel v. National Rayon Corpn. Ltd., (S) AIR 1955 Bom 262.

7. I have, therefore, no hesitation in coming to the conclusion that Order 3, Rule 1, C.P.C. cannot afford any support to the petitioner in the prayer made by him,

8. It is well to remember in this connection that Section 15 of the Rajasthan High Court Ordinance (No. XV) of 1949 has a direct bearing on the question before me. This section reads as follows :

'The High Court shall have power to approve, admit and enrol such and so many advocates as to the High Court may seem meet; and such advocates shall be and are hereby 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.'

It would appear from a perusal of this section that so far as the High Court is concerned, it is only the; advocates who are duly entered its roll who can ap-pear for the suitors in the High Court and who can plead and/or act for them. Clearly this section does not permit any body except the advocates on its rolls to appear or plead for the parties appearing in the High Court.

9. The question whether a recognised agent can even act for his principal in this High Court is, however, not one which directly arises before me. But there is no doubt whatsoever, so far as the right to plead is concerned, that the aforesaid Ordinance does not vouchsafe it to anyone except those who are duly enrolled in this Court.

10. The next provision of law which may be referred to in this connection is Section 8 of the Indian Bar Councils Act, 1926 (No. 38 of 1926), which has been made applicable to this State by Part B States Laws Act, 1951 (No. 3 of 1951). This section provides that no person shall be entitled as of right to practise in any High Court, unless his name is entered in the roll of the Advocates of the High Court maintained under this Act, and then there is a proviso with which we are not concerned.

The right to practise certainly includes the right of audience, and prima facie seems to include the right to act also. But on this latter point it is unnecessary for me to express a firm opinion in this case. That is a matter which deserves the serious consideration of the members of the bar and may engage the attention of this Court if and when it does properly arise.

11. Bearing in mind the above provisions of law,I have no hesitation in coming to the conclusion thatthe petitioner cannot be permitted to have a rightof audience for his general attorney in this Court.The application is, therefore, dismissed.

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