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G. Krishnaswami Ayyar and Chakrapani Achari Vs. T.V. Swaminatha Ayyar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in(1925)ILR68Mad331
AppellantG. Krishnaswami Ayyar and Chakrapani Achari
RespondentT.V. Swaminatha Ayyar
Cases ReferredGarnett v. Bradley
Excerpt:
insolvency court at madras - vakils--right of audience of vakils--insolvency court, whether separate or subordinate court or branch of high court--history of insolvency courts--statutes--9 geo. iv, ch. 73--indian insolvency act, 1848, 11 and 12 vict., ch. 21, section 3--indian high courts act, 1861 (24 and 25 vict., ch. 104)--indian legal practitioners' act of 1879, section 4--presidency towns insolvency act (iii of 1909), section 121--effect of--conflict of acts--rule of construction--section 3 of indian insolvency act, 1848, whether repealed by section 4 of legal practitioners' act. - charles gordon spencer, officiating c.j.1. the question that comes up for our decision in appeal is whether vakils have a right of audience in the insolvency court at the presidency town of madras. we have heard fall arguments from mr. g. krishnaswami ayyar and mr. a. krishnaswami ayyar on behalf of the vakils and from mr. grant and mr. sidney smith for the advocates. the whole question has been dealt with in. their arguments exhaustively and in every aspect.2. vakils appear and plead on the original side of the high court at madras, notwithstanding that the charter of 1800 authorized only three classes of practitioners, namely, (1) bona fide practitioners of the law in the old court of the recorder, which was thereby abolished; (2) barristers-at-law in england or ireland; and (3).....
Judgment:

Charles Gordon Spencer, Officiating C.J.

1. The question that comes up for our decision in appeal is whether vakils have a right of audience in the Insolvency Court at the Presidency Town of Madras. We have heard fall arguments from Mr. G. Krishnaswami Ayyar and Mr. A. Krishnaswami Ayyar on behalf of the vakils and from Mr. Grant and Mr. Sidney Smith for the advocates. The whole question has been dealt with in. their arguments exhaustively and in every aspect.

2. Vakils appear and plead on the Original Side of the High Court at Madras, notwithstanding that the Charter of 1800 authorized only three classes of practitioners, namely, (1) bona fide practitioners of the law in the old Court of the recorder, which was thereby abolished; (2) barristers-at-law in England or Ireland; and (3) attorneys or solicitors admitted in one of the Courts at Westminster or otherwise capable of acting as well in the character of advocates as of attorneys, and that the Charter went on to

declare that no other person or persons whatsoever shall be allowed to appear and plead, or act in the said Supreme Court of Judicature at Madras for and on behalf of such suitors or any of them.

notwithstanding also that, in 1879, the Legal Practitioners' Act provided in Section 4 that no vakil should be allowed to practise under that section before any Judge of the High Court exercising original jurisdiction in a Presidency Town.

3. To this day, in the High Courts of Calcutta and Bombay vakils have no right to practise on the original side. How vakils obtained a footing on the original side of the Madras High Court is a matter of history, which is set out in the matter of the petition of the Attorneys I.L.R., (1875) Mad., 24 and Nambernmal Chatty v. Narasimhachari : (1916)31MLJ698 .

4. I do not propose to deal in detail with the history of the original side. It is sufficient to state that Clauses 7, 8, and 9 of the Letters Patent of 1862 empowered the High Court to enrol so many advocates to appear and plead, so many vakils to appear, plead and act, and so many attorneys to appear and act, as the Court deemed tit, while Clause 9 of the amended Letters Patent of 1865 empowered the High Court to enrol such and so many advocates, vakils and attorneys as the Court deemed fit, and described the functions of each class of practitioners collectively without the use of the word 'respectively' ; that, in the rules made on August 28, 1863, under the first Letters Patent, Rule 8 runs thus :

Vakils shall not appear, plead and act for any suitor in this Court in any matter of ordinary original jurisdiction, civil or criminal, or in any matter of appeal from any case of ordinary civil jurisdiction or upon review of any criminal case under Clause 25 of the Letters Patent,

but Rules 1, 2, and 3 made on the 1st of October 1863 recognized the right of vakils to practise on the original side; and that Rules 4 and 5 made on July 5, 1866, under the amended Letters Patent of 1865 permitted vakils admitted under the rules of October 1863 to appear, plead and act for the suitors in all matters over which the Court had any jurisdiction. In In the matter of the petition of the Attorneys I.L.R., (1875) Mad , 24 it was held in 1875 by a Full Bench that these rules were within the powers of the High Court: and when the matter came up again in 1916 Coutts Trotter, J., in Namberumal Chetty v. Narasimhachari : (1916)31MLJ698 , felt bound to follow the earlier-decision. Rule 538 of the Original Side Rules declares that, 'a vakil may appear, plead and act upon all proceedings, whether in Court or in Chambers,' There is no mention of the Insolvency Court in any of these rules. In fact historically there is no reason to treat the Insolvency Court as a part or branch of the original side.

5. In 1828 Courts were established for the relief of insolvent debtors in the Bast Indies by the Statute 9, Geo. IV, ch. 73. The Insolvency Court was from those early days a separate Court, and the Indian Insolvency Act, 11 and 12 of Vict., ch. 21, enacted in 1848 by Section 3 that a Court for the relief of insolvent debtors should be held once a month in Calcutta and so often as might be necessary within the towns of Madras and Bombay and be presided over by a Judge of the Supreme Court, and it declared that every advocate and attorney of the Supreme Courts at Calcutta, Madras and Bombay should be entitled to practise in the way of his profession in the said Courts and that no other persons' should practise as advocates or attorneys in the said Courts. This section remained in force until it was repealed in 1909 upon the passing of the Presidency Towns Insolvency Act, III of 1909. When High Courts were established at Calcutta, Madras, and Bombay in 1861, the Indian High Courts Act, 24 and 25 Vict., ch. 104, made the provisions of the Indian Insolvency Act which referred to the Supreme Courts of Bengal, Madras and Bombay and to the Judges of those Courts, applicable under Section 11 to the High Courts of those places so far as the provisions were consistent with that Act and with the Letters Patent.

