Skip to content


D. Sornam, by Power-of-attorney D.A.S. Swami Vs. State of Madras, Represented by the Secretary, Health Department - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1969)1MLJ207
AppellantD. Sornam, by Power-of-attorney D.A.S. Swami
RespondentState of Madras, Represented by the Secretary, Health Department
Cases ReferredKrishnammal v. Balasubramaniam
Excerpt:
.....in person or by an advocate duly authorised. but it is interesting to note that the general power of attorney which has been filed in this case, describes him as a lawyer and this is a matter which we would like the bar council to examine, as we find that this d. 1481 of 1966 in the high court, madras, as well as of writ appeal filed against the order dated 17th april, 1968 in c. 4. when the power-of-attorney holder sought to address us on the merits of the case, we pointed out to him that there are obstacles to his having an audience, before court on the merits of the case, and that he may either engage an advocate to appear in the case or ask the appellant sornam herself to present the case as best as she can. by order 3, rule 2, (a) persons holding power-of-attorney,..........by the petitioner in person or by an advocate duly authorised. a person, d.a.s. swami, as the power of attorney holder from the petitioner, would plead her case at the hearing for admission, and sought to do so before us at the hearing for admission of the appeal. the short question is whether this is permissible.2. the actual petitioner, whose rights are agitated in the writ petition, is one d. sornam, and the question involved is the rejection of her application to the medical college as a science graduate on the ground that she is only a home science graduate and so not qualified for admission under rule 1 (e) of the rules of the government for admission to the medical college. the writ petition is filed by her power of attorney holder d. a.s. swami. even the affidavit in support.....
Judgment:

M. Natesan, J.

1. The Writ Petition, the dismissal of which at the admission stage has given rise to this appeal, failed at the outset without an examination of the merits of the case for want of representation before the Court at the hearing for admission either by the Petitioner in person or by an Advocate duly authorised. A person, D.A.S. Swami, as the power of attorney holder from the Petitioner, would plead her case at the hearing for admission, and sought to do so before us at the hearing for admission of the appeal. The short question is whether this is permissible.

2. The actual petitioner, whose rights are agitated in the Writ Petition, is one D. Sornam, and the question involved is the rejection of her application to the Medical College as a Science Graduate on the ground that she is only a Home Science Graduate and so not qualified for admission under Rule 1 (e) of the Rules of the Government for admission to the Medical College. The Writ Petition is filed by her power of attorney holder D. A.S. Swami. Even the affidavit in support of the application, is sworn to by this D. A.S. Swami who, describes himself as a lawyer and the petitioner's power of attorney holder. He is the holder of a law degree and we take judicial notice of the fact that he has been removed from the rolls of the High Court on account of some professional irregularities. Manifestly he cannot claim to appear for a suitor as a Pleader or Advocate. But it is interesting to note that the general power of attorney which has been filed in this case, describes him as a lawyer and this is a matter which we would like the Bar Council to examine, as we find that this D. A.S. Swami has sought appearance in Courts in more than one case as power of attorney holder for the party. In this case, the Writ Petitioner is no doubt the niece of D. A.S. Swami and she, who is very much a major, aged about 23 years, describes him as her statutory guradian after the demise of her father in 1963. But we find that, in one case referred to by D. A.S. Swami himself in his grounds of Writ Appeal, as power of attorney holder from an accused in a criminal case, he displaced a practising Advocate who was appearing for the accused and sought to intervene in the proceedings.

3. The power of attorney presented in this case runs in those terms:

I, D. Sornam, daughter of Dr. D. A. Dandayuthapani B.A., M.B.B.S., aged 23, residing at 33, Habibulla Road, T. Nagar, Madras-17, hereby authorises, empower and appoint Mr. D.A.S. Swami, B.A.B.L., Lawyer, agent, Supreme Court, Mr. D.S.S. Manian, B.A.B.L., B. command T.J. A. and Co., Lawyers consisting of the former two partners only, all residing a the same address to be my agents and to represent us jointly or severally in every respect for all purposes connected with my admission as Medical student in Government and other Medical Colleges; to take all proceedings in all Courts and before all authorities in India. In ratification in writing of all the proceedings which were certainly taken at my instance by Mr. D. A.S. Swami and as my guardian under the statutory rule for such admission in W.P. No. 1481 of 1966 in the High Court, Madras, as well as of Writ Appeal filed against the order dated 17th April, 1968 in C.M.P. No. 5849 of 1968, I further authorise the said agents to file appeals against the orders dated 27th April, 1968 in W.P. No. 1481 of 1966 and C.M.P. No. 9701 of 1968, to file fresh W.Ps. as also to sign, verify and swear to all pleadings, affidavits and other proceedings in all Courts and before all authorities, for further prosecution of all remedies whatsoever.

I hereby confirm the interest of Mr. D.A.S. Swami as my paternal uncle and abovesaid statutory guardian from the demise of my father in 1963, and the interest of Mr. D.S.S. Manian as my cousin brother.

