1. In a Civil Miscellaneous Application Mr. T. M. Ramaswami Ayyar presented a vakalathnama drawn up in English but signed by the executant in Tamil. The office drew his attention to the fact that the proviso to Rule 23 of the Appellate Side Rules should be complied with. Mr. T. M. Ramaswami Ayyar has demurred to this and the matter has come up before me for orders. As this is a matter which affects the practice of the High Court I requested Mr. T. A. Anantha Ayyar to be amicus curiae and to present the case for the office. He has helped me greatly and I am thankful to him for the help.
2. Mr. Narayanan for Mr. T. M. Ramaswami contends that under Order 3, Rule 4 (1), Civil P.C., a pleader is bound only to produce a vakalathnama and the vakalathnama should be attested under Rule 4 only if the executant is a marksman, and if he is a person who knows to sign his name, his signature need not be attested. The proviso to Rule 23 of the Appellate Side Rules, upon which the office relies is as follows:
Provided that when a vakalathnama is executed by any person who appears to the officer before whom it is executed or by whom the execution is attested, to be illiterate, blind or unacquainted with the language in which the vakalathnama is written, the officer shall certify that the vakalathnama was read, translated or explained in his presence to the executant, that he seemed to understand it and that he made his signature or mark in the presence of the officer.
3. In the vakalathnama filed by Mr. T. M. Ramaswami Ayyar there is no certificate to the effect that the contents of the vakalathnama were interpreted to the executant Ramanathan Chetti. The headman before whom the vakalathnama was executed simply signed his name and has not appended the certificate required by the proviso to Rule 23. The contention of Mr. Narayanan is that Rule 23 is ultra vires inasmuch as it conflicts with the clear provisions of Order 3, Rule 4, Civil P.C. Order 3, Rule 4 (1) says:
No pleader shall act for any person in any act, unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognized agent or by some other person duly authorized by or under a power-of-attorney to make such appointment.
4. Order 3, Rule 4 (4), Civil P.C., runs as follows:
The High Court may, by general order direct that, where the person by whom a pleader is appointed is unable to write his name, his mark upon the document appointing the pleader shall be attested by such person and in such manner as may be specified by the order.
5. It is urged that under these rules it is only in cases where a person is a marksman that attestation is necessary and that the vakalathnama need not be executed before any village headman or any other person and that the object of the Amendment Act of 1926 was to enable parties to execute vakalathnamas as parties are doing on the original side of the High Court and it is only in cases when the person is unable to sign his name that it should be attested by such person and in such manner as may be specified in the order. The vakalathnama in question is in connexion with a Civil Miscellaneous Appeal against the order of a Court in the mofussil.
6. The question is whether the High Court has power to regulate its own procedure and in so doing to frame such rules as it thinks necessary for the proper engagement of pleaders and for the conduct of business. Mr. Anantha Ayyar relies upon Section 106, Government of India Act, which empowers the High Court to frame rules for regulating the practice of the High Court. The proviso to Rule 23 of the Appellate Side Rules is one of those rules which the High Court is authorized to make for the conduct of business and for regulating the practice of the Court. What is contended by Mr. Narayanan is that the Civil Procedure Code having restricted attestation to specific oases the rules of the High Court which are in contravention of the provisions of the Civil Procedure Code, must necessarily be ultra vires and that when the legislature has specifically confined its attention to persons who cannot write their names but who can only put their mark, it is not open to the High Court to go behind it and say that all persons who know to sign their names and who execute vakalathnamas should have their signatures attested by persons whom the High Court would approve of. I do not think there is anything in the Civil Procedure Code, which conflicts with the powers of the High Court under Section 106, Government of India Act. In the case of mofussil Courts the High Court makes rules and such rules are published under the sanction of the Governor in Council, and that is according to Section 107 (c), Government of India Act. There is nothing in the (Government of India Act or in the Civil Procedure Code which requires that the rules which the High Court may make for the conduct of its own business or for the regulation of the pleaders appearing before it should have the sanction of the Local Government.
7. Reference is also made to Section 119, Civil P.C., which says:
Nothing in this Code shall be deemed to authorize any person on behalf of another to address the Court in the exercise of its original jurisdiction or to examine witnesses, except where the Court shall have, in the exercise of the power conferred by its charter, authorized him so to do or to interfere with the powers of the High Court to make rules concerning advocates, vakils and attorneys.
8. Mr. Narayanan contends that this applies only to the admission of advocates, vakils and attorneys and to their professional conduct. I do not think that any limitation could be placed upon the clause as is contended by Mr. Narayanan. It is clear that the intention of the legislature was not to interfere with the power of the High Court to make rules concerning advocates, vakils and attorneys. Rules which regulate the practice of this Court are framed not under Clause 9 of the Letters Patent, but under the Charter Act and now under the Government of India Act. That being so, the proviso to Rule 23, of the appellate side Rules is intra vires and does not in any way conflict with anything that is contained in the Civil P.C. If the contention of Mr. Narayanan is to be upheld the vaka-lathnama need not be attested by anybody. It is neither advisible nor expedient that it should be so. I think the rule is intra vires and must be complied with.