6. Section 121 of the Presidency Towns Insolvency Act states,

Nothing in this Act, or in any transfer of jurisdiction effected thereby, shall take away or affect any right of audience that any person may have had immediately before the commencement of this Act, or shall be deemed to confer such right in insolvency matters on any person who had not a right of audience before the Courts for the relief of insolvent debtors.

7. The effect of this section is that, if vakils had the right of audience in the Insolvency Courts before 1909, it was not taken away from them ; but, if they had not such a right previously, it was not conferred on them.

8. No rules have been framed either before or since the passing of that Act permitting vakils to appear in insolvency proceedings before a Judge of the High Court. The rules made on December 22nd, 1848, for regulating the proceedings in the Court for the relief of insolvent debtors speak only of the attorney of every prisoner representing him in the said Court. The Insolvency Rules of 1910 in Order XV speak only of attorneys and advocates representing insolvents in the Insolvency Court Section 9 of the Indian High Courts Act of 1861 confers on the High Court jurisdiction in all civil, criminal, admiralty and vice-admiralty, testamentary, interstate and matrimonial matters, but is silent on the subject of insolvency. Clause 18 of the Letters Patent of 1865 refers to the Court for the relief of insolvent debtors as a Court governed by its own laws and held before one of the Judges of the High Court. In paragraph 13 of the Secretary of State's letter, dated 14th May 1862, that accompanied the Letters Patent, the omission to reserve the right of pleading in the Insolvent Court after the issue of the Charter to attorneys of the Supreme Court is explained as due to the fact that the Insolvent Court was a separate tribunal, not affected by the Act authorizing the Letters Patent. In conclusion, it is stated, (The Insolvent Court)

will continue a separate Court, though for the future presided over by a Judge of the High Court. The attorneys, therefore, will, as heretofore, practise in accordance with the rules of the Insolvent Court itself.

9. Although the Court for the relief of insolvent debtors was always treated as a separate Court presided over by one of the Judges of the Supreme Court or High Court, as the case might be, the fact that appeals lie from the decision of the presiding Judge to the High Court, and the fact that Section 15 of the High Courts Act invests the High Court with the power of superintendence over all Courts which are subject to its appellate jurisdiction do not necessarily make it a subordinate Court any more than the Original Side Court or an Admission Court, from which appeals lie under the Letters Patent against the decision of a single Judge, can be described as subordinate to the rest of the High Court. Rule 13 of the Appellate Side Rules, chapter III, which states that advocates, vakils, and attorneys of the High Court are entitled to practise in any of the Courts subordinate to the High Court has therefore no application.

10. For the vakils, reliance was placed on Section 4 of the Legal Practitioners' Act. This declares that any person entered as an advocate or vakil on the roll of any High Court who ordinarily practises in that Court or in some Court subordinate thereto shall, notwithstanding anything herein contained, be entitled, as such, to practise in any Court in British India other than a High Court on whose roll he is not entered, or, with the permission of the Court, in any High Court on whose roll he is not entered. Although this Act was passed in 1879, it did not purport to expressly repeal, Section 3 of the Indian Insolvency Act. No doubt, under Clause 44 of the Letters Patent of 1865, the provisions of the Letters Patent were made subject to the law making powers of the Governor-General in Council, but I should hesitate to imply that an earlier Act is repealed by implication by a later Act without more express words to that effect. In Volume XXVII, Halsbury's Laws of England, page 197, we find the principles laid down, that a statute may be repealed by implication (1) if its provisions are wholly incompatible with the subsequent statute or (2) if the two, standing together, will lead to wholly absurd consequences or (8) if the entire subject-matter of the first is taken away by the second. Now, Section 4 of the Legal Practitioners' Act is not wholly incompatible with the provisions of the Indian Insolvency Act or of the Presidency Towns Insolvency Act. It merely provides that a person entered on the rolls of a High Court, who ordinarily practises in that Court or in some Court subordinate to it, may practise, as such, in any High Court where he is not enrolled if he gets the permission of that Court, or without such permission he may practise in any other Court in British India but a High Court.

11. The words 'as such' denote that his claim to practise must be in his capacity as an enrolled vakil ordinarily practising in the Court where lie is enrolled. As there are no rule's made by the Madras Court for the practice of vakils in the Insolvency Court, such practice is not a feature of their ordinary practice, and therefore they cannot claim a right to practise, as such, in any other Court. For instance a Madras High Court Vakil could not, legitimately claim to be heard in the Insolvency Court of Bombay, because he does not ordinarily practise in the Insolvency Court of Madras, nor could a vakil demand to be allowed to practise as an advocate in a Court on whose rolls he is not entered. By this section advocates and vakils who wish to practise outside the High Court in which they are enrolled are placed on the same footing as regards obtaining permission of the High Court where they wish to practise when they are not on the roll of that Court.

12. On the principle of generalia speoialibus non derogant I think that Section 4 of the Legal Practitioners' Act was not intended to override the special provisions relating to insolvency in the Presidency Towns.

13. Mr. G. Krishnaswami Ayyar at one time suggested that the word 'advocate' in the Indian Insolvency Act might be understood in its wider significance of one who pleads the cause of another; but it is clear from the Charter Act that it was meant to include only those barristers who had been enrolled as advocates in the Courts at Calcutta, Madras and Bombay, respectively, and those who had been practitioners in the Recorder's Court, if any such were still alive in 1848.

14. I have come to the conclusion that the order of Waller, J., refusing to allow vakils to appear and plead in the Insolvency Court is correct. The appeal will be dismissed but without costs.

Devadoss, J.

15. This is an appeal from the order of Waller, 3., upholding the action of the Deputy Registrar, Original Side, who returned a vakalat filed in I.P. No. 392 of 1923 by Mr. G. Krishnaswami Ayyar on the ground that a vakil had no right of audience in the Insolvency Court. Mr. G. Krishnaswami Ayyar has preferred this appeal and the Vakils' Association, Madras, supports it. The Bar Association and the Attorneys' Association, Madras, oppose the appeal. The appellant's contention is that a vakil has a right of audience in the Insolvency Court. The arguments advanced on behalf of the appellant may be summarised under the following heads:

(1) The vakils had a right of audience in the Supreme Court, Madras, and are, therefore, included in the class of practitioners mentioned in Section 3 of 11 and 12 Vict., ch. 21.