4. When the power-of-attorney holder sought to address us on the merits of the case, we pointed out to him that there are obstacles to his having an audience, before Court on the merits of the case, and that he may either engage an Advocate to appear in the case or ask the appellant Sornam herself to present the case as best as she can. D.A.S. Swami would have none of it and would claim a right to address this Court as a rower-of-attorney holder of the party, authorising him to prosecute the matter in Courts. The conduct of litigation in Court by recognised agents is found provided in Order 3 of the Code of Civil Procedure. Under Order 3, Rule 1, any appearance, application or act in or to any Court, required to 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 recognised agent, or by a pleader appearing, applying enacting, as the case may be, on his behalf. By Order 3, Rule 2, (a) persons holding power-of-attorney, authorising them to make and do such appearances, applications and acts on behalf of parties would be recognised agents for the purpose of Order 3, Rule 1. It is now well established that an appearance, application or act which a recognised agent may make or do for a party does not include the right to plead. Decisions have held that a recognised agent as such has no right of audience and cannot plead in Courts. In In re Eastern Tavoy Minerals Corporation Ltd. I.L.R. (1934) Cal. 324, it was held that a Director of a company, holding a power-of-attorney, authorising him ' to appear for and on behalf of the company, to conduct and represent the company in the proceedings ' in High Court had no right of audience in Courts. As pointed out in Mulla's Code of Civil Procedure, 13th Edition, Volume I, at page 668, quoting Chagla, C.J., in A.S. Patel v. National Rayon Corporation : AIR1955Bom262 , 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 and that is not included in the expression ' appearance, application or act in or to any Court '. In Order 3, Rule 1, Civil Procedure Code the expression 'act' is used in a technical sense and not in the comprehensive sense of any action by a party. Its meaning is limited by its being placed in juxtaposition with the words 'appearance' and 'application'. The question is found discussed at length by the Full Bench of this Court in Krishnammal v. Balasubramaniam : (1937)2MLJ552 . The Full Bench has held that an agent with a power-of-attorney to appear and conduct judicial proceedings has no right of audience in Court.

5. Recently Alagiriswami, J., had to consider the question in Meena Ammal by Power-of-Attorney D.A.S. Swami v. Krishnaswami S.R. Nos. 64788 to 64790 of 1967, again at the instance of this D.A.S. Swami, when he sought to argue on behalf of a certain party Meenammal as power-of-attorney agent. Following the decision of the Full Bench in Krishnammal v. Balasubramaniam : (1937)2MLJ552 , another Division Bench decision of this Court in L.P.A. (S.R.) No. 1363 of 1966, wherein also this D.A.S. Swami sought audience in Court as a power-of-attorney holder and the decision of Venkataraman, J., in D.A.S. Swami v. Kubendran : AIR1967Mad276 , the learned Judge rejected the claim of D.A.S. Swami to argue in Court on behalf of a party as power-of-attorney agent. The Learned Judge advised the party concerned to engage an Advocate for arguing that case. The claim of this D.A.S. Swami which Venkataraman, J., had to deal with in D.A.S. Swami v. Kubendran : AIR1967Mad276 , is in a criminal case, and the question had to be considered under the relevant provisions of the Code of Criminal procedure. But the learned Judge had, in the context to examine the position on the civil side also.

6. True, some of the earlier decisions referred to have discussed the matter in the light of the provisions contained in Clauses 9 and 10 of Letters Patent and in the Legal Practitioners Act. Clauses 9 and 10 of the Letters Patent, and parts of the Legal Practitioner's Act now stand repealed by the Advocates Act (XXV of 1961). Before referring to the Advocates Act, we may refer to Clause 10 of Letters Patent. That provided that no person whatsoever but such Advocates, Vakeels or Attorneys shall be allowed to act or plead for or on behalf of any suitor in the High Court, except that any suitor shall be allowed to appear, plead or act on his own behalf or on behalf of a co-suiter. Section 10 of the Legal Practitioners Act contained the provision that, except as provided by the Act or any other enactment for the time being in force, no person shall practise as a pleader or Mukhtar in any Court not established by Royal Charter unless he held a certificate issued under Section 7 and has been enrolled in such Court or in some Court to which it is subordinate. Section 8 of the Indian Bar Councils Act (also repealed by the Advocates Act) provided that no person shall be entitled as of right to practice in any High Court, unless his name was entered in the roll of Advocates of the High Court maintained under the Act. It is unnecessary for us to refer to the position of recognised High Court Attorneys. The Advocates Act, 1961 which is an Act to amend and consolidate the law relating to Legal Practitioners and to provide for the constitution of Bar Councils and an All-India Bar, enacts, by Section 29 in Chapter IV which except for Section 32 has not yet come into force that Advocates shall be the only recognised class of persons entitled to practise law. The section runs thus:

Subject to the provisions of this Act and any Rules made thereunder, there shall as from the appointed day, be only one class of persons entitled to practise the profession of law, namely, Advocates.