(2) Even if they had not the right of audience in the Supreme Court, after the establishment of the High Court they were given by the High Courts Act and the Letters Patent the right of audience on the original side, and Section 3 of 11 and 12 Vict., ch. 21, should be read as applying to all the practitioners of the High Court.

(3) The class of practitioners mentioned in Section 3 of 11 and 12 Vict., ch. 21, having become extinct, the term ' advocate ' used in Section 3 of the Act should be held to apply to vakils who exercise the profession of advocates.

(4) The Insolvency Court being a Court subordinate to the High Court, a vakil had a right of audience in that Court under Section 4 of the Legal Practitioners' Act. Even if it was not a subordinate Court, the Court for the relief of insolvent debtors having been a, Court in British India, the vakil had a fight of audience in that Court.

(5) The Court for the relief of insolvent debtors having been abolished and the insolvency jurisdiction having been vested in the High Court by the passing of the Presidency Towns Insolvency Act, a vakil of the High Court has the right of audience when the High Court exercises insolvency jurisdiction.

(6) Granting that the High Court has power to frame rules prohibiting vakils from appearing in insolvency cases, no such rule having been framed, a vakil's right of audience on all sides of the High Court subsists.

16. The question involved in this appeal is the right of audience of a vakil before a Judge exercising original insolvency jurisdiction and before the Deputy Registrar, Original Side, who is empowered under the rules to hear and determine certain matters. The question whether a vakil is entitled to appear in appeals from orders and judgments of the Judge exercising original insolvency jurisdiction was settled so far back as 1888 in favour of the vakils. In O.S. 'Appeal No. 10 of 1888 a Bench of the High Court held that a vakil was entitled to appear in an appeal from an order of the Insolvency Commissioner. In this appeal we are therefore concerned with the right of the vakil to appear in what I may call, for brevity's sake, original insolvency cases.

17. In order to determine whether a vakil had the right of audience in the Supreme Court, it is necessary to see what class of practitioners were allowed to practise before the Supreme Court. A Mayor's Court was established in Madras in 1753. It was superseded by the establishment of the Recorder's Court in 1798. The Supreme Court of ; Madras was established by a Royal Charter in 1800 by virtue of the Government of India Act of 1800. The Letters Patent of that year contained the following provision as regards the practitioners of that Court:

They authorized and empowered the Supreme Court of Judicature to approve, admit and enrol such and so many persons being bona fide practitioners of the law in the said Court of the Recorder at Madras at the time of the publication of this our Charter at Madras or having been admitted barristers-at-law in England or Ireland or having been admitted attorneys or solicitors in one of our Courts at Westminster or being otherwise capable according to such rules and qualifications as the said Court shall for that purpose make and declare, to act as well in the character of advocates as of attorneys in the said Court. And we do declare that no other person or persons whatsoever shall be allowed to appear and plead or act in the said Supreme Court of Judicature at Madras for and on behalf of such suitors or any of them.

18. The persons permitted to practise before the Supreme Court under the Letters Patent were :

(1) Persons being bond fide practitioners of the Law in the Court of the Recorder at Madras ;

(2) Barristers-at-law in England or Ireland ;

(3) Attorneys or solicitors in one of the Courts at Westminster;

(4) Being otherwise capable according to such rules and qualifications as the said Court shall for that purpose make and declare to act as well in the character of advocates as of attorneys in the said Court.

19. It is contended that the fourth class contemplated in the Letters Patent were vakils. What the Clause means is, persons otherwise capable according to such qualifications as the Court shall for the purpose make and declare, may be admitted to practise as advocates or attorneys. It was never intended by that Clause that there was to be a class of practitioners who had the right to appear, plead and act. Such a practitioner was unknown to the Courts in England and to the Mayor's Court as well as the Recorder's Court at Madras. The Supreme Court was established on the model of the King's Bench Court as is clear from the Supreme Courts Act of 1800, 39 and 40, Geo. III, ch. 79. The Letters Patent establishing the Supreme Court of Judicature at Madras, dated 26th December 1800, states, the Court was to have

such jurisdiction and authority as our justices of our King's Bench Court have and may lawfully exercise within that part of Great Britain called England as far as circumstances may permit.

20. The King's Bench Court knew of no class of practitioners who could appear, plead and act. An attorney appears and acts, and an advocate appears and pleads and their privileges and functions as well as their disabilities are well defined. It would be doing violence to language to construe the words of the Letters Patent as introducing a class of practitioners unknown to the framers of the Act. That the Supreme Court recognized no class of practitioners as vakils is clear from the rules of the Supreme Court now available. Under the rules in force so late as 1849, only attorneys, solicitors and proctors were recognized as the persons who could act in that Court. There is no evidence that a vakil was ever allowed to practise before the Supreme Court. This circumstance may be taken to be some indication of what was meant by the Letters. Patent and what the Judges and practitioners understood them to mean. The Letters Patent empowered the Supreme Court to enrol persons properly qualified according to its rules as advocates or attorneys and did not empower it to enrol persons who as practitioners had the right to appear, plead and act. The clause

we do declare that no other person or persons whatsoever shall be allowed to appear and plead or act in the said Supreme Court of Judicature at Madras for and on behalf of such suitors or any of them

is very emphatic. The Letters Patent did not give a wide discretion to the Supreme Court but empowered it to enrol duly qualified persons as advocates or attorneys whose functions, privileges and disabilities were well known to the framers of the Supreme Courts Act of 1800. That their Lordships of the Privy Council attach great importance to the negative Clause of the Letters Patent in construing the whole Clause is clear from the case reported in Morgan v. Leech (1841) 2 M.I.A., 428. In the light of this decision it cannot be reasonably contended that the fourth class contemplated by the Letters Patent were the vakils.

21. Second point.--Before the Crown took over the Government of India, the Supreme Court or the King's Court exercised jurisdiction within the limits of the Madras city, and the Bast India Company's Courts called Sudder Adalat and Fouzdari Adalat exercised appellate jurisdiction, civil and criminal, over the territories of the Bast India Company in the Presidency of Madras. After the Crown took over the Government of India, the Courts continued to exercise their several functions till the passing of the Indian High Courts Act of 1861, 24 and 25 Vict., ch. 104. It empowered the Crown to establish High Courts of Judicature in Bengal, Madras and Bombay. By Section 8 of the Act the Supreme Court of Madras and the Sudder Adalat and Fouzdari Adalat of this Presidency were abolished upon the establishment of the High Court. Clause 7 of the Letters Patent of 1861 authorized and empowered the High Court to approve, admit and enrol such and so many advocates as to the said High Court should seem meet. Clause 8 authorized and empowered the High Court to approve, admit and enrol such and so many vakils as the High Court should deem fit. Clause 9 relates to attorneys. Clause 10 empowered the High Court to make rules for the qualification and admission of advocates, vakils and attorneys. The High Court was given civil and criminal appellate jurisdiction and extraordinary original jurisdiction over the Presidency, and ordinary original civil and criminal jurisdiction within such local limits as may be declared by law or regulation of the Governor in Council. Rule 7 of the High Court Rules, dated 28th August 1862, allowed vakils to appear, plead and act in all matters of appellate jurisdiction, civil or criminal, and in matters of extraordinary original civil jurisdiction under Section 13 of the Letters Patent. It is clear from the rules that vakils had no right of audience on the original side of the High Court, whether it exercised civil or criminal jurisdiction and also in appeals from orders, judgments and decrees passed in the exercise of original jurisdiction. For the first time in 1863 it appears from the rules of the High Court, dated 1st October 1863, that some vakils were permitted to practise on the original side. A few vakils were enrolled as vakils on the original side and a separate roll was maintained for that purpose. Rule 2 relating to remuneration and practice of the vakils on the original side of the High Court was framed on the 1st October 1863. In 1865 Amended Letters Patent were issued. Clause 9 of the Letters Patent empowered the High Court to enrol advocates, vakils and attorneys. Fresh rules and orders relating to advocates, vakils and attorneys and the taxation for allowance of costs were framed by the High Court and were published on 5th July 1866. The rules of 1863 were to be read as part of the rules so far as the qualification and admission of advocates, vakils and attorneys were concerned. The rules recognized a vakil as a practitioner on the original side. In 1874 the attorneys objected to the vakils practising on the original side on the ground that the rules permitting them to practise were ultra vires. But a Full Bench of the High Court held that the rules were intra vires. Vide In the matter of the petition of the Attorneys I.L.R. (1875) Mad., 24 It is neither desirable nor expedient to question the correctness of the decision. It was not challenged till quite recently. Vested interests have been created and on the principle that what has been once settled should not be lightly upset it is not proper to question the soundness of the decision.

22. The right to appear on the original side did not ipso facto give the vakil a right to appear in the Court for the relief of insolvent debtors. The Letters Pate at did not give insolvency jurisdiction to the High Court The Court for the relief of insolvent debtors was first established by an Act of Parliament, 9 Geo. IV, ch. 73, and the Act was extended from time to time. In 1848, 11 and 12 Vict., ch. 21, was passed, wherein it was enacted that

the Court for the relief of insolvent debtors was to be holden by any Judge of the Supreme Court of Judicature in Calcutta and within the towns of Madras and Bombay and ' every advocate' and attorney of the said Supreme Courts at Calcutta, Madras and Bombay, respectively, shall be entitled to practise in the way of his profession in the Court for the relief of insolvent debtors of that Presidency and no other persons shall practise as advocates or attorneys in the said Court for the relief of insolvent debtors.

23. This section did not allow vakils to practise before the Court for the relief of insolvent debtors.

24. Third point.--It is next argued that the class of practitioners mentioned in Section 3 of 11 and 12 Vict., ch. 21, ceased to exist when the Supreme Court was abolished and there could not have been advocates and attorneys of the Supreme Court when there was no such Court and therefore the word 'advocate' could only apply to one who exercised the profession of an advocate, and a vakil being one who exercised the profession of an advocate became entitled to appeal before the Court for the relief of insolvent debtors. Section 3 of 11 and 12 Vict., ch. 21, recognized only advocates and attorneys. When the Supreme Court ceased to exist the advocates and attorneys of that Court became advocates and attorneys of the High Court in its original civil and criminal jurisdiction, and special provision was made by Rule 4 of the rules, dated 28th August 1862, for their being enrolled as vakils on the appellate side of the High Court. The Rules of 1862 did make a marked distinction between the original and. the appellate sides of the High Court. The advocates and attorneys of the Supreme Court became advocates and attorneys of the High Court. Their qualifications, rights and privileges as well as their disabilities remained the same. Though the Supreme Court was abolished, all its functions, powers and privileges were transferred to the High Court by Section 10 of the High Courts Act of 1861. This section was repealed by 28 and 29 Vict., ch. 15, Section 2. Section 11 of the High Courts Act of 1861 made applicable to the High Court and the Judges thereof all the provisions then in force of Acts of Parliament, or of any orders of Her Majesty in Council, or of any Acts of the Legislature of India, etc. What was applicable to the Supreme Court by virtue of Section 3 and other provisions of 11 and 12 Vict., ch. 21, became applicable to the High Court and the Judges thereof. Clause 18 of the Letters Patent makes it clear that the law and practice of the Court for the relief of insolvent debtors was not to be changed by the abolition of the Supreme Court and by the establishment of the High Court but was to be continued as it was before 1861. Clause 18 is in these terms:

And we do further ordain that the Court for the relief of insolvent debtors at Madras shall be held before one of the Judges of the said High Court of Judicature at Madras, and the said High Court and any such Judge thereof shall have and exercise, within the Presidency of Madras, such powers and authorities with respect to original and appellate jurisdiction and otherwise as are constituted by the laws relating to insolvent debtors in India.

25. The portion of the clause

such powers and authorities with respect to original and appellate jurisdiction and otherwise as are constituted by the laws relating to insolvent debtors in India

leaves no room for doubt that the old order of things was to continue. The Chief Justice of the High Court deputed one of the Judges to preside over the Court for the relief of insolvent debtors, and he was known as the Commissioner in Insolvency. That Court was governed by the laws relating to the insolvent debtors in India. With regard to the practitioners, Section 3 of 11 and 12 Vict., ch, 21, was in force. Before 1861 only advocates and attorneys practised before the Court for the relief of insolvent debtors, and after 1861 the same practitioners continued to practise and Section 8 did not permit any other person to practise before it.

26. The contention that advocates and attorneys ceased to exist when the Supreme Court was abolished and therefore the advocates and attorneys of the High Court had no right of audience in the Court for the relief of insolvent debtors is not worth serious consideration in the light of Clause 18.

27. The extreme contention that a vakil is an advocate and therefore he is entitled to practise in the Insolvency Court overlooks plain facts. Advocates are a distinct class with qualifications, rights and privileges and disabilities of their own. They are enrolled as a distinct class as advocates, whereas vakils do not possess the same qualifications and are not subject to the same disabilities. A vakil therefore cannot come within the term 'advocate' as used in the High Courts Act, in the Letters Patent and in Section 3 of 11 and 12 Vict., Ch. 21. It is unnecessary to consider this contention further.

28. The Court for the relief of insolvent debtors was not a part of the High Court but a distinct Court and any practitioner of the High Court was not as such entitled to a right of audience unless he fulfilled the conditions laid down in Section 3 of 11 and 12 Vict., ch. 21.

29. Fourth point.--'The Court for the relief of insolvent debtors was a Court subordinate to the High Court, and under Section 4 of the Legal Practitioners' Act, a vakil was entitled to appear in that Court.'

30. It is argued that the Court for the relief of insolvent debtors was a Court subordinate to the High Court because the High Court was empowered to make rules for that Court and was authorized to call for reports and hear appeals from it. There is no warrant for saying that the Court for the relief of insolvent debtors was a Court subordinate to the High Court. The original side of the High Court is presided over by one or more Judges of the High Court. It can by no means be said to be a Court subordinate to the High Court. The High Court frames rules for the conduct of business on the original side and hears appeals from the orders and decrees passed on that side. The original side of the High Court is a part of it and not a Subordinate Court. The Court for the relief of insolvent debtors was a distinct and separate Court established by an Act of Parliament and was presided over by one of the Judges of the Supreme Court, Madras, and after the High Court was established, by one of the Judges of the High Court; and appeals from orders and judgments in insolvency cases lay to the Supreme Court during its existence and thereafter to the High Court. This circumstance did not make the Court for the relief of insolvent debtors a Court subordinate to the High Court within the meaning of Section 4 of the Legal Practitioners' Act.

31. It is next urged that, even if the Court for the relief of insolvent debtors was not a Court subordinate to the High Court, Section 4 of the Legal Practitioners' Act authorized a vakil to practise in all the Courts in British India except a High Court on the roll of which he was not entered, and the Court for the relief of insolvent debtors being a Court in British India a vakil was entitled to practise before it. If this contention is to be upheld an attorney on the roll of the Madras High Court would be entitled to practise in the Court for the relief of insolvent debtors in Bombay or Calcutta.

32. Great reliance is placed upon the words 'and all' used in Section 4. The same words are used in Section 5 which relates to attorneys. From the use of these two words it cannot be said that the legislature intended to repeal Section 3 of 11 and 12 Vict., ch. 21. When the High Courts of Bengal, Bombay and Madras had not insolvency jurisdiction qua High Courts, it would be imputing absurdity to the Indian legislature to say that it intended that a vakil on the roll of the High Court should have the right to practise before the Court for the relief of insolvent debtors established by a special Act of Parliament wherein it was enacted what class of practitioners should practise before it. It is strongly urged on behalf of the appellant that Section 3 has been impliedly repealed by the enactment of Section 4 of the Legal Practitioners' Act. The principle upon which, the Courts should interpret a later Act as repealing a former enactment by implication has been laid down by eminent Judge, and the tests which they lay down do not apply to the present case. In Dobbs v. Grand Junction Waterworks Company (1882) 9 Q.B.D., 151 FIELD, J., in delivering the judgment of the Court observes as follows:

Repeal by implication is never to be favoured ; it is no doubt the necessary consequence of inconsistent legislation whenever it occurs, but which must not be imputed to the legislature unless absolutely necessary.

33. In Seward v. 'Vera Cruz' (1885) 10, App. Cas., 59 Earl of Selborne, L.C., lays down the principle in the following terms :

Now if anything be certain, it is this, that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that the earlier and special legislation indirectly repealed, altered, or derogated from marely by force of such general words, without any indication of a particular intention to do so. For that principle I may refer to Hawkins v. Gathercole (1855) 6 De. M.G., 1

34. A.L. Smith, J., states the principles upon which the Court should be guided in construing whether a later enactment repeals a former one by implication in Kutner v. Phillips [1891] 2 Q.B. 267

Now a repeal by implication is only effected when the provisions of a later enactment are so inconsistent with or repugnant to the provisions of an earlier one that the two cannot stand together, in which case the maxim leges postsriores contrarias abrogant applies. Unless two Acts are so plainly repugnant to each other that effect cannot be given to both at the same time, a repeal will not be implied, and special Acts are not repealed by general Acts, unless there is some express reference to the previous legislation or unless there is a necessary inconsistency in the two Acts standing together : Thorpe v. Adams (1871) 6 C.P., 125. Lord Coke in Gregory's Case (1596) 6 Rep., 19 (b), lays it down that a later statute in the affirmative shall not take away a former Act, and eo portiere if the former be particular and the latter be general; and Lord Hardwicke in the case of Middleton v. Crofts (1736) 2 Atk., 659 is to the same effect,

35. Lord Blackburn explains the principles in Ms own inimitable way in Garnett v. Bradley (1878) 3 App. Cas., 944

I think that where only general words are used there is a, strong presumption that the legislature did not intend to take away a particular privilege, right, or property, of a particular class, unless they have done something to show that. If they have done something in such a way as would show that that was their intention, if they have said in negative words that those rights or privileges shall all be taken away, any enactment to the contrary notwithstanding, that would prevent the presumption arising at all. But in the absence of that, I think it is an intelligible principle to say that the legislature shall not be presumed to have done anything unfair, and to have taken away this particular privilege, not having stated openly that they meant to take it away, or in such open or clear language that the persons affected might come and resist and use arguments to show why it should not be taken away, but having simply used general words quite consistent with their never having thought of this privilege at all. I think, my Lords, that that principle will reconcile almost all the cases ; certainly it will reconcile all I have cited, and it is a good and intelligible principle.

36. See Browne's Legal Maxima, 7th Edition, page 19, 11 and 12 Vict., ch. 21, was a special enactment. The Legal Practitioners' Act is a general Act made applicable to the whole of India. It cannot be said that, in passing a general Act like the Legal Practitioners' Act, the rights and privileges enjoyed by a particular class of persons under a special enactment which established a particular Court, were taken away and that the Legislature intended to alter the existing state of things and intended to repeal Section 3 of 11 and 12 Vict., ch. 21. The intention of the legislature not to alter vested rights or existing state of things is clear from the proviso to Section 4 itself. That proviso is in these terms :

Provided that no such vakil or pleader shall be entitled to practise under this section before a Judge of the High Court, Divisional Court or High Court exercising original jurisdiction in a Presidency Town.

37. When the legislature took care to perpetuate the state of things existing in 1878 in. Bombay and in Calcutta in the High Court itself for the benefit of whose practitioners it was enacting Section 4, can it be said that the legislature intended to throw open the Insolvency Court to the vakils I think, this proviso is an answer to the contention of the appellant.

38. In construing Section 4 the reason for enacting it should not be overlooked. Before the Legal Practitioners' Act of 1879 was passed, advocates and vakils of the High Court had to get permission from the presiding Judge of the District Court and other Subordinate Courts before they could appear and plead in such Courts, though in Madras the High Court by its rules of 1863 gave advocates and vakils the right to appear in all the Subordinate Courts. In order to remove this restriction of the right of the advocates and vakils to appear before the Subordinate Courts Section 4 was enacted. The Act was not primarily intended for the practitioners on the roll of the High Court but for the pleaders not on the roll of the High Court. Only Sections 4, 5, 7, 16, 25, 27, 32 and 36 are made applible to advocates, vakils and attorneys admitted and enrolled by the High Court under the Letters Patent. This contention of repeal by implication is an untenable one.

39. Fifth point.--In 1909 the Presidency Towns Insolvency Act was passed repealing 11 and 12 Vict., ch. 21. The Act gave insolvency jurisdiction to the High Courts of Judicature at Fort William, Calcutta, Bombay and Madras, and the Chief Court of Burma. The insolvency jurisdiction is now one of the several jurisdictions of the High Court. It is contended, that the vakil is entitled to appear before the High Court whatever jurisdiction it may exercise. Section 121 of the Presidency Towns Insolvency Act was specially enacted to preserve the state of things prevailing on the date of the passing of the Act with regard to the rights and privileges of the practitioners entitled to practise in the Court for the relief of insolvent debtors. The section did not confer any right of audience on persons who had it not before the passing of the Act. Section 121 is in these terms:

Nothing in this Act, or in any transfer of jurisdiction effected thereby, shall take away or affect any right of audience that any person might have had immediately before the commencement of this Act, or shall be deemed to confer such right in insolvency matters on any person who had not a right of audience before the Courts for the relief of insolvent debtors.

40. The section is emphatic in its terms. The Court for the relief of insolvent debtors did not allow vakils to practise before it. By the transfer of the jurisdiction to the High Court the right of audience which did not exist before was not conferred on any class of practitioners. In order to prevent the practitioners of the High Court who had not the right to appear in the Court for the relief of insolvent debtors claiming the right of audience in the new jurisdiction, Section 121 was enacted.

41. Before the passing of the Presidency Towns Insolvency Act the rules framed for the conduct of the business in the Court for the relief of insolvent debtors recognized only one class of practitioners, namely, attorneys--see Rules 117 and 118 of the rules under 11 and 12 Vict., ch. 21. After the passing of the Presidency Towns Insolvency Act fresh rules were framed by the Madras High Court. They also recognized only attorneys ---vide Order XV, Rules 121 to 131 of the rules framed under Presidency Towns Insolvency Act. For nearly a century, only advocates and attorneys were recognized as practitioners in the Court for the relief of insolvent debtors. For nearly half a century after the establishment of the High Court, no vakil claimed a right of audience in the Court for the relief of insolvent debtors. After the passing of the Act of 1909, there is nothing to show that, till this case came up, any vakil claimed the right of audience in the Insolvency Court. On the principle that vested rights should not be lightly interfered with and that the existing state of things should be maintained, Section 121 was enacted. It denies vakils the right of audience when the High Court exercises original insolvency jurisdiction. A very strong case must be made out before a long-established practice could be considered as illegal or opposed to law : In this connexion I may refer to a decision of Fletchee, J. in A vakil's appplication, In re. I.L.R., (1910) Cale., 853 In that case a vakil claimed a right to file a warrant of attorney in respect of a suit pending before the Midnapur District Court, in which a rule had been issued on behalf of the defendant calling upon the plaintiffs to show cause why the suit should not be transferred to the High Court in its extraordinary original civil jurisdiction. Fletcher, J., refused to allow the vakil to appear and made the following observations at page 854:

There has teen a long-continued practice in which vakils have never appeared, dating from the establishment of the High Court in 1862 and continuing down to 1910; and one would have thought that, had the vakils the right to appear, some exercise or claim to exercise that right would have been pat forward during a period of almost, half a century, I am satisfied that the claim to appear on an application for transfer has never yet been made. That being the established practice of this Court, it would be obviously improper for a single Judge sitting on the original side to depart from a practice regulating the various branches of the profession for such a period unless he was satisfied that the practice was wrong.

42. The High Courts of Calcutta, and Bombay have not thrown open the insolvency side of the High Court to vakils. This may not be a satisfactory argument against the appellant's contention, but it shows that the other High Courts have taken the same view. At least it shows that the vakils did not put forward a right to appear in insolvency cases. I am quite satisfied that Section 121 is a bar to the vakil's claim to appear in insolvency cases.

43. Sixth point.--It is further urged that granting that the High Court has power to frame rules prohibiting vakils from appearing in insolvency cases, no such rules have been framed and the vakil's right of audience on all sides of the High Court subsists. The Act which created the Court for the relief of insolvent debtors laid down what class of practitioners were to practise before it, and unless it can be held that the law relating to insolvency jurisdiction and its practice has been changed, it would not be open to a class of practitioners who had not the right to practise in an Insolvency Court to claim that right now. There are no rules prohibiting vakils from appearing in insolvency cases. Nor are there rules permitting them to appear in insolvency matters. The rules relating to practitioners both before and after the passing of the Indian Insolvency Act apply only to attorneys. There are no rules providing for the remuneration of vakils and taxation of their costs in insolvency matters. A safe inference can be drawn from the absence of rules as to remuneration of vakils in insolvency matters that the High Court denied them the right of audience in insolvency cases. The, long established practice has to be taken into consideration in deciding this point. Though there are no positive rules prohibiting a vakil from practising in the Insolvency Court, yet it must be presumed that the Hight Court gives effect impliedly to Section 3 of 11 and 12 Vict., ch. 21 and Section 121 of the Presidency Towns Insolvency Act. If the vakils have no right to appear in insolvency matters, the absence of a rule prohibiting them would not entitle them to appear in such cases. It was vehemently argued that the High Court could not make rules prohibiting vakils from appearing in the Insolvency Court. The High Court has power to frame rules for regulating the conduct of advocates, vakils and attorneys, and it has also power to frame rules with regard to their rights and privileges. The High Court can frame rules, if it likes that a vakil shall not practise before the Insolvency Court. It is unnecessary to pursue this matter farther as there are no rules prohibiting vakils from appearing in insolvency matters. The absence of any rule prohibiting vakils from appearing in insolvency matters does not give them the right to appear. On a fall and anxious consideration of the question, I have no hesitation in holding that a vakil has no right of audience in insolvency matters. The appeal fails and is dismissed.

Srintvasa Aytangar, J.

44. The question raised in this appeal has been invested with almost a sensational importance by reason of a long-standing and perhaps natural jealousy between two important and influential sections of the Bar in Madras. So far as I am personally concerned, the process of coming to a decision on such an important question has not been rendered easier for me by the bias in my mind imbibed, albeit unconsciously, during my close association with three generations of one of those sections of the Bar. I am now free to confess that during many years past the Relief that the vakils had an unquestionable right of audience in the Insolvency Court and that, therefore, their exclusion from it has been maintained only by the continued perpetration of a wrong has been one of the cardinal articles of creed in that branch of the profession and the names of some of the most eminent lawyers who belonged to that branch of the profession have come down associated with that faith. I have had, therefore, necessarily to steel myself against all such preconceived bias and approach the decision of the question merely as a dry question of law. After giving my earnest and anxious consideration to all the aspects of the arguments so ably placed before us by the learned gentlemen who appeared to represent the various branches of the profession, I have felt bound to come to the conclusion that under the law and the rules of Court, as they stand at present, the vakils have no right of audience in the Insolvency Court. By the courtesy of my Lord the Chief Justice, I have had the advantage of perusing his judgment. It is not, therefore, necessary for me to go over the entire ground. Mr. G. Krishnaswami Ayyar argued that even prior to the constitution of the High Court in 1861 under the Charter Act, vakils had a right of audience in the Insolvency Court as constituted by 11 and 12 Vict., ch. 21. I am constrained to observe that that brunch of his argument was more subtle than convincing and I am not sure that he was himself inclined seriously to press it. Mr. A. Krishnaswami Ayyar who appeared for the Madras High Court Vakils Association confined himself only to two arguments, both of which call for a close and critical examination. The pith of the contentions with regard to these two arguments may be summed up somewhat as follows : When under the Charter Act the High Court was established in the year 1861 the Insolvency Court established under 11 and 12 Vict., ch. 21 either remained and continued as a separate Court or else became merged in the High Court. If it be held that it became merged in the High Court, we shall show that as High Court vakils enrolled as such on the rolls of the High Court we are entitled, in the absence of any express rules prohibiting the same, to an audience in the Insolvency Court and we shall also show that by express rules the right of practising in all the jurisdictions of the Court has been expressly granted to us. If, on the other hand, it should be held that even after the constitution of the High Court the Insolvency Court remained and continued a separate Court, then we say that on the passing of the Legal Practitioners' Act of 1879 and under the provisions of Section 4 of that enactment we became entitled to practise before the Insolvency Court, because that Court is subordinate to the High Court and subject to its supervision or is at any rate a Court in British India not being a High Court. At first sight this dilemma seems no doubt staggering and almost unanswerable. I shall first deal with the first branch of this dilemma, namely, the arguments based on the theory of the merger of the Insolvency Court in the High Court. I am unable to see my way to accept any such theory of merger. The Court for the relief of insolvent debtors was the creature of a separate Parliamentary Statute, 11 and 12 Vict., ch. 21. That statute is independent and complete in itself. The only connexion which that Court had under that statute with the Supreme Court at the time was that the person to be appointed the Commissioner in insolvency was to be one of the Judges of the Supreme Court. This and any other incidental connexions with the Supreme Court cannot take away from the statutory independence as a separate Court of the Court for the relief of insolvent debtors. The Charter Act of 1860 and the Letters Patent issued thereon did no more than substitute the High Court in the place of the Supreme Court for purposes of such incidental connexions. There are no apt words in any enactment by which it could be deemed that the Court for the relief of insolvent debtors either became abolished or was merged in the High Court. It is not, therefore, necessary for me to consider the arguments based on the theory of merger. I admit there would be considerable force in the arguments advanced on the basis of the theory of merger if such merger could be found: but as it could not be found that there has been any such merger, no useful purpose is likely to be served by considering those arguments.

45. We are then left only with the other branch of the dilemma, namely, that of the Insolvency Court having continued as a separate Court in British India until the passing of the Legal Practitioners' Act and the enactment of Section 4 therein. I feel I cannot agree with the contention that as a separate Court the Insolvency Court was not a Court subordinate to the High Court. The provisions of law for the High Court making rules, appointing officers, etc., are of such a character which to my mind would make the Insolvency Court subordinate to the High Court within the meaning of any enactment and certainly within the meaning of Section 4 of the Legal Practitioners' Act. It is not necessary for me to labour that point, because it is inconceivable that the Insolvency Court should not be held to be at any rate a separate Court in British India. Under Section 4 of the Legal Practitioners' Act every High Court vakil is given a right to practise in every Court in British India other than the High Court on the rolls of which he is not enrolled. If therefore the Insolvency Court is a separate Court in British India, it follows that High Court vakils should, under the provisions of Section 4 of the Legal Practitioners' Act, have a right of audience in it. The position then is this : Under Section 3 of 11 and 12 Vict., ch. 21, a Parliamentary Act, only advocates and attorneys are allowed to practise in the Court for the relief of insolvent debtors. Then in 1879 the Government of India passes the Legal Practitioners' Act under which in general terms High Court vakils on the rolls of any of the High Courts are accorded the right of practice in all the Courts in British India except the High Court on the rolls of which they are not so enrolled. The Indian legislature has undoubtedly the power under the Parliamentary Statutes themselves to vary, modify and rescind with certain exceptions any, enactment relating to India passed by the Imperial legislature. The question then resolves itself into this. Has the Indian legislature by passing the Legal Practitioners' Act rescinded, varied or modified Section 3 of 11 and 12 Vict., ch. 21 The question has to be solved merely as a question of interpretation of Statutes. It is clear that the Legal Practitioners' Act has not purported to rescind, modify or vary Section 3 of 11 and 12 Vict., ch. 21, or any provision therein contained. It is true that the general words of Section 4 of the Legal Practitioners' Act granting a right of audience to vakils are inconsistent with the right of exclusive audience given by Section 3 of 11 and 12 Vict., ch. 21, to advocates and attorneys. In limine it seems to me that while the subordinate legislature is given power by the supreme legislature to rescind, modify or vary within limits any enactments of the supreme legislature, such power should, generally speaking, be exercised only expressly, and in the absence of any express exercise of such power it ought not to be open to construe any enactment of the subordinate legislature as involving necessarily an implied exercise of such power. The conflicts between the enactments of superior and inferior legislatures should not be dealt with or considered in the same manner as if such conflicts arose between two enactments, one earlier and the other later, of the same legislature. On principle there ought to be a difference made between the two cases, and I would venture to suggest that in the former case, where the subordinate legislature has only a power to vary within limits, the exercise of such power should either be express or at any rate be under circumstances or in terms tantamount to such express exercise of power. I cannot in the case before us see in the terms of the Legal Practitioners' Act any express exercise of power or intention to abrogate any enactment of the Imperial legislature or any circumstances or terms tantamount to such express exercise of power. Assuming, however, that the principles of construction applicable to this conflict between the Imperial enactment and the Indian enactment are exactly the same as those applicable to the earlier or later enactments of the same legislature, even then, I am unable to come to the conclusion that the Legal Practitioners' Act should be deemed to have abrogated or rescinded the provisions of Section 3 of the Insolvency Act. The principle of the maxim 'generalia specialbus non-derogant' is not only a proper rule of statutory construction, but is a rule based on good common sense. To take a common illustration, if a gentleman should give directions to his peon that a particular person should never be allowed to enter his house and some days afterwards give a general direction that all visitors should be admitted between certain hours, it cannot possibly be suggested that the later general direction was intended to cancel the particular order with regard to the particular person previously given. The principle on which such a rule of construction is based would appear to be that the cancellation or rescission of a previous special order could not have been intended if there is no indication whatever of the attention being drawn to such special order in connection with the more general directions given subsequently. In other words, it being a question of intention of the legislature, unless there is something to indicate such intention or in the absence of anything to show that the attention of the legislature was specially drawn to the previous special provision, no such intention could be inferred from a mere general provision subsequently made. In Section 3 of the Indian Insolvency Act the special provision is not only to the effect that every advocate or attorney of the Supreme Court shall be entitled to practise in the way of his profession in the Court for the relief of insolvent debtors but there is the further proviso that no other person shall practise as advocate or attorney in the said Courts. It is a distinct, affirmatively excluding, provision. It is a provision not only special but special in a special sense, namely, that while declaring the right to practise of certain persons it expressly excludes from practice all other persons. Now the question is whether by the terms of Section 4 of the Legal Practitioners' Act the Indian legislature intended or should be deemed to have intended to abrogate or cancel the special provisions contained in Section 3 of 11 and 12 Vict., ch. 21. It seems to me that no such intention could be inferred. Language much more apt than was used in Section 4 of the Legal Practitioners' Act would and should have been used by the Indian legislature if it was so intended. Further in the clause which specially enables High Court vakils to practise in any Court in British India the words used are 'any person so entered shall not-withstanding anything herein contained be entitled as such to practise.' If the contention of the appellant in this case should be correct, the word sused in that section should be not' notwithstanding anything herein contained 'but some such words as' notwithstanding any law or pro- . vision of law to the contrary.'' It almost seems to me that the express limitation of the words to anything contained in the Act itself would rather seem, to indicate that the intention of the legislature was not to interfere with any other special law or provision of law contained elsewhere. The words 'as such' mast have been pub in, in order specially to prevent members of one branch of the profession claiming to practise as members of any of the other branches of the profession. I doubt however whether these words 'as such' are apt enough by themselves to exclude High Court vakils from practising in any Court in British India merely because previously to the Act, High Court vakils were not allowed to practise in such Courts. But it is unnecessary to consider this point as, even apart from it, I have come to the conclusion that on a proper construction of Section 4 of the Legal Practitioners' Act it could not be held that the provisions of Section 3 of the Indian Insolvency Act have been abrogated or repealed.

46. If therefore even after the passing of the Legal Practitioners' Act, High Court vakils had no right of audience in the Insolvency Court, it follows that when the Presidency Towns Insolvency Act was passed in 1909 they were not so entitled, and that, even though the Insolvency Court became by reason of that Act merged in the High Court, by reason of the provisions of Section 121 of that Act nothing in any transfer of jurisdiction effected by that Act shall be deemed to confer any right of audience not possessed by any person at the time of the passing of the said Act, and as I have come to the conclusion that there was no such right previous to 1909 it follows that no such right could have been obtained merely by reason of the merger of the Insolvency Court into the High Court under that Act. I therefore agree that the appeal fails and is liable to be dismissed.


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