Section 33 [which emphasises that Advocates alone have the right to practise, reads:

Except as otherwise provided in this Act or in any other law for the time being in force, no person shall, on or after the appointed day, be entitled to practise in any Court or before any authority or person unless he is entitled as an Advocate under this Act.

The exception relevant for our purpose is provided in Section 32, which has come into force from 4th January, 1963. This section which empowers a Court to permit appearance to any person not an Advocate under the Act in a particular case, runs thus:

Notwithstanding anything contained in this Chapter, any Court, authority or person may permit any person, not enrolled as an Advocate under this Act to appear before it or him in any particular case.

First, this section does not recognise the right of any person other than an Advocate to claim audience in Court, secondly, this section cannot be interpreted or used to circumvent or defeat Section 29 which would entitle Advocates alone to practise the profession of law. Section 45 of the Act makes practising by persons not entitled under the Act penal. The power under Section 32 is vested in Courts and tribunals for special circumstances to be exercised judicially. This provision must be read in the light of similar provisions in earlier statutes, for instance, Section 4(1) (r) Criminal Procedure Code whereunder the Court may, in any given case, permit any person appointed to act in any proceeding in the Court. But as pointed out by Venkataraman, J., in D.A.S. Swami v. Kubendran : AIR1967Mad276 , previous permission of the Court is a requirement. That apart, Section 32 uses the term ' appear ' while Sections 29 and 32 use the expression 'practise'. The word 'practise' includes both acting and pleading, that is, takes in all the normal activities of a legal practitioner. Though the decisions prior to the Advocates Act have held right 'to appear' and 'the right to plead' in Courts as distinct functions--see Clause 10 of the Letters Patent ' to appear, plead or act' in the context one may construe the word.. 'appear' in Section 32 of the Advocates Act to mean appear, to plead or address the Court. Parliament evidently intended that the expression 'appear' under Section 32 should bear a more comprehensive meaning. We can envisage occasions where a wider sense would be necessary. It is unnecessary for us to examine this question, as what is claimed here is not permission to appear as a special case, but a right to address Court on the strength of the power-of-attorney. In effect D.A.S. Swami claims the right to act and plead. As a recognised agent, he can have appearance and he can act : now he wants also to plead the cause before the Court, that is factually to practice the profession of law. In Aswini Kumar Ghosh v. Arabind Boss : [1953]4SCR1 , the Supreme Court approved the meaning given to the word 'practise' by Kumaraswami Sastri, J., in the Full Bench case In re Powers-of-Advocates I.L.R. (1929) Mad. 92 : (1929) 55 M.L.J. 551, where the learned Judge said:

the word 'practise' means 'appear', act, and plead, unless there is anything in the subject or context to limit its meaning.

We cannot overlook that both in the power-of-attorney and in the affidavit in support of the writ petition, D.A.S. Swami, is described as a lawyer which in popular sense means one who practises the profession of law. The Full Bench in Krishnammal v. Balasubramaniam : (1937)2MLJ552 , pointed out that even one isolated instance of the exercise of the related function could constitute practising. The learned Judges referred to the law in England where even one isolated act has been held to constitute 'acting as a Solicitor' rendering the person guilty of such conduct, liable to be dealt with under Section 26 of the Solicitors Act of 1860 for contempt of Court. We see no warrant whatsoever to place a recognised agent holding a general power-of-attorney to take proceedings in Courts, in the same position, as an Advocate to whom a vakalat has been given. To do so, would be to defeat the provisions of the Advocates Act and the Legal Practitioners Act and the salutory privileges, rules and restrictions that govern those who would practise the honourable profession of law. It cannot be contended that reasonable restrictions should not be placed on those who practise the profession of law. Nor can it be said that the restrictions which have been placed and the rules and regulations which now govern the practice of the profession of law are not reasonable. It is not in the interest of suitors and not conducive to the efficient administration of justice to permit pleading for them in Courts as of right by persons who are not governed by any professional ethics or code of conduct and who are not subject to any disciplinary jurisdiction in the matter of the conduct of a suitor's case. We are not for giving the imprimature of the Court and commit suitors to self-styled lawyers who are not amenable to any professional discipline to expouse and plead their causes in Courts. The Constitution does not compel us to do that. The power-of-attorney holder here does not seek before us permission to represent the suitor as a special case without reference to the power that has been given to him. We may at once state that, having regard to his antecedents, we may not grant it even if requested. He would not avail himself of the services of any Advocate which he could do as the recognised agent of the party. He does not want time for the appellant herself to appear and plead her cause. In the circumstances we cannot but dismiss the writ appeal. The writ appeal is dismissed. When we were about to read the judgment Sri R. Srinivasa Ayyangar represented that he was authorised duly by vakalat by the power-of-attorney agent to argue the case for admission. It is also represented that the writ petition has not been gone into on the merits. In the circumstances, the writ petitioner D. Sornam may invoke the jurisdiction of this Court again and present a fresh writ petition as there has been no disposal of the case on the merits.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //